PSH-13-0129

*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: December 11, 2013 ) Case No.: PSH-13-0129
)
_________________________________________ )
Issued: March 20, 2014
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization 1 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 a DOE contractor in a position that requires him to hold a DOE
security clearance. In August 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 his alcohol-related arrests and his 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 DOE psychologist, the individual suffers from Alcohol-Related
Disorder Not Otherwise Specified (NOS). The DOE psychologist further concluded that 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.
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individual’s Alcohol-Related Disorder NOS is a mental illness that causes or may cause a
significant defect in his judgment and reliability.
In November 2013, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding his 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 Administrative Judge in this case. At the hearing that I
convened, the individual presented his own testimony and that of four 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).
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B. Basis for 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 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-Related Disorder NOS, and the expert’s
opinion that Alcohol-Related Disorder NOS 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, the individual alcohol-related arrests as well as his 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 alcohol consumption and has had two alcohol-related arrests.
On May 6, 2001, the individual was arrested and charged with Aggravated Driving While
Intoxicated. According to the individual, he and a friend attended a bachelor party where he
drank three or four beers in approximately two hours. The individual admitted to consuming
four to five beers prior to the arrest and stated that he refused to submit to a Breathalyzer because
he was not sure if he would pass it. See DOE Exh. 1. On June 8, 2013, the individual was
arrested and charged with Aggravated Driving Under the Influence (ADUI). Although he
admitted to consuming four beers prior to the arrest and refused to submit to a Breathalyzer test,
the individual maintained that it was his son who was driving the vehicle at the time of the
incident. Id.
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During his August 2013 PSI, the individual stated that from 1976 until his arrest for ADUI in
June 2013, his alcohol consumption consisted of four to six beers on Friday and Saturday nights
and three to four beers on Sundays. The individual also admitted that he considered himself to
be an alcoholic. Id.
Based on this information, the individual was referred to a DOE psychologist for a psychological
evaluation. On September 17, 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-Related Disorder NOS, without adequate
evidence of rehabilitation and reformation. The DOE psychologist further concluded that the
individual possesses 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 be restored. Based on the facts
in this record, 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. The Diagnosis of Alcohol-Related Disorder Not Otherwise Specified
The individual does not dispute the DOE psychologist’s diagnosis of Alcohol-Related Disorder
NOS. Therefore, the focus of the analysis will be on whether the individual has demonstrated
adequate evidence of rehabilitation or reformation.
B. Evidence of Rehabilitation and Reformation from Alcohol-Related Disorder NOS
During the hearing, the individual acknowledged his two alcohol-related arrests4, as well as the
fact that he is an alcoholic. Transcript of Hearing (Tr.) at 56. He also admitted to minimizing his
alcohol use during his August 2013 PSI. Id. He testified that his alcohol problem stemmed from
drinking too much alcohol, primarily beer and wine, over the weekends and believes his drinking
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.
4 Prior to the hearing and during the course of the hearing, the individual contended that he was not driving
the vehicle at the time of the his alcohol-related arrest in June 2013, but rather his son was driving the vehicle. See
Exhibit A.
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increased after the loss of both his mother and brother. Id. at 57. The individual testified that it
was his June 2013 arrest for DUI that “opened his eyes” and convinced him that it was time to
change his behavior with respect to alcohol. Id. at 58 and 59. He further testified that after
consulting with an Employee Assistance Program doctor, he began attending Alcoholics
Anonymous (AA) in July 2013 and currently attends three AA meetings a week. He
subsequently completed an Intensive Outpatient Treatment Program (IOP) and is currently in
aftercare. The individual admitted that he drank two glasses of wine during his IOP to celebrate
his 40th wedding anniversary on July 14, 2013. Id. at 60. He states that he has abstained from all
alcohol since that date. Although the individual acknowledges that it has been difficult
abstaining from alcohol over the holidays, he testified that he is committed to remaining sober
and stated that he feels that he really does not need alcohol in his life. Id. at 62. He testified that
he has the support of his wife, brother-in-law, AA sponsor and his children. Id. at 64.
During the hearing, the individual also offered the testimony of his therapist, his AA sponsor, his
supervisor and his wife. The individual’s therapist has worked in the field of addiction for 17
years and treated the individual during the course of his IOP. He confirmed that the individual
completed a 30-session IOP in January 2014 and is attending aftercare three days a week. Id. at
32. He testified that the individual also participates in AA and immediately obtained a sponsor.
According to the therapist, as long as the individual continues to work the aftercare program, his
prognosis is good and his risk for relapse is low. Id. at 36. 5 The individual’s sponsor testified
that he meets with the individual every Saturday and talks with him about three or four times a
week. He testified that the individual is currently working on step 8 or 9 of the Twelve Step
program of AA. He is happy with the individual’s level of commitment and positive attitude,
and believes the individual will be successful.
The DOE psychologist listened to all the testimony at the hearing before testifying herself. She
testified that there are a number of factors that weigh in the individual’s favor, including his
broad support base consisting of the individual’s work, family, AA sponsor and the support he
receives from his aftercare program. Id. at 94. She noted that the individual’s aftercare program
is very much in the individual’s favor because it is a rehabilitation program that improves his
prognosis. The DOE psychologist further noted that the individual’s spiritual foundation also
helps the individual’s recovery and is a good fit with the AA Twelve Step program. She also
opined that the individual’s openness weighs in his favor. The DOE psychologist testified that
the only factor that does not weigh in the individual’s favor is the factor of time. She testified
that although there is nothing “magical” about a 12-month period of abstinence, statistically the
rates of success of ongoing abstinence increase to about 90 percent when an individual has been
abstinent for 12 months. Id. at 95. She noted that the individual’s seven months of abstinence at
the present time give him a rate of success between 65 and 72 percent. However, that being
stated, given all of the individual’s positive factors weighing in his favor, as well as the credible
testimony of the individual, the DOE psychologist testified that her prognosis would be more
5 The individual’s wife who has been married to the individual for 40 years testified that the individual stopped
drinking immediately after the June 2013 DUI. Id. at 42. She further stated that it was as this time that the
individual finally realized that he had a problem with alcohol. The individual’s supervisor testified that the
individual has never been intoxicated at work, is dependable and possesses good judgment and reliability. Id. 21
and 22.
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favorable for the individual even given that he has only achieved seven months of abstinence.
Id. at 96. She opined that the individual’s prognosis is good, and that he does not currently have
an illness or mental condition which causes a significant defect in his judgment or reliability. Id.
at 97.
C. Administrative Judge’s Evaluation of the Evidence
In the administrative process, Administrative Judges 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).6 At the outset, I am
persuaded by the testimony of the DOE psychologist that the individual achieved adequate
evidence of rehabilitation. Moreover, the Adjudicative Guidelines describe factors that could
mitigate security concerns involving psychological conditions and alcohol consumption. See
Adjudicative Guideline, Guidelines G and I, ¶ 23 and ¶ 29, respectively. In this case, the
individual has satisfied the following mitigating factors: (1) the individual has acknowledged his
alcohol problem, provided evidence of actions taken address his problem and has established a
pattern of responsible use; (2) the individual has successfully completed an IOP with required
aftercare, has demonstrated a clear and established pattern of abstinence in accordance with his
treatment recommendations, i.e., his participation in AA meetings, and has received a favorable
prognosis by a duly qualified medical professional; and (3) the DOE psychologist has opined that
the individual’s condition has a low probability of recurrence. Id. For these reasons, I find that
the individual has sufficiently 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 brought forth convincing evidence to mitigate the security concerns
associated with Criteria H and J. I therefore 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
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
Administrative Judge
Officer of Hearings and Appeals
6 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.
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Date: March 20, 2014