PSH-14-0070

*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: July 17, 2014 )
) Case No.: PSH-14-0070
__________________________________________)
Issued: October 14, 2014
______________________
Administrative Judge Decision
______________________
William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as
“the individual”) to hold an access authorization1 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 and the Adjudicative Guidelines, I have determined
that the individual should not be granted an access authorization at this time.
I. Background
The individual works for a DOE contractor that has requested that he apply for a DOE
security clearance. Investigation into the individual’s history of alcohol consumption
raised security concerns in the opinion of the Local Security Office (LSO), and the LSO
had the individual evaluated by a DOE consultant psychologist (DOE psychologist). On
June 18, 2014, the LSO sent a letter (Notification Letter) to the individual advising him
that it had reliable information that created a substantial doubt regarding his eligibility to
hold a security clearance. In an attachment to the Notification Letter, the LSO explained
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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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 his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing, and I was appointed
the Administrative Judge in the case. At the hearing that I conducted, the individual
presented his own testimony and that of seven other witnesses, and the LSO presented the
testimony of one witness, the DOE psychologist who had evaluated the individual. In
addition to the testimonial evidence, the LSO submitted nine exhibits into the record. The
exhibits will be cited in this Decision as “Ex.” followed by the appropriate numeric
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.
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 denials”); 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
granting his 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 his 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 evidence 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 concerns information that a person suffers from ‘[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 the 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 eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As support for its security concerns under Criteria H and J, the LSO relies on the opinion
of the DOE psychologist, who determined that the individual is a user of alcohol
habitually to excess which, in his opinion, causes or may cause significant defects in the
individual’s judgment and reliability. In addition, the LSO cites the individual’s
statements regarding his pattern of alcohol consumption over the past ten years. Ex. 1.
I find that there is ample information in the Notification Letter to support the LSO’s
reliance on Criteria H and J. The excessive consumption of alcohol 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 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) at
Guideline G.
IV. Findings of Fact
The individual is a responsible, caring, hard-working, and detail-oriented person. Tr. at
26, 37, 39, 47, 62, 70, 81 (testimony of wife, friends, supervisor, and co-workers). He
reported during his March 7, 2014, PSI that his typical weekly consumption of beer
consisted of six beers on each of three nights during the workweek, and another 18 beers
over the weekend. Ex. 7 at 13, 25. Although he drank less while a teenager, this
consumption pattern has been fairly consistent since age 21. Id. at 13. He also stated that
about 35% of the time he gets intoxicated, after drinking at least 12 beers, and has a
hangover, after drinking at least 18 beers, about 10% of the time. Id. at 14, 18. Although
he admits to driving when “buzzed” only once, six to eight years ago, he estimates that he
has driven after drinking one or two beers ten times in the past year. Id. at 21, 28. At his
psychological evaluation, he reported a similar pattern of alcohol consumption, but stated
that he drives after drinking twice a month, and that on those occasions he may have
consumed as many as six beers. Ex. 6 at 3.
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The DOE psychologist evaluated the individual in May 2014. He determined that the
individual met the criteria for neither Alcohol Abuse nor Alcohol Dependence as set forth
in the Diagnostic Statistical Manual of the American Psychiatric Association, Fourth
Edition Text Revised (DSM-IV-TR). Ex. 6 at 4. Nevertheless, based on the PSIs, his
own interview with the individual, and an Alcohol Use Inventory that he administered, he
reached the opinion that the individual uses alcohol habitually to excess. Id. He further
observed that the individual had never been involved in a rehabilitation program, and as
adequate evidence of rehabilitation or reformation from this alcohol condition, he would
recommend participation in an intensive outpatient program, abstinence from alcohol for
at least 12 months, participation in Alcohol Anonymous (AA) at least three times weekly
for a year, permission for the on-site psychologist to communicate with his AA sponsor,
and random blood alcohol testing. Id. at 4-5. The DOE psychologist concluded that the
individual’s protracted and continuing “problematic pattern of alcohol use” demonstrated
a significant defect in judgment or reliability. Id. at 5.
At the hearing, the individual testified that after he met with the DOE psychologist, more
than three months before the hearing, he stopped drinking during the week, and drank
only occasionally on the weekends. Tr. at 101. As of the hearing, he had stopped
drinking altogether; his last drink had been four days earlier. Id. at 92. Two days before
the hearing, the individual met with a substance abuse counselor and enrolled in an
intensive outpatient program. Id. at 91-94. He stated that he had attended his first AA
meeting the night before the hearing. Id. at 91, 98. When asked why he had not begun
counseling sooner, the individual explained that he felt he had financial responsibilities to
his family that he needed to get in order before he could commit to the cost of the
intensive outpatient program. Id. at 95. See also id. at 52-53 (testimony of supervisor
that individual had been discussing financial burden with him since receiving DOE
psychologist’s report).
The individual’s counselor testified that she had met the individual two days before the
hearing. Id. at 11. At the time, she evaluated the individual as having a drinking
problem, “at least alcohol abuse,” with very little insight into the problem. Id. at 13. She
recommended that the individual stop drinking indefinitely, attend an intensive outpatient
program, begin attending AA meetings, secure a sponsor, and return for a follow-up visit
with her. Id. at 12, 15. Her impression was that the individual lacked a clear
understanding of alcohol problems, mainly because he believed his alcohol consumption
was normal, as it appears to be within his social system. Id. at 16. While she conceded
that the individual has complied with her recommendations so far, she was unwilling to
venture a prognosis for the individual based on his very short period of participation—
just two days—in her program. Id. at 18-20.
In his testimony at the hearing, the DOE psychologist maintained his opinion that the
individual consumes alcohol habitually to excess. Because he determined that the
individual regularly drank five or more drinks at a time, he classified the consumption
pattern as binge drinking, which he found to affect the individual’s ability to fully control
his faculties. Id. at 115. He was also concerned that the individual admitted to being
“buzzed” on a frequent basis, which in his opinion indicated that the individual was often
under the influence of alcohol to a degree that lowered his inhibitions and made “it more
likely to produce errors in judgment.” Id. He observed that the individual lives in an
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environment where there is no stigma associated with alcohol consumption and,
fortunately, he has suffered no negative consequences from it. He noted, however, that
the individual is a man of integrity, is highly motivated to act in such a manner to retain
his position at the site, and now shows some awareness and insight into the concerns that
his alcohol consumption has raised. Id. at 116-17. Nevertheless, he expressed his
opinion that the individual is at a very early stage in his process of rehabilitation. Id. at
119. While the individual appears to be making a good start, the DOE psychologist
stated that his two days in the program were not a sufficient basis for revising or updating
his opinion regarding the individual’s alcohol issues. Id. at 120.3
V. Analysis
I have thoroughly considered the record of 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) and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual should not be
granted an access authorization at this time. I cannot find that granting 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.
The individual has maintained a pattern of significant alcohol consumption for at least ten
years. His consumption is not regarded as out of the ordinary by his peers, and he has not
had any alcohol-related arrests or accidents. As a result, he has encountered no negative
consequences of drinking and had, at least until very recently, little insight into the
concerns it raised. Once he became aware of the problem, most likely when he received
the DOE psychologist’s evaluation, he began to take action. He cut back on his alcohol
consumption and investigated the financial burdens of engaging in the treatment that the
DOE psychologist recommended. Shortly before the hearing, he met with a counselor,
began abstaining from alcohol, and started attending an intensive outpatient program and
AA. As of the hearing, however, the individual had been abstinent for less than a week,
attended two sessions of the intensive outpatient program and one AA meeting. In
contrast, the DOE psychologist maintained at the hearing that the individual needed a full
year of treatment and monitoring of his abstinence, and I find that his opinion was well-
founded and reasonable. I am therefore convinced that, despite the treatment he is
receiving, it is too soon to conclude that the individual has resolved his alcohol problem,
as neither the counselor nor the DOE psychologist was willing to address the individual’s
likelihood of relapse. I have taken into consideration a number of mitigation factors in his
favor, specifically, his acknowledgment of his alcohol problem, his abstinence, and his
voluntary treatment program, Adjudicative Guidelines at Guideline G, ¶ 23. Despite
these favorable factors, and after considering all the testimony and written evidence in the
3 Contrary to his statements to the DOE psychologist at the evaluation that he drank and drove twice a
month, the individual testified at the hearing that in fact he never drove with his family in the car while he
was “under the influence.” Id. at 108. When asked to assume that the individual’s most recent assertion
was correct and then questioned whether that fact would alter his opinion about the individual’s alcohol
use, the DOE psychologist stated that it would not, because there were other indications that the use was
excessive. Id. at 124.
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record, I am not convinced that the individual has resolved the LSO’s security concerns
that arise from his alcohol use.
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 have found that the individual has not brought forth sufficient
evidence to mitigate the security concerns associated with these criteria. I therefore
cannot find that granting the individual an access authorization will not endanger the
common defense and is clearly consistent with the national interest. Accordingly, I have
determined that the individual should not be granted an access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel under the regulations
set forth at 10 C.F.R. § 710.28.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: October 14, 2014