PSH-14-0084

*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: September 5, 2014 )
) Case No.: PSH-14-0084
__________________________________________)
Issued: November 21, 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’s access authorization should not be restored at this time.
I. Background
The individual works for a DOE contractor in a position that requires that he hold a DOE
security clearance. Investigation into the individual’s history of alcohol consumption and
recent alcohol-related arrest raised security concerns in the opinion of the Local Security
Office (LSO). The LSO conducted a Personnel Security Interview (PSI) with the
individual on February 11, 2014, and had the individual evaluated by a DOE consultant
psychologist (DOE psychologist). On July 31, 2014, the LSO sent a letter (Notification
Letter) to the individual advising her that it had reliable information that created a
substantial doubt regarding her eligibility to hold a security clearance. In an attachment to
the Notification Letter, the LSO explained that the derogatory information fell within the
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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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 her receipt of the Notification Letter, the individual exercised her 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 her own testimony and that of two 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 15 numbered exhibits into the
record, and the individual submitted one exhibit, documentation of her attendance at a
Victim Impact Panel program sponsored by Mothers Against Drunk Driving. The LSO’s
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
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). 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 suffers from Alcohol Abuse
and Alcohol Use Disorder, which, in her opinion, cause or may cause significant defects
in the individual’s judgment and reliability. In addition, the LSO cites a 2014 arrest for
Driving Under the Influence (DUI) and the individual’s statements regarding her pattern
of alcohol consumption from 2009 through the date of her 2014 arrest. 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 reported during her February 11, 2014, PSI that, from 2009 to the middle
of 2013, she consumed three to four 14- to 16-ounce beers in two to three hours, or one to
two mixed drinks in an hour, once a week or once every other week. Ex. 14 at 73-75.
From late 2013 through the date of her DUI arrest, January 17, 2014, her consumption
increased to roughly five to six 14-ounce beers or three mixed drinks in three to four
hours, twice a week. Id. at 80-82. At her psychological evaluation, she described her
alcohol consumption since the arrest as two to three glasses of wine or three to four beers
in a 16-ounce mug, roughly once every two weeks. Ex. 7 at 4. These amounts are less
than what the individual believes will render her “buzzed” or intoxicated. Id.
The DOE psychologist evaluated the individual in April 2014. She determined that the
individual met the criteria for Alcohol Abuse as set forth in the Diagnostic Statistical
Manual of the American Psychiatric Association, Fourth Edition Text Revised (DSM-IV-
TR) and Alcohol Use Disorder as set forth in the Diagnostic Statistical Manual of the
American Psychiatric Association, Fifth Edition (DSM-5). Id. at 12. She reached this
diagnosis after considering the individual’s reported history of alcohol use, her family’s
history of alcohol, drug, and emotional problems, the results of three psychological tests,
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and other information she gathered for her evaluation. She further observed that the
individual did not believe her alcohol use was a problem and had not sought any help for
it. Id. As adequate evidence of rehabilitation or reformation from this alcohol condition,
the DOE psychologist recommended that the individual: (1) abstain from alcohol for at
least six months with random blood alcohol testing; (2) attend a Victim Impact Panel and
DUI education; and (3) participate in at least six months of psychological counseling that
included a strong alcohol education component as well as support for her exploration of
her feelings about her divorce and other transitions. Id. at 13. The DOE psychologist
concluded that the individual has an illness or mental condition that causes or may cause
a significant defect in judgment or reliability. Id.
At the hearing, the individual testified that her alcohol consumption increased in late
2013 because she and her then-husband were splitting up and she was going out to drink
more often, generally with her girlfriends. Tr. at 49. She stated that the DUI arrest
terrified her. The Victim Impact Panel she attended impressed on her that she could have
killed someone and inalterably affected the lives of many when she was driving while
intoxicated. Id. at 44. The individual has not driven after drinking any alcohol since the
April 2014 psychological evaluation. Tr. at 55. In the three months preceding the
hearing, the individual consumed alcohol on four occasions, spaced weeks or more apart.
On those occasions, she drank no more than “two or three beers” or one mixed drink. Id.
at 35-36. She has not been “buzzed” or intoxicated since her psychological evaluation in
April 2014. Id. at 56.
The individual further testified that she still did not consider that she had a problem with
alcohol, even during that period of heavier consumption, because she was arrested only
once, and her high consumption levels were a reaction to her high stress levels at the
time. Id. She considered what happened on the night of the arrest a “mistake.” Id. at 13.
While she admitted that she abused alcohol on that occasion and on her birthday in 2013,
she did not believe she had a drinking problem, because she has controlled her drinking
since then and her drinking has never affected her daily life. Id. at 52-53. Although she
saw the DOE psychologist’s report in July 2014, and understood her recommendations
regarding abstinence and counseling, the individual did not follow them because she felt
she did not have an alcohol problem. Id. at 41. She did, however, meet with a counselor
shortly before the hearing who, on the basis of the individual’s self-report of her current
drinking habits, told the individual “she did not think I needed to make an appointment
with her.” Id. at 38. She admitted that the counselor had not seen the DOE
psychologist’s evaluation or any information about her arrest or the LSO’s concerns. Id.
at 42. She stated that her intention was to consume no more than two or three drinks on
each occasion, no more often than once or twice a month. Id. at 60. She considered her
support group to include her housemate, her brother, her sister, her father, her ex-
husband, and other friends. Id. at 59.
In her testimony at the hearing, the DOE psychologist maintained her opinion that the
individual suffers from Alcohol Abuse and Alcohol Use Disorder. She explained that,
despite the individual’s belief that her alcohol consumption was not a problem, her
professional opinion was that it was in fact a problem. Id. at 64. The DOE psychologist
acknowledged that the individual’s pattern of alcohol consumption had clearly changed
since her arrest, and that her stated intention to continue drinking in a limited, controlled
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manner and her support system were both important. Id. at 65-66. Nevertheless, the
DOE psychologist stated that she did not find adequate evidence of the individual’s
rehabilitation or reformation with regard to her alcohol disorder. Id. at 64. While
recognizing that the individual’s changes were very positive, she felt that the individual
lacked “the benefit of a whole set of tools that helps ensure that these changes can be
sustained.” Id. at 65. These tools are acquired through counseling, and include learning
about the effects of alcohol on the human body and learning to recognize triggers for
drinking more heavily again. Id. at 65-66. Counseling would lead to gaining deeper
insight into alcohol use, and understanding how it developed into a problem, and how to
withstand future stresses that may lead again to unhealthy drinking. Id. at 66-67. To
demonstrate adequate evidence of rehabilitation, the DOE psychologist testified, the
individual would need to engage in counseling with a strong alcohol use component.
Because the individual is now drinking less alcohol, the DOE psychologist would not
require abstinence, but would leave that decision up to the therapist. Id. at 67-69. If the
individual chose not to engage in counseling, she could demonstrate adequate evidence of
reformation by abstaining from alcohol for 12 months. Id. at 75. The DOE psychologist
testified that, in her opinion, the individual was at moderate risk for relapse: not high,
because she has reduced her alcohol consumption significantly, she has expressed a
strong intention to control her drinking, and her disorder is mild; but not low either,
because she has not obtained alcohol education, she has not engaged in counseling, and,
through no fault of her own, her family includes members with histories of alcohol and
drug abuse. Id. at 76-78.
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’s access
authorization should not be restored at this time. 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.
The individual has maintained a pattern of significant alcohol consumption for at least
five years. Until her DUI arrest in early 2014, she regarded her consumption as normal
behavior, despite frequent intoxication, and less frequent, but still significant, episodes of
driving while intoxicated. That arrest, and the Victim Impact Panel she recently attended,
convinced her that she should reduce her alcohol intake and never drive after drinking
even small amounts of alcohol. As of the time of the hearing, however, she still held the
opinion that her pattern of alcohol consumption was not a problem that needed to be
addressed. Consequently, she did not comply with the DOE psychologist’s
recommendations to abstain from alcohol and engage in counseling that focused on
alcohol use. In the absence of such steps, the DOE psychologist stated that the individual
would need to be abstinent for a full year to demonstrate adequate evidence of
reformation from her alcohol disorder. I am therefore convinced that, despite her efforts,
it is too soon to conclude that the individual has resolved her alcohol problem, as the
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DOE psychologist estimated the individual’s likelihood of relapse as of the hearing as
moderate. I have taken into consideration the mitigation factors listed in Guideline G of
the Adjudicative Guidelines, and find only one in her favor: responsible use of alcohol.
Adjudicative Guidelines at Guideline G, ¶ 23(b). Despite this favorable factor, and after
considering all the testimony and written evidence in the record, I am not convinced that
the individual has resolved the LSO’s security concerns that arise from her 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 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 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: November 21, 2014