PSH-13-0137

*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 16, 2013 )
) Case No.: PSH-13-0137
_________________________________________)
Issued: March 13, 2014
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Administrative Judge 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 restored.
I. BACKGROUND
This 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 the Individual had been
diagnosed by a psychologist with Alcohol Use Disorder, Not Otherwise Specified (NOS), and
had engaged in behavior (including a pattern of criminal behavior) which brought into question
his honesty, reliability, and trustworthiness.
2
The Notification Letter further informed the Individual that he was entitled to a hearing before an
Administrative Judge1 in order to resolve the substantial doubt regarding his eligibility for a
security clearance. 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 January 28, 2014.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his girlfriend, a DOE Personnel Security Specialist, and a DOE consultant
psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-13-0137 (hereinafter
cited as “Tr.”). The LSO submitted 18 exhibits, marked as Exhibits 1 through 18, while the
Individual submitted one exhibit, which is marked as Exhibit A.
II. FINDINGS OF FACT
On November 3, 1985, the Individual was arrested and charged with Driving While Intoxicated
(DWI) and Imprudent Driving. At the time of this arrest, the Individual’s Blood Alcohol
Content (BAC) was .199. On June 27, 1999, the Individual was arrested and charged with DWI.
At the time of his second DWI arrest, the Individual’s BAC was .239.
The LSO conducted a Personnel Security Interview (PSI) of the Individual on October 17, 2000.
Exhibit 18 at 1. During this PSI, the Individual was asked about the June 27, 1999, DWI arrest.
The Individual stated that he had met his brother and sister-in-law for dinner at a Mexican
restaurant and had shared a pitcher of margaritas. Exhibit 18 at 42. The Individual initially
stated that he could not remember how many margaritas he had consumed, but he subsequently
estimated that he had consumed four or five margaritas. Exhibit 18 at 42- 43. The Individual
claimed he was not aware of the results of the Breathalyzer test administered to him after the
June 27, 1999, DWI arrest. Exhibit 18 at 49. As a result of this arrest, the Individual was
required to attend alcohol education classes. Exhibit 18 at 61. The Individual claimed that his
use of alcohol at that time was limited to “a beer every now and then” and that he does not “go
near a vehicle after having alcohol.” Exhibit 18 at 65.
On June 28, 2013, the Individual was arrested for suspicion of DWI, after police administered a
field sobriety test to him. At the time of this arrest, the police asked the Individual to take a
breathalyzer test, which the Individual refused. Exhibit 17 at 10-11.
On July 24, 2013, the LSO conducted a PSI of the Individual. During this PSI, the Individual
was questioned about his June 28, 2013, arrest. He stated that after consuming “a couple of
beers,” police stopped him for failing to maintain his lane. Exhibit 17 at 12- 13. Upon further
questioning, the Individual indicated that he had a total of three beers at two establishments
before his arrest. Exhibit 17 at 16-19, 154-155. The Individual claimed that he had refused to
take the breathalyzer test because the arresting officer told him that he was “a multiple offender”
1 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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and therefore subject to felony DWI charges. Exhibit 17 at 25-26. The Individual admitted that
he was “impaired or feeling the effects of alcohol” at the time of this arrest. Exhibit 17 at 131.
During this PSI, the LSO also questioned him about his June 27, 1999, DWI arrest. The
Individual stated that prior to this arrest, he had been playing golf (and specifically naming the
golf course) and they had a meal at a local restaurant (which he specifically named). Exhibit 17
at 38. He stated that his alcohol use on the day of this arrest was limited to “a couple of beers at
the golf course” and then “a couple of beers” at the restaurant. Exhibit 17 at 39, 44. The
Individual claimed he was not aware of his BAC at the time of this arrest. Exhibit 17 at 43.
During the July 24, 2013, PSI, the Individual was asked if he had any other criminal history. He
indicated that he had been charged with careless and imprudent driving about 28 years before.
Exhibit 17 at 45. Initially, when the Personnel Security Specialist asked him if there were any
alcohol-related charges resulting from this incident, the Individual answered “no.” Exhibit 17 at
45. Then, when the Personnel Security Specialist asked the Individual if alcohol was involved in
this arrest he admitted that it was, and later admitted that he had been charged with DWI.
Exhibit 17 at 45, 52, 54. He indicated that at the time of this arrest he was returning home from a
wedding reception where he had consumed “three beers.” Exhibit 17 at 47. He could not recall
his BAC at the time of this arrest (it was .199). Exhibit 17 at 48. During this PSI, the Personnel
Security Specialist asked the Individual to provide a history of his alcohol use. Exhibit 17 at 62-
128. The Individual indicated that, fairly consistently through his adult life, he would consume a
six pack of beer on a weekend, usually two or three beers on a weekend evening. Exhibit 17 at
62-128. He denied that he had ever been “falling down, stumbling drunk.” Exhibit 17 at 99-
100. The Individual stated that he had not used any alcohol in the prior month. Exhibit 17 at
128. Then the Individual stated that he had consumed four ounces of beer on one occasion (on
July 22, 2013) during the past month. Exhibit 17 at 129. The Individual admitted that as a result
of the June 28, 2013, DWI arrest, he had become concerned about his use of alcohol. Exhibit 17
at 139. The Individual indicated that he was abstaining from alcohol use. Exhibit 17 at 142,
145-146.
At the request of the LSO, the Psychologist evaluated the Individual on August 26, 2013. Exhibit
4 at 1. After completing her evaluation of the Individual, the Psychologist issued a report on
September 9, 2013, in which she found that the Individual “has a mental condition, manifested in
his demonstrated minimization of alcohol consumption, lack of candor, and avoidant/evasive
responses during interviews, which causes, or may cause, a significant defect in judgment or
reliability.” Exhibit 4 at 9.
On September 18, 2013, the Psychologist issued an addendum to her September 9, 2013, report.
This addendum indicates that, after issuing her original report, the Psychologist received
additional information, specifically the police reports from the Individual’s June 27, 1999, and
November 3, 1985, DWI arrests. Exhibit 5 at 1-3. These police reports indicated that the
Individual’s BAC at the time of the November 3, 1985, DWI arrest was .199, and that his BAC
at the time of the June 27, 1999, DWI arrest was .239. Exhibit 5 at 2. The Psychologist opined
that this information indicated that the Individual had not been truthful about his past alcohol
consumption during his PSIs and her interview of him. Exhibit 5 at 2. Moreover, the
Psychologist opined that the exceptionally high BAC levels reported at the time of the
Individual’s DWI arrests are evidence that he had developed a tolerance to alcohol. Exhibit 5 at
2. Based upon the new information, the Psychologist revised her conclusions set forth in her
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September 9, 2013, report, opining that the Individual had been a user of alcohol habitually to
excess, and diagnosing the Individual with Alcohol Use Disorder, Not Other Specified (NOS)
under the criteria set forth in the American Psychiatric Association’s Diagnostic and Statistical
Manual-Fourth Edition, Text-Revision (DSM-IV-TR). Exhibit 5 at 2-3.
The Psychologist further found the Individual’s Alcohol Use Disorder, NOS to be an illness or
condition that causes, or may cause, a significant defect in the Individual’s judgment and
reliability. Exhibit 5 at 3. The Psychologist opined that in order to be reformed or rehabilitated
from his Alcohol Use Disorder, NOS, the Individual needs to:
[P]articipate in [Alcoholics Anonymous (AA)] meetings twice per week,
document his attendance, and obtain a sponsor with whom he meets regularly and
frequently. An alternative to AA would be his participation in an evidenced-based
treatment program . . . . There should be maintenance of sobriety (abstinence
from alcohol) and the duration of such treatment should be for twelve months.
Random testing would help support [the Individual's] sobriety in any of these
rehabilitation treatments.
***
If he chose not to use AA or formal treatment, he could demonstrate reformation
by abstaining from alcohol consumption for two (2) years while providing
evidence of successful participation in a random alcohol monitoring program.
The random testing should be unpredictable and conducted not less than six times
throughout the first six months, and at least quarterly thereafter.
Exhibit 5 at 3.
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 and 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
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The Individual has a history of three alcohol-related arrests. Excessive alcohol consumption
often leads to the exercise of questionable judgment or the failure to control impulses, and can
raise questions about an individual's reliability and trustworthiness. 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 G at ¶ 21. In the present case, an association exists between
the Individual’s excessive consumption of alcohol and his subsequent failure to exercise good
judgment and to control his impulses, as evidenced by his repeated operation of a motor vehicle
on public roads, and his provision of misleading information during DOE security interviews.
On July 9, 2013, the Psychologist diagnosed the Individual with Alcohol Use Disorder, NOS.
This information raises security concerns about the Individual under Criterion H, since the
Individual’s Alcohol Use 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 3;
Adjudicative Guidelines I at ¶ 27 and G at ¶ 21, 22(e).
The Individual’s three arrests for alcohol-related offenses, constitute criminal conduct that raises
security concerns under Criterion L. Moreover, it is obvious that the Individual has deliberately
provided inaccurate information about his alcohol consumption to DOE security officials.
“Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations can raise questions about an individual's reliability,
trustworthiness and ability to protect classified information.” Adjudicative Guideline E at ¶ 15.
“Criminal activity 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.” Adjudicative Guideline G at ¶ 30.
V. ANALYSIS
A. Alcohol Use Disorder, NOS (Criteria H and J)
I find that the Individual has not adequately mitigated the security concerns raised under Criteria
H and J by his Alcohol Use Disorder, NOS and three alcohol-related arrests.
At the hearing, the Individual testified on his own behalf. Tr. at 29-46. He testified that his last
use of alcohol occurred two weeks after his June 28, 2013, arrest.2 Tr. at 29. He stated that he
has undergone an “assessment” for alcohol disorders at a local substance abuse treatment facility
(the Treatment Facility). Tr. at 30. The Individual testified that he did not “qualify” for that
facility’s inpatient or 12-week outpatient programs. Tr. at 30. The Individual testified that the
Treatment Facility initially recommended that he undergo an “eight-hour assessment” but then
recommended that he undergo a “three-week assessment.”3 Tr. at 30-31. The Individual
2 This testimony was corroborated by the testimony of the Individual’s live-in girlfriend. Tr. at 48.
3 The Individual subsequently claimed that the Treatment Facility “recommended an eight-hour class, and then they
recommended a three-week class that was three hours -- two or three hours per week.” Tr. at 31.
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testified that he intends to follow any treatment recommendations that are made by the Treatment
Facility. Tr. at 37. When the Individual was asked if he believed he had a drinking problem, he
answered: “I believe I have been in trouble for drinking. Yes, sir.” Tr. at 32. He denied that he
had been evasive or that he had intentionally tried to hide the truth during his interview with the
Psychologist. Tr. at 32, 40. The Individual testified that, since his June 27, 1999, DWI arrest, he
had greatly reduced his drinking. Tr. at 34. The Individual testified that at the time of his
June 28, 2013, arrest, he had only consumed two beers.4 Tr. at 34. The Individual testified that
he decided to refuse the BAC test because the arresting officer had warned him that he was
facing felony DWI charges. Tr. at 35.
At the hearing, the Psychologist listened to the testimony of each of the other witnesses before
she testified. The Psychologist testified that she had prepared the addendum to her Psychological
Report after receiving information indicating that the Individual’s BAC for his November 3,
1985, and June 27, 1999, DWI arrests had been .199 and .239, respectively. Tr. at 61. The
significance of these BAC levels was two-fold: they showed that the Individual had developed a
tolerance to alcohol, and that he was not being honest about his alcohol use. Tr. at 61, 82-83.
The Psychologist testified that three alcohol arrests over a period of thirty years is “a lot.” Tr. at
68.
The Psychologist testified that nothing she had heard at the hearing had changed her mind about
the Individual’s diagnosis or her treatment recommendations. Tr. at 77, 82. The Psychologist
reiterated her opinion that the Individual needs to remain sober for at least a year in order to
show that he is rehabilitated or reformed. Tr. at 62-63, 77-78. She noted that the Individual has
not completed a year of sobriety, or a treatment program. Tr. at 77. The Psychologist testified
that she does not believe that the Individual is reformed or rehabilitated from his alcohol use
disorder. Tr. at 77. The Psychologist testified that the Individual’s prognosis is currently poor,
because he has not started treatment and has not remained sober for a year. Tr. at 84. She
further testified that the Individual presently has a moderate likelihood of relapse. Tr. at 84-85.
The Psychologist noted that the Individual’s provision of conflicting accounts of his alcohol
consumption prior to his June 27, 1999, DWI arrest was an example of the Individual’s attempts
to be evasive. Tr. at 65. The Psychologist testified that the Individual’s deceit and evasiveness
were symptoms of his Alcohol Use Disorder (NOS). Tr. at 80-82.
After carefully considering all the evidence, I am not convinced that the Individual has received
sufficient treatment, and abstained from using alcohol for a sufficient period of time to establish
reformation or rehabilitation from his Alcohol Use Disorder (NOS). The Individual has offered
no expert testimony to the contrary. Moreover, I note that throughout this proceeding, the
Individual has provided inconsistent accounts of his alcohol consumption. If I am unable to rely
upon an Individual’s testimony about his alcohol use, then I am unable to conclude that the
concerns raised by his past alcohol consumption have been resolved. Based upon the foregoing,
4 During the July 24, 2013, PSI, the Individual stated that he had a total of three beers before his arrest. Exhibit 17
at 16-19, 154-155.
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I find that the Individual has not sufficiently mitigated the security concerns raised by his
Alcohol Use Disorder under Criteria H or J.5
B. Criterion L
The Individual’s three alcohol-related arrests demonstrate a pattern of criminal conduct that
raises security concerns under Criterion L. This conduct is clearly symptomatic of his Alcohol
Use Disorder (NOS). Given the role that alcohol has played in the Individual’s conduct, I find
that until the concerns raised by his Alcohol Use Disorder (NOS) are sufficiently resolved, the
concerns about the Individual’s judgment, reliability and trustworthiness raised by his criminal
conduct will also remain unresolved.
Accordingly, I find that the security concerns raised under Criterion L by the Individual’s
criminal conduct have not been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L.
After considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that Individual has not mitigated the Criteria H, J, and L security concerns. Accordingly, the
Individual has not demonstrated that restoring 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 restored 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: March 13, 2014
5 The Notification Letter cites the Psychologist’s conclusions that the Individual “has a mental condition, manifested
in his demonstrated minimization of alcohol consumption, lack of candor, and avoidant/evasive responses during
interviews, which causes, or may cause, a significant defect in judgment or reliability.” Exhibit 4 at 9. However,
the Psychologist’s hearing testimony indicated that these traits are symptoms of his Alcohol Use Disorder (NOS),
rather than separate and distinct mental conditions. See, Tr. at 80-82.