PSH-15-0009

*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: February 25, 2015 )
_________________________________________ ) Case No.: PSH-15-0009
Issued: July 9, 2015
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set
forth at 10 C.F.R. Part 710, Subpart A, 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 be restored at this time.2
I. BACKGROUND
On August 14, 2014, police arrested the Individual and charged him with Driving While
Intoxicated (DWI), Open Container, Careless Driving, and Leaving the Scene of an Accident.
In order to address those concerns, the LSO Local Security Office (LSO) conducted a Personnel
Security Interview (PSI) of the Individual on September 23, 2014, and sponsored a forensic
psychiatric examination of the Individual which occurred on November 13, 2014. Because the
PSI and forensic psychiatric examination did not resolve these concerns, the LSO began the
present administrative review proceeding by issuing a Notification Letter to the Individual
informing him that he was entitled to a hearing before an Administrative Judge in order to
resolve the substantial doubt regarding his eligibility for a security clearance. See 10 C.F.R.
§ 710.21. The Individual requested a hearing and the LSO forwarded the Individual’s request to
1
An 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.doe.gov/OHA.
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the OHA. The Director of OHA appointed me as the Administrative Judge in this matter on
February 26, 2015.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his shop steward, his spouse, his father, his sister-in-law, his counselor (the
Counselor), and a DOE consultant psychiatrist (the Psychiatrist). See Transcript of Hearing,
Case No. PSH-15-0009 (hereinafter cited as “Tr.”). The LSO submitted nine exhibits, marked as
Exhibits 1 through 9, while the Individual submitted 16 exhibits, which are marked as Exhibits A
through P.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to paragraphs (h), (j), and (l) of the criteria for eligibility
for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8.
Criterion H refers to information indicating that the Individual has: “An 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).
Specifically, the Notification Letter alleges that the Individual has been diagnosed by a
psychologist3 with Adjustment Disorder with Mixed Anxiety and Depressed Mood (under the
American Psychiatric Association’s Diagnostic and Statistical Manual-Fifth Edition, DSM-5),
and Alcohol Abuse in Early Full Remission (under the American Psychiatric Association’s
Diagnostic and Statistical Manual-Fourth Edition Text Revision, DSM-IV-TR). These
circumstances adequately justify the DOE’s invocation of Criterion H, and raise significant
security concerns. 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) state that an opinion by a
duly qualified mental health professional that an individual has a condition that may impair
judgment, reliability, or trustworthiness, raises a security concern under Adjudicative Guideline I
at ¶ ¶ 27 and 28(b).
Criterion J refers to information indicating that the Individual has: “Been, 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(l). Specifically, the
Notification Letter alleges that the Individual has been diagnosed by the Psychiatrist with
Alcohol Abuse after incurring three alcohol-related arrests. These circumstances adequately
justify the DOE’s invocation of Criterion J, and raise significant security concerns. “Excessive
alcohol consumption often leads to the exercise of questionable judgment or the failure to control
impulses, and can raise questions about an individual's reliability and trustworthiness.”
Adjudicative Guideline G at ¶ 21. “Conditions that could raise a security concern and may be
disqualifying include: . . . alcohol-related incidents away from work, such as driving while under
the influence, . . . or other incidents of concern, regardless of whether the individual is diagnosed
as an alcohol abuser or alcohol dependent, [and] (d) diagnosis by a duly qualified medical
3 The DOE expert identified as a psychologist in the notification letter is actually a psychiatrist.
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professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol
dependence.” Adjudicative Guideline G at ¶ 22(a) and (d).
Criterion L refers to information indicating that the Individual has: “Engaged 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. Such conduct or circumstances include, but are not limited
to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation
of any commitment or promise upon which DOE previously relied to favorably resolve an issue
of access authorization eligibility.” 10 C.F.R. § 710.8(l). Specifically, the Notification Letter,
citing the Individual’s three-alcohol related arrests, alleges that the Individual has exhibited a
pattern of criminal conduct. “Criminal activity creates doubt about a person's judgment,
reliability and trustworthiness. By its very nature, it calls into question a person's ability or
willingness to comply with laws, rules and regulations.” Adjudicative Guideline J at ¶ 30.
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common sense judgment, made after consideration of all the relevant
information, favorable and unfavorable, as to whether the granting of access authorization would
not endanger the common defense and security and would be clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). In rendering this opinion, I have considered the following
factors: the nature, extent, and seriousness of the conduct; the circumstances surrounding the
conduct, including knowledgeable participation; the frequency and recency of the conduct; the
Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's
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. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my
application of these factors to the testimony and exhibits presented by both sides in this case.
IV. FINDINGS OF FACT AND ANALYSIS
The Individual has a history of three alcohol-related arrests. On April 4, 1998, he was arrested
and charged with DWI. On October 22, 1999, he was arrested and charged with DWI. On
August 14, 2014, he was arrested and charged with DWI, Open Container, Careless Driving, and
Leaving the Scene of an Accident. The Individual reported the August 14, 2014, arrest to the
LSO on August 22, 2014. The August 14, 2014, arrest led the LSO to reinvestigate the
Individual’s eligibility to hold a DOE security clearance, which in turn led to the present
proceeding.
Throughout this proceeding, including his September 23, 2014, PSI, his November 13, 2014,
forensic psychiatric examination, and his hearing testimony, the Individual has provided a
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consistent account of the events leading up to his August 14, 2014, arrest. On that evening, the
Individual reports, he and his cousin went bowling, where they shared one pitcher of beer.
Shortly after the Individual finished his beer, they left the bowling alley and entered the
Individual’s motor vehicle. The Individual began driving to a restaurant. On an exit ramp, the
Individual’s motor vehicle spun completely around and grazed a guardrail. The Individual
reports that after he inspected his vehicle and determined that it had been minimally damaged, he
resumed driving to the restaurant. Before he reached the restaurant, however, he was pulled over
by the police, who administered a field sobriety test and a breathalyzer test to the Individual.
The police also conducted a search of the vehicle, which located an open bottle (and three closed
bottles) of an alcoholic beverage. The Individual asserts that these four bottles of alcoholic
beverages had remained in his car from a wedding he had attended the day before, and from a
golfing expedition. In addition, the Individual admitted that his cousin had brought an open cup
of beer with them, which spilled when his vehicle had spun-out.
During his September 23, 2014, PSI, the Individual was asked about the results of his
breathalyzer test. He repeatedly replied that he did not know what the results of that test were.
Exhibit 9 at 28, 34. The interviewer then asked him to guess. Id. The Individual then guessed
that his breathalyzer indicated that his blood alcohol level at the time of the arrest was “.01 or
whatever, little bit above the 08.” Exhibit 9 at 29. The Notification Letter incorrectly asserts
that the Individual admitted that: “His breath alcohol content registered a little bit above 0.08.”
Statement of Security Concerns at ¶ II.B.1.
The charges resulting from his August 14, 2014, arrest were resolved as a result of a plea
agreement, which dropped several of the charges against him and placed him on probation. If he
completes his probation satisfactorily, the charges will be dropped completely. The
administrative proceeding against him to revoke his driver’s license was resolved in his favor
when the Hearing Officer found that “the evidence was insufficient to find that the concentration
of alcohol in petitioner’s blood was at or above [.08 percent], at the time of the alleged offense.”
Exhibit D.
At the request of the LSO, the Psychiatrist evaluated the Individual on November 13, 2014.
Exhibit 4 at 1. In addition to conducting a 2.17-hour forensic psychiatric interview of the
Individual, the Psychiatrist reviewed the Individual’s personnel security file, administered a
psychological test to the Individual, and sent him to a laboratory to obtain a blood sample.
Exhibit 4 at 2. After completing his evaluation of the Individual, the Psychiatrist issued a report
(the Psychiatric Report) on November 24, 2014, in which he found that the Individual had two
mental conditions, Adjustment Disorder With Mixed Anxiety and Depression, and Alcohol
Abuse, in Early Full Remission, both of which, he opined, cause, or may cause, a significant
defect in judgment or reliability. Exhibit 4 at 9-12. The Psychiatrist further opined that:
[T]here has not been sufficient time for full rehabilitation or reformation, given
that the DWI was about three months earlier. There is some evidence for
rehabilitation. First, he has not consumed alcohol for three months and reports no
craving for alcohol. Second he is willing to participate in whatever reformation
activities are required. Third, he acknowledges at least some of his interpersonal
peril, by virtue of seeking psychiatric care, during the resolution of the DWI.
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***
Full rehabilitation would be adequately evidenced by total abstinence from
alcohol for 12-months, participation in the . . . EAP program, compliance with
random BACs, and compliance with all special conditions of his plea.
Exhibit 4 at 11.
A. Alcohol Abuse
During his hearing testimony, the Individual disputed the Psychiatrist’s finding that he has
Alcohol Abuse, because he “does not drink very much.” Tr. at 42-43. His testimony that he is
an infrequent drinker by nature, was corroborated by the testimonies of his spouse, his father,
and his sister-in-law. Tr. at 13, 16, 20, 23, 27-28. The Individual further testified that he did not
believe his August 14, 2014, accident was caused by his alcohol use. Tr. at 43. He instead
blamed the accident on his brakes. Tr. at 43. In support of this contention, the Individual
submitted Exhibit N, a receipt for brake parts, dated August 31, 2014. The Individual’s spouse
corroborated this testimony at the hearing. Tr. at 11-12. The Individual testified that he did not
believe he was intoxicated at the time of the accident. Tr. at 43.
More importantly, the Individual testified that his last use of alcohol occurred on August 14,
2014, the night of his last DWI, and ten months prior to his hearing.4 Tr. at 44. He further
testified that he plans to permanently abstain from using alcohol. Tr. at 43-44. His testimony, as
well as the testimony of his spouse and his Counselor, indicated that he began seeing the
Counselor as a result of his arrest. Tr. at 15, 45.
The Counselor, a licensed professional counselor and addictions counselor, testified on the
Individual’s behalf at the hearing. Tr. at 46. The Counselor testified that the Individual
proactively self-referred himself for treatment. Tr. at 47. The Counselor testified that the
Individual had undergone 30 hours of treatment sessions with him. Tr. at 50. The Counselor
testified that he “didn’t note anything that I felt would . . . fit the criteria of alcohol abuse.” Tr. at
48, 52, 54. He further testified that, based upon the Psychiatrist’s Report, the Individual would
not meet the criteria for Alcohol Abuse set forth in DSM-IV-TR. Tr. at 49. The Counselor
testified that the Individual had been a willing participant in his treatment. Tr. at 50. The
Counselor testified that he focused on helping the Individual develop coping skills. Tr. at 52.
At the hearing, the Psychiatrist listened to the testimony of each of the other witnesses before he
testified. The Psychiatrist reaffirmed the Alcohol Abuse diagnosis, citing the Individual’s
consumption of alcohol immediately before driving, his two previous DWI’s, and the results of
the Personality Assessment Inventory test which indicated “that alcohol abuse was a clinical
issue for him, self-acknowledged.” Tr. at 61-64. The Psychiatrist further expressed a concern
that the Individual was “a naïve drinker.” Tr. at 66.
The Psychiatrist, however, testified that the Individual’ substance abuse issues were not severe,
but were “relatively minor.” Tr. at 62, 65. He further testified that the Individual’s reaction to
4 This testimony was corroborated by the hearing testimony of his spouse as well. Tr. at 15.
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the arrest was proactive, constructive, and effective: the Individual sought treatment by a
psychiatrist and the Counselor, and engaged in psychotherapy and substance abuse treatment.
Tr. at 62-65. The Psychiatrist testified that the Individual had “taken the reins and under – and
taken control of [his] life and making sure that that episode didn't proceed to the kind of alcohol
use [he was] using in [his] teen years.” Tr. at 65. The Psychiatrist further cited the Individual’s
strong work ethic, healthy and positive relationship with his spouse (who is a counselor herself),
and his devotion to his children, as factors that contribute to his recovery and show that his
judgement and reliability are intact. Tr. at 66. The Psychiatrist testified that the manner in
which the Individual responded to his arrest reflected well upon his judgment and reliability. Tr.
at 69. Very importantly, the Psychiatrist testified that the likelihood that the Individual would
relapse is very low, and that the Individual’s prognosis is very good. Tr. at 69. The Psychiatrist
no longer believes that the Individual has a mental condition or illness that effects his judgement
or reliability or that may be expected to do so in the future. Tr. at 69.
After carefully considering all the evidence, I find that the Individual has shown that he is
sufficiently reformed or rehabilitated from his Alcohol Abuse Disorder. Accordingly, I find that
the security concerns raised by his Alcohol Abuse diagnosis under Criteria H and J are resolved.
B. Adjustment Disorder
The Counselor testified that he agreed with the Psychiatrist’s Adjustment Disorder diagnosis.
Tr. at 47. The Counselor noted that he addressed the Individual’s Adjustment Disorder by
helping him develop effective coping and stress reduction management skills. Tr. at 52. The
Counselor testified that the Individual’s Adjustment Disorder has “run its course when the
stressors were relived somewhat.” Tr. at 57. He believed that the Individual is now ready to
taper off his counseling. Tr. at 52. He testified that he has no concerns about the Individual’s
judgment or reliability at this time. Tr. at 57.
The Psychiatrist testified that he had diagnosed the Individual with Adjustment Disorder because
the Individual had sought treatment from a psychiatrist for sleep problems and depression and
had been prescribed sleep medications and anti-depressants for those problems. Tr. at 62.
During his interview of the Individual, the Individual had expressed his concerns about the DWI
and the effect it might have on his employment and family, which the Psychiatrist believed were
all consistent with Adjustment Disorder. Tr. at 63.
The Psychiatrist, however, also testified that the Individual’s response to his Adjustment
Disorder was proactive. Tr. at 63. The Psychiatrist opined that the Individual’s decision to seek
treatment by a psychiatrist and the Counselor, was a “very good sign [that he was] recovering
from Adjustment Disorder.” Tr. at 63. The Psychiatrist further testified that the Individual’s
prognosis for recovery from his Adjustment Disorder is “very good.” Tr. at 69. The Psychiatrist
testified that at this time he does not believe that the Individual has an illness or mental condition
that effects his judgement or reliability or that may be expected to do so in the future. Tr. at 69.
After carefully considering all the evidence, I find that the Individual has shown that he is
sufficiently reformed or rehabilitated from his Adjustment Disorder. Accordingly, I find that the
security concerns raised by his Adjustment Disorder diagnosis under Criterion H are resolved.
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C. Criminal Activity
The Individual’s three alcohol-related arrests demonstrate a pattern of criminal conduct that
raises security concerns under Criterion L. This conduct is clearly symptomatic of his Alcohol
Abuse Disorder. The evidence in the record, including the testimony of the Individual, his
spouse, his sister-in-law, his father, and his union shop-steward, as well as the written
testimonials submitted as Exhibits F, H ,J and K, show that the Individual generally conducts
himself in a manner that exhibits superior judgement, reliability and trustworthiness. The only
exceptions have involved circumstances where alcohol was involved. Given the role that alcohol
has played in the Individual’s past conduct, I find that since the concerns raised by his Alcohol
Abuse Disorder have been sufficiently resolved, the concerns about the Individual’s judgment,
reliability and trustworthiness raised by his criminal conduct under Criterion L are also resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L.
After considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that Individual has sufficiently mitigated the Criteria H, J, and L security concerns.
Accordingly, the Individual has demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual's security clearance should be restored at this time. The LSO may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: July 9, 2015