PSH-13-0041

* 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: April 5, 2013 )
) Case No.: PSH-13-0041
)
__________________________________________)
Issued: June 26, 2013
_______________
Hearing Officer Decision
_______________
Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXX (hereinafter referred to as “the
Individual”) to hold a security clearance1 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
discussed below, after carefully considering the record before me in light of the relevant
regulations, I conclude that the Individual’s security clearance should not be restored.
I. BACKGROUND
The administrative review proceeding began when a Local Security Office (LSO) issued a
Notification Letter to the Individual. See 10 C.F.R. § 710.21. The letter informed the Individual
that information in the possession of the DOE created a substantial doubt concerning his
eligibility for a security clearance. Specifically, the LSO stated that the Individual had: (1) been
diagnosed by a psychiatrist with Alcohol Abuse/Dependence and a Cognitive Disorder Not
Otherwise Specified (CDNOS), (2) been a user of alcohol habitually to excess, (3) intentionally
provided LSO officials with false information, (4) engaged in a longstanding pattern of financial
1 An access authorization or security clearance is “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.
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irresponsibility, and (5) engaged in a pattern of criminal behavior which brought into question
his honesty, reliability, and trustworthiness.2
The Notification Letter further informed the Individual that he was entitled to a hearing before a
Hearing Officer in order to resolve the substantial doubt regarding his eligibility for a security
clearance. The Individual requested a hearing, and the LSO forwarded the Individual’s request
to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the
Hearing Officer in this matter on April 8, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his former supervisor, his treating counselor (the Counselor), and a DOE consultant
psychiatrist (the DOE Psychiatrist). See Transcript of Hearing, Case No. PSH-13-0041
(hereinafter cited as “Tr.”). The LSO submitted 72 exhibits, marked as Exhibits 1 through 72,
while the Individual submitted four exhibits, marked as Exhibits A through D.
II. FINDINGS OF FACT
The Individual was arrested three times between 1986 and 2003. On September 23, 1986, he
was arrested for Terroristic Threats and Acts, Criminal Trespass, and Simple Battery. Exhibit 14
at 17. On October 28, 1998, the Individual was arrested for Battery/Simple Battery-Family
Violence. Id. On August 17, 2003, he was arrested for Failure to Maintain Lane and Driving
Under the Influence (DUI). Id.
The Individual has a longstanding pattern of moderate financial irresponsibility as evidenced by
the following: Nine credit reports for the years 1999 through 2013 showing unpaid collections
amounts varying from $306 to $1,388. Exhibits 7, 11, 15, 30, 34, 36, 38, 71. The May 8, 2013,
credit report also shows that the Individual had incurred a number of liens, totaling $3,277,
placed upon his property for unpaid taxes in 2011. Exhibit 71. The May 8, 2013, credit report
also shows that $2,156 of these liens were released in 2012. Id.
The Individual also has a history of alcohol-related incidents. In addition to the DUI arrest in
2003, the record shows that, on December 24, 1981, the Individual received a ten-day suspension
from his employer for consuming alcohol in a public place while wearing his uniform. On
July 13, 2012, the Individual reported for duty and was required to take a random breath alcohol
test by his employer, a DOE contractor. That test showed that the Individual had a blood alcohol
2
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). 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.” 10 C.F.R. § 710.8(j). Criterion L defines as derogatory information
that an individual 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. § 708.8(l).
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level (BAL) of .036%, which exceeded the limit of 0.02 set for employees subject to the DOE’s
Human Reliability Program (HRP). 3
A DOE Psychiatrist interviewed the Individual on December 13, 2012. The DOE Psychiatrist
also reviewed selected portions of the Individual’s personnel security file and administered a
standardized psychological screening test to the Individual. Exhibit 4 at 1. After completing his
evaluation of the Individual, the DOE Psychiatrist issued a report on January 9, 2013, in which
he found that the Individual “is a person who suffers from Alcohol Abuse/Dependence . . . and
Cognitive Disorder, NOS.” Exhibit 4 at 4. The DOE Psychiatrist opined that both conditions
“can cause problems with judgment and/or reliability.” Id.
On several occasions, the Individual provided inconsistent information to the LSO about his
alcohol use and the circumstances surrounding the three alcohol-related incidents described
above.
III. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual, and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a).
The regulations state that “[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all the relevant information, favorable or
unfavorable, as to whether the granting of access authorization would not endanger the common
defense and security and would be clearly consistent with the national interest.” 10 C.F.R.
§ 710.7(a). In rendering this opinion, I have considered the following factors: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R.
§ § 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
IV. DEROGATORY INFORMATION AND ASSOCIATED SECURITY CONCERNS
The DOE Psychiatrist diagnosed the Individual with Alcohol Abuse/Dependence, raising
security concerns about the Individual under Criterion J and Criterion H, since Alcohol
Dependence/Abuse constitutes an illness or condition that causes, or may cause, a significant
defect in the Individual’s judgment and reliability. The Individual has also been arrested for
DUI, on one occasion, and involved in alcohol-related incidents at work on two occasions. The
3
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. Part 712. Among the numerous requirements for
participation in the HRP are random alcohol tests. See 10 C.F.R. § 712.15(c) (mandating alcohol testing and setting
limit of 0.02 percent blood alcohol concentration).
4
Adjudicative Guidelines provide: “alcohol-related incidents away from work, such as driving
while under the influence, . . . and alcohol-related incidents at work, such as reporting for work
or duty in an . . . impaired condition, or drinking on the job, regardless of whether the individual
is diagnosed as an alcohol abuser or alcohol dependent” can by themselves constitute conditions
that may disqualify an individual from holding a security clearance. 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) at ¶ 22. In the present case, an association exists between the
Individual’s consumption of alcohol and his subsequent failure to exercise good judgment and to
control his impulses, as evidenced by operation of a motor vehicle on public roads while in a
state of intoxication, and his reporting for work at a DOE nuclear facility with a BAL of .036%.
The DOE Psychiatrist’s diagnosis of the Individual with CDNOS also raises security concerns
about the Individual under Criterion H, since the DOE Psychiatrist opined that this condition
causes, or may cause, a significant defect in the Individual’s judgment and reliability.
The Individual’s three arrests constitute criminal conduct that raises security concerns under
Criterion L. “Criminal 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.” Adjudicative Guideline E at ¶ 30. The Individual’s
criminal activity, pattern of financial irresponsibility, two alcohol-related incidents at work, and
repeated provision of false or misleading information to the LSO constitute conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations which raise questions about the Individual's reliability, trustworthiness and ability to
protect classified information. Adjudicative Guideline E at ¶ 15.
Adjudicative Guideline E at ¶ 16(c) provides: “credible adverse information in several
adjudicative issue areas that is not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the person may not properly
safeguard protected information” may disqualify an individual from holding a security clearance.
V. ANALYSIS
A. Criteria H and J
At the hearing, the Individual challenged the DOE Psychiatrist’s opinion that the Individual
suffers from Alcohol Abuse/Dependence and Cognitive Disorder NOS. The Individual
submitted Exhibit B, a letter dated July 19, 2012, from a DOE Designated Psychologist to the
Local Manager of the DOE’s HRP. Exhibit B reports that the Individual was interviewed by the
DOE Designated Psychologist on behalf of the HRP earlier that day, that he had taken a
Substance Abuse Subtle Screening Inventory-3 (SASSI-3) test, and that the DOE Designated
Psychologist concluded that “No diagnosable alcohol-related disorder or other psychological
disorder was identified.” Exhibit B at 1.
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The Counselor also testified on the Individual’s behalf at the hearing. The Counselor testified
that he is a master’s level psychologist with a certification in substance abuse counseling. Tr. at
165. The Counselor testified that he began treating the Individual for adjustment disorder with
anxiety on February 25, 2013, and has been meeting with the Individual on a weekly basis since
then. Id. at 165, 169. The Counselor said that he had administered the SASSI-3 test to the
Individual, which indicated that he had a low probability of having a substance abuse or
dependency disorder. Id. at 167. The Counselor testified that he did not believe that the
Individual had an alcohol problem. Id. at 171, 176.
The DOE Psychiatrist testified at the hearing that the Individual told him that he was not
intoxicated at the time of his arrest for DUI, despite having a BAL of .13%. Tr. at 38. The DOE
Psychiatrist noted that this statement was evidence that the Individual had developed a tolerance
to alcohol. Id. at 38-39. The DOE Psychiatrist also testified that the Individual had stated that
he stays home alone when he uses alcohol and does not use alcohol in the presence of his spouse.
Id. at 39. The DOE Psychiatrist characterized this behavior as “isolation,” which he found to be
another indication of Alcohol Dependence. Id. He noted that the Individual’s use of alcohol has
caused recurrent problems with his spouse, which meets another criterion for Alcohol
Dependence. Id. at 40, 60. The DOE Psychiatrist testified that the Individual’s repeated
attempts to curtail or stop drinking were a further indication that the Individual is Alcohol
Dependent. Id. at 40, 82. The DOE Psychiatrist testified that diagnosing the Individual was
complicated by the Individual’s poor past history. Id. at 40. The DOE Psychiatrist could not
determine whether the Individual’s poor historianship was intentional or the result of the
Individual’s memory problem. Id.
I found several aspects of the DOE Psychiatrist’s testimony problematic. First, the DOE
Psychiatrist’s testimony was often difficult to follow.4 The DOE Psychiatrist failed to articulate
clearly the Individual’s precise problem, if any, with alcohol. Second, during the cross
examination, the Individual’s attorney repeatedly mischaracterized the Diagnostic and Statistical
Manual, Fourth Edition, Text Revision’s (DSM-IV-TR) criteria for Substance Dependence.5 The
DOE Psychiatrist failed to correct these mischaracterizations.
Finally, the DOE Psychiatrist failed to adequately defend or explain his alcohol
dependence/abuse diagnosis. For example, he admitted that he could not show that three of the
seven substance dependence criteria were present in the past twelve months and that the
Individual did not meet the full criteria for Alcohol Dependence.6 Id. at 42-43, 63. The cross
4 I am concerned about the DOE Psychiatrist’s failure to distinguish between alcohol dependence and alcohol
abuse. The DSM-IV-TR specifically states that the criteria for substance abuse can only be met if: “The symptoms
have never met the criteria for substance dependence for this class of substance.” DSM-IV-TR at 199.
5 For example, the DSM-IV-TR’s Substance Dependence criteria require that three or more of a set of seven
criteria need to occur “at any time in the same 12-month period” in order to find alcohol dependence. DSM-IV-TR
at 197. At the hearing, the Individual’s attorney mis-characterized this requirement as a “12-month look-back
period” which required the DOE to show that at least three of the seven diagnostic criteria occurred during the year
prior to the date of diagnosis. Tr. at 61.
6 Rather perplexingly, the DOE Psychiatrist stated: “I could not give him a diagnosis of alcohol dependence . . . It’s
alcohol dependence and there’s a partial remission.” Tr. at 63.
6
examination of the DOE Psychiatrist conducted by the Individual’s counsel revealed that the
DOE Psychiatrist’s diagnosis of “Alcohol Dependence/Alcohol Abuse” was equivocal and
unreliable for purposes of the present proceeding.
Moreover, two mental health professionals, the DOE Designated Psychologist and the
Counselor, have evaluated the Individual and concluded that the Individual does not suffer from
either disorder. Accordingly, after careful consideration of all of the information in the record, I
am unpersuaded by the DOE Psychiatrist’s diagnosis, i.e., that the Individual is either alcohol
dependent, or suffers from alcohol abuse. Conversely, I find that the other two experts’ opinions
to the contrary are entitled to greater weight.
The DOE Psychiatrist testified that a brief cognitive examination of the Individual revealed that
the Individual has difficulty with his memory. Id. at 67- 69, 71-72. He further testified that
“there may or may not be a problem here . . . they need to look at it” and that the Individual
needed a full neurological evaluation in order to determine whether the Individual’s CDNOS
significantly affects his judgment or reliability. Id. at 69-71.
For these reasons, I find that the DOE Psychiatrist has not shown that the Individual 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). Nor has the LSO shown 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).
Based upon the foregoing, I find that the Individual has mitigated the security concerns raised
under Criteria H and J.
B. Criterion L
The Individual’s record of three arrests, three alcohol-related incidents, longstanding pattern of
financial irresponsibility, and failure to provide accurate information to DOE security officials
raise significant concerns about the Individual’s judgment, reliability and trustworthiness under
Criterion L when viewed together under the whole person concept. The Individual’s three
arrests constitute criminal conduct that raises security concerns under Criterion L. The incidents
which led to these charges are examples of lapses in judgment on the part of the Individual. I
note that the Individual’s criminal conduct was sporadic, and that the last criminal incident, the
DUI, occurred about ten years ago. These facts might mitigate the concerns about the
Individual’s judgment, reliability and trustworthiness raised by his criminal conduct in the
absence of the other derogatory information raised under Criterion L.
The Individual’s three alcohol-related incidents constitute conduct which raise security concerns
under Adjudicative Guideline G. Once again, these incidents have been sporadic and the LSO
has not shown that they evidence an alcohol-related disorder or habitual use of alcohol to excess.
However, these incidents are further examples of lapses in judgment on the part of the
Individual. The July 13, 2012, incident occurred in the recent past.
The Individual has a longstanding pattern of financial irresponsibility. He has consistently failed
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to satisfy his debts, including his state taxes,7 for a period of time dating back to at least 1998
and continuing through the May 8, 2013, credit report, which showed that the Individual
continued to owe unpaid collection accounts totaling $331 two weeks prior to the hearing. The
Individual testified that he has paid $120 of the $331 in unpaid collection accounts but admits
that he has not paid the other unpaid collection account for $211. Tr. at 153. Exhibit D
documents that the Individual has paid the $120 collection account. While the Individual’s
financial delinquencies are minimal, and have almost been fully remediated, they have also been
longstanding in nature and include $3,277 of fairly recent tax delinquencies. Moreover, the
Individual’s financial delinquencies are further examples of the Individual exhibiting less-than-
ideal judgment and reliability.
The Individual provided contradictory and inconsistent information during his PSIs and
psychiatric examination. For example, during his August 2, 2012, PSI, the Individual stated that
the only alcohol he had consumed on July 13, 2012, was one 22-ounce beer that he consumed
between 8:00 a.m. and 9:00 a.m. Exhibit 6 at 7. During his psychiatric interview, he told the
DOE Psychiatrist that the only alcohol he consumed that day was a 24-once beer that he
consumed in a 20-minute period around 11:00 a.m. Exhibit 4 at 1. Later that day, at
approximately 6:30 p.m., the Individual was subjected to a random blood alcohol test which
showed a BAL of .036%, which exceeded the maximum standard of .02% established by the
HRP. At the hearing, the DOE Psychiatrist convincingly explained how the consumption of 24-
ounces of beer as late as 11:30 in the morning could not had resulted in a BAL of .036%. Tr. at
41. This example shows that the Individual was either not being truthful about the amount of
alcohol he consumed or was not being honest about when he consumed it. Moreover, the
Individual’s dishonesty apparently continued at the hearing, where the Individual testified that he
was being truthful when stated that the only alcohol he consumed on July 13, 2012, was a 22-
ounce beer that he had “earlier in the day.” Id. at 146. Moreover this lack of candor was a
continuation of a long-term pattern. Two months after his August 17, 2003, DUI arrest, the LSO
conducted a PSI of the Individual on October 14, 2003, in which described his current alcohol
consumption as three ounces of whisky per week. Exhibit 24 at 20. In June 2008, when an
Office of Personnel Management (OPM) investigator asked him about his alcohol consumption,
the Individual claimed that he had not used any alcohol since his August 17, 2003, DUI arrest.
Exhibit 15 at 8. Similarly, during his most recent PSI, the Individual provided markedly
inconsistent accounts of his alcohol consumption. During the August 2, 2012, PSI, the
Individual stated: “Ten years ago, 11 years ago, I was a heavy drinker.” Exhibit 6 at 7. A few
moments later, the Individual reported that he had consumed little or no alcohol from 1979 until
the night of the August 17, 2003, DUI arrest, and then went “completely dry, except for a beer
occasionally” until the present. Id. at 12-13. Because these statements show that DOE security
cannot rely upon the information provided by the Individual, I find that the security concerns
raised by the Individual’s inconsistent and illogical statements to DOE officials have not been
resolved.
Accordingly, I find that the security concerns under Criterion L raised by the Individual’s three
arrests, two alcohol-related incidents at work, longstanding pattern of financial irresponsibility,
7 The Individual testified that his state tax debts were the result of an error on the part of his accountant. Tr. at 152.
However, the state tax delinquencies were only resolved when the state revenue authority garnished the Individual’s
wages and set-off the remaining debts from a subsequent tax refund owed the Individual. Tr. at 151; Exhibit C at 1.
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and failure to provide accurate information to LSO officials have not been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L.
The Individual has sufficiently mitigated the derogatory information raised under Criteria H and
J. However, I find that unmitigated security concerns remain under Criterion L. Accordingly,
the Individual has not demonstrated that restoring his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual's security clearance should not be restored at this time. The Individual may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: June 26, 2013