PSH-13-0019

* 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 19, 2013 )
) Case No.: PSH-13-0019
__________________________________________)
Issued : June 11, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (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 that he hold a
DOE security clearance. In September 2012, the individual scheduled an appointment
with his employer’s Designated Psychologist to discuss stress the individual was
experiencing in his personal life and, during that consultation, the individual planned to
surrender certain credentials he held as a participant in the Human Reliability Program
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
(HRP).2 On the day of the scheduled appointment, the individual called in sick and drove
to an isolated area to contemplate suicide. While at that location, he returned a telephone
call from his supervisor and, during the conversation, revealed his thoughts. In a
subsequent telephone conversation which included mental health professionals affiliated
with his employer, the individual consented to family members coming to his location
and taking him home.
This incident resulted in the individual’s HRP duties being removed and was reported to
the Local Security Office (LSO). See Exhibit 8. The LSO conducted a personnel security
interview (PSI) with the individual on October 19, 2012, to allow the individual to
provide additional information and address concerns regarding his eligibility for access
authorization. See Exhibit 9. Following the PSI, the individual was referred to a DOE
consulting psychologist for an evaluation which took place on November 30, 2012. See
Exhibit 7.
Since neither the PSI nor the DOE psychologist’s evaluation resolved the security
concerns about the individual’s mental health status, the LSO informed the individual in a
letter dated January 7, 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 one potentially disqualifying criterion set forth in the security
regulations at 10 C.F.R. § 710.8, subsection (h) (hereinafter referred to as Criterion H).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 five witnesses, including himself and his wife. The
LSO submitted ten 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
II. Regulatory Standard
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.
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 . . .” 10 C.F.R. §710.8(h).
4 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
3
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 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
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 cites one criterion as the basis for suspending the
individual’s security clearance, Criterion H. 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). Such psychological conditions can effect an
individual’s conduct and raise questions about an individual’s ability to protect classified
information. With respect to Criterion H, the LSO relied on the December 5, 2012, report
of the DOE consulting psychologist which concluded that the individual met the
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Diagnostic Statistical Manual of the American Psychiatric Association IVth Edition TR
(DSM-IV-TR) criteria for Adjustment Disorder with Anxiety and Depressed Mood,
Chronic. Ex. 1 and Ex. 7 at 5.
The DOE psychologist specifically recommended that the individual receive individual
counseling for at least six months following the September incident, with a focus on
continued abstinence from alcohol, improvement of his coping skills and adjustment to
personal situations over which he has no control. The DOE psychologist believed that
successful completion of such counseling would allow the individual to return to a “non-
problematic level of functioning.” Id.
In light of the information available to the LSO, the LSO properly involved Criterion H.
IV. 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)5 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should be restored. 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. Mitigating Evidence
The DOE psychologist testified that he believed the individual’s traditional approach to
life has been very straightforward, concrete and practical and that his associated coping
mechanisms were ineffective once he was confronted with situations where he could not
control the resolution. The accumulated stress from such situations eventually
overwhelmed the individual, though he was likely unaware of his escalating stress,
according to the DOE psychologist. Tr. at 83.
The individual does not contest the accuracy of the diagnosis by the DOE psychologist at
the time it was made. Id. at 77. The individual identified four situations that led to his
feeling overwhelmed in September 2012: a step-parent had experienced complications
from surgery which resulted in the physicians recommending the commencement of
hospice care for her; an in-law has suffered from permanent, debilitating illness for a
considerable period of time which has necessitated the individual and his family residing
5 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.
5
in his in-law’s home in order to provide necessary care; a son was scheduled for trial on
criminal charges; and a daughter with traumatic brain injuries resides with him and his
wife. Id. at 56 – 59, 63, 77.
His son was scheduled to stand trial in mid-September 2012 on charges of sexual abuse
of a minor, based on accusations brought by the son’s estranged wife. The individual and
his wife were witnesses to the facts upon which the charges were brought and the
individual knows that the charges are false. The individual believed he would be unable
to control his verbal reaction in court if his son were to be convicted of a crime that he
did not commit. The individual scheduled an appointment with his employer’s
Designated Psychologist in order to discuss this situation. Id. at 56 – 58.
The evening before the individual’s appointment with the Designated Psychologist, the
individual’s daughter had a physical altercation with her mother that required police
involvement and resulted in the daughter’s arrest and imprisonment. This was the fourth
involvement by the police in situations relating to his daughter’s behavior. His daughter
suffered traumatic brain injuries in an accident several years ago that left her disabled and
subject to volatile emotions and behavior. She resides with the individual and his wife.
His worries about his daughter’s incarceration were the immediate cause of the individual
calling in sick the next morning and driving to an isolated area with a gun to consider
suicide. Id. at 18, 55 – 59, 63.
As detailed above, the individual returned a telephone call from his supervisor and during
the call revealed his location and that he was thinking about suicide. During a telephone
conversation with his employer and its affiliated mental health professionals, he
consented to family members meeting him and taking him home. Id. at 15, 59 – 60.
To the individual’s credit, he began mental health counseling the following day, initially
attending counseling once a week and, subsequently, once every two weeks. Id. at 15, 16.
He had been in counseling for nine months as of the date of the hearing. Id. The
individual has embraced the benefits of counseling and has included family members in
sessions, has commenced joint counseling with his wife and has encouraged his wife to
engage in individual counseling. Id. at 65, 68 – 70. He expressed the intention to continue
in counseling. Id. at 71.
The individual’s treating counselor testified as to the individual’s work to development
coping strategies and self-care skills. She believes that the coping skills that he has
developed to date are meeting his needs and she has observed that his mood has
stabilized. His prognosis is good and his counselor is primarily continuing therapy with
him at this point in order to do couples counseling with him and his wife. Id. at 17, 22,
23.
The individual’s testimony included discussion of new coping strategies for situations
that were outside of his control, his work at acceptance of those situations and his
implementing changes in his communication style in order to reduce conflict and avoid
unnecessary escalation of stress. Id. 72 – 74, 77, 78. The DOE psychologist testified that
it was apparent that the individual was trying to think and reflect prior to responding and
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that this was a positive change for the individual. Id. at 89. The individual’s family
members testified to the changes they had noted in the individual following his
commencement of counseling, including improved communication, activities reflecting
self-care, calmness and more emotional openness. Id. at 30, 32 – 33, 34, 36, 38, 40, 44
45.
While the individual was contemplating suicide, he consumed a bottle of wine. Both his
treating counselor and the DOE psychologist urged the individual to abstain from alcohol
consumption. Ex. 7 at 5; Tr. at 16, 20. The individual reports abstinence from alcohol
since that day in September, with the exception of a partial glass of wine at New Year’s.
He testified that he did not like the taste of the wine and did not finish the glass; he
discussed the circumstances of the wine consumption and his reaction to it with his
treating counselor. The individual testified that he has recognized improvements in both
his physical and emotional health since he has become abstinent and further testified that
he has no intent to drink alcohol in the future. Id. at 17, 26, 27, 67, 68, 70. His counselor
believes it is important for the individual’s success that he abstain from alcohol and she
views him as having had “complete abstinence” for “all intents and purposes” since
September 2012, notwithstanding his partial glass of wine at New Year’s. Id. at 17.
B. Review of Criterion H Security Concerns
Following the psychological evaluation of the individual in November 2012, the DOE
psychologist concluded that the individual was suffering from Adjustment Disorder with
Anxiety and Depressed Mood, Chronic. Ex. 7 at 5. The DOE psychologist specifically
recommended that the individual receive individual counseling for at least six months
following the September incident, with a focus on continued abstinence from alcohol,
improvement of his coping skills and adjustment to personal situations over which he has
no control. Id.
With respect to abstinence from alcohol, both the treating counselor and the DOE
psychologist indicated that the individual’s use of alcohol did not appear to be long-
standing and appeared to be an attempt at self-medicating to deal with stress. Id. at 20,
25, 85. There was no alcohol diagnosis given to the individual and the LSO raised no
security concern with respect to alcohol. Both mental health professionals expressed
satisfaction with the individual’s abstinence in relationship to the treatment for
Adjustment Disorder.
With respect to his diagnosis of Adjustment Disorder with Anxiety and Depressed Mood,
Chronic, the DOE psychologist recommended at least six months of counseling. Ex. 7 at
5. The individual had completed nine months of counseling as of the date of the hearing.
Tr. at 16. The DOE psychologist testified that as of the date of the hearing, that he would
no longer diagnose the individual with Adjustment Disorder with Anxiety and Depressed
Mood, Chronic. Id. at 89. Neither the treating counselor nor the DOE psychologist
believed as of the date of the hearing that the individual had a mental condition or illness
that caused, or could cause, a significant defect in his judgment or reliability. Id. at 24 –
26, 87, 90 – 91.
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Security concerns are triggered under Criterion H when a person has an illness or mental
condition which in the opinion of a psychiatrist or licensed clinical psychologist could
cause a significant defect in judgment or reliability. Those concerns may be mitigated
when the person shows “no indication of a current problem.” Adjudicative Guidelines at
Guideline I, ¶ 29(e). In light of the DOE psychologist’s testimony that the individual no
longer meets the diagnostic criteria for Adjustment Disorder with Anxiety and Depressed
Mood, Chronic, I find that the individual has resolved the Criterion H security concerns.
See Personnel Security Hearing, Case No. PSH-12-0093 (2012).
V. 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. 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 brought forth sufficient
evidence to mitigate the security concerns associated with Criterion H. Accordingly, I
have determined that the individual’s access authorization should 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 11, 2013