PSH-13-0093

*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 23, 2013 )
) Case No.: PSH-13-0093
__________________________________________)
Issued: November 8, 2013
______________________
Hearing Officer Decision
______________________
William M. Schwartz, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 discussed below, after carefully considering the record before me
in light of the relevant regulations and the Adjudicative Guidelines, I have determined
that the individual’s access authorization should be restored.
I. Background
The individual works for a DOE contractor in a position that requires him to maintain a
DOE security clearance. An arrest in December 2012 for Driving Under the Influence
(DUI) and Illegal Possession of a Firearm and a diagnosis of Alcohol-Related Disorder
raised security concerns in the opinion of the Local Security Office (LSO), and the LSO
suspended the individual’s security clearance. On June 18, 2013, the LSO sent a letter
(Notification Letter) to the individual advising him that it had reliable information that
created a substantial doubt regarding his eligibility to hold a security clearance. In an
attachment to the Notification Letter, the LSO explained that the derogatory information
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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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).2
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations to request an administrative review hearing, and I was appointed the
Hearing Officer in the case. At the hearing that I conducted, the individual presented his
own testimony and that of an on-site staff psychologist and three friends and co-workers,
and the LSO presented the testimony of one witness, a DOE consultant psychologist. In
addition to the testimonial evidence, the LSO submitted ten numbered exhibits into the
record and the individual tendered two exhibits, which I have identified as Exhibits A
and B. The hearing transcript in the case will be cited as “Tr.”
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 denials”); 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
2 Criterion H concerns information that a person suffers from “[a]n illness of 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).
Criterion L concerns 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. Such conduct or
circumstances include, but are not limited to, criminal behavior, … or a violation of any commitment or
promise upon which DOE previously relied to favorably resolve an issue of access authorization
eligibility.” 10 C.F.R. § 710.8 (l).
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appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). An individual is
thereby afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
B. Basis for the 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 eligibility 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 the bases for suspending the
individual’s security clearance, Criteria H, J, and L. With regard to Criteria H and J, the
LSO relies on the opinion of a DOE consultant psychologist (DOE psychologist) who
determined that the individual meets the criteria for Alcohol-Related Disorder, Not
Otherwise Specified, as set forth in the Diagnostic Statistical Manual of the American
Psychiatric Association, Fourth Edition Text Revised (DSM-IV-TR). She further
determined that he has been a user of alcohol habitually to excess, and that the
individual’s Alcohol-Related Disorder is an illness or mental condition that causes or
may cause a significant defect in judgment or reliability. In addition, the LSO cites the
individual’s December 2012 arrest for Driving Under the Influence (DUI) and Illegal
Possession of a Firearm, his admission during a February 2013 personnel security
interview (PSI) that he had consumed ten alcoholic beverages before the arrest, and his
admission during his April 2013 psychological evaluation that his blood alcohol content
after the arrest registered .2.
I find that there is ample information in the Notification Letter to support the LSO’s
reliance on Criteria H and J. The excessive consumption of alcohol 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 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
Guideline G. The DOE psychologist’s conclusion that the individual’s Alcohol-Related
Disorder is severe enough to cause a significant defect in judgment—specifically, the
poor judgment he displayed in December 2012 when he drove his vehicle while
intoxicated and failed to realize the risk of having a handgun in the car with him—
supports my finding in this regard.
As for Criterion L, the LSO cites as evidence of criminal conduct the December 2012
arrest and the individual’s admission during the PSI that his handgun carry permit had
expired and that he was aware that it was illegal to be in possession of a loaded firearm
while under the influence of alcohol. Criminal activity creates doubt about a person’s
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judgment, reliability, and trustworthiness and by its very nature calls into question a
person’s ability or willingness to comply with laws, rules and regulations. See
Adjudicative Guidelines at Guideline J. Consequently, I find that the LSO properly
relied on Criterion J in this case.
IV. Findings of Fact
A. Criteria H and J
In his late teens and early 20s, the individual drank alcohol sporadically, but almost
always to the point of intoxication. Ex. 4 (DOE Psychologist’s Evaluation Report) at 4-5.
After an eight-month period of abstinence at age 22, he resumed drinking alcohol, usually
consuming a single beer in social settings, but drinking to intoxication once a year at a
military celebration. In March 2012, however, the individual’s pattern of alcohol
consumption increased to three to four, and then six to eight, beers, two to four times
weekly with a friend. Increased work demands curtailed his drinking from August to
October, but as those demands lessened, he resumed drinking “a few beers” about once a
week. Id. at 5.
In mid-December 2012, the individual was on sick leave, recovering from the flu, and
about to return to work. One of his co-workers was celebrating a birthday, and invited
the individual to join his celebration, already ongoing at a bar. Tr. at 88. The individual
met the group, and drank alcohol with the others. He did not consume more alcohol than
the others, and the celebrant did not observe that the individual appeared intoxicated. Id.
at 89. Nevertheless, after consuming ten alcoholic drinks as the party moved among
three locations over the course of seven hours, the individual lost his way as he was
driving himself home. Ex. 10 (Transcript of PSI, February 26, 2013) at 7-15. He was
pulled over, and failed a field sobriety test. Id. at 22. Upon inspecting the interior of the
individual’s vehicle, the officer found a handgun. Id. at 50. The individual was
ultimately charged with DUI and Illegal Possession of a Firearm. The latter charge arose
because the individual’s permit to carry a handgun had expired three weeks earlier. Id.
at 25. Of most concern to the individual was his recognition that he had no recollection
of what happened while he was attempting to drive home that evening, a span that he
estimates to be about an hour. Id. at 46; Tr. at 17-18.
After duly reporting the arrest to his employer, the individual was evaluated by an on-site
psychologist, who testified at the hearing. She arranged for suitable treatment for the
individual, including counseling and alcohol abuse education. Ex. 10 at 35-37, 39. By
the time the individual met with the DOE psychologist in April 2013, he had completed
16 hours of DUI education, two hours of counseling with a licensed clinical social
worker, three hours of alcohol education, and about five hours of counseling with the on-
site psychologist or her partner. He was scheduled to attend a victim impact class in
May. He had been abstinent for four months, since the date of the arrest. He told the
DOE psychologist that he could imagine resuming alcohol consumption, but if he did, he
would limit himself to three drinks on any occasion, and never drive after drinking. Ex. 4
at 10. The DOE psychologist determined that the individual was “‘appalled’ and truly
frightened” by his one-hour blackout while driving, during which he could have killed
himself or others, and the psychologist considered this event a “wake-up call” for him.
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Id. at 10-11. She felt that, despite his efforts, “the duration of the individual’s recovery
from his Alcohol Disorder was insufficient to ensure rehabilitation,” and stated that six
months of rehabilitation was necessary for recovery from his disorder. Id. at 11.
At the hearing, the individual testified about his alcohol consumption since seeing the
DOE psychologist. He had committed himself to abstaining from alcohol until after the
court hearing regarding his December 2012 arrest. He kept that commitment, despite a
number of invitations to drink with friends, and had his first alcoholic drink on June 30,
2013, when he visited an estate with a friend and they tasted wines. Tr. at 8-9, 43. Both
he and his friend estimated their total consumption at one to two glasses, and they toured
the estate for several hours after drinking before he drove them back home. Id. at 24, 72.3
Since that event, he had consumed one or two beers on two occasions: a wedding and a
party. Id. at 11. He continues to socialize with others who drink alcohol, but has
assumed the role of designated driver when travel is involved and does not drink alcohol
at all under those circumstances. Id. at 12. He attended a victim impact class in May. Id.
at 19; Ex. B. He is subject to random drug and alcohol testing at work, and has had two
physical examinations, including urine screens, since the arrest. Tr. at 25.
The individual discussed how the December arrest has changed his views on alcohol
consumption. It took its toll on him both financially and emotionally. The legal
ramifications of the arrest cost him thousands of dollars, and telling his mother about the
arrest was extremely difficult for him, as he knew how disappointed she would be in him.
Id. at 12, 18, 34. He also spoke of his fear when he realized he had blacked out while
driving and was thankful he did not hurt anyone at that time. From that fear, he is
committed to not driving after drinking. Id. at 13, 19, 34. He also stated that maintaining
control of himself is important to him, and he learned from the blackout that alcohol can
cause him to lose control, with potentially devastating consequences. Id. at 18-19. 34-35.
Other witnesses corroborated the individual’s testimony. The friend with whom he
visited the estate confirmed that they each had four or five tastes of wine, which totaled
no more than one to two glasses of wine. She also confirmed that they did not start
driving home until several hours after the wine tasting. Id. at 72. She further stated that
they rarely drink alcohol at all, even when it is readily available, referring to a recent
celebration with an open bar. Id. at 74. The witness who celebrated his birthday in
December testified that he had consumed alcohol with the individual in the past, and that
the individual generally drank moderately and in control. Id. at 89. He and another
witness both confirmed that the individual had talked with them about the arrest and its
consequences, particularly his embarrassment and remorse about admitting it to his
mother, and that the individual now serves as designated driver. Id. at 80-82, 90.
At the hearing, the on-site psychologist testified that she viewed the December incident
as a one-time problem, not evidence of a pattern or habitual behavior. Tr. at 56. She
observed that, in her sessions with him, the individual was embarrassed and contrite
about the arrest and its ramifications at work and in his family. Id. at 62. When
3 After hearing the individual’s testimony regarding the wine tasting, the DOE psychologist stated her
belief that wineries generally offer an ounce of wine at tastings, so the individual’s consumption was about
the same as one standard 5-ounce serving. Id. at 24-25.
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questioned about the individual’s physical examinations and random screenings for
evidence of alcohol consumption, the on-site psychologist stated that she had no first-
hand knowledge, but if he had had a positive alcohol screening, she would have been
notified, and she has never received such notification. Id. at 64-65.
After the testimony of the other witnesses, the DOE psychologist testified that, in her
opinion, the individual had demonstrated adequate evidence of rehabilitation from his
Alcohol-Related Disorder. She further stated that she now feels that the risk that the
individual will resume drinking alcohol in an unhealthy manner is low. Id. at 102. This
positive opinion contrasts with those she formed during her evaluation of the individual
in April 2013. She explained at the hearing that, despite the solitary DUI arrest, she was
troubled during the evaluation by the individual’s alcohol history, particularly his gradual
increase in consumption during 2012; in that context, the DUI merely represented one
step on an unfortunate trajectory. Id. at 96. At that time, her primary concern was that
the individual had been abstinent for only four months and, despite his efforts at
education and his obvious remorse about the incident, she felt “he needed more time to
solidify the gains” he had made. Ex. 4 at 11. By the time of the hearing, the individual
had completed a period of abstinence of more than six months, as she had recommended
and had resumed drinking alcohol, in the words of the DOE psychologist, “in very
moderate ways.” Id. at 101. She stated that his education impressed upon him that his
former drinking habits were risky. She was not surprised that he had resumed drinking,
as he had never promised that he would never drink again, nor had she recommended
lifetime abstinence. Tr. at 100-01. She also stated that he was now not engaging in
unhealthy drinking, which she defined as no more than 14 drinks in a week and no more
than four on any occasion; in fact, his intention is to drink no more than three drinks on
an occasion and no more than four in a week. Id. at 27-28. Finally, she expressed her
opinion that the individual had learned from this experience and does not want to lose
control again.
B. Criterion L
When the individual was arrested in mid-December 2012, he was charged with Unlawful
Possession of a Weapon. The citation notes that the handgun carry permit for the weapon
found in his vehicle had expired three weeks before the arrest. Ex. 6 at 2. At the hearing,
the individual testified that he was aware that his permit needed renewal, but he had
forgotten about it. This was the first time his permit was subject to renewal. Tr. at 38.
He and his co-workers were temporarily working 80 or more hours per week and the
renewal date passed without his realizing it. Id. at 38-39. He was required to surrender
his gun at the time of the arrest. Id. at 22. The case was placed in judicial diversion for
30 days and then dismissed, although the handgun was permanently confiscated. Id. at
10, 22.
V. Analysis
I have thoroughly considered the record of 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) and the Adjudicative
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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. Criteria H and J
I find that the individual was properly diagnosed as suffering from Alcohol-Related
Disorder, Not Otherwise Specified. Nevertheless, the record, in particular, the testimony
of the individual, his friends and co-workers, and the on-site psychologist, establishes six
months of abstinence, appropriate treatment, and a recent period of very moderate alcohol
consumption. The concurrence of the mental health experts regarding his current status
demonstrates to me the confidence they have in the individual’s progress through
treatment and his motivation to remain sober at all times. Furthermore, I am convinced
that the individual has learned a great deal as the result of his December 2012 arrest, both
through alcohol education and from enduring the financial and personal consequences of
his actions, and is highly motivated to avoid a similar situation in the future. I have taken
into consideration a number of mitigating factors in his favor, specifically, his
acknowledgment of his alcohol problem, his abstinence, his voluntary participation in a
treatment program, and the DOE psychologist’s favorable prognosis of the individual and
her assessment that he is at low risk of relapse. Adjudicative Guidelines at Guideline G,
¶ 23. After considering all the testimony and written evidence in the record, I am
convinced that the individual has resolved the LSO’s security concerns that arise from his
alcohol use.
B. Criterion L
Criminal conduct by its very nature calls into question a person’s ability or willingness to
comply with laws, rules, and regulations. Adjudicative Guidelines at Guideline J. The
conduct with which the individual was charged, having let his handgun carry permit
expire, is not a serious crime nor, for that matter, one that arises from malicious intent.
Nor was it one in a series of lesser offenses. It was rather an isolated incident of
negligent oversight, and it occurred when he was working extraordinary hours. While the
unintentional nature of the infraction and the conditions under which it occurred do not
excuse the behavior, they do mitigate the security concerns this infraction raises. The
individual is now fully aware of his responsibilities in this area, and moreover he has
suffered financially in that he had to retain the services of an attorney and replace his
handgun. Under these circumstances, I find it highly unlikely that this behavior will
recur, and that it does not cast doubt on the individual’s reliability, trustworthiness, or
good judgment. Adjudicative Guidelines at Guideline J, ¶ 32(a).4
4 In the Notification Letter, the LSO also asserts that the individual acknowledged during the PSI that
possessing a loaded firearm while under the influence of alcohol is illegal. Ex. 1; see Ex.10 at 53. I note
that the arrest citation does not bear a charge related to this matter. Ex. 6 at 2. The individual stated at the
PSI that he had not intended to break this law, as he understood it, as he had no intention of becoming
intoxicated on the evening of the arrest. Ex.10 at 53. In any event, I find it unlikely that, in the future, he
will be in possession of a loaded gun while under the influence of alcohol, for the same conclusion I
reached, in Section V.A above, that he will not drink to intoxication in the future.
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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 have found that the individual has brought forth
sufficient evidence to mitigate the security concerns associated with these criteria. I
therefore 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 be restored.
William M. Schwartz
Hearing Officer
Office of Hearings and Appeals
Date: November 8, 2013