PSH-13-0064

*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: May 22, 2013 ) Case No.: PSH-13-0064
)
___________________________________ )
Issued: October 11, 2013
______________________
Hearing Officer Decision
______________________
Steven J. Goering, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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. A
Local Security Office (LSO) summoned the individual for an interview (PSI) with a personnel
security specialist on November 29, 2011, Exhibit 9, after the individual was arrested on
September 2, 2011, and charged with driving under the influence (DUI). After the PSI, the LSO
referred the individual to a local board-certified psychologist (hereinafter referred to as “the DOE
psychologist”) for an agency-sponsored evaluation. The DOE psychologist prepared a written
report, setting forth the results of that evaluation, and sent it to the LSO. Exhibit 11. Based on this
report and the rest of the individual’s personnel security file, the LSO determined that derogatory
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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information existed that cast into doubt the individual’s eligibility for access authorization. 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. 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 14 exhibits into
the record of this proceeding, and presented the testimony of the DOE psychologist. The individual
introduced two exhibits, and presented the testimony of four witnesses 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 not endanger the common defense and be clearly consistent with the national
interest. 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 Criterion J, the LSO
cited two arrests of the individual, one for DUI and Leaving the Scene of an Accident on May 18,
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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2001, and a second for DUI on September 2, 2011. Also under Criterion J, the LSO cited statements
by the individual that he consumed about a six-pack of beer on weekends and that, in the mid-1990s
to early 2000s, he drank about a 12-pack of beer on weekends. To support Criterion H, the LSO
cited the DOE psychologist’s report, in which he concluded that the individual’s “lack of maturity
leaves significant questions as to his judgment and reliability.” Exhibit 11 at 4.
The above information adequately justifies the DOE’s invocation of Criterion J, and raises
significant security concerns. Excessive alcohol consumption often leads to the exercise of
questionable judgment or the failure to control impulses, and can raise questions about an
individual's reliability and trustworthiness. See Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information (Adjudicative Guidelines), The White House
(December 19, 2005) at Guideline G (under which conditions that could raise a concern include
“alcohol-related incidents away from work, such as driving while under the influence, . . . ,
regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent”).
However, I do not find information in the record adequate to justify the invocation of Criterion H in
this case. As noted above, Criterion H relates to information 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). In the
present case, after preparing a report of his January 9, 2012, evaluation of the individual, the DOE
psychologist submitted a letter dated July 16, 2012, to the LSO, in which he concluded that “while I
have concerns about [the individual]’s ability to be accountable for his actions, especially in
interactions with authority figures, this not a product of an illness or mental condition.” Exhibit 11.
At the hearing in this matter, the DOE psychologist testified that he “had concerns about the
inconsistent reporting and the histories but I had what I felt to be reliable testing that did not
demonstrate a mental condition or disorder. . . . Immaturity and oppositionality are not mental
conditions.” Hearing Transcript (Tr.) at 124, 131. Having reviewed the record, particularly in light
of the opinions expressed by the DOE psychologist in his report, his subsequent letter, and his
hearing testimony, I do not find from the record that the individual has an “illness or mental
condition” of any kind, and therefore do not find a basis for the invocation of Criterion H in this
case.
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 39 years old, and has worked for various DOE contractors and subcontractors since
1996. He held a clearance in his current job until it was recently suspended. According to the
individual, when he was in his twenties, he drank more heavily than he does currently. Exhibit 9,
2009 PSI at 8 (“12 pack on a Saturday . . . on the weekends”); Tr. at 115-16. The individual
described his May 2001 DUI as “probably the end of my heavy consumption years.” Tr. at 104. On
the day of that incident, the individual was at a lake “all day drinking and was way, way, way out of
line as far as the amount.” Id. at 86. On the way back from the lake, while towing a boat, the
individual stopped at a gas station where he caused some damage with his vehicle, after which he
left the scene and went home, where he was eventually arrested. Id. at 86-89.
Though the individual did not hold a security clearance at the time of his 2001 DUI arrest, the
incident was discussed during the individual’s 2009 PSI, during which the interviewer explained the
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basis for a security concern stemming from the use of alcohol. Exhibit 9, 2009 PSI at 11. The
interviewer asked the individual if he understood “that as long as you hold a clearance, you’ll be
periodically reinvestigated, and should the abuse of alcohol be something that comes to our
attention, again, you could . . . lose a security clearance for that?” Id. at 12. The individual
indicated that he understood this. Id. The individual received a similar warning in a follow-up
interview in January 2010. Exhibit 9, 2010 PSI at 18.
On September 2, 2011, the individual traveled by motorcycle with friends to see a band play. He
testified that they arrived at the venue at approximately 6:00 pm and left at about 10:30 pm, and that,
while there, he drank three 16-ounce cans of beer (the equivalent of four standard 12-ounce cans of
beer), and also ate. Tr. at 105-06. On the way back home, the individual and one of his friends were
stopped by police, who “said initially it was for illegal helmet and asked us if we had been
drinking.” Id. at 105. After doing a field sobriety test, “they said they felt I was borderline and
wanted to take me in for a Breathalyzer.” Id. According to the individual, his blood alcohol content
was measured at 0.09%. Exhibit 12 at 2.
In response to a September 27, 2011, Letter of Interrogatory, the individual stated that he drank beer
“weekly, less than 12 on weekends.” Id. at 3. During his November 29, 2011, PSI, the individual
stated that he drank “not over a six-pack on the weekends . . . and that’s including Friday, Saturday
and Sunday. . . . [It] usually is always at home. I never go out.” Exhibit 9, 2011 PSI at 7.
There are clearly times, however, when the individual drinks away from home. A friend of the
individual, who plays in a band with him and testified at the hearing, was asked how often he had
seen the individual intoxicated and responded: “I don’t know. 75 percent of the time that we play
out he may have had too much to drink. And I have driven him home several times but, yes.” Tr. at
23. He testified that the band practices during the week and usually plays on Fridays, on “average
once a month, maybe 1.5 times a month.” Id. at 26.
In addition, another friend of the individual testified that they spend time together on weekends at a
lake. Id. at 36. He and the individual have their own boats. Id. at 44. “[W]e camp out and cook
out. And stand around in the sand and the water and enjoy the day.” Id. at 36. On these occasions,
they usually drink. Id. at 37-38. He stated that he usually buys a twelve-pack of beer for the
weekend, and the individual buys his own beer. Id. at 44-45.
The Adjudicative Guidelines list the following conditions that could mitigate security concerns
raised under Guideline G (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);
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(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.
In this case, over two years have passed since the individual’s second DUI arrest, and it has been
over twelve years since his first DUI arrest, 10 years earlier. Thus, the likelihood of recurrence of
another such incident would appear to be lower than if there were a history of more alcohol-related
problems, occurring more recently and frequently. On the other hand, when the individual was
being investigated for a clearance in 2009 and 2010, and was warned about this issue in two separate
PSIs, the passage of over eight years since his 2001 DUI arrest allowed for a confidence in the
individual’s future behavior that, in retrospect, was misplaced, given his subsequent DUI arrest in
2011.
In the individual’s favor is the fact that, unlike after his first DUI arrest, the individual participated
in alcohol awareness programs after the second incident. The individual submitted certification of
his attendance in 2012 at a 12-hour DUI program and a Mothers Against Drunk Driving Victim
Impact Panel, required as part of his probation after his 2011 DUI charge, which the individual
testified was reduced to a charge of reckless driving. Exhibits A and B; Tr. at 106-07. While this
could be considered an abbreviated form of counseling or treatment, I note that the DOE
psychologist recommended in his report more substantial treatment, specifically that the individual
“enter an individual therapy with an experienced substance abuse counselor who would both educate
him and create a structure of accountability within which he could operate.” Exhibit 11 at 4.
Nonetheless, in his hearing testimony, the DOE psychologist noted apparent changes in the
individual since his January 2012 evaluation. “I think that today there is much more self-
responsibility and awareness that other people are looking at this seriously. And that he too is
joining that level of seriousness . . . . I think there is every indication that he takes this seriously and
understands how seriously the Department takes it . . . .” Tr. at 125, 126.
My impression of the individual’s hearing testimony is similar, in that he appears to understand that
the DOE is concerned by his two DUI arrests, and he is determined not to “drink and get behind the
wheel, as far as drinking and driving goes.” Id. at 112. The individual also appears to recognize at
least the potential that a more serious problem could arise from his use of alcohol. “[A]s far as
having a problem where it might develop into something that my father went through; all I can say is
watching him go through that is not something that I'm ever going to put myself into, I'm not going
down that same road.” Id. at 112-13. He does not believe, however, that he currently has a problem.
“I really don't. If I did, I would like to think that I could make the necessary changes and stop.” Id.
at 111.
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I believe, however, that there is cause for continued concern in this case, based upon the amount of
alcohol the individual still may be consuming on a regular basis. This is well illustrated by the
individual’s friend’s testimony that when their band is playing at a local venue, which takes place
once or twice a month, “75 percent of the time . . . he may have had too much to drink.” Id. at 23.
At the end of this testimony, the individual interjected, “I mean, I’m not drunk 75 percent of the
time. I may be like over the legal limit when we are playing but, you know, intoxicated I don’t think
that that is what you meant, right?” Id. at 28. Thus, while there may be a dispute at to whether the
individual would qualify as “drunk” (a more subjective term), it does appear the individual may
drink to a level of legal intoxication on a regular basis. See also id. at 125 (testimony of DOE
psychologist that he is “concerned about these boating weekend binges. That is potentially real
trouble.”); id. at 134 (“I wanted to highlight for [the individual] that if he were enjoying a grill and a
park ranger would say would you do a Breathalyzer he would be over the limit and would have a
public intoxication charge.”).
The DOE psychologist pointed out in his testimony why even what he characterizes as “heavy
drinking” would not trigger a diagnosis of alcohol abuse or even an opinion of use of alcohol
habitually to excess, given the lack of a sufficient number of consequential events such as relational,
legal, financial, health, or occupational problems. Id. at 136-37; 139 (“[I]t is not an issue of abuse. It
would be described as heavy drinking.”). However, in order to raise a security concern under
Criterion J, the Part 710 regulations do not require the opinion of an expert that an individual has
been, or is, a user of alcohol habitually to excess, and the same logically would be true of the
evaluation of any concern going forward.
With that in mind, and applying the “common-sense judgment” called for under the regulations,
10 C.F.R. § 710.7(a), I conclude that, while consuming alcohol to intoxication on rare occasions
may be insufficient to present an unacceptable risk to the national security, the same is not
necessarily true of holders of security clearances who, somewhat predictably, drink to intoxication
on a regular basis. See Personnel Security Hearing, Case No. PSH-12-0085 (2012) (concern under
Criterion J not resolved given risk, going forward, of impairment of the individual’s judgment on a
regular basis), aff’d (Appeal Panel, April 22, 2013).
While every case must be judged on its own merits, here there is evidence that, when the individual
uses alcohol, his judgment can be, and has been, impaired to the point where he makes decisions
clearly not in his best interest, such as riding his motorcycle home after drinking in 2011, despite a
previous DUI arrest, and even though he held a clearance and had been clearly warned in 2009 and
2010 of the risk such behavior entails.4 There is no reason to think that the individual’s future use of
alcohol to intoxication will not carry with it similar risks.
Though the individual testified that he drank less after his 2011 DUI arrest, Tr. at 108, the
individual’s wife, when asked whether “he drinks less or just does not go anywhere when he drinks,”
responded that he “[d]oesn’t go anywhere when he drinks.” Id. at 55; but see id. at 21 (testimony of
friend that it “[s]eems like he has slowed down a little”). Similarly, while the individual
characterized his first DUI arrest, in May 2001, as “the end of my heavy consumption years,” id. at
104, his wife testified that the amount he drank after that arrest was ‘[a]bout the same. It didn’t get
4 In fact, choosing to drink at all in that context raises concerns regarding the individual’s judgment, even when
sober.
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any heavier.” Id. at 51. Given the testimony as a whole, I cannot find a basis for concluding that the
individual significantly modified his consumption of alcohol after the 2011 DUI.
The DOE psychologist, nonetheless, expressed hope regarding the individual’s future use of alcohol.
There is something that is sort of a family kind of cultural tradition around these sort
of cooking out, grilling out, hanging out, drinking kind of situations. And that makes
me anxious but it is my hope that there has been enough information and the impact
of the significance of his drinking has been made clear enough to where I'm seeing a
different guy today than I saw when I evaluated him a year ago.
Id. at 128; see also id. at 140 (“I think the trajectory is that [the individual’s use of alcohol] will be
modified even more.”), 129 (“He is talking like a guy who knows [future incidents are] just not an
option.”).
Although I share the DOE psychologist’s hope, I note that the individual made similar statements in
his 2009 and 2010 PSIs. Exhibit 9, 2009 PSI at 18-19 (“I’m gonna do everything in my power not to
abuse alcohol. . . . I think I’m gonna be fine. I was, you know young and stupid and did stupid
things back in the day”); id., 2010 PSI at 19 (“I’ve got a good job and I don’t want to screw it up”).
Moreover, there is no apparent recognition by the individual that the amount and frequency of his
current alcohol consumption may raise legitimate security concerns, and so there is a notable lack of
determination by the individual to moderate his consumption going forward. Under these
circumstances, for the reasons set forth above, I cannot find that the legitimate concerns in this case
under Criterion J have been sufficiently resolved.
V. CONCLUSION
In the above analysis, I have found that there was sufficient derogatory information in the possession
of the DOE that raises security concerns under 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 at issue. I
therefore cannot find that restoring the individual’s access authorization will not endanger the
common defense and is clearly consistent with the national interest. Accordingly, I have determined
that the individual’s access authorization should not 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.
Steven J. Goering
Hearing Officer
Office of Hearings and Appeals
Date: October 11, 2013