PSH-13-0112

*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 28, 2013 )
) Case No.: PSH-13-0112
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Issued: January 22, 2014
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Administrative Judge’s Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the
Individual”) to hold a security clearance 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, I conclude that the Individual’s security clearance should not be granted.
I. BACKGROUND
The administrative review proceeding began when a Local Security Office (LSO) issued a
Notification Letter to the Individual. See 10 C.F.R. § 710.21. The letter informed the Individual
that information in the possession of the DOE created a substantial doubt concerning his
eligibility for a security clearance. Specifically, the LSO stated that derogatory information
raised security concerns about the Individual under Criteria H and J.1
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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 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 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).
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The Notification Letter further informed the Individual that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility for a
security clearance.2 The Individual requested a hearing, and the LSO forwarded the Individual’s
request to the OHA. The Director of OHA appointed me as the Administrative Judge in this
matter on October 29, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, a family friend, his treating physician (the Physican), his mother, and a DOE
consultant psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-13-0112
(hereinafter cited as “Tr.”). The LSO submitted five exhibits, marked as Exhibits 1 through 5,
while the Individual submitted six exhibits, marked as Exhibits A through F.
II. FINDINGS OF FACT
On May 17, 2013, the LSO conducted a Personnel Security Interview (PSI) of the Individual.
During this PSI, the Individual stated that he would sporadically drink three or four beers on a
weekend night. Exhibit 5 at 174. The Individual opined that consuming four beers on a
weekend night would probably cause him to be legally intoxicated. Exhibit 5 at 174-175. The
Individual initially agreed that he was “probably legally intoxicated twice a week.” Exhibit 5 at
175. However, the Individual subsequently denied that he was intoxicated an average of twice a
week. Id. at 176. The Individual explained that his alcohol use was sporadic, and could occur
twice in a given week or not at all. Id. at 177. The Individual then estimated that he was
intoxicated twice during a typical month. Id. The Individual denied using alcohol as a coping
mechanism, noting that he doesn’t drink alone, and that he only uses alcohol on weekends. Id. at
177-178. The Individual also candidly and forthrightly disclosed an extensive history of illegal
drug abuse, which included his successful recovery from heroin addiction. Id. at 1-173.
At the request of the LSO, the Psychologist evaluated the Individual on August 12, 2013.
Exhibit 4 at 2. After completing his evaluation of the Individual, the Psychologist issued a report
on August 13, 2013, in which he found that the Individual’s drug abuse and heroin addiction
were no longer a concern, since he had stopped using illegal drugs, received treatment, and was
now in full recovery from his opiate addiction. Id. at 7.
However, the Psychologist found that the Individual met the criteria set forth in the Diagnostic
and Statistical Manual of Mental Disorders, Fourth Edition-Text Revised (DSM-IV-TR) for
“Alcohol-Related Disorder Not Otherwise Specified (NOS).” Exhibit 4 at 7. After reviewing
the Individual’s drinking patterns, the Psychologist opined that the Individual most likely
becomes legally intoxicated at least one a month. Exhibit 4 at 6. Given the Individual’s past
history of using alcohol to excess during the years 2008 through 2010, and the Individual’s
current pattern of becoming intoxicated on a monthly basis, the Psychologist opined that the
Individual’s Alcohol-Related Disorder NOS had not been mitigated through rehabilitation or
2 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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reformation. Exhibit 4 at 7. The Psychologist further opined that the Individual’s monthly
intoxication constitutes habitual use of alcohol to excess. Exhibit 4 at 8. The Psychologist noted
“the fact that his use of alcohol does not appear to function as a substitute for his drug addiction,
suggests that he has the ability to control his drinking. It is recommended that he show this
control by becoming abstinent for a period of six months. During this time I recommend that he
attend AA meetings and resume his work on the steps. After the six-month period, the
expectation would be that he would drink in a moderate, occasional manner that does not result
in frequent intoxications.” Exhibit 4 at 7-8.
III. STANDARD OF REVIEW
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common-sense judgment, made after consideration of all the relevant
information, favorable or unfavorable, as to whether the granting of access authorization would
not endanger the common defense and security and would be clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). In rendering this opinion, I have considered the following
factors: the nature, extent, and seriousness of the conduct; the circumstances surrounding the
conduct, including knowledgeable participation; the frequency and recency of the conduct; the
Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's
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. See 10 C.F.R. § § 710.7(c), 710.27(a). The discussion below reflects my
application of these factors to the testimony and exhibits presented by both sides in this case.
IV. DEROGATORY INFORMATION AND ASSOCIATED SECURITY CONCERNS
On August 13, 2013, the Psychologist diagnosed the Individual with Alcohol-Related Disorder
NOS. This information raises security concerns about the Individual under Criterion H and
Adjudicative Guideline I, since the Psychologist opined that the Individual’s Alcohol-Related
Disorder NOS constitutes an illness or condition that cause, or may cause, a significant defect in
the Individual’s judgment and reliability. Exhibit 4 at 8; 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) Guideline I at ¶ 27 and G at ¶ 21, 22(e). Excessive alcohol consumption often leads
to the exercise of questionable judgment or the failure to control impulses, and can raise
questions, under Criterion J and Adjudicative Guideline G, about an individual's reliability and
trustworthiness. Adjudicative Guideline G at ¶ 21.
V. ANALYSIS
At the hearing, the Physician, a self-described “addictionologist” who successfully treated the
Individual’s opiate addiction in 2010-2011, testified on the Individual’s behalf. Tr. at 21;
Exhibit A at 4. The Physician re-evaluated the Individual on November 5, 2013, and prepared an
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“Independent Medical Evaluation Report” which he issued on November 19, 2013. Exhibit A at
4. The Physician testified that the Individual does not have an alcohol disorder at this time. Tr.
at 22, 32, 37. The Physician further opined that he “did not notice any evidence of persistent or
habitual use of alcohol.” Tr. at 24. However, the Physician admitted that he “did not get the
history that [the Individual] becomes legally intoxicated in my assessment.” Tr. at 26. The
Physician also testified that it would be unlikely that an Individual who consumed three or four
beers over the course of a three-to-four-hour period would become significantly intoxicated. Tr.
at 38-39. The Physician was not familiar with the Widmark Equation, however.3 Tr. at 40. The
Physician further testified that, given the Individual’s history of opiate addiction, he would
recommend that the Individual permanently abstain from drinking. Tr. at 40.
The Individual also testified on his own behalf at the hearing. He testified that he did not feel
intoxicated or impaired on two occasions per month, but rather assumed that he was legally
intoxicated whenever he consumed more than two beers. Tr. at 55-56, 74-76, 83-84. The
Individual testified that it would take him three or four beers “to get a buzz.” Tr. at 82. The
Individual testified that, after receiving his Notification Letter, he now rarely drinks. Tr. at 56,
63-64, 80-81. The Individual admitted that he drank a beer approximately two weeks before the
hearing, however, he testified that that was the only time he had used alcohol since he received
the Notification Letter. Tr. at 59, 76.
At the hearing, the Psychologist heard the testimony of each of the other witnesses before he
testified. The Psychologist testified that he did not see the Individual’s alcohol use as a
substitute for opiates. Tr. at 86-87. The Psychologist testified that the Individual had described
his drinking as “three to four beers” during both his interview with the Individual and the PSI.
Tr. at 89-90. The Psychologist noted that during his interview of the Individual, the Individual
indicated that the beers he consumed were “craft beers.” Tr. at 90. The Psychologist testified
that the Widmark Equation indicates that three or four craft beers (at 6.2 percent alcohol and 16
ounces per beer) consumed over four hours can cause a blood alcohol level of .09 to .10, which
correlates to a significant legal intoxication. Tr. at 90. The Psychologist testified that because of
the slight concern that the Individual may still need “some kind of addictive hit,” he
recommended that the Individual abstain from alcohol use for a period of six months. Tr. at 94.
The Psychologist opined that, at the time of the hearing, the Individual had completed four
months of abstinence from alcohol use. Tr. at 96. The Psychologist stated that the Individual, in
his hearing testimony, had attempted to minimize his alcohol use. Tr. at 90, 95. The
Psychologist testified that the Individual’s minimization of his alcohol use raises his risk of
future problematic drinking from “low” to “moderate.” Tr. at 96-97, 107. Accordingly, the
Individual has not yet shown that he is reformed or rehabilitated from his Alcohol-Related
Disorder NOS.
3 The Widmark Equation is a useful tool for predicting Blood Alcohol Concentration (BAC), predicting time
elapsed since the last drink, and estimating how many drinks were consumed if the time of the last drink and BAC
are known. The equation is frequently relied upon by substance abuse professionals, and was cited by the
Psychologist in his hearing testimony as the basis for concluding that the Individual’s drinking patterns most likely
resulted in him becoming intoxicated on at least a monthly basis. Tr. at 90.
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The Individual has not convincingly rebutted his prior admissions that he drank to intoxication
on a monthly basis. The Individual’s pattern of drinking to intoxication on a monthly basis falls
squarely within the range of consumption that we have found to constitute habitual use to excess.
See, e.g., Personnel Security Hearing, Case No. PSH-12-0113 (2012) (“the Individual’s pattern
of drinking six to eight drinks a night, once or twice a week, falls squarely within the range of
consumption that OHA has found to constitute habitual use to excess”); Personnel Security
Hearing, Case No. VSO-0569 (2002) (drinking to intoxication once per month found to be
habitual use to excess); Personnel Security Hearing, Case No. TSO-0086 (2004) (drinking to
intoxication three times per week found to be habitual use to excess); Personnel Security
Hearing, Case No. TSO-0393 (2006) (binge drinking all night on weekends once every two or
three months found to constitute habitual use to excess); Personnel Security Hearing, Case No.
TSO-0453 (2007) (drinking to intoxication once or twice per month found to be habitual use to
excess); Personnel Security Hearing, Case No. TSO-0424 (2006) (intoxication 12 times per year
between 1994 and 1998, 12 times in 2001, 18 times total in 2002 and 2003, 12 times in 2004 and
10 times in 2005 found to constitute habitual use to excess); Personnel Security Hearing, Case
No. TSO-0738 (2009) (intoxication twice per month between 1998 and 2002 and every night
between 2002 and 2007 found to be habitual use to excess).4 Based on the convincing testimony
of the Psychologist that the Individual’s risk of relapse is “moderate,” I find that the Individual is
not rehabilitated or reformed from his Alcohol-Related Disorder NOS, and the accompanying
significant defect in judgment and reliability continues to be a security concern.
Accordingly, I find that the Individual’s past drinking pattern presents an unacceptable risk to the
common defense and national security. For the reasons set forth above, I find that the Individual
has not mitigated the Criteria H and J security concerns at issue.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H and J. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that Individual has not adequately mitigated the Criteria H and J security concerns. Accordingly,
the Individual has not demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual's security clearance should not be granted at this time. The Individual may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: January 22, 2014
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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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