PSH-13-0024

* 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: March 4, 2013 ) Case No.: PSH-13-0024
)
___________________________________ )
Issued: May 30, 2013
______________________
Hearing Officer Decision
______________________
Steven J. Goering, 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 DOE should not restore the
individual’s access authorization at this time.2
I. BACKGROUND
The individual is an employee of a DOE contractor and holds a suspended access authorization.
After testing positive on a random breath alcohol test at work, a Local Security Office (LSO)
summoned the individual for an interview (PSI) with a personnel security specialist on November 6,
2012. Exhibit 3 (DOE Case Evaluation); Exhibit 11 (PSI Transcript, Nov. 6, 2012). After the PSI,
the LSO referred the individual to a local board-certified psychiatrist (hereinafter referred to as “the
DOE psychiatrist”) for an agency-sponsored evaluation. The DOE psychiatrist prepared a written
report, setting forth the results of that evaluation, and sent it to the LSO. Exhibit 4. Based on this
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.
1 An 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 be referred to in this Decision as access
authorization or a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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Exhibit 3. The LSO informed the individual of this determination in a letter that set forth the DOE’s
security concerns and the reasons for those concerns. Exhibit 1 (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 an access authorization.
The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and the
OHA Director appointed me the Hearing Officer in this case. The DOE introduced 13 exhibits into
the record of this proceeding, and called the DOE psychiatrist as a witness. The individual
introduced four exhibits, and presented the testimony of one witness, in addition to his own
testimony.
II. 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 and
unfavorable, that has a bearing on the question of whether restoring the individual’s 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). 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).
III. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited derogatory information 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). Exhibit 1.3 Under both criteria, the LSO
cited (1) the report of the DOE psychiatrist, in which he diagnosed the individual as suffering from
Alcohol Abuse, stating that the disorder is an illness or condition, which causes, or may cause, a
3 Criterion H relates to information indicating that the individual has an “illness or mental condition of a nature
which, in the opinion of a psychiatrist or licensed clinical psychiatrist, causes or may cause, a significant defect in
judgment or reliability.” 10 C.F.R. § 710.8(h). Under Criterion J, information is derogatory if it indicates that the
individual has “[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed
clinical psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j).
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significant defect in judgment or reliability; (2) the individual’s September 25, 2012, positive testing
on a blood alcohol test at work, resulting in a measured blood alcohol concentration of 0.034 at 8:45
a.m.; (3) his admission that, the evening before the test, he consumed approximately three Jack
Daniels and three beers; (4) his admission that from 2009 to September 2012, he drank to the point
of intoxication every weekend; (5) his December 31, 2005, arrest for Driving Under the Influence
(DUI), at which time his blood alcohol content was measured at 0.14, and his admission that prior to
his arrest that night, he consumed two scotches, each containing approximately two to three shots,
during a one-hour period; and (6) his June 21, 1989, DUI arrest and admission that prior to his
arrest, he consumed one to two pitchers of beer in a two-hour period.
The individual does not dispute any of the allegations in the Notification Letter, and I find that each
of these allegations is valid and well supported by the record in this case. See Exhibit 2 (Response
to Notification Letter); 10 C.F.R. § 710.27(c) (requiring Hearing Officer to “make specific findings
based upon the record as to the validity of each of the allegations contained in the notification
letter”). I further find that this information adequately justifies the DOE’s invocation of Criteria J
and H, as it raises significant security concerns related to excessive alcohol consumption, which
often leads to the exercise of questionable judgment or the failure to control impulses, and calls into
question the individual’s future reliability and trustworthiness. See Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House (December 19,
2005) (Adjudicative Guidelines) at ¶ 21 (Guideline G).
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 56 years old, and has worked for a DOE contractor since 1994. Exhibit 4 (Report
of DOE Psychiatrist) at 2.4 He had his first drink when he was 13 years old, and did not drink
regularly until he went to college, where he became intoxicated once or twice a month. He drank
during weekend parties after college, and then occasionally during graduate school. Id. The
individual had his first arrest for Driving While Intoxicated (DWI) on June 21, 1989, after he drank
approximately five or six beers during a softball game. Id. at 3. During a March 5, 1993, PSI, he
stated that he “won’t drink and drive anymore.” Exhibit 13 at 24.
Several years later, on June 16, 2005, during an interview with an Office of Personnel Management
investigator, the individual again stated that he will not drive even if he had one beer. Exhibit 4 at 3.
However, just a few months later, on December 31, 2005, the individual was arrested for DWI, when
he was driving after consuming two scotches, each containing approximately 2-3 shots. Id. at 4.
Furthermore, the individual “blacked out” sometime around 2006-2008 from consuming alcohol,
and he started drinking more in 2009, when his son was diagnosed with cancer. Id. at 5.
From January through September 2012, the individual became intoxicated approximately nine times.
Id. On September 25, 2012, the individual took a random breath alcohol tests at work between
8:00 a.m. and 9:00 a.m, by which his blood alcohol content was measured at 0.036 and 0.034, over
the limit of 0.02 set for employees subject to the DOE’s Human Reliability Program (HRP). Id. 5
4 The individual does not contest the findings of the DOE psychiatrist’s report. Tr. at 47.
5 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. § 712.1. Among the numerous requirements for participation
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Though he was asked to refrain from drinking alcohol, the individual admitted that on the night of
September 29, 2012, just a few days after the positive BAC, he drank two glasses of wine. Id. at 7.
In October 2012, the individual began substance abuse counseling, but after a few sessions, decided
to discontinue counseling because he did not believe it was helpful, and complained that his
counselor did not follow up with him concerning future appointments. Id. at 8. During his interview
with the DOE psychiatrist, the individually revealed that he drank two glasses of wine on the night
of December 13, 2012, even though he stated in his PSI on November 6, 2012, that his intent was to
stay “sober for quite a while, maybe all the way for the rest of my life.” Id.; Exhibit 11 at 56.
In his response to Notification Letter, the individual stated that he was “working hard to rehabilitate”
himself, and that he had not had a drink since December 2012. Exhibit 2. In his hearing testimony,
however, the individual acknowledged that he consumed alcohol on the following occasions:
(1) during the holidays in late December 2012; (2) on the night of February 26, 2013, when he
shared two bottles of wine with his wife; and (3) in early March 2013 when he visited Florida, where
he consumed beer with his daughter during lunch on four days and Jack Daniels with his father-in-
law on three separate nights. Tr. at 37-38, 45-46, 64. The individual reported in his testimony that
he had his last drink on March 10, 2013, just six weeks before his hearing on April 23, 2013. Id.
The individual provided a report, dated April 19, 2013, by an alcohol abuse counselor who assessed
and evaluated the individual on October 18, 2012, and October 31, 2012. Exhibit B. In addition to
conducting a clinical interview, the counselor administered two assessments on the individual, a
Substance Abuse Subtle Screening Inventory and the Addiction Severity Index. Id. Based on these
assessments, the alcohol abuse counselor concluded that the individual met the criteria for a
diagnosis of Alcohol Dependence with physiological dependence. Id. He stated that the individual
returned to A.D.A.P.T. & Recover on March 22, 2013, and has been participating in weekly
psychotherapy sessions, has been abstinent from alcohol and completing a detoxification program,
has accepted the fact that alcohol has been a problem in his life, and has attended AA meetings
weekly. Id.
In addition, the individual provided copies of Alcohol Testing Forms, the majority of which are
dated from January 8, 2013 through April 9, 2013.6 He had a BAC of “0” for all of the tests, except
on February 27, 2013, where his BAC was 0.009. See Exhibit A. Moreover, the individual
submitted letters from sponsors at his Alcoholics Anonymous (AA) meetings, stating that he started
attending AA meetings in October 2012, stopped attending the meetings for a period of time, and
then returned to the meetings regularly sometime in March 2013. See Exhibits C, D.
In his report dated December 28, 2012, the DOE psychiatrist initially concluded that the individual
met the criteria for Alcohol Abuse without adequate evidence of rehabilitation or reformation.
Exhibit 4. However, after hearing the individual’s testimony at the hearing, the DOE psychiatrist
changed his diagnosis of the individual from Alcohol Abuse to Alcohol Dependence with
physiological dependence. Tr. at 105. He concluded that the individual’s “disorder has been worse
in the HRP are random alcohol tests. See10 C.F.R. § 712.15(c) (mandating alcohol testing and setting limit of 0.02
percent blood alcohol concentration).
6 The following are the dates of the Alcohol Testing Forms provided by the individual: 1/8/13, 1/10/13, 1/15/13,
1/16/13, 1/22/13, 1/24/13, 1/28/13, 1/30/13, 2/7/13, 2/12/13, 2/19/13, 2/21/13, 2/27/13, 3/11/13, 3/13/13, 3/19/13,
3/20/13, 3/25/13, 3/27/13, 4/2/13, 4/3/13, 4/8/13, and 4/9/13.
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since [he] saw him.” Id. He further stated that the individual was “still in early recovery,” id. at
112, and that his risk of relapse was medium to high as of the date of the hearing. Id. at 123.
The Adjudicative Guidelines set forth the following conditions that “could mitigate security
concerns” arising from excessive alcohol consumption.
(a) so much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's
current reliability, trustworthiness, or good judgment;
(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides
evidence of actions taken to overcome this problem, and has established a pattern of
abstinence (if alcohol dependent) or responsible use (if an alcohol abuser);
(c) the individual is a current employee who is participating in a counseling or treatment
program, has no history of previous treatment and relapse, and is making satisfactory
progress;
(d) the individual has successfully completed inpatient or outpatient counseling or
rehabilitation along with any required aftercare, has demonstrated a clear and established
pattern of modified consumption or abstinence in accordance with treatment
recommendations, such as participation in meetings of Alcoholics Anonymous or a similar
organization and has received a favorable prognosis by a duly qualified medical professional
or a licensed clinical social worker who is a staff member of a recognized alcohol treatment
program.
Adjudicative Guidelines at ¶ 23 (Guideline G).
As noted above, both experts who have evaluated the individual now conclude that he suffers from
Alcohol Dependence, rather than Alcohol Abuse. Thus, application of the Adjudicative Guideline
would require the individual to establish a pattern of abstinence (as opposed to alcohol abuse). Id. at
¶ 23(b) and (d). Here, I cannot find that the individual’s six weeks of sobriety would constitute a
sufficient pattern of abstinence to mitigate the concerns in this case. See Personnel Security
Hearing, Case No. PSH 12-0100 (2012) (concluding that seven months of sobriety of an individual
who was diagnosed as alcohol dependent was insufficient for resolving concerns under Criterion J);
Personnel Security Hearing, Case No. PSH-12-0077 (2012) (eight months insufficient to resolve
concerns raised by alcohol dependence); Personnel Security Hearing, Case No. PSH-11-0013 (2012)
(seven months insufficient to resolve concerns raised by alcohol dependence).
Further, as the individual admitted consuming alcohol on several occasions after his most recent
evaluation by the DOE psychiatrist in December 2012, I cannot find that the individual’s excessive
use of alcohol was “infrequent” or happened under “unusual circumstances,” or that he does not
have a history of previous relapse. Adjudicative Guidelines at ¶ 23(a), 23(c) (Guideline G). Even
more, the individual has not received a favorable prognosis by a duly qualified medical professional
or another professional who is an expert with alcohol abuse and dependence. Id. at ¶ 23(d).
Finally, regarding whether the individual “is making satisfactory progress in his counseling or
treatment program,” id. at 23(b), there is some evidence of progress in the testimony provided by the
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individual and his wife, and in the documents provided by the individual; yet, it is still insufficient to
mitigate the security concerns raised above. Exhibit A, C, D.
In the end, the decision as to whether the risk of future behavior presenting a security concern is low
enough to warrant the grant or restoration a clearance is based on a common-sense determination.
Personnel Security Hearing, Case No. TSO-0209 (2006) (citing 10 C.F.R. 710.7(c)). Considering
all of the evidence in the record, particularly the diagnoses of Alcohol Dependence by two experts
and the individual’s very recent relapse, I am persuaded by the testimony of the DOE psychiatrist
that the individual was, as of the time of the hearing in this matter, still at a medium to high risk of
relapsing into excessive alcohol use in the future. Under these circumstances, given that I am to
resolve “any doubts concerning the individual’s eligibility for access authorization in favor of the
national security,” I cannot find that the individual has resolved the concerns related to his use of
alcohol under Criteria H and J.
V. CONCLUSION
For the reasons set forth above, I conclude that the individual has not resolved the DOE’s security
concerns raised in this case. Therefore, the individual has not demonstrated 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.
Steven J. Goering
Hearing Officer
Office of Hearings and Appeals
Date: May 30, 2013