PSH-14-0079

*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: August 11, 2014 ) Case No.: PSH-14-0079
)
__________________________________________)
Issued: December 4, 2014
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Administrative Judge Decision
__________________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 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 not be restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Local Security Office (LSO) conducted a Personnel Security Interview
(PSI) with the Individual in October 2013, after receiving potentially derogatory information
regarding the Individual’s alcohol use.
In June 2014, the LSO sent a letter (Notification Letter) to the Individual advising him that it
possessed reliable information that created a substantial doubt regarding his eligibility to hold a
security clearance. In the Notification Letter, the LSO explained that the derogatory information
fell within the purview of three potentially disqualifying criteria set forth in the security
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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regulations at 10 C.F.R. § 710.8, subsections (h), (j), and (l) (hereinafter referred to as Criterion
H, Criterion J, and Criterion L).2/
Upon his receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the LSO
presented one witness, a DOE consulting psychologist (DOE psychologist); the Individual
presented his own testimony and the testimony of two witnesses – his business associate and
friend and his supervisor. The LSO submitted 11 exhibits into the record; the Individual
submitted one exhibit.
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 with evidence to convince the DOE that restoring 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).
Thus, 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 has “[a]n illness or mental condition of a nature which,
in the opinion of a psychiatrist or a licensed clinical psychologist, causes or may cause, a significant
defect in judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion J applies where an individual has been,
or is, a user of alcohol habitually to excess or has been diagnosed by a psychologist as alcohol dependent
or suffering from alcohol abuse. Id. § 710.8(j). Criterion L relates to information that a person has
“[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the
Individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the Individual
may be subject to pressure, coercion, exploitation, or duress which may cause the Individual to act
contrary to the best interests of the national security . . .” 10 C.F.R. §710.8(l).
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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
In February 2013, the Individual reported to the LSO that he had been involved in a motor
vehicle accident and subsequently charged with DUI. DOE Ex. 4. During the October 2013 PSI,
the Individual admitted that he knew he was intoxicated when he began driving his car. DOE
Ex. 4; DOE Ex. 9 at 8-9. He stated that in 2010, he was also charged with DUI, but the charge
was reduced to Reckless Driving. DOE Ex. 4; DOE Ex. 9 at 17-18. The Individual consumed
10 to 15 beers every weekend between February 2013 and October 2013. DOE Ex. 4; DOE Ex.
9 at 24-27. He also stated that he drove intoxicated many times, even though he knew he should
not. DOE Ex. 9 at 34.
As support for its security concerns under Criteria H and J, the LSO relies on the opinion of the
DOE psychologist, who diagnosed the Individual with alcohol use disorder, mild. In addition,
the LSO cites the Individual’s statements regarding his pattern of alcohol consumption and his
Driving Under the Influence (DUI) arrests in 2013 and 2010. DOE Ex. 4, Enclosure 1 at 1-2. I
find that there is ample information in the Notification Letter to support the LSO’s reliance on
Criteria H and J. 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.
As support for its security concerns under Criterion L, the LSO relies on the Individual’s
statements regarding his alcohol consumption and his DUI. DOE Ex. 4, Enclosure 1 at 2-3. I
find that there is ample information in the Notification Letter to support the LSO’s reliance on
Criterion L. The Individual’s vulnerability to blackmail, exploitation, and duress calls into
question the individual’s judgment, reliability, trustworthiness and his ability to protect classified
information. See Adjudicative Guidelines at Guideline E.
IV. Findings of Fact and 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
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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 not be restored.
I cannot 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.
As indicated above, the LSO has properly raised security concerns under Criteria H, J, and L.
Accordingly, I now consider whether the Individual has submitted sufficient information to
resolve these concerns.
A. Criterion H and Criterion J
The evidence before me indicates that the Individual has an alcohol problem, which peaked with
his DUI in February 2013. The Individual began consuming alcohol at an early age and was
undoubtedly drinking to excess prior to his marriage in 2001. DOE Ex. 11. During his marriage,
between 2001 and 2012, the Individual did not consume alcohol. Tr. at 26. He testified that his
wife did not consume alcohol and did not want alcohol in the house or around her young son.
Tr. at 26. The Individual stated that he only consumed approximately four alcoholic beverages
during his marriage. Tr. at 26. However, when the marriage dissolved, the Individual began
consuming alcohol in excess again. Tr. at 29. He lived with a friend who consumed alcohol
every evening. Tr. at 29. In addition, he would go out with a group of friends and consume
alcohol. Tr. at 30. The Individual was last intoxicated three months prior to the hearing and
currently consumes approximately six to 10 beers a week. Tr. at 38, 40. The Individual
admitted he consumed two beers the night before the hearing. Tr. at 38.
The Individual was arrested for DUI in 2010 after his car ran out of gasoline on an exit ramp. Tr.
at 30-31. The charge was eventually reduced to reckless driving, although the Individual was
required to abstain from alcohol consumption for six months. Tr. at 32. In February 2013, the
Individual was again arrested for DUI after flipping his car. Tr. at 35. His blood alcohol level
was .23, over twice the legal limit. DOE Ex. 9 at 5. After the second DUI offense, the
Individual was incarcerated for seven days, was sentenced to one-year probation, was levied
$8,000 in fines and costs, and was required to keep an interlock on his car for one year. Tr. at
37-38.
In November 2013, the Individual was evaluated by the DOE psychologist. DOE Ex. 11. After
reviewing his personnel file and interviewing him, the DOE psychologist diagnosed the
Individual as suffering from alcohol use disorder, mild. DOE Ex. 11 at 5. At the hearing, the
DOE psychologist did not revise his diagnosis. Further, the DOE psychologist opined that the
Individual was not rehabilitated or reformed. Tr. at 62. He recommended that the Individual
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.
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continue with his current counselor, who has not been trained in harm reduction, relapse
prevention or controlled drinking, because the Individual is comfortable with her and she is
helpful to him. Tr. at 54, 68. But the DOE psychologist continued that the counseling should be
structured toward the Individual’s alcohol use. Tr. at 68. The DOE psychologist would also
suggest, but not require, that the Individual not consume alcoholic beverages. Tr. at 59. The
DOE psychologist opined that if the Individual does consume alcohol, he should not have more
than two beers on any given day and those two beers should be consumed at least one hour apart.
Tr. at 62.
In considering the evidence before me, I must look to the Adjudicative Guidelines to determine if
the Individual has mitigated the properly raised alcohol-related security concerns. The relevant
paragraph lists conditions that could mitigate this type of security concern, including:
(a) 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;
(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse,
provides evidence of actions taken to overcome this problem, and has established
a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol
abuser);
(c) the individual is a current employee who is participating in a counseling or
treatment program, has no history of previous treatment and relapse, and is
making satisfactory progress;
(d) the individual has successfully completed inpatient or outpatient counseling or
rehabilitation along with any required aftercare, has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with
treatment recommendations, such as participation in meetings of Alcoholics
Anonymous or a similar organization and has received a favorable prognosis by a
duly qualified medical professional or a licensed clinical social worker who is a
staff member of a recognized alcohol treatment program
Adjudicative Guidelines, ¶ 23(a)-(d). The general thrust of these guidelines is that a concern
related to problematic alcohol use can be mitigated by circumstances indicating that the
problematic use is no longer occurring and has a low risk of recurring in the future.
While the Individual may meet Adjudicative Guideline ¶ 23(c) as he is a current employee who
is participating in counseling, has no history of previous treatment and relapse, and is making
satisfactory progress, he has not met any of the other mitigating factors nor otherwise
demonstrated that he has a low risk of relapse to alcohol dependence. Further, the DOE
psychologist opined that the Individual is vulnerable to returning to his previous alcohol use. Tr.
at 57.
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The Individual does not meet Adjudicative Guideline ¶ 23(a) which requires that a significant
amount of time has passed since the behavior, or that the behavior was infrequent or under such
unusual circumstances that it is unlikely to recur. The Individual was arrested for DUI in
February 2013. He has not abstained from alcohol since his arrest. Further, the circumstances
leading to his DUI were not unusual or infrequent, although he testified that he now using
taxicabs when he knows that he is going to be consuming alcohol. I cannot find that the
Individual has satisfied this guideline.
The Individual also has not established a sufficient pattern of responsible use to satisfy
Adjudicative Guideline ¶ 23(b). The DOE psychologist opined that the Individual is vulnerable
“to returning to the kind of drinking where [he feels] okay to drive at a blood alcohol of point-
two-three.” Tr. at 50. The DOE psychologist continued, “There is a history of problematic
drinking followed by periods of abstinence and then problematic drinking. . . . [t]here is insight
in that I should cut down because of these consequences but these are really catastrophic
consequences.” Tr. at 56. He concluded that he would want to see the Individual more
dedicated to solving his problematic alcohol consumption. Tr. at 56. In light of the DOE
psychologist’s opinion that the Individual has not established a pattern of responsible use, along
with the Individual’s testimony that he consumes approximately six to ten beers a week, was last
intoxicated three months prior to the hearing, and consumed two beers the night before the
hearing, I cannot find that the Individual has satisfied Adjudicative Guideline ¶ 23 (b).
Finally, I cannot find that the Individual has satisfied Adjudicative Guideline ¶ 23(d), i.e., has
completed a treatment program and received a favorable diagnosis from a medical professional
or licensed alcohol treatment professional. The Individual’s counselor, who submitted an
affidavit for the hearing, is not a licensed alcohol treatment professional. Ind. Ex. A.
Nonetheless, the DOE psychologist testified that if he saw “[s]ome accountability that [the
counselor] is following a manualized treatment for rational drinking, controlled drinking,” the
Individual could continue seeing her because he is comfortable with her and she aids him. But,
the DOE psychologist stressed that, if the Individual continues seeing his current counselor, he
should do so with an emphasis on alcohol treatment. Tr. at 53. Finally, the DOE psychologist
concluded that the Individual’s risk of relapse is high. Tr. at 66. Accordingly, I find that the
Individual has not yet established a favorable prognosis, i.e., a low risk of relapse.
Given the Individual’s continued alcohol consumption to intoxication, along with his failure to
engage in alcohol treatment counseling, I cannot find that he has sufficiently mitigated the
security concerns associated with Criterion H and Criterion J.
B. Criterion L
All the security concerns raised by the LSO under Criterion L were based on the Individual’s
alcohol use. In the previous section, I concluded that he has not mitigated the Criteria H and J
concerns raised by his alcohol use. Further, the DOE psychologist opined that the Individual is
vulnerable to returning to consuming alcohol and driving a motor vehicle after his consumption.
Tr. at 59. For these reason, I have determined that the Individual has not mitigated the concerns
raised under Criterion L.
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V. 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, J, and L. After
considering all the relevant information, both 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 resolve the
security concerns associated with Criteria H, J, and L. I therefore cannot find that restoring the
Individual’s access authorization will not endanger the common defense and is clearly consistent
with the national interest. Accordingly, I have determined that the Individual’s access
authorization should not 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: December 4, 2014