PSH-13-0016

* 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: February 11, 2013 )
) Case No.: PSH-13-0016
__________________________________________)
Issued : June 20, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a
DOE security clearance and participate in the Human Reliability Program (HRP).2 An
anonymous report to his employer triggered an investigation into an incident in August
2011 in which a co-worker came upon the individual naked outside of a local
convenience store at approximately 2 a.m. As a result of the information generated during
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.
2
The HRP is a security and safety reliability program designed to ensure that individuals who occupy
positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the
highest standards of reliability and physical and mental suitability. See 10 C.F.R. § 712.
2
this investigation, the individual’s HRP certification was suspended and the Local
Security Office (LSO) conducted a personnel security interview (PSI) with the individual
on October 18, 2011 (2011 PSI). See Exhibit 15, Exhibit 18. Following the 2011 PSI, the
individual was referred to a DOE consulting psychologist for an evaluation which took
place on December 16, 2011 (2011 Evaluation). See Exhibit 12.
Prior to a decision with respect to the individual’s HRP certification, a periodic
reinvestigation of the individual’s access authorization became due. The LSO noted
discrepancies between statements made by the individual during the reinvestigation with
respect to his alcohol usage and those made by him during the 2011 PSI and 2011
Evaluation. Exhibit 17 at 7. As a result, another PSI was conducted with the individual
on October 18, 2012 (2012 PSI) and, subsequently, the individual was referred to the
DOE consulting psychologist for another evaluation which took place on November 30,
2012 (2012 Evaluation). See Exhibit 11, Exhibit 17.
Since the 2012 Evaluation did not resolve concerns about either the individual’s alcohol
use or discrepant reporting, the LSO informed the individual in a letter dated January 2,
2013 (Notification Letter), that it possessed reliable information that created substantial
doubt regarding his eligibility to hold a security clearance. In an attachment to the
Notification Letter, the LSO explained that the derogatory information fell within the
purview of three potentially disqualifying criteria set forth in the security regulations at
10 C.F.R. §§ 710.8, subsections (h), (j) and (l) (hereinafter referred to as Criterion H,
Criterion J and Criterion L, respectively).3 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and,
subsequently, I conducted an administrative hearing in the matter. At the hearing, the
LSO presented the testimony of one witness, the DOE consulting psychologist; the
individual presented the testimony of two witnesses, including that of himself. The LSO
introduced 19 numbered exhibits into the record; the individual tendered no exhibits. The
exhibits will be cited in this Decision as “Ex.” followed by the appropriate numeric
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.4
3
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 a licensed clinical psychologist, causes, or may cause, a significant defect in
judgment or reliability . . .”; 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 . . .”; and Criterion L relates to information that a
person has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that
the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual
may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary
to the best interests of the national security . . .” 10 C.F.R. §710.8(h), (j)and (l).
4 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed
by entering the case number in the search engine at www.oha.gov/search.htm.
3
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 denials”); 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 with evidence to convince the DOE that granting 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
evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
B. Basis for the 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 eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited three criteria as the bases for suspending the
individual’s security clearance: Criterion H, Criterion J and Criterion L. Criterion H
concerns information that a person has “an illness or mental condition of a nature which,
in the opinion of a board-certified psychiatrist, other licensed physician or a licensed
clinical psychologist causes, or may cause, a significant defect in judgment or reliability.”
10 C.F.R. § 710.8(h). It is well established that “certain emotional, mental, and
personality conditions can impair judgment, reliability, or 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). Conduct
involving such psychological conditions can raise questions about an individual’s ability
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to protect classified information. With respect to Criterion H, the LSO relied on the 2012
Evaluation in which a DOE consulting psychologist concluded that the individual met the
Diagnostic Statistical Manual of the American Psychiatric Association IVth Edition TR
(DSM-IV-TR) criteria for Alcohol Dependence, in Early Partial Remission, and that that
is a condition that could cause significant defects in his judgment and reliability. Ex. 1
and Ex. 11 at 8.
Criterion J refers to information indicating that an individual 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(h). Excessive alcohol consumption raises a security concern because it can lead
to questionable judgment and the failure to control impulses, which in turn can raise
questions about a person’s reliability and trustworthiness. See Adjudicative Guidelines at
Guideline G; Personnel Security Hearing, Case No. PSH-11-0035 (April 19, 2012). The
LSO noted (1) the individual’s acknowledgment that he had consumed a 12 pack of beer
and passed out in a bar prior to being arrested and charged with Driving While
Intoxicated in July 2001, and (2) the individual’s acknowledgment that he had consumed
three or four 12-ounce beers prior to the incident in August 2011, in which a co-worker
had come upon the individual naked outside of a local convenience store, and could not
recall what had happened to him or how he had arrived at the store. Additionally, the
DOE psychologist’s 2012 Evaluation concluded that the individual met the DSM-IV-TR
criteria for Alcohol Dependence, without adequate evidence of rehabilitation or
reformation. Ex. 1 and Ex. 11 at 8.
Criterion L concerns information that an individual has engaged in conduct “which tends
to show that the individual is not honest, reliable, or trustworthy….” 10 C.F.R. § 710.8(l).
With respect to Criterion L, the LSO cited the individual’s discrepant reporting of his
alcohol use during the 2011 and 2012 investigations. Additionally, the LSO noted that the
individual had admitted to the DOE psychologist during the 2012 Evaluation that he had
not been honest about his alcohol use during the 2011 PSI and 2011 Evaluation because
he was concerned that he would lose his job. Ex. 11 at 3. Conduct reflecting questionable
judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations raises questions about an “individual’s reliability, trustworthiness and ability
to protect classified information.” Adjudicative Guidelines at Guideline E.
In light of the information available to the LSO, the LSO properly invoked Criterion H,
Criterion J and Criterion L.
IV. Findings of Fact
One evening in August 2011, the individual consumed three or four beers at a local bar
that he frequented. Ex. 18 at 14. At approximately 2 a.m. the next morning, a co-worker
found the individual incoherent and wearing no clothes outside of a local convenience
store. Id. at 17. The co-worker helped the individual get home safely and the individual
awoke later that morning feeling no adverse effects from the evening before but having
no memory of the events between drinking at the bar and his co-worker finding him at the
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convenience store. Id. at 20, 22 – 25. The individual did not seek medical examination or
testing following this incident. Id. at 26 – 28.
The individual believes that a beer he drank that evening had been spiked with a
Rohypnol, a “date rape” drug, that had been intended for one of the women at the table
where he was sitting. Ex. 16 at 4, Ex. 12 at 3. The DOE psychologist opined that the
effects described by the individual and his lack of symptoms the following morning are
consistent with ingestion of Rohypnol and inconsistent with alcohol intoxication. Tr. at
42 – 43.
During the subsequent investigation of the incident by his site’s HRP official, the
individual was interviewed by the LSO and evaluated by a DOE psychologist. At the
commencement of the 2011 PSI, the individual signed an acknowledgment that 18 U.S.
Code § 1001 imposes penalties for knowingly providing false information in a matter
within the jurisdiction of a federal agency and, further, he provided an oral description of
his understanding of those legal sanctions. Ex. 18 at 7 – 8, 102. At the end of the 2011
PSI, he confirmed that he had been honest and truthful during the interview. Id. at 97.
During the 2011 PSI and the 2011 Evaluation, the individual reported that his
consumption of alcohol beginning in 2006 was three to four beers, four times per month,
and that he had not been intoxicated since 2001.5 Id. at 52 – 54. The DOE psychologist,
in reliance on this information, concluded that the individual met the criteria for Alcohol
Dependence but no longer deserved that diagnosis in light of his moderate alcohol
consumption and his not having been intoxicated since 2001; he further opined that the
individual had evidenced adequate rehabilitation or reformation and did not have an
illness or mental condition of a nature that causes or could cause a significant defect in
judgment or reliability. Ex. 12 at 6.
Prior to the restoration of the individual’s HRP certification, the individual’s access
authorization came due for periodic reinvestigation. During this investigation, the
individual reported a higher level of alcohol consumption to the OPM investigator (i.e.,
12 beers per week) and the LSO decided to conduct a PSI because of these discrepancies.
Ex. 17 at 7 – 8. When confronted with the discrepancies during the 2012 PSI, the
individual confirmed that the higher level of alcohol consumption that he reported to
OPM was correct and speculated that the DOE psychologist may have misread his own
handwriting. Id. 8 – 9.
When the DOE psychologist subsequently read to the individual portions of the transcript
of the 2011 PSI which made clear the individual had fully understood the questions, the
individual responded with “a brief flash of anger” and stated “I couldn’t say that I was
getting intoxicated! I really want this job… I need this job… If I had said that I was
getting intoxicated then you guys would take away my job! I was dishonest and that is
why.” Ex 11 at 8. During the hearing, the individual confirmed that the DOE
5 In a later portion of the 2011 PSI when the investigator suggested a definition of intoxication that would
include “being buzzed,” the individual acknowledged that he would have been intoxicated by that
definition while in the military. Ex. 18 at 73 – 74.
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psychologist had accurately quoted him and that he had knowingly provided false
information in 2011. Tr. 29 – 31, 48 – 49.
Based on the revised information about the individual’s alcohol usage, the DOE
psychologist concluded that the individual warranted the continuing diagnosis of Alcohol
Dependence (with the modifier of “in Early Partial Remission” based on the individual’s
reduced alcohol consumption during the three months prior to the evaluation) and that
this is a condition that could cause significant defects in his judgment and reliability.
Ex. 11 at 8. The DOE psychologist opined that in light of the revised information about
the individual’s alcohol consumption, the individual has not evidenced adequate
rehabilitation or reformation. To do so, the individual would need to (1) remain abstinent
for ten months, (2) be subject to frequent, random ethyl glucuroinide tests, (3) participate
in an intensive outpatient alcohol treatment program and continue with aftercare
meetings, and (4) be evaluated for mediation and/or cognitive/behavioral therapy for his
depressive tendencies. Id.
The individual continues to consume alcohol. His current alcohol consumption is two or
three beers, two or three times per week, and, when he drinks, he drinks to get a “buzz”
but avoids “intoxication” which he defines as slurred speech, poor judgments, stumbling,
and not being able to drive. Tr. 23, 28, 52 –53. The evening prior to the administrative
review hearing, the individual consumed three beers. Id. at 26.
V. Analysis
I have thoroughly considered the record of 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)6 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored. I cannot 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. Review of Criterion H and Criterion J Security Concerns
Following the revised information about the individual’s alcohol consumption that was
received during the 2012 PSI and the 2012 Evaluation, the DOE consulting psychologist
diagnosed the individual as meeting the criteria set forth in the DSM-IV-TR for Alcohol
Dependence, Early Partial Remission, without adequate evidence of rehabilitation or
6 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.
7
reformation, and opined that this is a condition that could cause a significant defects in
his judgment and reliability. Ex. 11 at 8. Although the individual is aware of the 2012
Evaluation, he does not believe that alcohol consumption is an issue for him. Tr. at 36,
52, 59.
The 2012 Evaluation outlined, as described above, the steps the individual would need to
take in the opinion of the DOE psychologist to demonstrate adequate rehabilitation or
reformation. The individual testified that he had understood the 2012 Evaluation to be a
recommendation to DOE and that he did not interpret the measures set forth to evidence
rehabilitation or reformation to be requirements of DOE. Id at 33. He testified with
respect to abstinence, for example, that he had abstained from consumption of alcohol for
two years while deployed by the military and that he would abstain from alcohol again if
someone were to tell him that that’s what DOE required of him. Id. at 33, 34, 36, 39, 43.
Since no one had contacted him about scheduling random ethyl glucuroinide tests (as
recommended in the 2012 Evaluation), the individual testified that he thought he was
“okay” as far as DOE was concerned. Id. at 63.
Whatever genuine confusion the individual may have had in this regard should have
ended upon his receipt of the Notification Letter, which specifically sets forth DOE’s
concerns with respect to Criterion H and Criterion J. While instituting ethyl glucuroinide
testing may have been outside the individual’s control, abstaining from alcohol
consumption and enrolling in an intensive outpatient alcohol treatment program were
within his control and, in the five months between his receipt of the Notification Letter
and the date of the administrative review hearing, he did not pursue either action.
The administrative review hearing provides an individual the opportunity to mitigate, or
even refute, the LSO’s security concerns. The individual presented no expert testimony or
documentation with respect to the alcohol-related and psychological concerns set forth in
the Notification Letter. To address these issues, he offered his own testimony. In light of
the conclusions set forth in the 2012 Evaluation, the individual’s own testimony that he
drinks beer because he enjoys the taste of it and that he believes his consumption of
alcohol is controlled because he has reduced his alcohol consumption to only two or three
beers, two or three times per week (in each case to obtain a “buzz” but stopping at that
point) does little to allay the concerns set forth in the Notification Letter. Id. at 24, 53.
Drinking three beers the evening before an administrative review hearing on alcohol-
related security concerns, as the individual testified he had done, could reflect the
individual’s view that his alcohol consumption is fully controlled, but seems more likely
to suggest a misunderstanding of the personnel security concerns raised by the LSO or a
lack of earnestness. I found no evidence presented by the individual sufficient to mitigate
the Criterion H and Criterion J security concerns. See Adjudicative Guidelines at
Guideline G ¶23 and Guideline I ¶29.
Hearing Officers customarily accord deference to the opinions of mental health
professionals with respect to security concerns under Criterion H and Criterion J. At the
hearing, the DOE psychologist who had been present throughout the hearing testified
that, having heard the testimony of the individual, the psychologist would continue his
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diagnosis of Alcohol Dependence,7 which is a condition that could cause the individual to
have a significant defect in judgment or reliability. Tr. at 59 – 60, 63. The psychologist
noted that the individual was becoming legally intoxicated as recently as August 2012.
Id. at 65. With respect to evidencing adequate rehabilitation or reformation, the DOE
psychologist stated that he would still want to see ten months of abstinence and
participation by the individual in an intensive outpatient treatment program. Id. at 67. As
of the date of the hearing, the individual has not established any period of abstinence
subsequent to the 2012 Evaluation or commenced a treatment program.
I find that based on the foregoing the individual has not mitigated the security concerns
associated with Criterion H and Criterion J at this time.
B. Review of Criterion L Security Concerns
The LSO’s security concerns with respect to Criterion L8 were triggered by the
individual’s discrepant reporting of his alcohol consumption, specifically reporting an
inaccurately low amount of alcohol consumption during the 2011 PSI and 2011
Evaluation. The individual testified that he really did not know the amount of alcohol he
consumed over the various periods of life and had tried to provide accurate responses to
questions asked; however, the security concerns raised in the Notification Letter under
Criterion L are not with respect to statements where the individual had sincerely deficient
memory. Id. at 21, 26.
The individual testified that during the initial investigation of the August 2011 incident
he had been fully honest and, having always understood that if he told the truth to the
HRP official everything would be fine, he felt “blind-sided” when his HRP certification
was suspended during that investigation. He felt he had been punished for telling the
truth. He testified that during the 2011 PSI and 2011 Evaluation he was afraid that he
would lose his job if he told the truth about his alcohol consumption. Id. at 30, 49 – 50.
During the 2012 PSI, he was confronted with his discrepant reporting and did not take the
opportunity to rectify his prior falsehoods. Instead, he tried to blame poor penmanship of
the psychologist. Ex. 17 at 8 – 9. Cf. Adjudicative Guidelines at Guideline E at ¶ 17(a).
7 In light of the passage of time since the 2012 Evaluation, the DOE psychologist would modify the
diagnosis from “Alcohol Dependence, Early Partial Remission” to “Alcohol Dependence, Early Full
Remission.” Tr. at 63.
8 The LSO brought no security concerns under Criterion F and no finding in this Decision is made under
Criterion F. Criterion F relates to information that a person as “deliberately misrepresented, falsified, or
omitted significant information from a … personnel security interview, written or oral statements made in
response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE
access authorization… .” 10 C.F.R. § 710.8(f).
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When confronted with the actual transcript of the 2011 PSI by the DOE psychologist, the
individual acknowledged that he had been knowingly dishonest. He made a similar
acknowledgement during the hearing.9 Tr. at 30.
Making false statements in order to influence a decision about eligibility for access
authorization constitutes dishonesty that is relevant and material to the personnel security
process. The individual was fully aware of his obligation to being honest during the
process as reflected by his acknowledgment of 18 U.S. Code § 1001.
It is critical that those with access authorization are honest at all times. Dishonesty during
the security clearance process raises concerns that an individual may be unwilling or
unable to comply with required security procedures and regulations and raises questions
about the individual’s character, reliability, trustworthiness and judgment. Security
concerns are particularly grave where an individual’s dishonesty is economically
motivated as it is in this case where the individual stated that his dishonesty was
motivated by fear over the loss of his job. Holders of access authorization are expected to
be honest at all times, even if that honesty is to their detriment. Engaging in dishonesty of
this type makes one vulnerable to coercion should others learn of the deception, thereby
creating additional security concerns.
During both the 2011 PSI and the hearing, the individual made statements to the effect
that he had told the truth during the initial investigation of the August 2011 incident and
that he had not needed to do so because all the HRP had at that time was hearsay or
second hand information. This is simply not true – honesty is not optional when one
holds access authorization.
The individual testified that he regretted his dishonesty and I believe that his regret is
sincere. Id. at 23. However, regret is insufficient to mitigate these Criterion L concerns,
particularly where the dishonesty was material to the security clearance process, was
motivated by one’s own economic interest and was only acknowledged after being
confronted for a second time. Based on the foregoing, the individual has not mitigated the
security concerns associated with Criterion L with respect to his honesty, reliability and
trustworthiness.
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 Criterion H, Criterion J
and Criterion L. 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 have found that the individual
has not brought forth sufficient evidence to mitigate the security concerns associated with
Criterion H, Criterion J and Criterion L. Accordingly, I have determined that the
9 The individual testified that following the suspension of his HRP certification, “I was scared if I told the
truth… . I was like, ‘Well, if I keep telling the truth, then I’m going to lose my job, and I don’t want to lose
my job.’” Tr. at 30.
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individual’s access authorization should not 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.
Wade M. Boswell
Hearing Officer
Office of Hearings and Appeals
Date: June 20, 2013