PSH-13-0037

*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 21, 2013 )
) Case No.: PSH-13-0037
__________________________________________)
Issued: July 25, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (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 at this time.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold
DOE access authorization. In July 2012, the individual traveled to visit friends in a
distant city and, while out one evening, became separated from his local companions.
When he was unable to locate them at the end of the evening, he walked a short distance
away from the bar where they had been drinking and eventually fell asleep alongside a
building, having removed his shoes, socks and shirt. Several hours later, he was
awakened by a policeman and paramedic. He was determined not to need medical
assistance, but was arrested and charged with “public nuisance.”
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 individual reported his arrest to his employer and the DOE, as required by security
regulations. His employer temporarily suspended one of his clearances while conducting
an investigation. Subsequently, the Local Security Office (LSO) commenced an inquiry
and conducted a personnel security interview (PSI) with the individual on November 28,
2012. See Exhibit 13. The PSI did not resolve concerns over the individual’s behavior
which resulted in the issuance of the citation and raised additional concerns over the
individual’s consumption of alcohol. As a result, the individual was referred for
evaluation by a DOE consulting psychologist, who submitted a psychological assessment
dated January 11, 2013. See Exhibit 7.
Since neither the PSI nor the DOE psychologist’s evaluation resolved the security
concerns arising from the individual’s alcohol usage, the LSO informed the individual in
a letter dated February 20, 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 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 Criterion H and Criterion J, respectively).2 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. See Exhibit 2. 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 introduced 14 numbered exhibits into the record and presented the
testimony of one witness, the DOE consulting psychologist. The individual introduced 14
lettered exhibits (Exhibits A-O – there is no Exhibit I) into the record and presented the
testimony of five witnesses, including that of himself and that of a licensed drug and
alcohol counselor who participated in his alcohol treatment program. The exhibits will be
cited in this Decision as “Ex.” followed by the appropriate numeric or alphabetic
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.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
2
Criterion J 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 . . .” and Criterion H 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) and (h).
3 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
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 two criteria as the bases for suspending the
individual’s security clearance: Criterion H and Criterion J. 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
influenced by such psychological conditions can raise questions about an individual’s
ability to protect classified information. With respect to Criterion H, the LSO relied on
the January 11, 2013, report of the DOE psychologist which noted that the individual’s
use of alcohol habitually to excess is a condition that can cause significant defects in
judgment and reliability. Ex. 1 and Ex. 7 at 7.
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
4
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). With
respect to Criterion J, the LSO noted that (1) the individual had been arrested and charged
in July 2012 after drinking to intoxication, taking off his shoes, socks and shirt, and
falling asleep behind a building, and (2) individual had been stabbed in the heart in
February 20074 by a stranger to whom he had offered a ride home at a time when the
individual was intoxicated. Additionally, the LSO relied on the report of the DOE
psychologist, dated January 11, 2013, which concluded that the individual’s drinking has
been frequently excessive, warranting DOE’s concern about his use of alcohol habitually
to excess. Ex. 1 and Ex. 7 at 7.
In light of the information available to the LSO, the LSO properly invoked Criterion H
and Criterion J.
IV. Findings of Fact
The individual has consumed alcohol regularly since becoming 21 years old; he reports
that he typically drinks once or twice per week and drinks to intoxication perhaps twice
per month. Based on his reported alcohol consumption, the DOE consulting psychologist
calculated that prior to September 13, 2012, the individual was drinking to legal
intoxication multiple times per month. Id. at 3.
In February 2009, the individual provided technical assistance to a friend who owned a
bar and restaurant. His friend reciprocated by providing him dinner and drinks and, while
seated at the bar, the individual conversed with another patron who needed a ride home.
Tr. at 111 – 112. The two stopped at a casino en route and the individual consumed
additional alcohol while there. Id. at 114 – 115; Ex. 7 at 3. The individual acknowledges
being intoxicated.5 When the individual attempted to discharge his passenger in the
passenger’s neighborhood, an altercation ensued which resulted in the individual being
stabbed in the chest and his heart punctured. The individual required emergency surgery.
Tr. at 113 – 114.
In July 2012, the individual traveled to visit friends in a distant city and, while out one
evening, became separated from his local companions. When he was unable to locate
them at the end of the evening, he walked a short distance away from the bar where they
had been drinking and eventually fell asleep alongside a building, having removed his
shoes, socks and shirt. Several hours later, he was awakened by a policeman and
paramedic. He was determined not to need medical assistance, but was arrested and
4 The date noted by the LSO is incorrect and, as noted under “Findings of Fact,” infra., the correct date is
2009. Tr. at 110 – 111.
5 The individual’s reports with respect to his intoxication on this particular evening have varied. He stated
to the DOE psychologist that he had “felt intoxicated;” however, he stated during the PSI that “I wasn’t
legally intoxicated.” Ex. 7 at 3; Ex. 13 at 51.
5
charged with public nuisance. Id. 116 – 121. No breath or blood tests were administered;
however, the individual acknowledges that he was intoxicated when he left the bar. Ex. 7
at 4, 5; Ex. 13 at 32. Following his arrest, the individual was processed at a local police
station and released on his own recognizance shortly after his arrival at the police station.
Tr. at 120 – 121.
As a result of the individual’s arrest, his employer suspended one of his clearances on
July 10, 2012. Ex. G at 1. Notwithstanding his alcohol-related arrest and the resulting
suspension of one of his clearances, the individual reported that he had become
intoxicated on alcohol at least once in the following months. Tr. at 110; Ex. 7 at 5.
On September 7, 2012, the individual entered into a plea agreement with local
prosecutors which provided that the charge against him would be dismissed if the
individual, inter alia, paid a fine and completed an “alcohol program.” Ex. 10 at 2 – 4.
His employer’s employee assistance counselor referred the individual for an evaluation at
a drug and alcohol treatment clinic. Ex. D at 1 – 2. The individual entered an intensive
outpatient program (IOP) for alcohol treatment and discontinued drinking on
September 13, 2012; he completed the IOP in November 2012. Tr. at 18, 41, 124; Ex. 7
at 6; Ex. 13 at 24. The individual and his employer also entered into a Mandatory
Recovery Agreement pursuant to which the individual agreed to abstain from alcohol for
12 months, be subject to random testing for drugs and alcohol, complete an IOP and
attend three meetings of Alcohol Anonymous (AA) per week for six months. Ex. L at 1.
His employer restored his suspended clearance on September 28, 2012. Ex. H at 1.
On January 10, 2013, the DOE consulting psychologist evaluated the individual, which
was approximately five weeks after the individual’s completion of the IOP. See Ex. 7. As
a result of the evaluation, the DOE psychologist concluded that the individual did not
meet the criteria for any of the alcohol disorders classified in the Diagnostic Statistical
Manual of the American Psychiatric Association IVth Edition TR (DSM-IV-TR);
however, based on the individual’s historic pattern of alcohol consumption and alcohol
related incidents, the DOE psychologist concluded that the individual is a user of alcohol
habitually to excess, which is a condition that causes or could cause significant defects in
his judgment and reliability.6 Tr. at 158 – 159; Ex. 7 at 7. In his report, the DOE
psychologist opined that in order to evidence adequate reformation, the individual needed
to demonstrate that he could control his alcohol consumption so that he does not
frequently drink to intoxication. The individual needed to continue his abstinence for a
total of 12 months and obtain an AA sponsor for at least nine months, something that the
individual had not commenced at the time of the evaluation. Id.
The individual began working with an AA sponsor shortly after the psychological
evaluation and formalized that arrangement in April 2013. Tr. at 72. The individual has
been abstinent from alcohol since September 13, 2012, and this has been verified by
random testing by his employer. See Ex. B, Ex C. Since February 2013, the individual
6 The IOP licensed drug and alcohol counselor testified that the individual had been diagnosed by the IOP
treatment facility as meeting the criteria set forth in the DSM-IV-TR for alcohol dependence. Tr. at 33.
6
has also been in weekly counseling with a therapist associated with the IOP treatment
facility. Tr. at 135.
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)7 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored at this time. 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.
As calculated by the DOE psychologist based upon information reported to him by the
individual, the individual drank to legal intoxication multiple times per month from the
time he turned 21 years old until his arrest in July 2012. Ex 7 at 3. The individual has
acknowledged that his intoxication played a role in both incidents cited by the LSO –
offering a ride to a stranger who stabbed him in the heart8 and falling asleep while only
partially clothed in a public area. Id. at 3, 4; Ex. 13 at 32. He has also acknowledged
drinking to intoxication following his July 2012 arrest during the period that his employer
was evaluating whether or not to restore a clearance that had been suspended as a result
of his alcohol-related arrest. Tr. at 110; Ex. 7 at 5. These incidents create legitimate doubt
about the individual’s judgment and reliability. See Adjudicative Guideline, Guideline G
at ¶ 21.
The individual has entered into separate agreements with his employer and his IOP
treatment facility with respect to his abstinence from alcohol for one year and other
aspects of his rehabilitation from excessive consumption of alcohol. All information
available supports that he has been fully compliant with both agreements. As of the date
of the hearing, the individual had completed an IOP, had been abstinent from alcohol for
approximately nine months, and had been working with an individual counselor for four
months and an AA sponsor for approximately three months. The critical question is
whether this is sufficient time to evidence that, going forward, the individual has the
ability to control his consumption of alcohol. The DOE psychologist’s written evaluation
stated that 12 months of abstinence and nine months of individual work with an AA
sponsor would be required to evidence sufficient reformation. Ex. 7 at 7.
7 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.
8 See note 5, supra.
7
The DOE psychologist attended the hearing and testified after hearing the testimony of
all the other witnesses. He noted that several of the witnesses testified that the individual
had experienced a transformation beginning in January 2013, seeming to have accepted
in a more fundamental way that alcohol is a personal problem for him. The DOE
psychologist testified that such testimony reinforced his thoughts that the individual had
“gamed the system” during his initial period of treatment. The DOE psychologist had
considered revising his recommendation to require that the individual’s abstinence be
counted from January 2013, when he more fully engaged in his recovery. Tr. at 160 –161.
He ultimately concluded that those additional months of abstinence subsequent to
September 2013 would not provide him with any additional confidence in the
individual’s capacity to control his consumption of alcohol. Id. at 161 – 162.
As the Hearing Officer, I have doubts about the authenticity of the transformation in the
individual that was reported to have occurred beginning in January. It was not clear to me
whether genuine engagement in his recovery program began to occur in January or
whether the individual concluded following his interview with the DOE psychologist in
January that he needed to project a different approach. The individual’s willingness to
create misleading impressions is documented in the record. During the DOE
psychological evaluation, he reported to the psychologist that when attending AA
meetings he would tell the group that he is an “alcoholic” only in order to “reduce the
tension in the room.” Ex. 7 at 7. Also, the individual stated to his IOP counselor and
treatment group that he saw “no benefit” to alcohol in his life, creating the impression
that alcohol was an unlikely aspect of his life in the future. Tr. at 30, 43, 148. However,
on the final day of his IOP, the individual stated to the LSO that after his year of required
abstinence he would not abstain from alcohol, but use it “sparingly.” Ex. 13 at 71. He
elaborated that he could not rule out getting intoxicated in the future, but would
“definitely think twice” before he did so. Id. at 76.
The individual testified that he now has a different understanding of the negative
influence of alcohol in his life and that his future intensions are not to drink. Tr. at 138.
However, the individual presented two character witnesses that cast doubt on the
authenticity of this statement. One witness testified that the individual had told him that
“he would absolutely never drink again if that’s what it takes for him to be able to get his
clearance back.” Tr. at 53 (emphasis added). A second character witness testified that the
individual had told him, with respect the administrative review process, that he does not
believe that he has a current problem with alcohol or had had one in the past. Id. at 98.
Although the individual attempted to distance himself from this testimony when
specifically asked, attempts to distance oneself from the testimony of one’s own character
witnesses are inherently suspect. Id. at 140 – 141, 154.
Although the individual acknowledges that alcohol played a role in the events preceding
his arrest in July 2012, his presentation at the hearing suggested that he minimizes the
significance of the event. For example, the individual’s exhibits at the hearing included a
chart of the hourly temperature in the city he was visiting (apparently to demonstrate that
the heat when he left the bar justified his removing his shirt, shoes and socks), a printout
of the directions from the bar to the house he was visiting (apparently to demonstrate it
would have been too expensive to take a taxi home once he was separated from his
8
companions) and the inmate property logs from the local police showing that he had been
held at the stationhouse for less than an hour (apparently to show that the police at the
stationhouse did not believe he was as intoxicated as the arresting officer,
notwithstanding that the arresting officer reported him as disoriented and unable to
answer certain questions and, when instructed to sit by the arresting officer, assuming a
“three point stance (football lineman position)” and rubbing the ground with his hand).
See Ex. J, Ex., M, Ex. N, Ex. 11 at 4. The individual’s presentation at the hearing
advocated that his arrest was unwarranted, mistaken or being given exaggerated
importance. Such posturing undermined the individual’s assertions of genuinely
understanding and accepting the negative role that the consumption of alcohol has had on
his past behavior, judgment and reliability. Cf. Adjudicative Guidelines, Guideline G
¶ 23(b) (acknowledgment of alcohol issues).
Notwithstanding the foregoing, the individual offered credible testimony by himself and
others that he has abstained from consuming alcohol since September 13, 2012. His
abstinence is supported by his employer’s random drug and alcohol. Abstinence is the
key aspect of the individual’s reformation under Criterion H and Criterion J. The DOE
psychologist did not premise adequate reformation upon permanent abstinence, but by the
individual demonstrating that he can control his consumption of alcohol by abstaining for
12 months and gaining a better understanding of the role of alcohol in his life by working
with an AA sponsor for 9 months. He commenced such actions in September 2012 and
April 2013, respectively, and, as of the date of the hearing, has evidenced insufficient
reformation as recommended by the DOE consulting psychologist. Hearing Officers
customarily accord deference to the opinions of mental health professionals with respect
to security concerns under Criterion H and Criterion J.
Based on the foregoing, I cannot find that the individual has mitigated the security
concerns associated with Criterion H and Criterion J at this time.
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 and
Criterion 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 have found that the individual has not brought forth
sufficient evidence to mitigate the security concerns associated with Criterion H and
Criterion J. Accordingly, I have determined that the individual’s access authorization
should not be restored at this time. 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: July 25, 2013