PSH-13-0108

*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 18, 2013 ) Case No.: PSH-13-0108
)
___________________________________ )
Issued: December 6, 2013
______________________
Hearing Officer Decision
______________________
Steven J. Goering, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXX (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 May 14, 2013, Exhibit 7, after the individual tested positive on a random breath
alcohol test at work on May 3, 2013. Exhibit 6. After the PSI, the LSO referred the individual to a
local psychiatrist (hereinafter referred to as “the DOE psychiatrist”) for an agency-sponsored
evaluation. The DOE psychiatrist prepared a written report, setting forth the results of that
evaluation, and sent it to the LSO. Exhibit 4. 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
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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concerns. Exhibit 1. The Notification Letter also informed the individual that he was entitled to a
hearing before a Hearing Officer in order to resolve the substantial doubt concerning his eligibility
for 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 eight exhibits
into the record of this proceeding and presented the testimony of the DOE psychiatrist. The
individual introduced two exhibits, and presented the testimony of seven witnesses 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 psychiatrist, in which he concluded that the individual met criteria found
in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision
(DSM-IV-TR) for Alcohol Abuse, as well as statements the individual made during the May 2013
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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PSI regarding his use of alcohol. Id. To support Criterion H, the LSO cited the DOE psychiatrist’s
finding that the individual met criteria in the Diagnostic and Statistical Manual of Mental Disorders,
Fifth Edition (DSM-5) for Alcohol Use Disorder, Mild, and that this disorder, as well as the
diagnosis of Alcohol Abuse under the DSM-IV are illnesses or mental conditions that cause or may
cause a significant defect in judgment and reliability. Id.
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 the diagnoses of Alcohol Abuse and Alcohol
Use Disorder being of concern under Criterion H. Moreover, 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 Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information
(Adjudicative Guidelines), The White House (December 19, 2005) at Guideline G.
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 47 years old, and has worked for a DOE contractor since August 2011. Exhibit 6
at 1; Exhibit 4 at 2. The report of the DOE psychiatrist notes that the individual began drinking in
high school on a regular basis, sometimes “two to three nights per week, two to ten beers per night.
The subject would become intoxicated a few times per month after consuming more than six beers.”
Exhibit 4 at 3. After high school, while serving in the military from 1984 to 1987, the individual
would drink two to three times per month, consuming a twelve pack of beer and becoming
“impaired” each time. Id. From 1987 to 2000, the individual would drink two to four beers on
Fridays and Saturdays, becoming intoxicated once or twice per year after consuming six beers. Id.
From 2000 until the May 2013, the individual consumed alcohol most weekends, “drinking six to ten
beers on Friday or Saturday night.” Id.
The individual testified that, on the evening of Thursday, May 2, 2013, he was at a “meeting for one
of the nonprofits that I was president of this year, and we were cussing and discussing, and I actually
had about 10 to 12 beers, stopped drinking around 10:30, 11:00, . . . .” Hearing Transcript (Tr.)
at 10. The individual reported to work the following day, May 3, 2013, where he was called for a
random breath alcohol screen. The individual’s breath alcohol content was measured at 0.059
(g/210L) at 10:39 a.m. and 0.055 at 10:56 a.m., in both cases above his employer’s acceptable limit
of 0.020. Exhibit 6 at 3; Exhibit 4 at 2.
On the same day, the individual met with the designated psychologist at his workplace, and on
May 13, 2013, the individual met with a Licensed Professional Counselor associated with his
employer’s Employee Assistance Program (EAP). At his May 14, 2013, PSI, the individual stated
that the EAP counselor advised him that “the best way to fix it is just quit. 'Cause I don't drink a
whole lot anyway.” Exhibit 7 at 19. The individual testified at the hearing that he had not
consumed alcohol since May 25, 2013, when he “had four beers on the golf course.” Tr. at 12.
Beginning on June 10, 2013, the individual participated in a sixty-hour Intensive Outpatient
Program, which he successfully completed on July 16, 2013. Exhibit B.
Since then, the individual has participated in weekly aftercare sessions. Exhibit B. In addition, the
EAP counselor testified that she has met with the individual six times, including their initial meeting
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on May 13, 2013. Tr. at 28. The individual testified that he had been to three meetings of
Alcoholics Anonymous (AA), but had not yet found a sponsor. Tr. at 23-24.
Regarding an 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.
Adjudicative Guidelines at ¶ 23.
With respect to condition (b) above, even though the individual has not been diagnosed as alcohol
dependent, the DOE psychiatrist, the designated psychologist at the individual’s workplace, and the
EAP counselor, all of whom testified at the hearing in this matter, agreed with the recommendation
that the individual abstain completely from consuming alcohol. Tr. at 35, 97, 105. As of the date of
the hearing in this matter, the individual had abstained from the use of alcohol for five months and
three days. In this context, each of the listed conditions must be evaluated with respect to whether
enough “time has passed” (condition (a)), and whether approximately four months constitutes a clear
and established “pattern” of abstinence (conditions (b) and (d)) or “satisfactory progress”
(condition (c)).
Considering the issue of length of abstinence apart from other factors, I note that in a prior case
before this office, a concern raised by a diagnosis of Alcohol Abuse was found to be sufficiently
resolved after a period of “nearly five months” of abstinence. Personnel Security Hearing, Case No.
PSH-11-0034 (2012). On the other hand, in a number of cases, a concern raised by the same
diagnosis was found not to be resolved after a longer period of abstinence. See, e.g. Personnel
Security Hearing, Case No. PSH-12-0094 (2012) (six months); Personnel Security Hearing, Case
No. PSH-11-0002 (2012) (seven months); Personnel Security Hearing, Case No. PSH-12-0014
(2012) (nine months).
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In each of these cases, factors other than length of abstinence were cited as relevant to the ultimate
decision. Thus, where five months was considered a sufficient period of abstinence, the individual
had, in those five months, become very active in AA, attending two to three meetings per week, and
“began working with a sponsor almost immediately after starting in the program.” Personnel
Security Hearing, Case No. PSH-11-0034 (2012). By contrast, despite six months of abstinence, the
concern raised was not found to be resolved where the individual “had not yet identified himself as
having a drinking problem, a factor that [the DOE psychiatrist] referred to as ‘a key missing piece.’”
Personnel Security Hearing, Case No. PSH-12-0094 (2012). Reaching a similar outcome, a Hearing
Officer “found compelling the testimony of the DOE psychiatrist that the Individual’s current period
of abstinence [nine months] is not sufficient to establish adequate evidence of rehabilitation and
reformation, and that his current risk of relapse remains at a moderate level.” Personnel Security
Hearing, Case No. PSH-12-0014 (2012).
Here, the individual, though attending weekly aftercare sessions, has not found a setting, such as AA,
where he has demonstrated a commitment to participation in multiple meetings per week during his
five months of abstinence and, as noted above, has not yet found a sponsor in AA. The individual
has had medical issues that arguably prevented such a level of involvement, Tr. at 12, as confirmed
by the EAP counselor, id. at 34, but regardless of the reason for his non-participation, the effect on
the pace of the individual’s recovery would be the same.
Thus, the psychologist at the individual’s workplace found the individual’s risk of relapse to be “low
to medium or moderate. . . . Typically, the early -- the relapse occurs in the early stages of recovery,
rehabilitation. So the first six months are really quite important. The first eight months really is what
the research says is the most critical time period.” Id. at 93-94. Similarly, the DOE psychiatrist
found the individual at a moderate risk of relapse at the time of the hearing, and testified that he
wanted the individual “three times a week meeting with someone or a group of people where he has
some accountability for his drinking.” Id. at 102, 105. The EAP, while finding a low risk of relapse,
could “not yet” express a high degree of confidence in that prognosis. “He's only five to six months
in. He's had a serious health risk in the middle of that. He needs to step it up and continue with AA,
sponsorship, abstinence, aftercare, counseling, in order to enhance his likelihood of continued
sobriety.” Id. at 36.
Taking this testimony into account, I cannot confidently find that this risk was, at the time of the
hearing in this matter, low enough to warrant the restoration of his access authorization. See
10 C.F.R. § 710.7(a) (requiring that any doubts concerning the individual’s eligibility for access
authorization be resolved in favor of the national security). Considering all of the above, and based
upon my review of the entire record in this proceeding, I cannot find that the concern raised by the
individual’s use of alcohol has been sufficiently resolved in this case, at least not at the time of the
hearing in this matter.
V. CONCLUSION
In the above analysis, I have found that there was sufficient derogatory information in the possession
of the DOE that raises 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 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
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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: December 6, 2013