PSH-13-0104

*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: September 6, 2013 ) Case No. PSH-13-0104
)
_________________________________________ )
Issued: December 20, 2013
_______________
Hearing Officer Decision
_______________
Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual should be
granted a DOE access authorization. For the reasons detailed below, I find that the DOE should
not grant the Individual an access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor, and is an applicant for DOE access
authorization. DOE Exhibit (“Ex.”) 3. In connection with his application, the Individual
completed a Questionnaire for National Security Positions (QNSP) in December 2012. DOE Ex.
8. When the ensuing Office of Personnel Management (OPM) background investigation
uncovered potentially derogatory information, including issues pertaining to the Individual’s
pattern of alcohol consumption, the Local Security Office (LSO) requested that the Individual
participate in a March 2013 Personnel Security Interview (PSI) in order to discuss the
information. DOE Exs 7, 8. After the PSI, the LSO referred the Individual to a DOE consultant-
psychologist (“the DOE psychologist”) for an evaluation. The DOE psychologist evaluated the
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
- 2 -
Individual in May 2013, and issued a report. DOE Ex. 6. In August 2013, the LSO informed the
Individual that there existed derogatory information that raised security concerns under
10 C.F.R. §§ 710.8 (h) and (j) (Criteria H and J, respectively).2 See DOE Ex. 1 (Notification
Letter, August 1, 2013). The Notification Letter also informed the Individual that he was entitled
to a hearing before a Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced eight exhibits into the record (DOE Exs. 1-8) and presented the
testimony of one witness, the DOE psychologist. The Individual, testifying on his own behalf,
did not present the testimony of any additional witnesses or tender any exhibits. Transcript of
Hearing, Case No. PSH-13-0104 (hereinafter cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including “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 of the individual at the time of the conduct; the
voluntariness of 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,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Hearing Officer also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors and considerations. 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).
Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to reach a decision favorable to the individual, the Hearing Officer must find
that “the grant or restoration of access authorization to the individual will not endanger the
2 Criterion H concerns information that a person has “an illness or mental condition of a nature which, in the opinion
of a board-certified psychiatrist, other licensed physician 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 conduct indicating that the
Individual has “been, 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).
- 3 -
common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.27(a). “Any doubt as to an individual’s access authorization eligibility shall be resolved in
favor of the national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531
(1988) (the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT
The Individual, currently 56 years old, began consuming alcohol in 1971 or 1972, at age fourteen
or fifteen. DOE Ex. 6 at 4. He drank alcohol regularly, with his heaviest period of alcohol
consumption occurring in the mid 1980s, when he often consumed one pint to one quart of
whiskey over a six-hour period on a daily basis. Id. Beginning in 1986, the Individual’s pattern
of consumption changed. He began drinking light beer on a daily basis. Id. Since approximately
1986 until the present, approximately 27 years as of the hearing, the Individual’s pattern of daily
alcohol consumption has purportedly remained relatively unchanged. He drinks two-to-three
beers over approximately a two-hour period on Monday to Thursday evenings, and twelve-to-
eighteen beers over the remaining three days of the week, averaging twenty to thirty beers a
week. Id. at 3. The Individual also occasionally drinks one or two shots of whiskey. Id.
In May 2013, the DOE psychologist evaluated the Individual and diagnosed him with Alcohol
Dependence, without adequate evidence of rehabilitation or reformation. DOE Ex. 6 at 10. The
psychologist noted that this is an illness or condition which causes, or may cause, a significant
defect in judgment or reliability. Id. at 11. The psychologist opined that the Individual’s
“chronic consumption of alcoholic beverages” is “not trivial.” Id. at 8. According to the
psychologist, the Individual “exceeds common standards” of moderate alcohol use, and “his
level of consumption . . . implies he has developed tolerance to alcohol.” Id. The DOE
psychologist was troubled by the “ample evidence” that the Individual did not believe his
drinking was of concern, as well as his stated intention to continue drinking. Id. at 10. Based on
these facts, the psychologist concluded, “[the Individual’s] prognosis for rehabilitation or
reformation is poor at this time.” Id. The DOE psychologist added that, until the Individual’s
Alcohol Dependence is “in full and sustained remission, for a significant period of time . . .
accompanied by acceptance and insight into his condition, his judgment and reliability are at
risk.” Id. at 11. With respect to how the Individual could demonstrate adequate evidence of
rehabilitation or reformation, the DOE psychologist recommended a minimum of twelve months
of abstinence from alcohol, as well as active participation in alcohol-related counseling and in a
twelve-step program with a sponsor. Id. at 10-11.
IV. THE NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
As stated above, the LSO issued a Notification Letter identifying security concerns under
Criteria H and J of the Part 710 regulations. DOE Ex. 1. In support of its concerns, the LSO
cited the Individual’s history and pattern of alcohol consumption, as well as the DOE
psychologist’s diagnosis that the Individual meets the criteria for Alcohol Dependence, an illness
or condition which causes, or may cause, defects in his judgment or reliability. Id. It is well-
established that excessive use of alcohol raises security concerns because “excessive alcohol
consumption often leads to the exercise of questionable judgment or the failure to control
- 4 -
impulses, and can raise questions about an individual’s reliability and trustworthiness.”
Adjudicative Guidelines, Guideline G, ¶ 21. Similarly, certain mental conditions “can impair
judgment, reliability, or trustworthiness.” Id., Guideline I, ¶ 27. Therefore, there is no question
that the diagnosis of such a condition by a duly qualified mental health professional may raise
security concerns.
In this case, given the facts regarding the Individual’s routine excessive alcohol consumption and
the DOE psychologist’s subsequent diagnosis, I find that the LSO had ample grounds for
invoking Criteria H and J.
V. ANALYSIS
In making a determination regarding the Individual's eligibility for DOE access authorization, I
have thoroughly considered the record in this proceeding, including the hearing testimony and
the documentary evidence. For the reasons set forth below, I am unable to find that granting the
Individual a DOE 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).
The Individual did not dispute any of the specific underlying facts of this case. However, he
disagreed with the DOE psychologist’s diagnosis, and asserted that his consumption of alcohol is
not a problem. Tr. at 9. The Individual did not consult with any other medical or substance
abuse professional in reaching his conclusion regarding the DOE psychologist’s diagnosis.
Instead, he “talked to four or five other [relatives and friends] and talked it through,” and he
concluded based on those discussions that he did not have a problem. Tr. at 10. The Individual
testified that he does not intend to abstain from alcohol in the future; rather, he will likely
continue his current pattern of consumption. Tr. at 18. He also does not intend to adopt any of
the DOE psychologist’s recommendations because, given his intention to continue drinking, he
“would just be wasting [his] time” following any of the recommendations. Tr. at 19. Finally, the
Individual vehemently disagreed that his alcohol consumption impacted his judgment or
reliability. Tr. at 39.
After listening to the Individual’s testimony, the DOE psychologist did not change his opinion
regarding the Individual’s diagnosis of Alcohol Dependence. Tr. at 34-35. The psychologist
also opined that, as of the hearing, the Individual did not demonstrate any evidence of
rehabilitation or reformation because he continued to consume alcohol with no intention of
discontinuing his use in the future. Id. The DOE psychologist noted that following his May
2013 evaluation of the Individual, he determined that the Individual’s prognosis was “poor” due
to “the chronicity of his use and his lack of insight.” At the hearing, the DOE psychologist did
not change his opinion in this regard. Tr. at 43. His subsequent recommendations for
rehabilitation or reformation also remained unchanged. Tr. at 35.
In this case, upon consideration of the evidence in the record, I find that the Individual has not
presented sufficient evidence to mitigate the security concerns cited in the Notification Letter.
As an initial matter, I note that the Individual elected not to offer any additional testimonial or
documentary evidence during this proceeding. As a result, his testimony and assertions remain
wholly uncorroborated in the record. This is of particular significance because, as noted above,
- 5 -
once a security concern is raised, the burden is on the individual to present sufficient information
to fully resolve the concern. In evaluating the evidence offered by an individual in mitigation of
valid security concerns, should any doubt remain regarding that individual’s eligibility for an
access authorization, I must resolve that doubt in favor of the national security. 10 C.F.R.
§ 710.27(a). Consequently, corroborating evidence is of critical importance in these
proceedings.
Among the factors that may serve to mitigate security concerns raised by an individual’s alcohol
use are that “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,” that “the individual acknowledges his or
her alcoholism or issues of alcohol abuse [and] provides evidence of actions taken to overcome
this problem . . .,” and that “the individual has successfully completed inpatient or outpatient
counseling or rehabilitation . . ., has demonstrated a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations . . . and has received
a favorable prognosis by a duly qualified medical professional . . . .” Adjudicative Guidelines,
Guideline G, ¶ 23. Similarly, with respect to evidence of certain psychological conditions, such
as the Alcohol Dependence diagnosis in this case, the Adjudicative Guidelines identify the
following possible mitigating factors: “demonstrated ongoing and consistent compliance” with a
treatment plan; voluntary participation in counseling or treatment with a favorable prognosis by a
duly qualified mental health professional; a recent opinion by a duly qualified mental health
professional that the condition is under control “and has a low probability of recurrence or
exacerbation;” and, “no indication of a current problem.” Adjudicative Guidelines, Guideline I,
¶ 29.
In this case, the Individual has a long-standing history of drinking alcohol on a daily basis.
According to the Individual’s self-reports, for almost three decades, his pattern of consumption
has included a weekly average of twenty to thirty beers, and occasional shots of whiskey. He has
consistently maintained that his drinking is not problematic, and denies that he has any
psychological condition necessitating treatment, despite the uncontroverted evidence to the
contrary in the record. Consequently, the Individual has not consulted with any mental health or
substance abuse professionals or sought out any treatment for Alcohol Dependence. He
continues his regular pattern of alcohol consumption, with no intention of discontinuing his
drinking in the future. Based on these facts, I conclude that the Individual’s Alcohol
Dependence remains untreated and I am, therefore, convinced by the DOE psychologist’s
opinion that the Individual has not demonstrated rehabilitation or reformation. Consequently, I
find that the Individual has not mitigated the Criteria H and J concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criteria H and J of the
Part 710 regulations, and Guidelines G and I of the Adjudicative Guidelines. I also find that the
Individual has not presented sufficient information to fully resolve those concerns. Therefore, I
cannot conclude that granting the Individual a DOE access authorization “will not endanger the
common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
- 6 -
§ 710.7(a). Accordingly, I find that the DOE should not grant the Individual access
authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: December 20, 2013