PSH-13-0110

*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 25, 2013 ) Case No.: PSH-13-0110
)
_________________________________________ )
Issued: January 24, 2014
___________________
Hearing Officer Decision
____________________
Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxxx (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
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a DOE
security clearance. In May 2013, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about her alcohol use. In addition to the PSI, the LSO requested the individual’s
medical records and recommended a psychological evaluation of the individual by a DOE
consultant psychologist (DOE psychologist). The DOE psychologist examined the individual in
June 2013 and memorialized her findings in a report (Psychological Report). According to the
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.
-2-
DOE psychologist, the individual suffers from Alcohol Use Disorder, Severe. The DOE
psychologist further concluded that the individual’s Alcohol Use Disorder is a mental illness that
causes or may cause a significant defect in her judgment and reliability.
In August 2013, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding her eligibility to hold an
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell 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).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the individual presented her own testimony and that of five witnesses. The DOE
Counsel called one witness, the DOE psychologist. Both the DOE and the individual submitted
a number of written exhibits prior to the hearing.
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 denial”); 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 her 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 her 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 appropriate hearsay may be
admitted. 10 C.F.R. § 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
2
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 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).
-3-
B. Basis for 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 in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites two criteria as bases for suspending the individual’s security
clearance: Criteria H and J. To support Criterion H, the LSO relies on the diagnosis of the DOE
psychologist that the individual suffers from Alcohol Use Disorder, Severe, and the expert’s
opinion that Alcohol Use Disorder, Severe, is a mental illness that could cause a significant
defect in the individual’s judgment and reliability. As for Criterion J, the LSO cites the DOE
psychologist’s opinion and the individual’s alcohol use. See DOE Exh. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s alcohol use under both Criteria H and J. First, a mental condition such as
an Alcohol Use Disorder can impair a person’s judgment and reliability and trustworthiness. See
Guideline I of the 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). Second, the excessive
consumption of alcohol itself 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 id. at Guideline G.
IV. Findings of Fact
The individual has a long history of excessive alcohol consumption. From 2004 to 2009, the
individual admitted that she consumed 15 ounces of vodka twice a week. From 2009 to 2012,
she consumed 15 ounces of vodka (straight) up to four times a week. Over the last 18 months,
from January 2012 until April 2013, the individual admitted to consuming 15 ounces of vodka
daily. On April 8, 2013, the individual admitted herself to a hospital for alcohol detoxification
and to address her use of alcohol. However, the individual admitted that she relapsed while in
outpatient treatment on April 18, 2013, and April 25, 2013, when she consumed a half pint of
vodka and a pint of vodka, respectively. DOE Exh. 1.
During a May 15, 2013 PSI, the individual stated that she became concerned with her use of
alcohol in May 2012. At that time, she told her family and her supervisors that she had a
-4-
problem with alcohol and planned to stop drinking. However, despite this statement, she
continued to consume alcohol and continued to hide her alcohol consumption. The individual
further admitted that she completely hid her alcohol consumption from friends and family by
chewing gum and eating breath mints or hard candy. According to the individual, she chose to
consume vodka from a water bottle because she believed it did not smell and no one would
discover that she was consuming alcohol. Id.
The individual admitted to missing an average of two days of work per week totaling
approximately five weeks over the last five months because of drinking, recovering from the
effects of her consumption, or recovering from sleep deprivation when she tried not to drink. In
addition, she admitted to experiencing hand tremors at work by 3:00 pm in the afternoon. She
further admitted that she was unable to fall asleep without consuming alcohol. The individual
believes that her alcohol use has negatively affected her family and social life. She admits to
choosing to stay home in order to drink rather than to participate in family activities. Id.
Based on this information, the individual was referred to a DOE psychologist for a psychological
evaluation. On June 27 and 28, 2013, the DOE psychologist evaluated the individual. In her
Report, she concluded that the individual met the Diagnostic Statistical Manual of Mental
Disorders, Fifth Edition (DSM-5) criteria for Alcohol Use Disorder, Severe, which is equivalent
to the DSM-IV-TR diagnosis of Alcohol Dependence, without adequate evidence of
rehabilitation and reformation. The DOE psychologist further concluded that the individual’s
Alcohol Use Disorder, Severe, is an illness or mental condition, which causes, or may cause, a
significant defect in judgment and reliability. DOE Exh. 6.
V. Analysis
I have thoroughly considered the record in 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)3 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should not be restored. Based on the
facts in this record, I cannot 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. The Diagnosis of Alcohol Use Disorder, Severe
3
Those factors include the following: 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 at the time of the conduct, the voluntariness of his 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.
-5-
The individual does not dispute the DOE psychologist’s diagnosis of Alcohol Use Disorder,
Severe. Therefore, the focus of the analysis will be on whether the individual has demonstrated
adequate evidence of rehabilitation or reformation from Alcohol Use Disorder, Severe.
B. Evidence of Rehabilitation and Reformation from Alcohol Use Disorder,
Severe
During the hearing, the individual acknowledged her history of excessive alcohol consumption
and described the circumstances surrounding her April 2013 hospitalization for alcohol
detoxification. Transcript of Hearing (Tr.) at 113. She testified that on April 7, 2013, she was
home alone and drank all day. The individual testified that she realized that she was “killing
herself” with her alcohol consumption and decided to call her sister to reach out for help.
According to the individual, the next morning she called her supervisor and the Employee
Assistance Program at her job. The individual stated that she checked into a six-day alcohol
detoxification program the following day and started outpatient treatment the following week. Id.
at 115. She acknowledged that she relapsed twice, once on April 18, 2013, and again on April
25, 2013, consuming alcohol on both occasions. The individual stated that she has not consumed
any alcohol since April 25, 2013. Id. at 120. She testified that it was at this point that she
realized that “she didn’t want to be that person anymore” and realized that she had a disease. Id.
The individual attended her first Alcoholics Anonymous (AA) meeting on April 29, 2013, and
testified that she completed alcohol outpatient treatment on May 10, 2013. Id. at 123. As part of
her “Aftercare” treatment, she attends three AA meetings per week, as well as meets with her
sponsor once a week. Id. at 125 and 127. She testified that she is currently working on Step
four of the 12-step AA program. The individual also began seeing a therapist on a weekly basis
in May 2013. Id. at 127. She testified that she has a great deal of support from her husband and
family and believes that their communication has improved since she has completed her
treatment. Id. at 133. She testified that she is also thankful that she had the courage to get help
for her alcohol problem. Id. at 131. Finally, the individual stated that her future intention is to
abstain from alcohol.
During the hearing, the individual also offered the testimony of her therapist, her supervisor, a
co-worker, her husband and her sister. The individual’s therapist is a psychotherapist who has a
background working with individuals that have alcohol and drug issues. Id. at 14. The therapist
testified that she began meeting with the individual in May 2013 and was impressed that she was
well on her way to recovery. Id. at 16. She noted that the individual has taken responsibility for
her alcohol problem. Id. Although the individual suffered two relapses prior to meeting with
her therapist, her therapist noted that the individual quickly “got back on the horse” toward
recovery. The therapist opined that the individual has a number of positive factors that weigh in
her favor, including the fact that the individual regularly attends AA meetings, has obtained a
sponsor and is working through the 12 steps of AA, has a relapse plan in place and has good
supportive relationships with her husband and her sister. Id. at 20 and 21. She opined that that
the individual is now in early remission from her Alcohol Use Disorder, Severe, and does not
have a mental condition that impairs her judgment and reliability. Id. at 27 and 29. She
acknowledged, however, that the individual’s alcoholism was severe and that the individual has
-6-
only achieved about eight months of sobriety. Nevertheless, she gave the individual a favorable
prognosis and opined that the individual’s risk of relapse is low. 4
The DOE psychologist listened to all the testimony at the hearing before testifying herself. She
testified that at the time she evaluated the individual, the individual met eight of the eleven
criteria for Alcohol Use Disorder, Severe and recommended that the individual abstain from
alcohol for a period of 12 months. Id. at 202. She testified that her initial opinion and
recommendations have not changed, stating that the individual has not yet achieved
rehabilitation or reformation. According to the DOE psychologist, the individual has a very
severe case of Alcohol Use Disorder or Alcohol Dependence. She reiterated that the individual
met eight of the eleven criteria which placed her in the severe designation of her diagnosis. Id. at
205. Because of the severity and duration of her symptoms and her relapse history, the DOE
psychologist still maintains that the individual should achieve 12 months of abstinence in order
to be considered rehabilitated. Id. at 207 and 208. She noted, however, that as of the date of the
hearing, the individual had only achieved seven months and six days of abstinence, which places
her solidly in the middle of early remission. Although the DOE psychologist believes that the
individual’s prognosis is excellent and that she has made many positive changes, she believes
that the individual’s risk of relapse is still too high at this time to consider the individual
rehabilitated. Id. at 240.
C. Hearing Officer’s Evaluation of the Evidence
In the administrative process, Hearing Officers accord deference to the expert opinion of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).5 At the outset, I am
persuaded by the testimony of the DOE psychologist that the individual has not yet achieved
adequate evidence of rehabilitation, particularly in light of the severity of the individual’s
diagnosis and the individual’s two relapses. Moreover, I find none of the factors outlined in the
Adjudicative Guidelines apply in this case. See Adjudicative Guideline, Guidelines G and I, ¶ 23
and ¶ 29, respectively. For example, the individual’s past problematic alcohol use is recent and
chronic; she has not established a sufficient pattern of abstinence to ensure a low risk of relapse;
she has a history of relapses, and the DOE psychologist has not given her a favorable prognosis.
See Adjudicative Guidelines G ¶ 23(a)-(d). Moreover, with regard to Guideline I, the DOE
psychologist’s opinion that the individual is still at risk of relapse does not allow me to mitigate
the individual’s psychological condition. In short, it is simply too early in the individual’s
rehabilitation for me to make a predictive assessment of her future behavior with respect to her
4
The individual’s husband and sister both testified that they have seen positive changes since the individual entered
alcohol treatment and has abstained from alcohol, noting that the individual is more outgoing, energetic and less
emotionally reactive. Id. at 63. The individual’s supervisor testified that the individual was very open about her
alcohol treatment and is committed to her sobriety. Id. at 92. He has also noticed positive changes in the individual.
Likewise, the individual’s co-worker testified that the individual has talked with her openly and honestly about her
alcoholism and believes that the individual does not intend to consume alcohol in the future. Id. at 84.
5 Decisions issued by OHA are available on the OHA website located at http://www.oha.doe.gov. The text of a
cited decision may be accessed by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
-7-
alcohol use. For these reasons, I find that the individual has not yet mitigated the DOE’s security
concerns under Criteria H and J.
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 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
find that the individual has not brought forth convincing evidence to mitigate the security
concerns associated with Criteria H and J. I therefore cannot find that restoring the individual’s
access authorization would not endanger the common defense and security and would be
consistent with the national interest. Accordingly, I find 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.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: January 24, 2014