PSH-15-0016

*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 27, 2015 )
) Case No.: PSH-15-0016
__________________________________________)
Issued: June 25, 2015
______________________
Administrative Judge Decision
______________________
William M. Schwartz, 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 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. In 1997, the individual was arrested for Public Intoxication while
walking home. In 1998 and 1999, he was arrested twice for Theft of Property by Check,
after he bounced a check at two different retail stores. He was arrested for Driving While
Intoxicated (DWI) in November 2009 and, during a subsequent Personnel Security
Interview (PSI), stated his intention never to drink and drive in the future. Nevertheless,
he was arrested a second time for DWI in 2014. Because the local security office (LSO)
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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could not resolve the DOE’s security concerns arising from his alcohol-related arrests
during a second PSI in September 2014, the LSO referred the individual to a DOE
consultant psychologist (DOE psychologist) for a mental health evaluation. In a
November 21, 2014, evaluation report, the DOE psychologist concluded that the
individual used alcohol habitually to excess and that his relationship to alcohol presents a
significant defect in judgment or reliability. Independent of the DOE psychologist’s
evaluative report, the LSO determined that the individual’s five arrests between 1997 and
2014 constituted a pattern of criminal conduct that raised additional concerns regarding
his honesty, reliability, and trustworthiness.
On January 21, 2015, 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 that the derogatory information fell within the purview of three
potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8,
subsections (h), (j), and (l) (hereinafter referred to as Criteria H, J, and L, respectively).2
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations to request an administrative review hearing, and I was appointed the
Administrative Judge in the case. At the hearing, the individual presented his own
testimony and that of four other witnesses, and the LSO presented the testimony of one
witness, the DOE psychologist. In addition to the testimonial evidence, the LSO
submitted 32 numbered 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
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).
Finally, Criterion L concerns information that a person has engaged in unusual conduct that tends “to show
that the individual is not honest, reliable, or trustworthy. . . . Such conduct or circumstances include, but
are not limited to, criminal behavior . . .” 10 C.F.R. § 710.8(l).
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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.
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 three alcohol-related
arrests described above, which occurred in 1997, 2009, and 2014. Ex. 1. The facts that
raise security concerns under Criterion L, in the opinion of the LSO, are the same three
alcohol-related arrests in conjunction with the 1998 and 1999 arrests for writing bad
checks.
I find that there is ample information in the Notification Letter to support the LSO’s
reliance on Criteria H, J, and L. 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. Criminal activity, such as the multiple lesser offenses at issue here, by its
very nature, calls into question a person’s ability or willingness to comply with laws,
rules, and regulations. Id. at Guideline J.
IV. Findings of Fact
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Except as noted below, the individual does not contest the facts underlying the LSO’s
concerns regarding his continued possession of a security clearance. At the hearing,
however, the individual did provide a context for some of his actions, which placed them
in a more favorable light.
The individual’s first alcohol-related arrest occurred on September 16, 1997, when the
individual drank four beers within four hours at a club, while celebrating a friend’s
birthday. When he decided to leave the club, his vehicle would not start, so he began
walking home along the highway. Ex. 23. About three-quarters of the way home, a
public safety officer stopped him and charged him with public intoxication, a charge
which was ultimately dismissed. Ex. 30 at 71-75. The individual testified that after that
evening, he “decided not to drink for a long time.” Tr. at 74.
On two occasions, one in 1998 and one in 1999, the individual wrote a check to a retailer
that was rejected by the banks for insufficient funds. The amount of each check was less
than $50. Ex. 26 at 9; Ex. 31 at 12, 14. Unbeknownst to the individual, he was charged
with Theft of Property by Check in February 1998 and again in April 1999. Eventually,
the individual learned of these charges when he appeared at the motor vehicle office to
report a change of address. He resolved the charges by making restitution and paying a
fine of $500. Ex. 31 at 16, 18-19. During a PSI conducted shortly after these charges,
the individual stated that, when he wrote the checks, he did not know they would bounce.
In addition, he told the interviewer that he was not notified by the bank because he had
moved twice within the preceding year and the bank was not aware of his current address.
Id. at 20. At the hearing, the individual testified that he had rectified the matter as soon
as he learned about it, and faces no financial difficulties now. Tr. at 74-75, 81.
The individual received his first DWI arrest in November 2009. While dining with his
family at a restaurant, he drank four beers within two-and-one-half hours. Ex. 30 at 15.
Neither he nor any of his family believed he had consumed too much alcohol to be
driving. Id. at 16. A police officer stopped him for speeding and smelled alcohol on his
breath. He refused to take a breath alcohol test, was charged with DWI, and was taken to
a detention center. Id. at 19, 21. After bonding out, he reported the arrest at his
workplace and sought assistance from the Employee Assistance Program which, in turn,
recommended professional treatment and counseling. Id. at 33. He completed a 20-
session intensive outpatient program (IOP) for alcohol and drug addiction. Id. at 35; Tr.
at 27. At a PSI three months after the incident, while undergoing treatment, the
individual stated that he would abstain from alcohol in the future. Ex. 30 at 80.
In August 2014, the individual was arrested a second time for DWI. At a PSI shortly
after the arrest, he explained that he was driving after drinking and a police officer pulled
him over at around 2:30 in the morning. Ex. 28 at 12. He refused to take an alcohol
breath test, because he had consumed five beers in the previous five hours and doubted he
could pass the test. Id. at 14. He stated that he did not feel impaired at the time, and for
that reason he drove. Id. at 24. He told the interviewer that he had not consumed any
alcohol since the night of that arrest, that he had begun an alcohol treatment program, and
that he gets intoxicated about once a year. Id. at 25, 28, 40. He stated, however, that he
stopped drinking after his arrest in 2009, and was abstinent until December 2013. Id. at
42-43. In January 2014, he resumed drinking, with a new friend, consuming a few beers
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“every two weeks,” maintaining that he has not been intoxicated since then, including the
night of his August arrest. Id. at 44-45, 50. He stated that since age 25, he has always
limited his drinking to no more than two beers a day. Id. at 53. He admitted, however,
that he has drunk alcohol to excess twice, on the nights of his 2009 and 2014 arrests, and
both incidents were triggered by sad events involving his children. Id. at 52. The most
recent arrest occurred shortly after one of his daughters told him that she and her family,
including seven of his grandchildren, would be moving to another state. Id. at 54.3 He
began another IOP shortly after the arrest, attending sessions four nights a week, two and
a half hours per night. Id. at 58. He again stated that he intended to stop drinking alcohol
completely and attend the once-weekly aftercare program offered by the same provider
indefinitely. Id. at 20, 62, 68.
The DOE psychologist evaluated the individual in November 2014. At the evaluation,
the individual told the DOE psychologist that he had completed his IOP a few weeks
earlier, but had not yet begun attending the aftercare program due to work constraints.
Ex. 14 at 4-5. He told the DOE psychologist that he would begin attending aftercare
when it was next offered, three days after the evaluation. Id. at 5. He was not attending
Alcoholics Anonymous (AA) meetings but stated that he would seek out a chapter near
his home. Id.
The DOE psychologist did not determine that the individual met the criteria for either
Alcohol Abuse or Alcohol Dependence as set forth in the Diagnostic Statistical Manual
of the American Psychiatric Association, Fourth Edition Text Revised (DSM-IV-TR).
Instead, based on his review of the individual’s personnel security file and his own
interview with the individual, he concluded that the individual uses alcohol habitually to
excess. Id. at 6. He reached this opinion because the individual “clearly demonstrated a
history of alcohol misuse in the past, marked by two alcohol-related convictions,” and
admitted to driving under the influence of alcohol roughly once a month for many years.
Id. He did not find adequate evidence of rehabilitation or reformation: he noted that the
individual had completed an IOP in 2009 and had recently completed a second IOP. The
first, in his opinion, was unsuccessful, as evidenced by the 2014 DWI arrest, and nothing
suggested to him that the second IOP would lead to a better outcome. Id. He
recommended the following treatment to achieve rehabilitation: 12 months of total
abstinence and attendance at aftercare meetings; participation in AA meetings three times
per week, including evidence of working the 12-Step program with a sponsor; weekly
counseling (in lieu of one AA meeting per week); and random alcohol testing by his
employer. Id. The DOE psychologist concluded that the individual’s diagnosis as a user
of alcohol habitually to excess demonstrated a significant defect in judgment or
reliability. Id.
At the hearing, a counselor associated with the treatment and counseling center the
individual attended in 2009 and 2014 testified. She confirmed that the individual had
completed two IOPs, five years apart. Tr. at 12-13. She stated that after his completion
of the 2009 IOP, her impression was that the individual had not fully accepted that he had
an alcohol problem and that he intended to manage his alcohol consumption rather than
3 Shortly after the arrest, a second daughter announced that she and her family would also be moving out
of state. Id.
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abstain in the future, as her program recommended. Id. at 15. She last saw him in
September 2014, after he had received his second DWI in five years. Id. at 13. At that
time, she found him more willing to stop drinking and to “accept the idea that he and
alcohol have a fairly strong history of strong consequences.” Id. at 17. She was,
however, unwilling to comment on the individual’s prognosis because she had not seen
him for several months. Id. She did state that the individual’s motivation for seeking
treatment was external—his desire to maintain his employment—and could not comment
regarding any internal motivation to remain abstinent. Id. at 19, 22-23. The individual
asked the counselor to provide the dates he had attended aftercare since completing his
2014 IOP. When she recited one date in December 2014 and three in February 2015, he
stated that he had attended at least five times, and as recently as two to three weeks
before the hearing. Id. at 25. The counselor consented to reviewing her record and
informing the parties if additional evidence of attendance were located. Id. at 26.
Through the DOE Counsel, the counselor informed me that no additional attendance
sheets containing the individual’s name were located. E-mail from DOE Counsel to
Administrative Judge (May 20, 2015).
The individual’s mother and brother also testified at the hearing. They explained that
they are a family of non-drinkers, and that no alcohol is kept in the mother’s home, where
the individual has lived for the past five years. Id. at 48-49, 60. Neither has considered
that the individual has an alcohol problem, and neither has more than a passing
knowledge of the ramifications of his alcohol-related legal issues. Id. at 50, 62, 65. Both
spoke very highly of the individual’s devotion and generosity to his family. Id. at 52, 54,
67. His supervisor also spoke highly of his dependability and work ethic, and though she
had never observed the individual’s work affected in any way by alcohol, she did attest to
his sadness and struggle when both of his daughters and their families moved away in
2014. Id. at 37-40.
At the hearing, the individual offered additional details regarding family issues that, in
his opinion, caused him to drink to excess and ultimately receive two DWI arrests. He
explained that his son passed away in 2008, leaving behind his fiancée and their child.
He promised on his son’s grave that he would make sure the fiancée completed college;
he kept his promise, but at great financial cost. Tr. at 76. At about the same time, one of
his daughters was pregnant with a baby who was diagnosed with a heart condition before
birth. She needed to complete her pregnancy near a specialty hospital located in a distant
city, and the individual covered her living expenses for seven months. Id. at 79-80. By
2009, he was unable to maintain mortgage payments on his house; he lost the house and
moved in with his mother. Id. at 76. Similar to his daughters moving away in 2014,
these were family matters that were beyond his control and, he believed, led him to drink
beyond his self-imposed limits. Id. at 83.
The individual also testified that he is more serious about his alcohol problem since the
2014 arrest. He admitted that, despite his treatment following his 2009 DWI arrest, he
had not learned his lesson. Id. at 85. He testified that he was now attending an aftercare
program regularly since completing the IOP portion of his treatment. According to the
individual, he began attending aftercare on the first Monday following October 7, 2014,
the date he completed his IOP program. Id. at 87-88. He maintained that he attended
every week until three weeks before the hearing, when he received the exhibit notebook
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for this hearing and became disheartened. Id. at 87, 89-90, 112. When confronted with
the testimony of the treatment program counselor, who could not locate more than four
session attendance sheets bearing his name, the individual contended that more
attendance sheets must exist and would prove he attended regularly. Id. at 88-89. The
DOE counsel pointed out that, when questioning the counselor, the individual had
insisted that he had attended five times, not weekly. Id. After reviewing the evidence
before me, I conclude that the individual attended four aftercare sessions between
October 2014 and the date of the hearing. In addition to those sessions, the individual
attended four AA meetings in the two weeks prior to the hearing. Id. at 95. Moreover,
the individual freely admitted that he has a problem with alcohol, that alcohol has
adversely affected his life, and that he intends to abstain from alcohol in the future. Id.
at 92.
Finally, the individual testified that his non-alcohol-related criminal activity—writing bad
checks—will not occur in the future. As mentioned above, as soon as he learned about
these charges, he took care of the matter. Id. at 75. In addition, he explained that his
finances are now in good condition. With no house payment, he is saving most of his
income, to purchase another house in the future. Moreover, all of his family members are
financially secure; his mother’s retirement income renders her fully independent, his two
daughters’ spouses have well-paying jobs, and his son’s fiancée, with her college
education, is fully employed. Id. at 81-82.
In his testimony at the hearing, the DOE psychologist maintained his opinion that the
individual consumes alcohol habitually to excess, having demonstrated a history of a
pattern of misuse of alcohol. Id. at 121. After hearing the testimony of the other
witnesses, including the individual himself, the DOE psychologist testified that, in his
opinion, the individual has not yet demonstrated adequate evidence of rehabilitation or
reformation. Id. To do so, the individual would, at a minimum, have to complete the
recommendations he made in his report, which included a full year of abstinence and
aftercare as well as participation in AA meetings. Id. at 122. He maintained his position
that the individual’s use of alcohol has attributed to a defect in judgment or reliability.
Id. He stated that the individual must learn to self-monitor his desires to drink, which AA
can help achieve. He could benefit from counseling, which might help him understand
broader issues affecting his life, and from a great deal of support, which his family is not
providing at this juncture. Id. at 126. Finally, he expressed his opinion that, until his
current pattern changes, “and that pattern would involve help and support and
vulnerability and openness, and reaching out to other people and good, firm, solid, heavy-
duty relationships,” he remains concerned about how the individual will respond to any
future familial crisis. Id. at 128.
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
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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. Criteria H and J: Alcohol
The individual has demonstrated a pattern of significant alcohol consumption for many
years. I reach this conclusion because, despite his long-time, self-imposed consumption
limit of one to two beers daily, he has surpassed this limit often—not just on the three
occasions that resulted in arrests, but on an unquantified number of evenings when he
drove a vehicle after exceeding his limit without being detected. The evidence suggests
that the individual’s self-control is not as reliable as he may believe it is. What is not
clear to me is whether he will succeed in maintaining abstinence at this time. After his
2009 arrest, he remained abstinent for roughly four years before he resumed drinking
alcohol, and within eight months of resuming, he received a DWI. While he maintains he
was not intoxicated that evening, and his refusal to take an alcohol test allows him to
maintain that belief, the fact is that he elected not to take the test because he feared he
would not pass it. At that time, he himself was questioning his unwise alcohol
consumption, and I continue to do so. I do, however, applaud the steps he has taken to
alter his relationship with alcohol, in particular his abstinence for nine months.
Nevertheless, as of the date of the hearing, he had been engaged in rehabilitative efforts
for about nine months, and the DOE psychologist felt that insufficient time had passed,
and insufficient steps had been taken, for him to find the individual to be rehabilitated or
reformed from his alcohol problem. I too am left with doubts as to whether the
individual has reached a point in his rehabilitation that his future behavior toward alcohol
will not raise further security concerns. 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. 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
record, the evidence does not convince me that the individual has resolved the LSO’s
security concerns that arise from his alcohol use. Furthermore, with respect to the DOE
psychologist’s opinion that the individual’s alcohol problem causes or may cause a
significant defect in judgment or reliability, the DOE psychologist did not waiver from
his original position, and I cannot point to anything in the record of this proceeding that
weighs against it.
B. Criterion L: Criminal Behavior
The individual’s pattern of criminal behavior is based on the three alcohol-related arrests
discussed in detail above and the two incidents of writing bad checks in 1998 and 1999.
Having considered the individual’s explanation of the non-alcohol-related arrests, in
particular their minimal amounts, the fact that he has not engaged in such behavior in
more than 15 years, and evidence of his current and long-standing liquidity
(notwithstanding the loss of his house, explained in detail), I find that the security
concerns arising from these arrests have been resolved by the passage of time.
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Adjudicative Guidelines at Guideline J, ¶ 32(a). The security concerns raised by the
alcohol-related arrests, however, cannot be similarly resolved. Until the individual
achieves rehabilitation or reformation from his problematic relationship with alcohol,
further criminal behavior, most likely in the form of Driving While Intoxicated, as in the
past, is likely to recur.
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, J, and L.
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 resolve all 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: June 25, 2015