PSH-13-0138

*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 19, 2013 ) Case No.: PSH-13-0138
)
____________________________________)
Issued: March 21, 2014
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Decision and Order
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor and was granted a
security clearance in connection with that employment. During the course of a routine re-
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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investigation, the local security office (LSO) obtained information about the individual that
raised security concerns. In order to obtain further information, the LSO summoned the
individual for an interview with a personnel security specialist in July 2013. After this Personnel
Security Interview (PSI) failed to resolve the concerns, the LSO referred the individual to a local
psychologist (hereinafter referred to as “the DOE psychologist”) for an agency-sponsored
evaluation. The DOE psychologist 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 her 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 10
exhibits into the record of this proceeding and presented the testimony of the DOE psychologist
at the hearing. The individual presented the testimony of two witnesses, in addition testifying
himself, and submitted 10 exhibits.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (h) and (j) 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 (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a psychiatrist or licensed clinical psychologist causes,
or may cause, a significant defect in the individual’s 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 dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). As
support for these criteria, the Letter cites the diagnosis of the DOE psychologist that the
individual suffers from Alcohol Dependence With Physiological Dependence, in Partial
Remission, and her conclusion that this condition causes, or may cause, a significant defect in the
individual’s judgment or reliability. As additional support for criterion (j), the Letter cites
statements that the individual made during his PSI indicating that (i) for the last 18 years, he has
consumed a six-pack of beer on most weekdays and two eighteen-packs over the course of each
weekend; (ii) sometime between 2008 and 2011, his wife told him that she thought he had an
alcohol problem; and (iii) that the individual will drive his vehicle on his property while under
the influence of alcohol or intoxicated. The Letter also refers to the individual’s 1988 arrest for
Driving While Ability Impaired, an event that occurred after the individual consumed several
beers.
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These circumstances adequately justify the DOE’s invocation of criteria (h) and (j), and raise
significant security concerns. Mental conditions that involve the excessive consumption of
alcohol 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. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The
White House (December 19, 2005), Guidelines G and I.
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).
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, 24 DOE ¶ 82,752 at 85,511 (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. FINDINGS OF FACT AND ANALYSIS
A. Mitigating Evidence
At the hearing, the individual confirmed that the statements cited in the Notification Letter
concerning his alcohol consumption were accurate. Hearing Transcript (Tr.) at 27-28. He further
stated that since his clearance was suspended, he has reduced his consumption to anywhere from
two to six beers per weekday after work and at least six beers on Saturdays. Tr. at 26, 32-33, 40-
41. Although he disagreed with the DOE psychologist’s diagnosis, he did not present any
countervailing expert testimony, and his disagreement appeared to be based largely on the facts
that he drinks at home, does not drive while intoxicated, and has not experienced any recent legal
difficulties due to his alcohol use. Tr. at 29, 38, 39. He went on to testify that he should not be
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considered an unacceptable security risk because he is a decorated veteran of the armed forces
who has dedicated his life to public service, and because he has been very honest and
forthcoming in all of his dealings with the DOE. Tr. at 23-24, 25.
The individual’s friend testified that he has never been concerned about the individual’s
drinking, and that the individual is a good and responsible worker. Tr. at 14. The individual’s
wife confirmed that her husband has reduced his alcohol consumption, and stated that she has
never known him to exercise poor judgment after drinking. Tr. at 50, 53.
B. Administrative Judge’s Decision
For the reasons set forth below, I find that the DOE psychologist’s diagnosis of Alcohol
Dependence with Physiological Dependence in Partial Remission is adequately supported by the
record in this case. I further find that the mitigating evidence presented by the individual falls far
short of adequately addressing the DOE’s legitimate security concerns regarding his alcohol use.
The DOE psychologist’s diagnosis was based upon her application of the criteria for Alcohol
Dependence set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fourth
Edition, Text Revision (DSM-IV-TR). The DSM-IV-TR sets forth seven criteria, at least three of
which must manifest themselves within a twelve-month period, for a diagnosis of Alcohol
Dependence. At the hearing, the DOE psychologist testified about the basis for her diagnosis.
She indicated that she found four of the seven criteria to be applicable to the individual. Tr. at 57.
The first criterion found by the DOE psychologist is “tolerance,” which the DSM-IV-TR defines
as either a need for markedly increased amounts of alcohol to achieve the desired effect, or a
markedly diminished effect with continued use of the same amount of alcohol. The DOE
psychologist testified that the individual exhibited both of these characteristics. She explained
that the estimated blood alcohol content (BAC) levels attained by the individual during the week
“exceeded the level for intoxication; and then on the weekends, with the 18-packs, [his BAC]
was over .20,” a level that would put most people in a “stupor.” Tr. at 58. “[A]nybody who can
continue to function with that much alcohol in their system,” as the individual apparently did,
“has, by definition, reached tolerance,” the DOE psychiatrist added. Id.
The second and third criteria, alcohol consumption in larger amounts or over a longer period of
time than was intended, and important social or occupational losses due to alcohol use, are
supported by the individual’s statements during his PSI that he sometimes drank more than he
intended during the week, and that he sometimes missed work due to being “hung over.” DOE
Ex. 9 at 88-90. The fourth criterion, large amounts of time spent obtaining or using alcohol, or
recovering from its effects, is supported by the sheer volume of beer habitually consumed by the
individual. DOE Ex. 4 at 6. The record indicates that from 1995 until the individual’s security
clearance was suspended in November 2013, he drank a six-pack of beer on most weekdays and
two eighteen-packs every weekend. Despite the individual’s practice of consuming alcohol only
while at home, and his avoidance of any recent alcohol-related arrests, I find that the DOE
psychiatrist’s diagnosis of Alcohol Dependence clearly applies to the individual.
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I also conclude that serious security concerns remain despite the mitigating information
presented by the individual. Adjudicative Guideline G describes the potentially disqualifying and
potentially mitigating conditions concerning alcohol usage. As discussed above, potentially
disqualifying conditions (c) (habitual or binge consumption of alcohol to the point of impaired
judgment) and (d) (diagnosis by a duly qualified medical professional of Alcohol Abuse or
Alcohol Dependence) are applicable in this case. In contrast, none of the potentially mitigating
conditions set forth in Guideline G exist with regard to the individual.
The first such condition is that “so much time has passed, or the behavior was so infrequent, or it
happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on
the individual’s current reliability, trustworthiness, or good judgment.” Adjudicative Guidelines,
¶ 23(a). The individual’s excessive drinking was recent, and so frequent as to have become a
routine part of the individual’s life. This potentially mitigating condition does not exist in this
case.
The second potentially mitigating condition, acknowledging his alcoholism, providing evidence
of actions taken to overcome this problem, and establishing a pattern of abstinence, Adjudicative
Guidelines, ¶ 23(b), is also not applicable to the individual. As of the date of the hearing, the
individual had not acknowledged his alcoholism. He testified that he disagreed with the DOE
psychologist’s diagnosis, Tr. at 39, and that any “drinking problem” he had was due to the loss of
his clearance, rather than to his habitual, excessive consumption of alcohol. Tr. at 39-40. He also
testified that he was still drinking. Tr. at 40-41. This potentially mitigating condition does not
apply to the individual.
As of the date of the hearing, the individual had not enrolled in an alcohol counseling or
treatment program. Consequently, the third potentially mitigating condition, set forth at
Adjudicative Guidelines, ¶ 23(c), is also inapplicable to the individual. 3
The final potentially mitigating condition set forth in the Adjudicative Guidelines is successful
completion of inpatient or outpatient rehabilitation along with any required aftercare,
demonstration of an established pattern of abstinence in accordance with treatment
recommendations, and receipt of a favorable prognosis by a duly qualified medical professional.
Adjudicative Guidelines, ¶ 23(d). In her report, the DOE psychologist recommended that, in
order to demonstrate adequate evidence of reformation or rehabilitation, the individual abstain
from all alcohol use for 18 months, while undergoing alcohol treatment. As of the date of the
hearing, the individual had not accomplished either of these goals. After hearing all of the
testimony at the hearing, the DOE psychologist testified that she would not change any of the
3 After the hearing, in an e-mail dated March 6, 2014, the individual informed me that he had
begun counseling, and he gave me permission to contact his counselor to confirm his
participation, and to inquire about his progress. I did not do so, as such contact would have
violated 10 C.F.R. § 710.26(a), which prohibits me from engaging in ex parte communications.
However, even assuming that the individual has begun counseling and is making satisfactory
progress, several weeks of counseling and abstinence could not adequately address the security
concerns raised by almost 20 years of excessive drinking.
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findings or recommendations in her report. Tr. at 54. This potentially mitigating condition also
does not exist in this case.
At the hearing, the individual did express a willingness to enter into treatment, Tr. at 41-42, and I
find this to be of some scant mitigating value. However, it does not adequately address the
substantial security concerns raised by the individual’s lengthy history of excessive drinking and
the DOE psychologist’s diagnosis.
V. CONCLUSION
For the reasons set forth above, I find that serious security concerns remain regarding the
individual’s alcohol usage. Consequently, I cannot conclude that 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 restore the individual’s 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 21, 2014