PSH-13-0134

*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-13-0134
)
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Issued: March 28, 2014
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Decision and Order
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 individual
should not be granted a security clearance at this time. 2
I. BACKGROUND
The individual’s employer, a Department of Energy (DOE) contractor, requested a security
clearance on the individual’s behalf. In response to that request, the local security office (LSO)
conducted an investigation of the individual. During the course of that investigation, the LSO
1An 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
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (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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obtained information about the individual that raised security concerns. The LSO summoned the
individual for interviews with a personnel security specialist on May 21 and May 22, 2013. After
these Personnel Security Interviews (PSIs) failed to resolve the concerns, 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 based on that
evaluation, and submitted it to the LSO. After reviewing that 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. It informed the individual of
this determination in a letter that set forth the DOE’s security concerns and the reasons for those
concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter
also informed the individual that he was entitled to a hearing before an Administrative Judge in
order to resolve the substantial doubt concerning his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced 12
exhibits into the record of this proceeding and presented the testimony of the DOE psychiatrist at
the hearing. The individual introduced seven exhibits and presented the testimony of three
witnesses, in addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter includes a statement of derogatory information that
the LSO concluded raises a substantial doubt as to the individual’s eligibility for a security
clearance. This derogatory information pertains to paragraphs (f), (h), (j) and (l) of the criteria for
eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8.
Under criterion (f), information is derogatory if it indicates that an individual has deliberately
misrepresented, falsified, or omitted significant information from a Questionnaire for National
Security Positions (QNSP), a PSI, or from written or oral statements made in response to official
inquiry on a matter that is relevant to a clearance eligibility determination. In support of this
criterion, the Notification Letter cites the individual’s answers on his 1998 and 1999 QNSPs
indicating that he had not illegally used drugs within the last seven years or since his 16th
birthday. 3 However, the Letter states that during his May 2013 PSIs, he admitted that he had
used marijuana two or three times between 1992 and 1994, and a horse tranquilizer in 1993 or
1994, and that he did not disclose this illegal drug usage because he thought that he would not
get a clearance if he did so.
Criterion (h) pertains to information indicating that the individual has an illness or mental
condition which, in the opinion of a psychiatrist causes, or may cause, a significant defect in his
judgment or reliability. 10 C.F.R. § 710.8(h). Criterion (j) defines as derogatory information
indicating that the individual “has been, or is, a user of alcohol habitually to excess, or has been
diagnosed by a psychiatrist or licensed clinical psychologist as alcohol dependant or as suffering
from alcohol abuse.” 10 C.F.R. § 710.8(j). As support for these criteria, the Letter cites the 2013
3 These QNSPs were executed by the individual in connection with earlier security clearances
held by the individual. The first was issued pursuant to his employment with another DOE
contractor and the second was issued pursuant to his military service.
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diagnosis of the DOE psychiatrist that the individual suffers from Alcohol Abuse, and that this
condition causes, or may cause, a significant defect in his judgment or reliability. As additional
support for criterion (j), the Letter refers to the individual’s May 2012 arrest for domestic assault,
an event that occurred after the individual drank three beers.
Criterion (l) refers to information indicating that the individual has engaged in unusual conduct
or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or
which furnishes reason to believe that he may be subject to pressure, coercion, exploitation or
duress which may cause him to act contrary to the best interests of national security. Such
conduct includes, but is not limited to, criminal activity. As support for the LSO’s invocation of
this criterion, the Letter cites the individual’s illegal usages of marijuana between the years 1992
and 1994, and the following arrests and citations:
 Domestic Assault – May 2012
 Illegal Window Tint – March 1998
 Noise Ordinance – September 1997
 Fighting – August 1993
 Theft – February 1993
 Vandalism – July 1992
These circumstances adequately justify the DOE’s invocation of criteria (f), (h), (j) and (l), and
raise significant security concerns. Conduct involving lack of candor or dishonesty can raise
questions about an individual’s reliability, trustworthiness and ability to protect classified
information. Mental conditions that involve the excessive consumption of alcohol, such as
alcohol abuse, often lead to the exercise of questionable judgment or the failure to control
impulses, and can therefore raise questions about an individual’s reliability and trustworthiness.
Finally, illegal activity also creates doubt about a person’s judgment, reliability and
trustworthiness. By its very nature, it calls into question a person’s ability or willingness to
comply with laws, rules and regulations. See Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information, The White House (December 19, 2005),
Guidelines E, G, I, and J.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictate that in these proceedings, an Administrative Judge 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 or unfavorable, that has a bearing on the question of whether granting or
restoring a security clearance would compromise national security concerns. 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).
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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). See
Personnel Security Hearing, Case No. VSO-0013, (1995) (affirmed by OSA, 1996), and cases
cited therein. 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).
IV. ANALYSIS
At the hearing, the individual attempted to demonstrate, through his own testimony and that of
his mother, step-father and fiancée, that he is an honest and law-abiding person who does not
suffer from an alcohol use disorder. However, for the reasons set forth below, I find that this
testimony and the documentary evidence submitted by the individual are not sufficient to
mitigate the serious security concerns set forth in the Notification letter.
A. Criterion (f)
During the hearing, the individual admitted that he deliberately provided false information
concerning his past illegal drug usage on his 1998 and 1999 QNSPs. Hearing transcript (Tr.) at
56-57. He explained that he failed to disclose this usage on his 1998 QNSP because he believed
that he would not be granted a security clearance if he did so. Id. However, he claimed that he
did not reveal his illegal drug usage on his 1999 QNSP, which he completed before joining the
military, because he was advised by recruiters to omit that information, telling him that “it is a
lot of extra paperwork to get a waiver to come [into the military] off using marijuana.” Tr. at 57.
The individual’s fiancée testified that she believes him to be an honest and trustworthy person.
Tr. at 48.
Paragraph 17(b) of the Adjudicative Guidelines provides that inadequate or improper advice from
authorized personnel causing an omission or concealment is a potentially mitigating condition.
However, given the individual’s earlier omission of this same information and other
misrepresentations and inconsistencies in the individual’s statements, I am not willing to accept
the individual’s explanation of the 1999 omission as true without independent supporting
evidence. The individual has presented no such evidence.
There is evidence, however, that the individual has engaged in a pattern of providing false,
inconsistent or misleading information to security personnel. During his May 21st PSI, the
individual said that the last time that he had drank to intoxication, approximately three weeks
earlier, he consumed five beers, and the last time he drank alcohol in any amount, he had two
beers. DOE Exhibit (DOE Ex.) 11 at 75, 76. During his PSI on the following day, the individual
said that he drank eight beers on the last occasion that he drank to intoxication, and three or four
beers the last time that he drank. DOE Ex. 10 at 3, 4. During his background investigation in
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2013, he told the investigator that there was no “third party involvement on his part” during his
marriage to his second wife. DOE Ex. 12 at 75. Nevertheless, during both PSIs, he admitted to
having an extra-marital affair during this union. DOE Ex. 10 at 11; DOE Ex. 11 at 54. The
individual also told the DOE psychiatrist during his evaluation that he had never had a hangover
and had never driven after having had even one beer. Tr. at 106. However, the individual’s
fiancée testified that the individual had been hung over once approximately six months before his
evaluation, and that he sometimes would drive after having a beer. Tr. at 50-51. Because of these
deliberate falsifications and inconsistencies, I have substantial doubts about the individual’s
honesty and trustworthiness. Significant security concerns remain under criterion (f).
B. Criteria (h) and (j)
At the hearing, the individual expressed his disagreement with the DOE psychiatrist’s diagnosis
of Alcohol Abuse and his finding that this condition caused, or could cause, a significant defect
in the individual’s judgment or reliability. He testified that the 2012 Domestic Assault arrest is
his only alcohol-related incident, that his latest liver function tests produced normal results,
showing no signs of excessive alcohol use, and that he has stopped drinking completely. Tr. at
99-100. He added that he has been abstinent for approximately three and one-half months, and
that it was his intention to permanently refrain from future drinking. Tr. at 101-102. The
individual’s fiancée described the individual’s alcohol consumption prior to his quitting as
“casual,” consisting of “just a few beers every now and then.” Tr. at 42. There was nothing about
his drinking that was indicative of any alcohol disorder or that caused her any concern. Id.
During his evaluation, the DOE psychiatrist expressed serious concerns about the individual’s
reliability and honesty, given the omissions and misrepresentations cited above, and other
inconsistencies in the individual’s statements. DOE Ex. 6 at 3-4, 8-9, 11. Consequently, the DOE
psychiatrist relied largely on an account of the individual’s alcohol consumption provided by his
second wife to the OPM investigator during the individual’s background investigation.
According to that account, the individual consumed alcohol every day, and this usage became
intolerable to the second wife, which would lead to arguments during their marriage. He
allegedly drank to extreme intoxication at least twice a month, and had a high tolerance due to
his daily consumption of a variety of alcoholic beverages. The second wife told the investigator
that she had seen the individual drink a 12-pack of beer before going to bed, without any
apparent effect, and consume a gallon of lime-flavored gin over the course of “a day or two.”
DOE Ex. 12 at 60. The individual disputes this account. Tr. at 76-77.
In making his diagnosis, the DOE psychiatrist applied the criteria set forth in the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (Text Revision) (DSM-IV-TR). The
DSM-IV-TR sets forth four criteria for Alcohol Abuse, at least one of which must be met within
any 12-month period. At the hearing, the DOE psychiatrist testified that the individual met the
fourth criterion, “continued substance use despite having persistent or recurrent social or
interpersonal problems caused or exacerbated by the effects of the substance.” He specifically
cited the individual’s arguments with his second wife about his drinking (which the individual
denied having occurred), and the incidents leading up to the individual’s 2012 Domestic Assault
arrest, before which he admittedly consumed three beers. Tr. at 112-113; DOE Ex. 11 at 10. He
also testified that the individual’s drinking during his second marriage met several of the criteria
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for Alcohol Dependence, including tolerance and binge drinking. Tr. at 114. Furthermore, the
DOE psychiatrist stated that the individual’s normal liver function test results do not necessarily
mean that he is not suffering from an alcohol use disorder. He explained that elevated levels of
liver enzymes are more suggestive of problem drinking than normal levels are indicative of the
absence of such a problem. He added that he has “seen many alcoholics and alcohol abuse
individuals who still had normal functions. . .” Tr. at 116.
Given the individual’s lack of credibility, I find that the DOE psychiatrist acted reasonably in
according more weight to the second wife’s account than to that of the individual. Moreover, the
individual has admitted that his actions on the evening of his 2012 arrest, including his forcible
restraint of his then-girlfriend, were affected by his earlier consumption of alcohol. Tr. at 100.
The DOE psychiatrist’s diagnosis of Alcohol Abuse is adequately supported by the record in this
case.
In his report, the DOE psychiatrist opined that, in order to show adequate evidence of
reformation or rehabilitation from Alcohol Abuse, the individual would have to obtain
counseling, document his participation in 12-step recovery meetings, and remain abstinent from
all alcohol use for a period of one year. DOE Ex. 6 at 12. After observing all of the testimony
during the hearing, the DOE psychiatrist concluded that the individual had not made such a
showing. Tr. at 116.
I agree that the individual has not demonstrated adequate evidence of reformation or
rehabilitation. There is no evidence that the individual has sought counseling, or has attended any
12-step recovery meetings. Moreover, his claimed three and one half months of sobriety fall far
short of the one year period recommended by the DOE psychiatrist. Indeed, his failure to seek
outside help and his testimony at the hearing lead me to believe that the individual does not
believe that he suffers from any alcohol use disorder. The individual has not successfully
addressed the DOE’s security concerns regarding his alcohol use.
C. Criterion (l)
The individual’s illegal drug usage and his six arrests or citations over a twenty year period also
raise criterion (l) concerns about his ability or willingness to conform his behavior to the
requirements of the law. Most of the offenses appear to have been relatively minor in nature and
to have occurred while the individual was still a teenager. However, the number of incidents and
the fact that the most serious of them, the Domestic Assault arrest, occurred less than two years
prior to the hearing lead me to believe that valid concerns still exist regarding the individual’s
personal conduct. This concern is magnified by the individual’s untreated alcohol use disorder.
Excessive drinking can lead to impaired judgment and control, and alcohol was a contributing
factor to the individual’s 2012 arrest. Significant security concerns remain under criterion (l).
V. CONCLUSION
For the reasons set forth above, I find that the individual has not adequately addressed the DOE’s
concerns under criteria (f), (h), (j) and (l). Consequently, he has failed to convince me that
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restoring his access authorization would not endanger the common defense and would be clearly
consistent with the national interest. Accordingly, I find that the DOE should not grant the
individual a security clearance at this time. Review of this decision by an Appeal Panel is
available under the procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: March 28, 2014