PSH-14-0024

*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: March 12, 2014 ) Case No.: PSH-14-0024
)
_________________________________________ )
Issued: August 1, 2014
___________________
Administrative Judge Decision
____________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 her to hold a DOE
security clearance. In November 2012, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about her 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
April 2013 and memorialized his findings in a report (Psychological Report). According to the
DOE psychologist, the individual has been user of alcohol habitually to excess, and has engaged
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.
-2-
in a pattern of alcohol abuse. The DOE psychologist further concluded that the individual has
not demonstrated adequate evidence of rehabilitation or reformation.
In January 2014 the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding her 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 one potentially disqualifying criterion set forth
in the security regulations at 10 C.F.R. § 710.8, subsection (j) (hereinafter referred to as Criterion
J).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 her own testimony and that of six witnesses. The DOE
Counsel called one witness, the DOE psychologist. Both the LSO 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.
B. Basis for Administrative Judge’s Decision
2 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).
-3-
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 one criterion as a basis for suspending the individual’s
security clearance: Criterion J. To support Criterion J, the LSO cites the DOE psychologist’s
opinion that the individual has been a user of alcohol habitually to excess, and has engaged in a
pattern of alcohol abuse, as well as her history of alcohol consumption and treatment. 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 Criterion J. 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 Guideline G 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).
IV. Findings of Fact
On September 26, 2012, the individual reported by e-mail to the LSO that she was seeking
counseling through her Employee Assistance Program (EAP) for alcohol issues. She stated that
over the preceding year, alcohol had had a negative impact on her personal life and affected a
family relationship. DOE Exh. 1. According to the individual, while attending her niece’s
wedding, she had too much to drink while spending the day at the pool. Although she could not
recall exactly how many drinks she had, the individual believes she had approximately four or
five vodkas mixed with a Crystal Light drink. Id. The individual stated that her sister
confronted her about her alcohol use. This angered the individual who then rescheduled her
flight to return home early. Id. When she returned home, she contacted the EAP and, on
September 25, 2012, she sought treatment with a behavioral health therapist through EAP.
Based on her treatment of the individual and counseling, the therapist diagnosed the individual
with Alcohol Abuse and Alcohol Dependency, in early remission. Id. The therapist
recommended additional treatment for the individual. On October 22, 2012, the individual
entered into an intensive outpatient treatment program (IOP). She has also participated in
Alcoholics Anonymous (AA) and an online support group for women. Id.
During her November 2012 PSI, the individual reported that she first began consuming alcohol
at age 14 or 15, while in middle school, and that she usually consumed beer. She further
reported that she only drank “off and on” at parties in high school due to her extracurricular
activities. Id. The individual recalled drinking to intoxication twice while in college, consuming
-4-
9-10 beers on each occasion. She further reported that during her 20s her drinking increased.
The individual stated that her tolerance increased to 4-6 drinks to get intoxicated and her alcohol
use stayed the same throughout her 20s and early 30s. Id. The individual further reported that
her alcohol consumption decreased in her late 30s and 40s due to her busy schedule. She
described herself as a social drinker during this time, drinking one to two glasses of wine with
dinner or at events. She stated that from 2009 to September 2012, her drinking increased from a
few times a week to almost daily. Id. The individual admitted to blacking out after drinking two
to three times a year and that four or five drinks would get her to that point. She advised that on
some occasion she reported to work a little “foggy headed” and did not have the focus she should
have, but did not come to work intoxicated. During the course of her PSI, the individual also
admitted that, since 2001, she has been taking Effexor for depression, and admitted to consuming
alcohol while taking it. Id.
Based on this information, the individual was referred to the DOE psychologist for an evaluation.
During the evaluation, the individual advised that she had been at odds with her IOP treatment
counselors because she did not want to attend AA meetings as frequently as they requested. In
addition, she admitted to relapsing on January 12, 2013, by having two glasses of wine, stating
that she was “testing” herself. The DOE psychologist concluded that the individual has been a
user of alcohol habitually to excess, and has engaged in a pattern of alcohol abuse. He further
concluded that the individual had not demonstrated adequate evidence of rehabilitation or
reformation to that point, and that adequate evidence would be counseling, abstinence from
alcohol, and participation in AA over the next two years. DOE Exh. 3.
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. Evidence of Rehabilitation and Reformation from Alcohol Abuse
During the hearing, the individual recounted the incident that she considered the “last straw”
before she sought help for her alcohol problem. Transcript of Hearing (Tr.) at 89. She testified
that her drinking at her niece’s wedding in September 2012 was “out of control.” Id. The
individual stated that it was at this point that she realized that she needed help with her 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.
-5-
because she did not want to lose her sister or further negatively impact her life. Id. at 90. She
testified that her drinking increased as she dealt with the stress of her mother-in-law’s declining
health. Id. at 97. According to the individual, alcohol treatment forced her to accept that she had
an alcohol problem and she believes that she has been honest with herself throughout the process
of recovery. Id. at 115. The individual testified that through her therapy and counseling
sessions, she learned about alcoholism and accepted the fact that she is an alcoholic. Id. at 116.
She further testified that she has matured and looks at life in a more positive manner now. Id. at
117. The individual testified that she participates in an online alcohol support group for women
and believes she has achieved great success through her outpatient counseling sessions.
Although she admitted that she did not fully accept AA initially, she now has a sponsor and is
successfully working the program.
The individual also admitted that she relapsed in January 2013. According to the individual, she
felt like “testing herself” and drank two glasses of wine. Id. at 122 and 136. She testified that
she has not had a drink since that time. The individual further testified that she does not have
cravings and states that she has a good support system. Id. at 110. She now recognizes her
triggers and has changed her habits, including going to the gym and horseback riding. Finally,
the individual testified that her future intention is to completely abstain from alcohol.
During the hearing, the individual also offered the testimony of her therapist, counselor, sponsor,
supervisor, husband and sister. The individual’s therapist, who is a licensed clinical
psychologist, testified that the individual voluntarily met with her in September 2012. Id. at 103.
She noted that the individual has made a number of positive changes, including an increased
understanding of her alcohol problem and her consistent desire and commitment to remain sober.
Id. Based on her observations, she has not seen any signs that that the individual is drinking
again. She testified that her current diagnosis of the individual is Alcohol Dependence in
Sustained Remission. Id. According to the therapist, who now meets with the individual every
two months, the individual voluntarily shared her relapse with her. The therapist stated that
relapses are common within three to four months of sobriety. She reiterated that the individual is
seriously committed to her sobriety. Likewise, the individual’s counselor, who is the Director of
Alcohol Dependency in the individual’s outpatient treatment program, testified that the
individual attended three counseling sessions a week during her six-month treatment and was an
engaged and active participant. Id. at 76 and 77. She now attends one weekly session in
aftercare. The counselor opined that the individual’s Alcohol Dependence is in full remission and
that the individual is committed to a sober life. The individual’s sponsor, who first met with the
individual in January 2014, testified that the individual is currently working on Step 4 of AA’s
12 Step process and that the individual has made significant positive changes. Id. at 57 and 58.
She noted that the individual has learned how to live life sober, is utilizing the tools she has
learned through AA and has improved her relationship with her family.4
4 The individual’s husband testified that the individual’s drinking changed around 2008 when his mother became
ill. He believes that both he and his wife both came to the realization that they were drinking too much as a means
of dealing with the stress of his mother’s health. The individual’s husband stated that the individual is committed to
remaining sober. Tr. at 14 and 16. Likewise, the individual’s sister testified that she believes the individual is
committed to a sober life. She testified that she observed positive changes in the individual. According to the sister,
the individual no longer displays angry outbursts and has been open and honest with her alcohol problem. She has
not noticed any signs that her sister has resumed drinking. Id. at 28 and 29. Finally, the individual’s former
supervisor testified that the individual worked with him for 10 years and that he never observed any “erratic
-6-
The DOE psychologist listened to all the testimony at the hearing before testifying himself. He
testified that after evaluating the individual in April 2013, he diagnosed her with alcohol abuse
based on the fact that she was a binge drinker as opposed to a continual drinker. Id. at 152. He
testified that the individual met the fourth criteria of Alcohol Abuse under the Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV-TR, which refers to continued substance use
despite having persistent or recurrent social or interpersonal problems caused or exacerbated by
the effects of the substance. Id. at 153. He further testified that, at the time of his evaluation, he
concluded that the individual was still in treatment and not “reliably committed to the treatment
process.” The DOE psychologist noted that, at the time of his evaluation, he recommended that
the individual abstain from alcohol and participate in AA and counseling for the next two years.
However, during the hearing, he explained that this is not a fixed requirement, but that some
individuals require monitoring for longer than a year to establish that they are consistent and
committed to abstinence. Id. at 154. He testified, however, that he believes that the individual
has currently achieved adequate evidence of rehabilitation. He noted that he is impressed with
her husband’s emotional support of her as well as the fact that the individual has secured a good
sponsor. Id. at 154-156. He further testified that the individual has an excellent prognosis and
has the tools in place to address any possible alcohol triggers. Id. at 159.
B. 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).5 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. In this case, the individual has satisfied the following
mitigating factors: (1) the individual has acknowledged her alcohol problem, provided evidence
of actions taken to address her 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 her treatment recommendations, i.e., her
participation in therapy, 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 and that she has an excellent prognosis. Id. For these reasons, I find
that the individual has sufficiently mitigated the DOE’s security concerns under Criterion J.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criterion J. After considering
behavior” or signs of drinking. He testified that the individual told him that she had a drinking problem and shared
with him that she had a relapse. The supervisor testified that the individual is honest and reliable. Id. at 47-50.
5 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.
-7-
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 Criterion 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
Date: August 1, 2014