PSH-15-0017

*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-15-0017
__________________________________________)
Issued: July 1, 2015
______________________
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. In August 2014, the individual was arrested and charged with Open
Container/Consumption While Driving. While a breath test revealed that his blood
alcohol content was significantly below the legal limit for driving, he admitted that he
had consumed two beers before driving, and part of one beer while driving. That
incident, as well as his description of his history of alcohol consumption during a
September 25, 2014, Personnel Security Interview (PSI), raised security concerns in the
opinion of the Local Security Office (LSO). As a result, the LSO referred the individual
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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to a DOE consultant psychologist (DOE psychologist) for a mental health evaluation. On
February 4, 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 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 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 five other witnesses, and the LSO presented the testimony of one
witness, the DOE psychologist. In addition to the testimonial evidence, the LSO
submitted seven 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
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 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 arrest for Open
Container/Consumption While Driving, his contemporaneous statements about his
alcohol consumption before the arrest, and his statements during his PSI with regard to
his history of alcohol consumption during his college 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
During his sophomore year of college, the individual drank beer with his friends on
Saturday nights during the off-season of the sport he played. On those occasions, he
would consume between five and ten beers over a three-hour period. Ex. 7 at 39-40.
About twice a month, he would drink to the level of intoxication. Id. at 44.
In his junior year of college, he stopped participating on a sports team, and his drinking
increased. He drank three to four beers in about two hours one weekday evening per
week, and eight to ten beers within three hours on each of two weekend nights. He was
drinking to intoxication about once a week. Id. at 47, 51-52. During a summer internship
in 2013, he consumed considerably less, but resumed the same pattern when he returned
to college in the fall. The pattern continued until his graduation in 2014. Id. at 56-59.
Since graduation, the individual has been fully employed and drinks beer on average
twice a week. Id. at 61. Although the amount he drinks varies, depending on the setting,
he estimated that he consumes an average of three beers over a two-to-three-hour period,
and has been intoxicated at most twice since May 2014. Id. at 62-63.
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The individual was arrested and charged with Open Container/Consumption While
Driving in August 2014 on his way to his high school reunion. While at home eating
supper, he drank two beers in less than two hours. Id. at 16. He then left the house with
two beers, so that he and a friend whom he was driving to the reunion could each drink a
beer in the parking lot before attending the event. Id. at 18. They instead decided to
drink their beers while they were en route to the event. Id. at 13. The police pulled the
individual over for driving ten miles per hour over the posted limit, and then questioned
them about their alcohol consumption. Id. at 13-14. The individual admitted to the
officer that he had consumed two beers before driving and less than half a beer while
driving. Id. at 14, 18. The arrest followed; the individual was taken to the police station,
where he took a Breathalyzer test, which registered a blood alcohol concentration (BAC)
of .007g/210L. Id. at 15, 24. The police released him after about one hour, and he
continued to the reunion, where he consumed seven beers and one shot of liquor over
four hours. Id. at 15, 67. He recognized that he was intoxicated, and took a cab to spend
the night at a friend’s house. Id. at 67.
The DOE psychologist evaluated the individual in November 2014. He determined that
the individual did not meet 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). Ex. 4 (Psychological Assessment Report)
at 6; see Tr. at 146. Nevertheless, based on his review of the individual’s personnel
security file and his own interview with the individual, he reached the opinion that the
individual uses alcohol habitually to excess. Id. The DOE psychologist concluded that
the individual’s use of alcohol habitually to excess could cause significant defects in his
judgment and reliability. Id. at 7. To demonstrate adequate evidence of rehabilitation or
reformation, he would require that the individual remain abstinent for one year,
participate in outpatient substance abuse group therapy for at least 16 weeks, and attend
an aftercare follow-up program for a year, with the frequency of sessions beginning at
two-week intervals and tapering off to once a month. Id.
After his arrest, the individual continued to drink alcohol. He reported to the DOE
psychologist at his November 2014 evaluation that during the last week in October he
attended a football game at which he drank ten beers over seven hours and a baseball
game at which he consumed eight beers over four and a half hours. The DOE
psychologist calculated that his BAC levels at those events were .11g/210L and
.10g/210L, respectively. Ex. 4 at 5. At the hearing, the individual testified that he was
last intoxicated at the end of October, at the football game. Tr. at 125. Apart from these
events, his consumption appears to have diminished since the arrest. During a four-day
trip to Las Vegas with friends, he consumed a total of ten drinks, five on one day and the
rest spread out over the remaining days. Ex. 4 at 5. He drank his last alcoholic drink in
early January 2015 while on vacation. Tr. at 132. When he returned to work, his access
authorization was suspended; at that point, he decided to abstain from alcohol, and has
maintained his abstinence through the date of the hearing. Id.
The individual has not participated in any form of treatment or counseling. He was not
aware that his facility had an employee assistance program available to him, or that it
might offer services to address his relationship with alcohol. Id. at 101. Moreover,
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although he researched Alcoholics Anonymous online, he testified that he did not feel it
was as important as abstinence, and intended to investigate it further when he was less
busy with sports and his family. Id. at 102, 106. He related to the DOE psychologist
during the evaluation that he saw himself in the future drinking one or two beers after
playing summer sports, and limiting weekend drinking to five or six drinks, when he did
drink at all. Ex. 4 at 5-6. His future intention regarding weekend drinking concerned the
DOE psychologist, because it “will result in a significant level of intoxication multiple
times per month.” Id. at 7. At the hearing, the individual stated that his intention to
maintain his abstinence until he received this decision; in the future, he would eventually
like to drink a beer with dinner, but intended never to become intoxicated again. Tr.
at 135.
The individual’s mother, father, brother, sister, and housemate testified on the
individual’s behalf at the hearing. Taken together, their testimony supports the
individual’s statements that he drank to intoxication in college with some degree of
regularity and drank lightly after playing summer sports, but that he has been abstinent
since the beginning of this year—in his apartment, when going out with friends, and at
his parents’ house. Id. at 17-18, 25, 28, 43, 44, 48-50, 58, 76, 83, 89. They testified
consistently as well that the individual had not discussed the LSO’s concerns about this
alcohol consumption in any detail with any of them, and that it is his nature not to share
his feelings and concerns with others, but rather to try to handle them on his own. Id.
at 18, 30-31, 33, 46, 57, 63, 65, 90.
In his testimony at the hearing, the DOE psychologist maintained his opinion that the
individual consumes alcohol habitually to excess, albeit now in a period of abstinence.
He stated that the individual now understands the serious nature of his previous excessive
drinking. This insight came fairly recently and contrasts with his decision to drink to
intoxication at his August 2014 reunion, immediately following his arrest for Open
Container, and his stated intention during the November 2014 evaluation to limit his
weekend drinking to amounts that would render him intoxicated. Id. at 144. The DOE
psychologist testified that he took into account the individual’s reduced level of alcohol
consumption since his arrest, both in his evaluative report and at the hearing, but did not
find it sufficient to lessen his concerns about the individual’s relationship to alcohol. Id.
at 145-46. He expressed his opinion that responsible drinking, as opposed to abstinence,
might be a possibility for the individual in the future, but only if he participated in some
form of treatment that provided him with the appropriate level of education to understand
what responsible drinking is. Id. at 146-47.
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
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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 is a very young man, just recently graduated from college. While in
college, he developed a pattern of drinking to intoxication with some regularity, in an
environment where such behavior was tolerated, if not accepted as the norm. He is also a
sensible young man, as demonstrated by the fact that he had never driven a vehicle while
intoxicated. Ex. 7 at 76; Tr. at 126. The Breathalyzer test administered after his one
alcohol-related arrest revealed an extremely low BAC, well below the threshold for
driving while intoxicated. Unfortunately, he was slow to modify his college-based
drinking pattern when he left that environment and entered the workplace. His last
episode of intoxication occurred in October 2014, and he stopped consuming alcohol
entirely in January 2015, when his employer notified him that his security clearance had
been suspended.
The individual’s five-month period of abstinence is a significant step toward altering his
previous pattern of alcohol consumption. Nevertheless, I am not convinced that the
LSO’s security concerns regarding the individual’s excessive alcohol consumption have
been sufficiently mitigated at this time. The individual’s decision to abstain appears to
have come about from an external event—the suspension of his security clearance—
rather than from internal recognition that his relationship with alcohol needs
modification. Support for this conclusion rests with the individual’s statement that he
will remain abstinent until this proceeding is completed, and then possibly resume
consuming alcohol. He has not yet engaged in any form of treatment or counseling, and
the DOE psychologist testified that without it, the individual lacks the understanding to
drink responsibly. I accorded significant weight to the DOE psychologist’s assessment of
the individual’s current status.
I am therefore convinced that, despite his successful five-month period of abstinence, it is
too soon to conclude that the individual has resolved his alcohol problem. Abstinence is a
mitigating factor that I have taken into consideration in his favor, but it must be weighed
against other factors, such as acknowledgment of an alcohol problem, and participation in
a treatment program, which are absent in this case. Adjudicative Guidelines at
Guideline G, ¶ 23. 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 his alcohol use at this time.
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 resolve 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.
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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: July 1, 2015