PSH-13-0021

* 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 27, 2013 ) Case No.: PSH-13-0021
)
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Issued: June 6, 2013
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as
“the individual”) for access authorization under the regulations set forth at 10 C.F.R.
Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.” 1 For the reasons set forth below, I
conclude that the individual’s security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor and was
granted a security clearance in connection with that employment. In June 2012, the
individual was arrested for Driving While Intoxicated (DWI). Because this information
raised security concerns, the local security office (LSO) summoned the individual for an
interview with a personnel security specialist in September 2012. After this Personnel
Security Interview (PSI) failed to resolve these concerns, the LSO referred the individual
1An access authorization is an administrative determination that an individual is eligible
for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such
authorization will also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (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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to a local psychologist (hereinafter referred to as “the DOE psychologist”) for an agency-
sponsored evaluation. The DOE psychologist prepared a written report based on that
evaluation, and submitted it to the LSO. After reviewing that report and the rest of the
individual’s personnel security file, the LSO determined that derogatory information
existed that cast into doubt the individual’s eligibility for access authorization. It
informed the individual of this determination in a letter that set forth the DOE’s security
concerns and the reasons for those concerns. I will hereinafter refer to this letter as the
Notification Letter. The Notification Letter also informed the individual that he was
entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt
concerning his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the
Office of Hearings and Appeals, and I was appointed the Hearing Officer. The DOE
introduced 10 exhibits into the record of this proceeding and presented the testimony of
the DOE psychologist at the hearing. The individual introduced four exhibits and testified
on his own behalf.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory
information that created a substantial doubt as to the individual’s eligibility to hold a
clearance. This information pertains to paragraphs (h), (j) and (l) of the criteria for
eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R.
§ 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an
illness or mental condition which, in the opinion of a psychiatrist causes, or may cause, a
significant defect in the individual’s judgment or reliability. 10 C.F.R. § 710.8(h).
Criterion (j) defines as derogatory information indicating that the individual “has been, or
is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or
licensed clinical psychologist as alcohol dependant or as suffering from alcohol abuse.”
10 C.F.R. § 710.8(j). As support for these criteria, the Letter cites the diagnosis of the
DOE psychologist that the individual suffers from alcohol abuse, and that this condition
causes, or may cause, a significant defect in his judgment or reliability. As additional
support for criterion (j), the Letter refers to the individual’s June 2012 DUI arrest, and
citations that he received in 2006 and 2003 for the underage consumption of alcohol.
Criterion (l) refers to information indicating that the individual has engaged in unusual
conduct or is subject to circumstances which tend to show that he is not honest, reliable
or trustworthy; or which furnishes reason to believe that he may be subject to pressure,
coercion, exploitation or duress which may cause him to act contrary to the best interests
of national security. As support for its invocation of this criterion, the Letter cites the
arrest and citations referred to in the previous paragraph, the individual’s statement in his
2012 PSI that he has driven while intoxicated on multiple occasions, and statements that
he made to a police officer and to an Office of Personnel Management (OPM)
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investigator about his alcohol consumption that are inconsistent with other information
that he provided during the 2012 PSI.
These circumstances adequately justify the DOE’s invocation of criteria (h), (j) and (l),
and raise significant security concerns. Mental conditions that involve the excessive
consumption of alcohol, such as alcohol abuse, often lead to the exercise of questionable
judgment or the failure to control impulses, and can therefore raise questions about an
individual’s reliability and trustworthiness. Moreover, illegal activity creates doubt about
a person’s judgment, reliability and trustworthiness. By its very nature, it calls into
question a person’s ability or willingness to comply with laws, rules and regulations.
Finally, conduct involving questionable judgment, lack of candor, or dishonesty can also
raise questions about an individual’s reliability, trustworthiness and ability to protect
classified information. See Revised Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information, The White House (December 19, 2005), Guidelines
G, I, J and E.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part
710 dictate that in these proceedings, a Hearing Officer must undertake a careful review
of all of the relevant facts and circumstances, and make a “common-sense judgment . . .
after consideration of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore
consider all information, favorable or unfavorable, that has a bearing on the question of
whether granting or restoring a security clearance would compromise national security
concerns. Specifically, the regulations compel me to consider the nature, extent, and
seriousness of the individual’s conduct; the circumstances surrounding the conduct; the
frequency and recency of the conduct; the age and maturity of the individual at the time
of the conduct; the absence or presence of rehabilitation or reformation and other
pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct;
and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of
affording the individual an opportunity of supporting his eligibility for access
authorization.” 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of
derogatory information raising security concerns, the burden is on the individual to
produce evidence sufficient to convince the DOE that granting or restoring 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). See Personnel Security
Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA,
1996), and cases cited therein. The regulations further instruct me to resolve any doubts
concerning the individual’s eligibility for access authorization in favor of the national
security. 10 C.F.R. § 710.7(a).
IV. FINDINGS OF FACT AND ANALYSIS
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Although the individual introduced into evidence a “fitness for duty” evaluation by a
psychologist in his employer’s Occupational Medicine Division that concluded that he
does not suffer from an alcohol use disorder, at the hearing the individual admitted that
he is an alcoholic, and he generally did not dispute the DOE psychologist’s diagnosis or
the allegations set forth in the Notification Letter. 3 Hearing Transcript (Tr.) at 32.
Instead, the individual attempted to demonstrate that he no longer abuses alcohol and that
he is an honest, reliable and law-abiding person who can be trusted with a DOE security
clearance.
He testified that, even after the DWI arrest, he did not believe that he had a drinking
problem. Tr. at 22. This belief was based, at least in part, on the “fitness for duty”
evaluation, and on the fact that, prior to the DOE psychologist’s evaluation, no one had
ever expressed a concern to him about his alcohol consumption. Tr. at 13, 16. However,
meeting with the DOE psychologist “opened [the individual’s] eyes to the severity of the
situation,” and made him realize that he did, in fact, have a drinking problem. Tr. at 16.
He said that he was “devastated” after reading the DOE psychologist’s report. Tr. at 24.
He stopped drinking in early November 2012 and starting attending Alcoholics
Anonymous (AA) meetings one-to-two times per week in early January 2013. Tr. at 17.
His intention is to remain sober for the rest of his life. Tr. at 37.
The individual also testified about his provision of false information to the police officer
who arrested him for DWI and to the OPM investigator. He termed his representation to
the arresting officer that he had had only one beer, when he had, in fact, consumed five to
eight beers prior to his arrest, a “white lie” that he told because he was “scared.” Tr. at 27.
He attributed his 2008 misstatement to the OPM investigator that he had not consumed
alcohol prior to his 2003 citation for underage consumption of alcohol to youth and to a
misunderstanding of the question that was asked by the investigator. Tr. at 28. He
admitted that this was a mistake and he observed that he “came clean” about both of these
falsehoods during his 2012 PSI. Tr. at 28-29.
After observing the individual’s testimony, the DOE psychologist then testified. He said
that the individual’s attitude had changed markedly from the one that he exhibited during
his evaluation. During his evaluation, the DOE psychologist explained, the individual
blamed others for his predicament, and not his own actions. He also seemed to not be
aware of, or willing to acknowledge, the number of people who had been adversely
affected by his drinking. Furthermore, he “almost defiantly” insisted that he was going to
keep drinking. Tr. at 40-41. However, the DOE psychologist noted that he “didn’t hear
any of that today.” Tr. at 38. Instead, the individual exhibited “a very different attitude,”
and “has taken some steps” towards abstinence and rehabilitation. Tr. at 41-42. The DOE
psychologist described the individual’s progress as “impressive.” Tr. at 42. Nevertheless,
the DOE psychologist opined that the individual was still not exhibiting adequate
3 This “fitness for duty” evaluation is Individual’s Exhibit 1. The psychologist who
performed this evaluation apparently did not have access to all of the information
provided to the DOE psychiatrist, such as the individual’s statements in his PSI that he
repeatedly drove while under the influence of alcohol during the years 2007 through
2012.
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evidence of rehabilitation or reformation. He explained that mental health professionals
who work with alcohol abusers and the alcohol-dependant “like to have one year of
abstinence” and treatment before such a positive prognosis would be warranted. Tr. at 44-
45. In this case, “given how long alcohol has been a central part of [the individual’s]
life,” the DOE psychologist concluded, he would still recommend one year of abstinence
and treatment. Tr. at 45.
I agree that the individual has not demonstrated adequate evidence of reformation or
rehabilitation. As of the date of the hearing, he had abstained from all alcohol use for
approximately six months and had been attending AA for approximately four months.
The record in this matter indicates that, prior to this time, he had driven while intoxicated
repeatedly, reported to work while still under the influence of alcohol, and continued to
drink despite the DWI. DOE Ex. 4 at 5. Given the extent of his alcohol involvement, I
agree with the DOE psychologist that a longer period of abstinence and AA attendance is
necessary. I therefore conclude that the individual has not adequately addressed the
DOE’s security concerns under criteria (h) and (j).
I reach a similar conclusion regarding criterion (l). The individual’s arrest and citations
all resulted from his maladaptive pattern of alcohol use. Because I believe that the
individual’s chances of relapsing into such an abusive pattern are still unacceptably high
at this stage of his recovery, I accordingly conclude that his chances of encountering
future alcohol-related legal troubles are also unacceptably high. Regarding his provision
of false information to the officer who arrested him for DWI and to the OPM
investigator, I disagree with his characterization of the statement that he made to the
officer as a “white lie.” While his misrepresentation as to the amount of alcohol that he
had consumed might be understandable, the officer was attempting to ascertain whether
the individual’s continued operation of a motor vehicle represented a threat to public
safety. The individual’s misrepresentation was far from harmless. I also find no
mitigation in the fact that, during his 2012 PSI, the individual fully and truthfully
answered questions about his alcohol consumption prior to his DWI and his underage
drinking citations. Failure to do this would have been a violation of federal law and
would itself have raised significant concerns about the individual’s eligibility for a
security clearance. I also do not find his age (21) at the time of his misrepresentation to
the OPM investigator to be of significant mitigating value. Significant security concerns
remain concerning criterion (l).
V. CONCLUSION
For the reasons set forth above, I find that the individual has not adequately addressed the
DOE’s concerns under criteria (h), (j) and (l). Consequently, he has failed to demonstrate
that restoring his access authorization would not endanger the common defense and
would be clearly consistent with the national interest. Accordingly, I find that the DOE
should not restore the individual’s security clearance at this time. Review of this decision
by an Appeal Panel is available under the procedures set forth at 10 C.F.R. § 710.28.
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Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: June 6, 2013