PSH-13-0071

*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: June 5, 2013 ) Case No.: PSH-13-0071
)
_________________________________________ )
Issued: October 10, 2013
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Hearing Officer Decision
____________________
Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxx (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 be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In March 2013, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about his alcohol use. In addition to the PSI, the LSO requested the individual’s
medical records and recommended a psychological evaluation of the individual by a DOE
consultant psychologist (DOE psychologist). The DOE psychologist examined the individual in
April 2013 and memorialized her findings in a report (Psychological Report). According to the
DOE psychologist, the individual suffers from Alcohol Abuse. The DOE psychologist further
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.
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concluded that the individual’s Alcohol Abuse is a mental illness that causes or may cause a
significant defect in his judgment and reliability.
In January 2013, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding his eligibility to hold an
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of three potentially disqualifying criteria set forth
in the security regulations at 10 C.F.R. § 710.8, subsections (h), (j) and (l) (hereinafter referred to
as Criteria H, J and L respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the individual presented his own testimony and that of seven witnesses. The DOE
Counsel called one witness, the DOE psychologist. Both the DOE and the individual presented
a number of written exhibits prior to the hearing.
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 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 denial”); 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 at the hearing with evidence to convince the DOE that
restoring 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 may be
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 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). Finally, Criterion L relates, in relevant part, to
information that a person 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. § 710.8(l).
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admitted. 10 C.F.R. § 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
B. Basis for 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 in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites three criteria as bases for suspending the individual’s security
clearance: Criteria H, J and L. To support Criterion H, the LSO relies on the diagnosis of the
DOE psychologist that the individual suffers from Alcohol Abuse, and the expert’s opinion that
Alcohol Abuse is a mental illness that could cause a significant defect in the individual’s
judgment and reliability. As for Criterion J, the LSO cites the DOE psychologist’s opinion and
the individual’s alcohol use, as well as the individual’s three alcohol-related arrests. See DOE
Exh. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s alcohol use under both Criteria H and J. First, a mental condition such as
Alcohol Abuse can impair a person’s judgment and reliability and 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). Second, the excessive
consumption of alcohol itself is a security concern because that behavior can lead to the exercise
of questionable judgment and the failure to control impulses, which in turn can raise questions
about a person’s reliability and trustworthiness. See id. at Guideline G.
Finally, to support its reliance on Criterion L, the LSO cites the individual’s pattern of criminal
conduct, and lists the individual’s February 2013 arrest for Driving Under the Influence (DUI), a
2010 Disorderly Conduct and Concealed Identity charge and a 2008 Open Container charge.
IV. Findings of Fact
On February 13, 2013, the individual was arrested and charged with DUI and cited for having an
open container in his vehicle. See DOE Exh. 3. According to the police report, the individual
was parked in the middle of a roadway, passed out behind the wheel of his vehicle. Id. Due to
the individual’s high level of intoxication, no field sobriety tests were conducted, but a blood
sample was taken at a local hospital. The results of the blood test indicated that the individual
registered a blood alcohol content (BAC) of .20. Id. In his March 2013 PSI, the individual
admitted that he drank a mixture of vodka and Gatorade before he was arrested. Id. This was
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the individual’s first DUI. However, he had two previous alcohol-related arrests. In 2010, the
individual was charged with Disorderly Conduct and Concealed Identity. He admitted that he
consumed alcohol on the evening of the arrest. In addition, in March 2008, the individual was
charged with two counts of Open Container. He also admitted to consuming alcohol prior to this
arrest. Id.
Based on this information and the fact that the individual had a prior history of alcohol-related
offenses, the individual was referred to a DOE psychologist. On April 9, 2013, the DOE
psychologist evaluated the individual. In her Report, she concluded that the individual met the
criteria for Alcohol Abuse. The DOE psychologist further concluded that the individual’s
Alcohol Abuse is an illness or mental condition, which causes, or may cause, a significant defect
in judgment and reliability. DOE Exh. 4.
V. Analysis
I have thoroughly considered the record in 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)3 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should be restored. I 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.
A. The Diagnosis of Alcohol Abuse
The individual does not dispute the DOE psychologist’s diagnosis of Alcohol Abuse. Therefore,
the focus of the analysis will be on whether the individual has demonstrated adequate evidence
of rehabilitation or reformation from Alcohol Abuse.
B. Evidence of Rehabilitation and Reformation from Alcohol Abuse
During the hearing, the individual acknowledged his 2008 and 2010 alcohol-related incidents, as
well as his February 2013 DUI as bad choices and mistakes. Transcript of Hearing (Tr.) at 107.
According to the individual, on the night of his DUI, he ran into an old high school friend who
invited him to his new house. Id. He testified that his friend offered him a drink of vodka which
was the alcohol the friend had in the house. The individual stated that he drank although he had
refrained from drinking hard liquor since his 2010 alcohol-related incident. He further stated
that after the DUI, he was very disappointed in himself, depressed, scared and angry. Id. at 115.
The individual stated that it was at this point he researched the signs of alcohol abuse on the
3 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.
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internet and found literature on Alcoholics Anonymous (AA). He stated that he decided to
attend an AA meeting and schedule an appointment with the Employee Assistance Program at
work. Id. at 117.
The individual testified that his EAP counselor referred him to a psychotherapist for alcohol
treatment. According to the individual, he successfully completed an Intensive Outpatient
Program (IOP). He further testified that he has learned a great deal from his alcohol treatment,
including how to address triggers. Id. at 122. The individual stated that he has a very supportive
family and believes he has gone above and beyond his treatment recommendations. Id. at 123.
Although the individual believes that he does not need AA to prevent him from drinking, he
testified that he continues to attend AA because he enjoys the fellowship. Id. at 124. The
individual testified that he has never had cravings for alcohol and is serious about remaining
abstinent from alcohol in the future. Id. at 127 and 128. He stated that he has not drunk any
alcohol since the date of his February 2013 DUI. Finally, the individual testified that he is
remorseful for his DUI, stating that he never knew what his relationship with alcohol was until
his DUI. Id. at 129.
During the hearing, the individual offered the testimony of a psychotherapist and his treating
therapist. The psychotherapist, who is a licensed alcohol counselor, testified that the individual
was referred to his treatment program by the individual’s EAP Counselor in May 2013.4 After
evaluating the individual, the psychotherapist diagnosed the individual with Alcohol Abuse and
recommended an IOP which consisted of nine hours of group therapy and one hour of individual
therapy per week. Id. at 74. The psychotherapist testified that the individual successfully
completed the IOP and was very open and honest throughout treatment. Id. According to the
psychotherapist, the individual’s past and present problems with alcohol warranted the diagnosis
of alcohol abuse, but he pointed out that the individual is not a habitual drinker. Id. at 76.
However, the psychotherapist stated that when the individual does drink alcohol, he has the
propensity to drink to excess which causes problems for him. Id. After spending over a 120
hours with the individual in treatment, the psychotherapist stated that he never perceived that the
individual was in denial. Id. at 77. He believes the individual has reached a point in his life
where he is convinced that using alcohol is counterproductive to his life goals. The
psychotherapist, who is still currently treating the individual, does not believe the individual has
a drinking problem. He testified that the individual’s prognosis is good for the future. Id. at 78.
The psychotherapist further testified that he believes the individual is reformed. Id. at 79.
The individual’s therapist, who is a licensed counselor and also works with substance abuse
issues, testified that she began meeting with the individual in 2011 to work on issues related to
stress and managing divorce. His therapist, who has seen the individual for 25 sessions, testified
that she does not believe the individual meets the criteria for Alcohol Abuse under the
Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR)
because the individual’s three alcohol-related incidents occurred over a period of time and did
not occur within a 12-month period of time as required by the Alcohol Abuse criteria in the
4 During the hearing, the individual also offered the testimony of the EAP Counselor. The EAP Counselor stated
that he was surprised when the individual contacted him because he had previously worked with him on coping
issues after his 2010 alcohol-related incident. Id. at 51. Although he testified that the individual is dedicated to the
EAP program, he stated that was not in a position to offer a prognosis of the individual. Id. at 53 and 55.
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DSM-IV-TR. Id. at 97 and 98. She specifically noted that the individual’s February 2013 DUI
was not a recurrent alcohol-related incident. Id. The individual’s therapist testified that as of the
date of the hearing, she would not diagnose the individual with Alcohol Abuse. She testified that
the individual is not a problem drinker, that alcohol does not alter the individual’s perceptions
and that alcohol does not play a role in how the individual deals with his life. Id. at 102. Finally,
she testified that the individual’s prognosis is good, noting that the individual is a disciplined
person and she does not believe he will relapse. Id. at 103 and 104.
The individual also offered the testimony of his AA sponsor, his wife, his supervisor and a co-
worker/friend. The individual’s AA sponsor testified that he has been the individual’s sponsor
for about two months and that the individual participates in weekly AA meetings. Id. at 35. He
stated that to his knowledge, the individual has been sober since his February 2013 DUI and is
totally dedicated to his sobriety. Id. at 37. The individual’s wife, who has known the individual
for seven years, testified that the individual was disappointed and remorseful after his DUI and
that she has not seen the individual drink since his DUI. Id. at 60. She further testified that the
individual has been diligent with his treatment. Both the individual’s supervisor and his co-
worker/friend testified that the individual is reliable, exercises good judgment and is dedicated to
abstinence. Id. at 13 and 21.
The DOE psychologist listened to all the testimony at the hearing before testifying herself. She
testified that as of the date of the hearing, she believes the individual has achieved adequate
evidence of rehabilitation. The DOE psychologist stated that the individual’s prognosis is very
good that he will remain abstinent. Id. at 138. She noted that she does not often change the time
frame of recommended abstinence, which was 12 months in this case. The DOE psychologist
testified that a year of abstinence is not an arbitrary time frame because it gives individuals time
to encounter triggers. She also stated that after a one year time frame, the relapse rate declines to
nine percent. Id. at 138. However, she noted in this case where the individual has achieved six
months of abstinence as of the date of the hearing, the individual’s depth of his commitment as
well as his family support, lifestyle changes and lack of denial are significant and that based on
these factors, the individual has demonstrated adequate evidence of rehabilitation. She
reiterated that the individual does not have an illness that causes a significant defect in his
judgment and reliability. Id. at 141.
C. Hearing Officer’s Evaluation of the Evidence
In the administrative process, Hearing Officers accord deference to the expert opinion of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).5 At the outset, I am
persuaded by the favorable testimony of the DOE psychologist, the psychotherapist and the
individual’s therapist that the individual has achieved adequate evidence of rehabilitation.
Moreover, the Adjudicative Guidelines describe factors that could mitigate security concerns
involving both psychological conditions and alcohol consumption. See Adjudicative Guideline,
Guidelines G and I, ¶ 23 and ¶ 29, respectively. In this case, the individual has satisfied the
5 Decisions issued by OHA are available on the OHA website located at http://www.oha.doe.gov. The text of a
cited decision may be accessed by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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following mitigating factors: (1) the individual has acknowledged his alcohol abuse, provided
evidence of actions taken to overcome his problem and has established a pattern of responsible
use; (2) the individual has successfully completed an IOP with required aftercare, has
demonstrated a clear and established pattern of abstinence in accordance with his treatment
recommendations, i.e., his participation in AA meetings, and has received a favorable prognosis
by a duly qualified medical professional; and (3) the DOE psychologist has opined that the
individual has a low probability of recurrence. Adjudicative Guidelines G and I, ¶ 23 (b) and (d)
and ¶ 29 (c), respectively. For these reasons, I find that the individual has mitigated the DOE’s
security concerns under Criteria H and J.
D. Criterion L
The DOE’s concerns under Criterion L security concerns relate to the individual’s pattern of
criminal conduct, specifically his alcohol-related incidents occurring in 2008, 2010 and most
recently his February 2013 DUI.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
pattern of criminal conduct are (1) so much time has elapsed since the criminal behavior
happened, or it happened under such unusual circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (2) the person
was pressured or coerced into committing the act and those pressures are no longer present in the
person’s life; (3) evidence that the person did not commit the offense; and (4) there is evidence
of successful rehabilitation; including but not limited to the passage of time without recurrence
of criminal activity, remorse or restitution, job training or higher education, good employment
record, or constructive community involvement. Adjudicative Guideline J at ¶ 32 (a)-(d). In this
case, the individual is remorseful for his conduct, has successfully completed an IOP and has
demonstrated adequate evidence of rehabilitation. After considering the “whole person,” I am
convinced that the DOE can rely on the individual’s ability to make sound judgment calls
regarding the safeguarding of classified information. See Adjudicative Guidelines at ¶ (2)a. I
therefore find that the individual has sufficiently mitigated the LSO’s concerns under Criterion
L.
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 Criteria H, J and L. 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
find that the individual has brought forth convincing evidence to mitigate the security concerns
associated with Criteria H, J and L. I therefore find that restoring the individual’s access
authorization would not endanger the common defense and security and would be consistent
with the national interest. Accordingly, I find that the individual’s access authorization should
be restored.
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The parties may seek review of this Decision by an Appeal Panel under the regulations set forth
at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: October 13, 2013