PSH-13-0083

lee*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: July 3, 2013 )
) Case No.: PSH-13-0083
__________________________________________)
Issued: October 21, 2013
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the
Individual”) to hold a security clearance 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 been
diagnosed by a psychiatrist with Alcohol Abuse, and engaged in behavior (including a pattern of
criminal behavior) which brought into question his honesty, reliability, and trustworthiness.1
1
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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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 July 3, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, a co-worker, his father, his counselor (the Counselor) and a DOE consultant
psychiatrist (the DOE Psychiatrist). See Transcript of Hearing, Case No. PSH-13-0083
(hereinafter cited as “Tr.”). The LSO submitted 20 exhibits, marked as Exhibits 1 through 20,
while the Individual submitted 15 exhibits, marked as Exhibits A through O.
II. FINDINGS OF FACT
The Individual has a history of three alcohol-related arrests. On July 14, 2002, when the
Individual was 20 years old, police arrested and charged him with Underage Consumption of
Alcohol (UCA). On October 11, 2002, police arrested the Individual and charged him with UCA
and Driving Under the Influence of Alcohol (DUI). On September 18, 2011, the Individual was
arrested and charged with Public Intoxication (PI).
At the request of the LSO, the DOE Psychiatrist evaluated the Individual on November 22, 2011.
Exhibit 13 at 2. After completing his evaluation of the Individual, the DOE Psychiatrist issued a
report on November 28, 2011, in which he found that the Individual met the criteria set forth in
the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revised (DSM-
IV-TR) for “Alcohol-Related Disorder Not Otherwise Specified (NOS).” Exhibit 13 at 10.
However, the DOE Psychiatrist opined that the Individual’s Alcohol Disorder NOS was not an
illness or condition that causes, or may cause, a significant defect in the Individual’s judgment
and reliability. Id. The DOE Psychiatrist further found that the Individual was not, and had not
been, a user of alcohol habitually to excess, or alcohol dependent or suffering from alcohol
abuse. Id. at 11.
On January 29, 2013, a staff psychologist (the HRP Psychologist) employed by the Individual’s
employer, who had been monitoring the Individual pursuant to the DOE’s Human Reliability
Program (HRP), contacted a number of DOE security officials in order to express his concerns
that the Individual met the criteria for Alcohol Dependence and had been temporarily removed
from the HRP.2 Exhibit 14 at 1. The HRP Psychologist further reported that the Individual had
enrolled in an Intensive Outpatient Program (IOP) but had subsequently tested positive for
alcohol use on January 24, 2013. Id. The Individual entered an Inpatient Treatment Program
(ITP) on January 29, 2013. Id.
2
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.
3
The LSO conducted a Personnel Security Interview (PSI) of the Individual on March 28, 2013.
During this PSI, the Individual confirmed that he had enrolled in the IOP at the instruction of the
HRP. Exhibit 17 at 9-12. He further indicated that his HRP clearance had been suspended. Id.
at 12. The Individual stated that eight months after he assured the HRP Psychiatrist that he
would not drink for the foreseeable future he began using alcohol again. Id. at 13-17. When the
HRP Psychiatrist was informed that he was using alcohol again, he recommended that the
Individual enroll in the IOP. Id. at 25. The Individual stated that he began attending the IOP on
January 10, 2013, and continued his treatment there for two months. Id. at 26-27. After first
denying that he had received inpatient treatment for his Alcohol Abuse, the Individual admitted
that he transitioned from the IOP to the ITP. Id. at 28. As part of his IPT, he began the
Alcoholics Anonymous (AA) Twelve-Steps Program. Id. at 30. Initially during this PSI, the
Individual denied that he had used alcohol while he was in the treatment program. Id. at 31.
However, when pressed by the interviewer, the Individual admitted that he had been caught
using alcohol while in the IOP. Id. at 32. The Individual claimed that he had successfully
completed the ITP, intends to permanently abstain from using alcohol, and intends to continue in
his aftercare program. Id. at 43, 54, 137. The Individual was unsure of his sobriety date. Id. at
55. The Individual claimed that he had never abused alcohol. Id. at 124. When he was asked if
he had a “problem” with alcohol he stated: “I think I'm a binge drinker, I don't think I have to
have it, it's just sometimes when I do drink, I have too much.” Id.
At the request of the LSO, the DOE Psychiatrist conducted a second evaluation of the Individual
on April 24, 2013. Exhibit 12 at 1. After completing this evaluation of the Individual, the DOE
Psychiatrist issued a report on April 30, 2013, in which he found that the Individual met the
criteria set forth in the DSM-IV-TR for “Alcohol Abuse.” Exhibit 12 at 10. The DOE
Psychiatrist further found the Individual’s Alcohol Abuse to be an illness or condition that
causes, or may cause, a significant defect in the Individual’s judgment and reliability. Exhibit 12
at 11. Noting that the Individual was not yet rehabilitated or reformed, the DOE Psychiatrist
opined that in order to be reformed or rehabilitated from his Alcohol Abuse, the Individual needs
to attend “either a structured inpatient or outpatient treatment program, with documented
participation in 12-step recovery meetings and familiarity with a recovery model,” and that “at
least a year of complete sobriety would be necessary for fulfillment of adequate rehabilitation.”
Exhibit 12 at 11.
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
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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 Individual has been arrested for three alcohol-related incidents. 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. 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) Guideline G at ¶ 21. 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 his three alcohol-related arrests.
On April 30, 2013, the DOE Psychiatrist diagnosed the Individual with Alcohol Abuse. This
information raises security concerns about the Individual under Criterion H, since the
Individual’s Alcohol Abuse constitutes an illness or condition that cause, or may cause, a
significant defect in the Individual’s judgment and reliability. Exhibit 4 at 12; Adjudicative
Guidelines I at ¶ 27 and G at ¶21, 22(e).
The Individual’s three alcohol-related arrests constitute a pattern of criminal conduct that raises
security concerns under Criterion L. “Conduct involving questionable judgment, lack of candor,
dishonesty, or unwillingness to comply with rules and regulations can raise questions about an
individual's reliability, trustworthiness and ability to protect classified information.”
Adjudicative Guideline E at ¶ 15. “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 G at ¶ 30.
V. ANALYSIS
A. Criteria H and J
I find that the Individual has not adequately mitigated the security concerns raised under Criteria
H and J by his Alcohol Abuse diagnosis and three alcohol-related arrests.
In his request for a hearing, dated August 15, 2013, the Individual identified himself as an
“alcoholic” and stated that he has “no desire to ever drink again.” Exhibit L at 1. At the hearing,
the Individual reiterated his intention to permanently abstain from alcohol use and presented
evidence showing that he has taken a number of actions to address his Alcohol Abuse. Tr. at 94.
The Individual testified that his last use of alcohol had occurred on January 20, 2013, seven
months prior to the hearing. Tr. at 91, 121. On January 13, 2013, the Individual began the IOP.
Tr. at 97. The Individual testified that he tested positive for alcohol use on two occasions while
attending the IOP, because he had not truly committed to his sobriety. Tr. at 97-98, 104. The
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Individual completed the ITP on March 28, 2013. Tr. at 92, 100. He also attends five or six AA
meetings a week. Tr. at 92. The Individual is now working on Step Three of AA’s Twelve-Step
Program, and has obtained a sponsor.3 Tr. at 91; Exhibit N. He testified that he intends to
continue attending AA meetings and seeing the Counselor. Tr. at 94. The Individual testified
that he attends aftercare meetings once a week. Tr. at 102; Exhibit M. The Individual testified
that he likes being sober. Id. at 118.
The Individual’s Counselor testified on his behalf at the hearing. The Counselor testified that
she had been treating the Individual since April 2013. Tr. at 15. She testified that she had met
with the Individual weekly for the past five months on approximately 35 occasions. Tr. at 18.
The Counselor diagnosed the Individual with Alcohol Dependence. Tr. at 31, 43. She testified
that the Individual realizes that he has an alcohol problem. Tr. at 27. She described the
Individual as “extremely motivated” to achieve his sobriety, and “extremely dedicated” to his
treatment. Tr. at 16, 32. She strongly believes that the Individual has been abstaining from
alcohol use. Tr. at 21. The Counselor testified that the Individual is now in the maintenance
phase of his treatment, having completed the ITP. Tr. at 25. She noted that he is extremely close
to his family who provides him with a support system. Tr. at 26-27. The Counselor testified that
the Individual’s prognosis is “very good” to “excellent.” Tr. at 34. She further opined that the
Individual had “demonstrated . . . adequate rehabilitation and reformation.” Tr. at 33. The
Counselor admitted that she did not know the Individual’s sobriety date. Tr. at 49. The
Counselor testified that the Individual’s likelihood of relapse is “low.” Tr. at 57.
At the hearing, the DOE Psychiatrist observed the testimony of each of the other witnesses
before he testified. He testified that he diagnosed the Individual with Alcohol Abuse. Tr. at 130.
He further noted that the Individual also met some of the DSM-IV-TR criteria for Alcohol
Dependence. Tr. at 130, 144. The DOE Psychiatrist testified that he originally found that the
Individual needed to abstain from using alcohol for at least twelve months to establish
reformation or rehabilitation form his Alcohol Abuse. Tr. at 145-146. The DOE Psychiatrist did
not see any reason to adjust that recommendation downward. Tr. at 146. He did not see any
evidence that the Individual’s recovery was proceeding any faster than is typical. Tr. at 171. He
opined that the Individual’s prognosis is “fairly good” but that his likelihood of relapse remains
“fairly high.” Tr. at 163, 165. The DOE Psychiatrist testified that he was concerned about the
Individual’s past tendency to fail to meet commitments concerning his alcohol use. Tr. at 132.
The DOE Psychiatrist testified that he was concerned about the Individual’s use of alcohol
during the IOP. Tr. at 133. The DOE Psychiatrist was also concerned that the Individual claimed
that he was not an alcoholic, shortly after being discharged from the ITP. Tr. at 134. The DOE
Psychiatrist testified that after observing the Individual’s father’s testimony, he was concerned
about the quality of the Individual’s support system, and did not see that the Individual had done
enough to address his social isolation. Tr. at 135-137. The DOE Psychiatrist stated that the
Individual has only been sober for a short time, but is now on the right track. Tr. at 164-165. He
testified that the Individual has “a lot of anxiety” and “doesn’t have much in the way of social
support.” Tr. at 165. The DOE Psychiatrist further opined that the Individual was using alcohol
3 The Individual testified that he had completed Steps One through Five of AA’s Twelve-Step Program while in the
IOP/ITP. Tr. at 109. However, his sponsor had him re-start the 12-Step Program with Step One when he began
working with him. Tr. at 109-110.
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as a medication to address his anxiety and social isolation. Tr. at 165.
Given the relative severity of the Individual’s alcohol disorder, and his history of setbacks during
his treatment, I am not convinced that the Individual has abstained from using alcohol for a
sufficient period of time to establish reformation or rehabilitation from his Alcohol Abuse. Nor
has the Individual shown that his likelihood of relapse is sufficiently low to resolve the security
concerns raised by his Alcohol Abuse. Based upon the foregoing, I find that the Individual has
not sufficiently mitigated the security concerns raised by his Alcohol Abuse under Criteria H or
J.
B. Criterion L
The Individual’s three alcohol-related arrests constitute a pattern of criminal conduct that raises
security concerns under Criterion L. The DUI is clearly a symptom of his Alcohol Abuse.
Given the role that alcohol has played in the Individual’s past conduct, I find that until the
concerns raised by his Alcohol Abuse are sufficiently resolved, those concerns about the
Individual’s judgment, reliability and trustworthiness raised by his DUI will also remain
unresolved.
Accordingly, I find that the security concerns raised under Criterion L by the Individual’s pattern
of criminal conduct have not been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L.
After considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that Individual has not adequately mitigated the Criteria H, J, and L security concerns.
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: October 21, 2013