PSH-13-0008

* The original of this document contains information which is subject to withholding from disclosure
under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: January 24, 2013 ) Case No.: PSH-13-0008
)
_________________________________________ )
Issued: June 6, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization1 under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” As
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In October 2012, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about his alcohol use. In addition to the PSI, the LSO requested the individual’s
medical records and recommended a psychiatric evaluation of the individual by a DOE
consultant psychiatrist (DOE psychiatrist). The DOE psychiatrist examined the individual in
November 2012 and memorialized his findings in a report (Psychiatric Report). According to
the DOE psychiatrist, the individual suffers from Alcohol Abuse, in Partial Remission. The
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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DOE psychiatrist further concluded that the individual’s Alcohol Abuse is a mental illness that
causes or may cause a significant defect in his judgment and reliability.
In January 2013, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding his eligibility to hold an
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of two potentially disqualifying criteria set forth
in the security regulations at 10 C.F.R. § 710.8, subsections (h) and (j) (hereinafter referred to as
Criteria H and J, respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the individual presented his own testimony and that of six witnesses. The DOE
Counsel called one witness, the DOE psychiatrist. Both the DOE and the individual presented a
number of written exhibits prior to the hearing.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather,
the standard in this proceeding places the burden on the individual because it is designed to
protect national security interests. This is not an easy burden for the individual to sustain. The
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denial”); Dorfmont v. Brown, 913 F.2d
1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the
issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that
restoring his access authorization “will not endanger the common defense and security and will
be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a very
broad range of evidence at personnel security hearings. Even appropriate hearsay may be
admitted. 10 C.F.R. § 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
2 Criterion H relates to information that a person has “[a]n illness or mental condition of a nature which, in the
opinion of a psychiatrist or licensed clinical psychologist, causes or may cause, a significant defect in judgment or
reliability.” 10 C.F.R. § 710.8(h). Criterion J relates to information that a person has “[b]een, or is, a user of
alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed clinical psychologist as alcohol
dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j).
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B. Basis for Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to issue a
Decision that reflects my comprehensive, common-sense judgment, made after consideration of
all the relevant evidence, favorable and unfavorable, as to whether the granting or continuation
of a person’s access authorization will not endanger the common defense and security and is
clearly consistent with the national interest. 10 C.F.R. § 710.7(a). I am instructed by the
regulations to resolve any doubt as to a person’s access authorization in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites two criteria as bases for suspending the individual’s security
clearance: Criteria H and J. To support Criterion H, the LSO relies on the diagnosis of the DOE
psychiatrist that the individual suffers from Alcohol Abuse. As for Criterion J, the LSO cites the
DOE psychiatrist’s opinion, as well as the individual’s admission to excessive drinking,
including his excessive drinking before he tested positive on a random alcohol screening
conducted at this employment. DOE Exh. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s alcohol use under both Criteria H and J. First, a mental condition such as
Alcohol Abuse can impair a person’s judgment and reliability and trustworthiness. See
Guideline I of the Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information issued on December 29, 2005, by the Assistant to the President for
National Security Affairs, The White House (Adjudicative Guidelines). Second, the excessive
consumption of alcohol itself is a security concern because that behavior can lead to the exercise
of questionable judgment and the failure to control impulses, which in turn can raise questions
about a person’s reliability and trustworthiness. See id. at Guideline G.
IV. Findings of Fact
On September 27, 2012, the individual tested positive for alcohol during a random alcohol
screening performed by his employer. DOE Exh. 3. His Blood Alcohol Content registered .06
around 9:30 am, and he was therefore placed on administrative leave. Id. During an October
2012 PSI, the individual admitted that he became intoxicated the evening prior to the test after
consuming eight 10 ounce drinks of vodka and Gatorade, containing two ounces of vodka per
drink, between 8:00 pm and 12:00 am. Id. According to the individual, his son was
experiencing distress in engineering school. Id. While having a conversation with his son to
reassure him, he “lost track” of how much he drank. Id. The individual admitted that he
consumed alcohol seven hours prior to his scheduled arrival at work despite being aware of his
employer’s prohibition from consuming alcohol eight hours prior to reporting for duty. Id. In
addition, during his PSI, the individual admitted that from the mid-1980s to the present, he
consumed three or four 16-ounce beers or three or four 10-ounce mixed drinks three to four
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nights a week. Id. Despite his wife complaining about his alcohol consumption and her
suggesting that he seek counseling four years ago, the individual did not change his consumption
of alcohol, or seek treatment. Id.
On November 27, 2012, the DOE psychiatrist evaluated the individual. In his report, he
concluded that the individual met the criteria for Alcohol Abuse, in Partial Remission. The DOE
psychiatrist further concluded that the individual’s Alcohol Abuse is an illness or mental
condition, which causes, or may cause, a significant defect in judgment or reliability. DOE Exh.
4.
V. Analysis
I have thoroughly considered the record in this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c)3 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should be restored. I find that
restoring the individual’s DOE security clearance will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
A. The Diagnosis of Alcohol Abuse
The DOE psychiatrist explained in detail in the Psychiatric Report how the individual met the
diagnostic criteria set forth in the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR) for Alcohol Abuse. DOE
Exh. 4. The individual does not dispute the DOE psychiatrist’s diagnosis of Alcohol Abuse, in
Partial Remission. Therefore, the focus of the analysis will be on whether the individual has
demonstrated adequate evidence of rehabilitation or reformation from Alcohol Abuse.
B. Evidence of Rehabilitation and Reformation from Alcohol Abuse
During the hearing, the individual explained that prior to failing a random alcohol screening in
September 2012, he was trying to console his son who was having difficulties in one of his
classes. Transcript of Hearing (Tr.) at 128. According to the individual, he had a lengthy
discussion with his son who was very “panicky” at the time. Id. at 129. He testified that he had
a mixed drink of Vodka and Gatorade. Id. The individual further testified when he failed the
alcohol screening, he called his employer’s Employee Assistance Program (EAP). Id. at 133.
The EAP psychologist recommended that the individual attend an Intensive Outpatient
3 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct, the age
and maturity at the time of the conduct, the voluntariness of his participation, the absence or presence of
rehabilitation or reformation and other pertinent behavioral changes, the motivation for the conduct, the potential for
pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence, and other relevant and
material factors.
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Treatment program (IOP). Id. The individual admitted that prior to this point, he believed that
he had difficulty controlling the amount of alcohol he drank. Id. at 143.
The individual testified that he entered an IOP on October 26, 2012, which met four days a week.
He stated that the IOP required that he engage in “schema” therapy, a therapy that focuses on
behavioral characteristics, and read daily meditations. Id. at 139 and 140. As a result of this
therapy, the individual now has the ability to listen and cope better. Id. at 144. The IOP also
required the individual to attend Alcoholics Anonymous (AA) meetings. Id. at 140. He
completed the IOP on December 31, 2012, and subsequently began attending aftercare meetings
and continues to attend AA meetings. According to the individual, he has abstained from
alcohol for five months. Id. at 146. He testified that his future intention is to not allow alcohol
to be a part of his life. Id. at 152 and 154. The individual further testified that his wife, children
and friends have been a network of support for him. Id. at 154. This support also includes
meeting with a licensed alcohol counselor, also a clinical psychologist. Id.
During the hearing, the individual offered the testimony of his alcohol counselor. She testified
that when she first met with the individual on February 15, 2013, she was impressed that the
individual was dedicated to work on his sobriety. Id. at 14 and 15. The psychologist, who has
met with the individual seven times and with his wife on one occasion, opined that the individual
has been very engaged and committed to therapy and stated that as long as the individual utilizes
his sobriety tools, his prognosis is favorable. Id. at 16, 18 and 19. According to the
psychologist, she believes the individual is in early recovery and full remission from Alcohol
Abuse. Id. She highlighted several factors that weigh in the individual’s favor, including his
successful completion of an IOP, his good relationship with his AA sponsor and his weekly
therapy sessions. Id. The psychologist further stated that the individual has shown no indication
that he is struggling with cravings, clearly understands that he is an alcoholic and has good
impulse control. She believes the individual’s risk of relapse is low because there is an absence
of a co-existing disorder. Id. at 19 and 24. Finally, she testified that the individual’s judgment
and reliability are not impaired. Id. at 24.
The individual also offered the testimony of his AA sponsor, his wife, two supervisors and a co-
worker. The individual’s AA sponsor testified that the individual attends weekly AA meetings
and has already taken on a leadership role by facilitating meetings. He stated that the individual
is working on step 5 of the 12 step program in AA. Id. at 49. The sponsor testified that he
speaks to the individual on almost a daily basis and believes the individual has no desire to return
to drinking. Id. at 50. The individual’s wife testified that she has not observed the individual
drinking since October 26, 2012. She stated that since her husband has entered treatment and
therapy and has stopped drinking, their home life has improved. Id. at 82. Both of the
individual’s supervisors as well as his co-worker testified that the individual is reliable and
exercises good judgment. Id. at 96, 107 and 117.
The DOE psychiatrist listened to all the testimony at the hearing before testifying himself. He
testified that he considers the individual to have fulfilled reformation and rehabilitation. Id. at
179. He noted that he was greatly impressed by the individual’s progress and stated that when
weighing the relative severity of the individual’s drinking versus the accomplishments in his
recovery efforts, the individual’s prognosis is very favorable. Id. The DOE psychiatrist further
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opined that the individual’s pattern of recovery and commitment demonstrate that he has a new
life and a new perspective. Id. He stated that he was struck by the individual’s sincere
relationships with his AA sponsor and noted a major shift in the individual’s familial
relationships, particularly his relationship with his wife. Id. at 180. He believes the individual
appreciates his sobriety. Id. at 181. The DOE psychiatrist reiterated that his major concerns
have been addressed and that individual is on good path. Id. He opined that the individual no
longer has a significant defect in his judgment and reliability. Id. at 182. Finally, the DOE
psychiatrist noted again that when weighing the severity of the individual’s illness against his
success at recovery, the individual’s recovery efforts are impressive, noting that the individual
has not had any other major alcohol-related events such as alcohol arrests. Id. at 184.
C. Hearing Officer’s Evaluation of the Evidence
In the administrative process, Hearing Officers accord deference to the expert opinion of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).4 At the outset, I
note that I am persuaded by the favorable testimony of the DOE psychiatrist that the individual
has achieved adequate evidence of rehabilitation and reformation. Moreover, the Adjudicative
Guidelines describe factors that could mitigate security concerns involving both psychological
conditions and alcohol consumption. See Adjudicative Guideline, Guidelines G and I, ¶ 23 and
¶ 29, respectively. In this case, the individual has satisfied the following mitigating factors: (1)
the individual has acknowledged his alcohol abuse, provided evidence of actions taken to
overcome his problem and has established a pattern of responsible use; (2) the individual has
successfully completed an IOP with required aftercare, has demonstrated a clear and established
pattern of abstinence in accordance with his treatment recommendations, i.e., his participation in
AA meetings, and has received a favorable prognosis by a duly qualified medical professional;
and (3) the DOE psychiatrist has opined that the individual is in remission, and has a low
probability of recurrence or exacerbation. Adjudicative Guidelines G and I, ¶ 23 (b) and (d) and
¶ 29 (c), respectively. For these reasons, I find that the individual has mitigated the DOE’s
security concerns under Criteria H and J.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criteria H and J. After
considering all the relevant information, favorable and unfavorable in a comprehensive common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
find that the individual has brought forth convincing evidence to mitigate the security concerns
associated with Criteria H and J. I therefore find that restoring the individual’s access
authorization would not endanger the common defense and security and would be consistent
with the national interest. Accordingly, I find that the individual’s access authorization should
4 Decisions issued by OHA are available on the OHA website located at http://www.oha.doe.gov. The text of a
cited decision may be accessed by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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be restored. The parties may seek review of this Decision by an Appeal Panel under the
regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: June 6, 2013