PSH-13-0073

*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 8, 2013 ) Case No.: PSH-13-0073
)
___________________________________ )
Issued: September 27, 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 January 17, 2013, Exhibit 8, after the individual was arrested on October 1, 2012, and
charged with battery against a household member. Exhibit 6. 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 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
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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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 nine exhibits into the
record of this proceeding. The individual introduced one exhibit, and presented the testimony of one
witness in addition to his own testimony.
II. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that
in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and
circumstances, and make a “common-sense judgment . . . after consideration of all relevant information.”
10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and unfavorable, that has a
bearing on the question of whether restoring the individual’s security clearance would 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 the report of
the DOE psychologist, in which he concluded that the individual has been a user of alcohol habitually to
excess, as well as the individual’s history of alcohol use and alcohol-related incidents. Id. To support
Criterion H, the LSO cited the DOE psychologist’s finding that the individual met criteria found in the
Diagnostic and Statistical Manual of Mental Disorders IV-TR (DSM-IV-TR) for Posttraumatic Stress
Disorder (PTSD), and that this disorder and the individual’s use of alcohol habitually to excess are
illnesses or mental conditions that cause or may cause a significant defect in judgment and reliability. Id.
(citing Exhibit 4 at 5).
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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The above information adequately justifies the DOE’s invocation of Criteria H and J, and raises
significant security concerns. Certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness, in this case both PTSD and the individual’s use of alcohol
habitually to excess being of concern under Criterion H. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information (Adjudicative Guidelines), The White House
(December 19, 2005) at Guideline I; see also Personnel Security Hearing, Case No. PSH-11-0003 (2012)
(use of alcohol habitually to excess raised concern under Criterion H in light of opinion of DOE
psychiatrist). Moreover, apart from whether it is considered a mental condition under Criterion H,
excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to
control impulses, and thus raises questions about an individual's reliability and trustworthiness under
Criterion J. See id at Guideline G.
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 26 years old, and has worked for a DOE contractor since May 2011. In April 2006,
when he was 18 years old, the individual was cited for Minor in Possession of Alcohol. Exhibit 8 at
46-48. From August 2005 to June 2010, the individual served in the military, during which time he
received a written warning after consuming alcohol while underage and lighting off fireworks too close
to a barracks (in September 2006), and a non-judicial punishment for underage drinking (in February
2007). Exhibit 7 at 5-6; Exhibit 8 at 40-43; 44-45. The DOE psychologist’s report relates that, while the
individual was serving in the military, he “was the victim of hits from 7 Improvised Explosive Devices
and 4 Rocket Propelled Grenades. Four of his team members have been killed in combat. According to
[the individual’s] account, but not independently corroborated, he was diagnosed with traumatic brain
injury.” Exhibit 4 at 4.
During his military service, the individual drank “1 to 3 beers every 1 to 2 months or longer, over an
evening.” Id. at 2; Hearing Transcript (Tr.) at 19-20. After his discharge from the military, in June 2010,
the individual began to drink more and with greater frequency, having five beers over the course of an
evening, twice a week. Exhibit 7 at 5; Tr. at 19-20. In August 2011, his then-wife left him, taking his 4-
year-old son, after which his “drinking increased to 7 beers over a similar period but with an additional
‘couple of shots of whiskey,’ on a sporadic basis.” Exhibit 4 at 2; Tr. at 19-20. In his hearing testimony,
the individual stated that, in the “few months” leading up to his October 2012 arrest, he was drinking
“quite a bit” and usually to intoxication. Tr. at 30.
A criminal complaint filed by local police with regard to the individual’s October 1, 2012, arrest records
statements of several witnesses to the events leading to the arrest. Exhibit 6. The manager of the bar
where the incident took place stated that the individual “pushed his girlfriend . . . into a wall several times
before she got away and went into the bathroom.” Id. at 1. The manager stated that the individual
followed his girlfriend “into the bathroom and choked her before going outside.” Id. The individual’s
girlfriend stated that, while she was in a bathroom stall with her friend, the individual kicked the door
open and it hit her and her friend in the face. Id. at 1-2. She said that the individual “grabbed her around
the throat with one hand and choked her for about 3 seconds.” Id. at 2. The statement of the friend of the
individual’s girlfriend corroborates the girlfriend’s account. Id. at 1.
The complaint also notes a statement by the individual’s girlfriend that the individual “is not supposed to
have shots of hard alcohol because he gets violent,” though also noted is a statement by the individual
that his girlfriend “had a few drinks and she could not hold her liquor well” and that she “slapped him in
the face.” Id. At the hearing, the individual stated that he did not “remember much of that night.” Tr. at
29. He testified that he remembered watching a football game, and his next memory was “[w]aking up in
handcuffs.” Id.
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The individual testified that he has not “touched a sip of alcohol since that day.” Id. His girlfriend
testified that she has not seen the individual consume alcohol since the incident. Id. at 43. The
individual stated that he was required to “get treatment for anger management and alcohol, you know,
usage, I guess. So I went to the [Veterans Administration (VA)] and got assistance there.” Id. He
described treatment lasting for “eight weeks for four days a week for three hours a day, . . . .” Id. at 60.
A court record submitted by the DOE Counsel prior to the hearing reflects the individual’s successful
completion of an Early Intervention Program and a Domestic Violence Program, and the dismissal of the
criminal charge against the individual on May 8, 2013. Exhibit 9.
The DOE psychologist was present for the entire hearing and testified last. Regarding his diagnosis of
PTSD, the DOE psychologist reviewed the criteria for the disorder set forth in the DSM-IV-TR. He
testified that, from the individual’s own report, “he met all the standards.” Tr. at 49. Specifically, he
noted the individual’s traumatic combat experience, which left him as the only surviving member of his
team, his “intrusive memories,” emotional and physiological reactions, avoidance of “aggressive stimuli,”
inconsistent ability to recall his battlefield experience, reduced interest in certain activities, sleep
difficulties, increased irritability, difficulty with concentration, hypervigilance, and heightened startle
reaction. Id. at 49-51.
The individual disputes the PTSD diagnosis. He submitted a letter signed by a VA social worker stating
that the social worker had “reviewed your VA medical records. As I advised you when we spoke, in
your VA medical records there is no PTSD diagnosis.” Exhibit A. The DOE psychologist noted that this
document does not “indicate you don't have PTSD; they indicate when they look at the record, they do
not find PTSD. That's very different.” Tr. at 54. The individual testified, however, that veterans seeking
VA benefits “have to go talk to the doctors and whatnot to get cleared” and that “you actually have to go
through that whole screening and assessment in order to complete your VA sign-up for benefits.”
Id. at 24.
I find that the lack of a recorded diagnosis of PTSD in the individual’s VA records in no way invalidates
the DOE psychologist’s diagnosis, particularly given the lack of evidence in the record as to the nature of
any assessment the VA may have performed. That diagnosis, and the opinion of the DOE psychologist
that the individual’s PTSD, considered in conjunction with his history of alcohol use habitually to excess,
causes or may cause a significant defect in the individual’s judgment or reliability, clearly raises
legitimate security concerns under Criterion H, as noted above.
The Adjudicative Guidelines list the following conditions that could mitigate security concerns raised
under Guideline I (Psychological Conditions):
(a) the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a condition that
is amenable to treatment, and the individual is currently receiving counseling or treatment with a
favorable prognosis by a duly qualified mental health professional;
(c) recent opinion by a duly qualified mental health professional employed by, or acceptable to
and approved by the U.S. Government that an individual's previous condition is under control or
in remission, and has a low probability of recurrence or exacerbation;
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(d) the past emotional instability was a temporary condition (e.g., one caused by a death, illness,
or marital breakup), the situation has been resolved, and the individual no longer shows
indications of emotional instability;
(e) there is no indication of a current problem.
Adjudicative Guidelines at ¶ 29.
First, regarding appropriate treatment, I note that the DOE psychologist, the only expert to testify at the
hearing in this matter, recommended in his report that in
order to have a reasonable chance to recover from his psychological symptoms he should
participate in one of the VA group therapy programs for veterans with PTSD, for at least
a year, and have at least a year of individual therapy with, a professional who has
specialized training in work with victims of trauma. During that full year he should
continue a regimen of complete abstinence.
Exhibit 4 at 5.
At the hearing, after hearing the testimony of the individual and his girlfriend, the DOE psychologist
opined that “there is a very high probability that PTSD will result in instances of poor judgment and
increased anger” in the individual. Tr. at 61.
Thus, as for condition (a) above, while it appears that the individual’s condition is amenable to treatment,
there is no evidence that he has complied with any treatment plan specifically designed to address a
diagnosis of PTSD. Regarding the other relevant conditions, I find that none of them can be met so long
as there continues to be a reasonable prognosis of a “very high probability” of future instances of poor
judgment.
Regarding the individual’s use of alcohol, 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);
(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.
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Adjudicative Guidelines at ¶ 23.
As for the treatment received by the individual, the DOE psychologist testified that
given the history of how long he had a habit of using alcohol, how often he used it -- not
used it, but used it to excess, according to his own accounts, and the fact that his
treatment was so superficial as to almost be trivial, I don't think there is anyone who
works in the treatment of alcohol that thinks that his -- his treatment that he had for those
few weeks was going to be enough to really take care of anything.
Tr. at 59. According to the DOE psychologist, “the most reasonable prediction, is that he will again use
alcohol [to excess] unless he gets further treatment.” Id. at 61.
Considering the potential mitigating conditions set forth in the Adjudicative Guidelines in light of the
opinions expressed by the DOE psychologist, which I found to be reasonable, I cannot find that the
individual’s use of alcohol is unlikely to recur (condition (a)). Moreover, there is clearly no favorable
prognosis in the record by a duly qualified medical professional or a licensed clinical social worker who
is a staff member of a recognized alcohol treatment program (condition (d)). Although the individual
appears, given his decision to abstain from the use of alcohol, to have recognized his issues stemming
from that use, I cannot find sufficient evidence of actions he has taken to overcome this problem
(condition (b)), given the opinion of the DOE psychologist as to the insufficiency of the individual’s
treatment program. For the same reason, while recognizing that the individual did complete an alcohol
treatment program required as a condition of the dismissal of the criminal charge against him, I cannot
find that the application of condition (c) above is sufficient to resolve the concern raised by the
individual’s past problematic use of alcohol.
Finally, I found significant the opinion of the DOE psychologist that “if one is carrying around the
residue of the trauma that [the individual] unfortunately is carrying around with him, and you also have
reduced impulse control because you’re drinking, those two are explosive. It may only happen once
every couple of years, but that’s enough.” Id. at 62. The DOE psychologist explained that “[t]hose two
things interact in very important ways,” such that “under certain episodes of stress, or under reduced
impulse control, for example, if he's had a drink or two, that will put him at danger for doing things that
will put himself and other people at risk, and so they both have to be taken care of.” Id. at 63.
In sum, the overriding concern in this case is raised by a credible diagnosis of PTSD, further complicated
by the individual’s history of excessive use of alcohol. As noted above, the individual disagrees with the
DOE psychologist’s diagnosis of PTSD. Id. at 33. In addition, the individual testified that 15 percent of
local police officers “have PTSD of some sort, and . . . we all trust in them . . . . So I don’t think that
PTSD is something that . . . should negatively impact me on my job situation.” Id. at 65-66. Ultimately,
so long as the individual is credibly diagnosed with PTSD but does not recognize it, and/or does not
recognize the implications of such a diagnosis, and therefore does not receive appropriate treatment for
this disorder, there will remain serious questions as to his eligibility for access authorization.
V. 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 and 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
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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: September 27, 2013