PSH-13-0111

*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: October 17, 2013 ) Case No.: PSH-13-0111
)
__________________________________________)
Issued : February 20, 2014
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Administrative Judge’s Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 be restored.
I. Background
The Individual is employed by the DOE in a position that requires her to hold a security
clearance. In April 2013, the Individual was arrested for Driving Under the Influence (DUI).
The LSO conducted a Personnel Security Interview (PSI) with the Individual in May 2013 (May
2013 PSI). After the PSI, the LSO referred her for a psychological evaluation by a DOE
psychologist, which also occurred in May 2013. Noting that this was the Individual’s second
arrest for DUI, the DOE psychologist diagnosed the Individual with alcohol abuse.
In September 2013, the LSO sent a letter (Notification Letter) to the Individual advising her that
it possessed reliable information that created a substantial doubt regarding her eligibility to hold
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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a security clearance. In an attachment to the Notification Letter, the LSO explained that the
derogatory information 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 Criterion H, Criterion J, and Criterion L).2/
Upon her receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge3/ in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the LSO
presented one witness; the Individual presented her own testimony and the testimony of six
witnesses. The LSO submitted 14 exhibits into the record; the Individual tendered 33 exhibits.
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 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 appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h).
2/ Criterion H concerns 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 applies where an individual has been,
or is, a user of alcohol habitually to excess or has been diagnosed by a psychologist as alcohol dependent
or suffering from alcohol abuse. Id. § 710.8(j). Criterion L relates to 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 . . .” 10 C.F.R. §710.8(l).
3/ Effective October 1, 2013, the titles of attorneys in the Office of Hearings and Appeals (OHA) changed
from Hearing Officer to Administrative Judge. See 78 Fed. Reg. 52389 (August 23, 2013). The title
change was undertaken to bring OHA staff in line with the title used at other federal agencies for officials
performing identical or similar adjudicatory work.
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Thus, an Individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative Judge 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. To support its Criteria H and J allegations, the LSO relies
on the Individual’s alcohol abuse diagnosis made by the DOE psychologist and the Individual’s
two alcohol-related arrests. The Individual’s alcohol abuse diagnosis and alcohol-related arrests
raise a security concern under Criteria H and J because her actions may lead “to the exercise of
questionable judgment or the failure to control impulses” and “can impair judgment, reliability,
or trustworthiness.” See Guidelines G and 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). The Individual’s two alcohol-related arrests raise a security concern under Criterion
L, because her actions “create[] doubt about a person’s judgment, reliability and
trustworthiness,” all of which can raise questions about the Individual’s ability or willingness to
comply with laws, rules, and regulations. See Guideline J of the Adjudicative Guidelines.
IV. Findings of Fact
The Individual was charged with DUI in April 2013. DOE Ex. 1 at 1; DOE Ex. 9 at 2. After the
PSI conducted in May 2013, the Individual was referred to a DOE psychologist for an
evaluation. The DOE psychologist diagnosed the Individual as suffering from alcohol abuse
under the Diagnostic and Statistical Manual for the American Psychiatric Association IVth
Edition TF (DSM-IV-TR) and as having met all the criteria for Alcohol Use Disorder, Mild,
under the Diagnostic and Statistical Manual for the American Psychiatric Association Vth
Edition (DSM-V). DOE Ex. 4 at 11-13. In addition to the April 2013 DUI, the Individual had
previously been charged with DUI in October 2010. DOE Ex. 1 at 1.
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
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factors prescribed in 10 C.F.R. § 710.7(c)4/ and the Adjudicative 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
At the hearing, the Individual testified that she began an intensive outpatient treatment program
(IOP) in April 2013, five days after her DUI. Tr. at 111. In addition, she has been attending
Alcoholics Anonymous (AA) since her discharge from the IOP. Her psychologist suggested that
she attempt to attend 90 AA meetings in 90 days. To her credit, she attended 110 meetings in 96
days. Ind. Ex. C. The Individual testified that her sobriety date is April 20, 2013. Tr. at 107.
She has been transparent with her children and her ex-husband about what occurred in April
2013. Tr. at 123, 169. When she first attended the IOP and AA, she did not identify herself as
an alcoholic. Tr. at 115. After asking her psychologist for a definition of what being an
alcoholic is, she realized that she was an alcoholic and proceeded to introduce herself as one. Tr.
at 114. The Individual’s future intention is to maintain her sobriety. Tr. at 129. She testified
that the April 2013 DUI was “one of the best things that happened to me.” Tr. at 141. She stated
that she has no craving or desire to consume alcohol. Tr. at 143, 167. She testified that she has
loved AA since the beginning because of the honesty. Tr. at 127. The Individual stated that her
sponsor shared her own story at an AA meeting shortly after the Individual began attending. Tr.
at 117. The Individual said that she identified with her sponsor and “wanted what [the sponsor]
had.” Tr. at 117-18. The Individual testified that her support system is her friends at AA, her
friend who testified and her friend’s husband, her co-worker who testified, her supervisor, and
her father. Tr. at 144. She concluded that she
can’t imagine life without AA. I really can’t. AA has been the . . . cornerstone of
my treatment because that is the place that I know I can go anytime and be with
people who will be honest with me and honest with themselves and who will
understand and offer their strength and their hope and their experiences back to
me.
Tr. at 183-84.
The Individual’s sponsor testified that she is a substance abuse counselor as well as being the
Individual’s sponsor. Tr. at 44-45. She has 26 years of sobriety and has sponsored many people.
Tr. at 46. The sponsor asked the Individual to repeat the first four steps of the program when she
became her sponsor, even though she had completed them at IOP. Tr. at 47. The sponsor, her
counselor, and her psychologist all testified that the Individual has completed all 12 steps. Tr. at
4/ 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.
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22, 57, 195. By the sponsor’s standards, the Individual is “working a good AA program.” Tr. at
52. The sponsor opined that the Individual has an excellent prognosis for recovery. Tr. at 53.
The friend and the Individual’s co-worker testified that the Individual is committed to her
abstinence. Tr. at 70, 100. The friend testified that the Individual enjoys AA and wants to give
back to the program. Tr. at 74. The Individual’s co-worker, whom she considers her second
mother, testified that the Individual is happier and healthier since the April 2013 DUI. Tr. at
100, 102.
The Individual’s counselor testified that the Individual has manifested more change than most of
her patients. Tr. at 20. The Individual has a great sponsor. Tr. at 20. The counselor opined that
the Individual has an excellent prognosis because she is involved in AA. She chairs meetings
and attends an appropriate number of meetings. Tr. at 27. The Individual’s risk of relapse is
also low because of how seriously the Individual has embraced recovery and the severity of her
problem with alcohol was not as severe. Tr. at 26. Her risk of relapse is low. Tr. at 28.
Although she is in early recovery, the Individual is accomplishing tasks that are usually seen in
late recovery. Tr. at 33.
The Individual’s psychologist testified that the Individual completed her IOP. Tr. at 192. The
psychologist sees the Individual once or twice a month. Tr. at 194. She has increased her level
of insight since they began meeting. Tr. at 193. The Individual’s psychologist opined that the
Individual has a strong relationship with her sponsor and that her counselor is very good. Tr. at
198-99. The Individual’s psychologist testified that the Individual’s program is one of the best
she has reviewed. Tr. at 200. She concluded that the Individual’s prognosis is excellent and her
risk of relapse is low. Tr. at 210, 212. She stated that she has shown adequate rehabilitation or
reformation. Tr. at 221. The Individual’s psychologist concluded that she is unconcerned about
the fact that the Individual has only eight months of recovery for two reasons. Tr. at 211-12.
First, in addition to attending meetings, the Individual has gotten involved in AA, by chairing
meetings. Tr. at 211. Second, the Individual has accepted that her alcohol consumption has
affected her past relationships. Tr. at 212. The Individual’s psychologist stated “[t]hus she has
embraced the goal of lifelong abstinence wholeheartedly.” Ind. Ex. N.
The DOE psychologist testified that the Individual’s recovery program is robust. Tr. at 225. In
his report, he required a year of sobriety because it allows a person to confront all landmarks,
such as birthdays and holidays. Tr. at 225. However, after hearing the testimony, he has a
moderate degree of confidence that the Individual is rehabilitated and reformed because of her
strong program. Tr. at 226. He noted three things that swayed him. First, the Individual stated
that she wanted what her sponsor had. Tr. at 227. Second, the Individual testified that she was
thankful for the DUI because it allowed her to confront her drinking problem. Tr. at 227. And
third, the Individual declared that she liked the honesty of AA. Tr. at 227.
The testimony of DOE psychologist, the Individual’s counselor, and the Individual’s
psychologist, along with that of her friend and co-worker, has convinced me that the Individual
has shown adequate rehabilitation or reformation. They testified that her risk of relapse is low.
Based on the foregoing, I find that the Individual has adequately mitigated the security concerns
associated with Criteria H or J.
B. Criterion L
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As of the date of the hearing, the Individual had two alcohol-related incidents. Because the
Individual’s alcohol use led to the concerns raised under Criterion L, and because I conclude that
the risk is low that she will return to alcohol use, I find it unlikely that she will have any more
alcohol-related incidents. For this reason, I have determined that the Individual has
correspondingly mitigated the concerns raised under Criterion L. Personnel Security Hearing,
Case No. PSH-12-0088 (2012).
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 Criteria H, J, and L. 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. The parties may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: February 20, 2014