PSH-15-0023

*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 26, 2015 ) Case No.: PSH-15-0023
_____________________________________)
Issued: August 5, 2015,
______________________
Administrative Judge Decision
______________________
Shiwali G. Patel, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, 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 DOE should not restore the
individual’s access authorization.2
I. BACKGROUND
The individual is an employee of a DOE contractor and holds a suspended access authorization.
After the individual was arrested and charged with operating a vehicle while under the influence and
failure to grant right of way, a Local Security Office (LSO) summoned the individual for a Personnel
Security Interview (PSI) with a personnel security specialist in October 2014. DOE Exhibit (Ex.)6.
After the PSI, the LSO referred the individual to a psychologist (hereinafter referred to as “the DOE
psychologist”) for an agency-sponsored evaluation. The DOE psychologist prepared a written
Report, setting forth the results of that evaluation, and sent it to the LSO. Ex. 4. Based on this
Report and the rest of the individual’s personnel security file, the LSO determined that derogatory
information existed that cast into doubt the individual’s eligibility for access authorization. The LSO
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 be referred to in this Decision as access authorization
or a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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informed the individual of this determination in a letter that set forth the DOE’s security concerns
and the reasons for those concerns. Ex.1. The Notification Letter also informed the individual that
he was entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
concerning his eligibility for an access authorization.
The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and the
OHA Director appointed me the Administrative Judge in this case. The DOE introduced seven
exhibits into the record of this proceeding (Exs. 1-7), and called the DOE psychologist as a witness.
The individual introduced 5 exhibits (Exs. A-E), and presented only his testimony. See Transcript of
Hearing, Case No. PSH-15-0023 [hereinafter cited as “Tr.”].
II. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, an Administrative Judge must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all
relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and
unfavorable, that has a bearing on the question of whether granting the individual a security
clearance would compromise national security concerns. Specifically, the regulations compel me to
consider the nature, extent, and seriousness of the individual’s conduct; the circumstances
surrounding the conduct; the frequency and recency of the conduct; the age and maturity of the
individual at the time of the conduct; the absence or presence of rehabilitation or reformation and
other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and
any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative review proceeding under 10 C.F.R. Part 710 is “for the purpose of affording
the individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring 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
regulations further instruct me to resolve any doubts concerning the individual’s eligibility for access
authorization in favor of the national security. 10 C.F.R. § 710.7(a).
III. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited derogatory information 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). Exhibit 1.3 In support of its Notification
Letter, the LSO cited the following: 1) a DOE psychologist concluded that the individual is a user of
3 Criterion H relates to information indicating that the individual has an “illness or mental condition of a nature which, in
the opinion of a psychologist or licensed clinical psychologist, causes or may cause, a significant defect in judgment or
reliability.” 10 C.F.R. § 710.8(h). Under Criterion J, information is derogatory if it indicates that the individual has
“[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a psychologist 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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alcohol habitually to excess without adequate evidence of rehabilitation or reformation and that his
consumption causes or may cause a significant defect in his judgment or reliability; 2) in September
2014, the individual was arrested and charged with operating under the influence (OUI) and failure
to grant right of way after sideswiping another vehicle, and he admitted at the PSI that he consumed
four beers and one shot of whiskey before that accident; and 3) in 1975, the individual was arrested
and charged with intoxication after he got into a car accident, and he admitted during his PSI that he
had beer before the accident. Ex. 1.
I find that each of these allegations is valid and well supported by the record in this case. See 10
C.F.R. § 710.27(c) (requiring Administrative Judge to “make specific findings based upon the record
as to the validity of each of the allegations contained in the notification letter”); Tr. at 39. I further
find that this information adequately justifies the DOE’s invocation of Criteria J and H, as it raises
significant security concerns related to excessive alcohol consumption, which often leads to the
exercise of questionable judgment or the failure to control impulses, and calls into question the
individual’s future reliability and trustworthiness. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19, 2005)
(Adjudicative Guidelines) at ¶ 21 (Guideline G).
IV. FINDINGS OF FACT
For the most part, the individual does not dispute the DOE psychologist’s report, but the individual
specifically contends that he has now demonstrated reformation and rehabilitation. Ex. 4; Tr. at 39.
Thus, based on the report and the testimony at the hearing, I make the following findings.
In 1975, when the individual was within the legal age of drinking in the jurisdiction where he
resided, he was arrested for public intoxication after he got into a car accident while driving home
from a party. Ex. 4 at 6. At the hearing, the individual testified that he could not remember how
much he had to drink that night. Tr. at 30. However, he did not dispute that he was arrested and
submitted an investigative report from that incident into the record. Id.; Ex. C. That case was
eventually dismissed after the officer failed to respond to the docket call. Tr. at 31; Ex. E.
The next time that the individual was arrested was almost forty years later in September 2014, for an
OUI and failure to grant right of way while he was out of town on a business trip. Tr. at 32; Ex. 1.
He began drinking alcohol that afternoon at a sports bar at around 5:00 PM, when he had consumed a
16-ounce glass of beer. Tr. at 13; Ex. 4 at 5. At 6:00 PM, he had a shot whiskey and then at 7:00
PM, he consumed another 16-ounce glass of beer. Id. He did not have anything to eat then because
he ate a late lunch. Tr. at 13. He left the bar at around 8:00 PM and drove to a couple of other bars,
but then returned to the bar where he had drinks earlier. Tr. at 14. At 9:00 PM and at 10:00 PM, he
had another glass of beer with food. Id. At around 11:00 PM, he left the bar in his car and returned
to his hotel. Id. Upon returning to his room at the hotel, he took a short nap for about 15 or 30
minutes and then decided to leave his hotel and drive around to find other hotels in the area to stay at
for future business trips. Tr. at 15; Ex. 4 at 5. This was at around 11:50 PM. Ex. 4 at 6. At around
1:20 AM, while driving on a narrow two-lane dark street in a residential neighborhood and trying to
work his GPS unit, the individual sideswiped another vehicle, by the front quarter panel of his car
hitting the front quarter panel of another vehicle. Tr. at 12,16. No one was injured in the accident,
both of the vehicles were damaged and the police arrived. Tr. at 16; Ex. 4 at 6. The arresting officer
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asked the individual whether he would take a breath test after the individual reported to him that he
consumed four beers earlier. Ex. 4 at 6. The individual refused because he believed that if he did
not take the breath test, the officer would only give him a ticket and return him back to the hotel. Id.
Instead, the individual was arrested and charged with OUI and failure to grant right of way. Tr. at
17.
The individual called his manager about eight or nine hours later to report the accident. Tr. at 36, 49.
When he returned to his home, he reported the incident to the person in his office who is in charge of
security. Tr. at 36. At the time of the accident, that individual was on several medications for his
blood pressure, cholesterol and allergies, and he was aware that it was not recommended that he
consume alcohol with his medications because of the side effects it causes. Tr. at 45. The individual
acknowledges that the decision to leave his hotel room close to midnight was affected by his alcohol
consumption. Tr. at 38. He also admits that the alcohol he consumed, his sleepiness and distraction
by the GPS unit contributed to the accident. Ex. 4 at 6. The DOE psychologist opined that given the
individual’s size and the amount of alcohol he consumed over six hours, that his blood alcohol
content (BAC) was .09. Ex. 4 at 6. At the hearing, he agreed that the individual’s actual BAC at the
time of the accident, which was approximately two and a half hours after his last alcoholic beverage,
would have been reduced, but not by a considerable amount. Tr. at 60.
The individual testified that there were costs he incurred as a result of this incident, including the
bond that he posted for about $2,500 or $5,000, three trips back to the offense jurisdiction for court
appearances and participation in an alcohol program that cost $100 to apply for and approximately
$2,500 in legal fees. Tr. at 17-18. The alcohol program that he participated in was a three-day
diversion program that he needed to complete in order for his charges to be dismissed. Tr. at 19. He
participated in that program in December 2014, and it lasted a total of 25 to 30 hours. Tr. at 20.
Through that program, the individual learned the effects of alcohol on him and why people consume
alcohol and he asserted his plans for the future with regard to alcohol. Tr. at 20-21. He chose to
abstain from alcohol and has not consumed alcohol since the accident. Tr. at 21, 24. The individual
realized that he used to consume alcohol when he was in social settings and that he can still have the
camaraderie he previously associated with alcohol without involving it anymore. Tr. at 24. He has
also started to avoid places where there is alcohol. For example, when he is playing golf, he will not
stop at the clubhouse where he used to consume beer. Id. He also no longer goes into bars, his wife
also does not drink and she has been supportive of him not drinking. Tr. at 25. Even when he has
been at a wedding where champagne was offered for the toast, he filled his glass with water instead.
Id. While he has been tempted by alcohol, he has not had any trouble staying away from it, stating
that the program taught him how to overcome any temptation to drink. Tr. at 37. He also learned
about the negative effects of alcohol on his health and emotions and how it impairs judgment. Tr. at
35. However, the program was not for the individual’s treatment; it was educational and consisted
of group lectures. Tr. at 41. The individual also never sought the assistance of the Employee
Assistance Program (EAP)’s alcohol program at his facility. Tr. at 38. Currently, he is not enrolled
in any program for his alcohol consumption. Tr. at 46.
After the accident, the individual also submitted a hair strand to test for alcohol on March 13, 2015.
Tr. at 25; Ex. A. Approximately 1.23” of his hair was tested, which tested the last two months and
two weeks for alcohol, and it came back negative for Ethyl Glucuronide (EtG). Ex. A. He also
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submitted into the record an abstract from an article indicating that testing hair strands for EtG is for
monitoring alcohol abuse. Ex. B. He testified that if requested, he would be willing to submit
himself to similar testing at his own expense. Tr. at 28.
When the individual was in college, he reported that he drank to the point of intoxication weekly,
likely becoming intoxicated several times each week by consuming approximately four 12-ounce
beers three times a week over a two-hour period. Ex. 4 at 7. From 1979 to 1991, he consumed
alcohol at the same level, and when it decreased in 1991, he still became intoxicated about once a
week. Id. During the five years before the accident in September 2014, the individual consumed
alcohol about three times each week. Tr. at 32. Because his doctor advised that he consume no more
than two beers a day, which he interpreted to mean no more than 14 beers a week, he consumed a
few beers three times a week. Tr. at 33. About twice a month, he consumed six beers during a four-
hour or longer time span while watching a sports game. Tr. at 43, 50-51. He also admitted to
drinking eight beers in six hours on three occasions in the year before his accident while he would be
watching a sports game. Tr. at 52. He often drank at home while watching sports and his wife
would sometimes consume a little beer with him. Tr. at 33. About half of the times when he drank,
he would be alone, and the other half, he would be drinking socially. Ex. 4 at 7. When asked
whether or not he considers himself to be an alcoholic, the individual responded that he does not
believe that he needs alcohol treatment. Tr. at 32, 56. He did not agree with the DOE psychologist
that he drank heavily during the time before the 2014 arrest, and he testified that his wife and
children never complained about nor questioned his consumption of alcohol. Tr. at 39-40. He
testified that he still has beer in his home because he has adult children who consume beer. Tr. at 34.
When asked whether he has thought of removing the beer from his home, he stated that he probably
could but that he and his wife “just haven’t” and that there are others who may want to consume the
alcohol. Tr. at 34, 57. He testified that he is committed to abstaining from alcohol forever. Tr. at 44.
In his Report, the DOE psychologist stated that the individual has been or is a use of alcohol
habitually to excess since his college years. Ex. 4 at 8. The DOE psychologist testified that he does
not change his recommendations from his Report. Tr. at 58. He believes that the individual needs to
undergo treatment and that he does not fully appreciate the impact of his drinking behavior from his
past. Tr. at 58. He also stated that during his testimony, the individual minimized his alcohol use in
the past compared to what he told the DOE psychologist when he interviewed him. Tr. at 59. He
maintains that there has not been adequate evidence of rehabilitation or reformation because the
individual did not undergo a treatment program and due to the serious nature of his alcohol
consumption, he needs more than an educational program. Tr. at 61. He recommends that the
individual participate in a treatment program, even if it is less than what he initially recommended
for the individual, which was an intensive outpatient program for four to six weeks followed by
participation in an aftercare or relapse prevention group therapy session for at least an additional six
months and attendance at Alcoholics Anonymous meetings once or twice a week for 12 months with
a sponsor. Tr. at 62; Ex. 4 at 9. He stated that the general recommendation for the individual to
remain abstinent for one year to demonstrate a low risk of relapse could be less than a year if the
individual had committed to treatment and changed his life decisions. Tr. at 62.
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V. ANALYSIS
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.
In the end, OHA Administrative Judges accord deference to mental health professionals regarding
issues of rehabilitation, reformation and risk assessment. In this case, the DOE psychologist
presented compelling evidence why the individual still needs to undergo therapy before he can
conclude that the individual is at a low risk of relapse, particularly given that the individual’s pattern
of consuming alcohol to intoxication dates back to when he was in college. Thus, his behavior is not
mitigated as infrequent or occurring under such unusual circumstances. See Adjudicative Guideline
G, ¶ 23(a).
Moreover, I am concerned that while the individual has acknowledged that alcohol contributed to his
accident in September 2014, and has abstained from alcohol since then, he does not believe that he
has a significant enough problem to need therapy. See id. at ¶ 23(b). He is not currently participating
in a treatment or counseling program. See id. at ¶ 23(c). The program that he enrolled in last
December was only a weekend-long, educational program and it was required in order for his
charges to be dismissed. Further, I question how that program actually helped the individual identify
the causes of his drinking habits. He testified that he learned that he consumed alcohol while in
social settings, but he also told the DOE psychologist that about half of the time, he consumed
alcohol while he was at home watching the game and not interacting with anyone else. It is also
worth noting that when he consumed four beers and had a shot of whiskey before his 2014 accident,
he did not testify that he was with anyone else, felt compelled to consume so much alcohol because
he wanted to socialize or drank beers and had a shot of whiskey for comradery. He also showed poor
judgment because he was aware of the side effects that consuming alcohol would have on him with
his medication and when he refused to take the breath test, thinking that he would then only be given
a ticket and sent back to the hotel.
I do commend the individual for having abstained from alcohol since his accident in September
2014, and for reporting his arrest to his manager soon afterwards. Nonetheless, given that he has not
participated in a counseling or treatment program, I cannot conclude that he has demonstrated a clear
pattern of abstinence or modification such that he is at a low risk for relapse. The DOE psychologist
testified as such and I find his opinion compelling. See Adjudicative Guideline I, ¶ 29(c). Hence,
considering all of the evidence in the record, I find that as of the time of the hearing in this matter,
the individual has not sufficiently mitigated the concerns with regard to his alcohol use. Under these
circumstances, given that I am to resolve “any doubts concerning the individual’s eligibility for
access authorization in favor of the national security,” I cannot find that the individual has resolved
the concerns related to his use of alcohol under Criteria H and J.
VI. CONCLUSION
As stated above, 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
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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.
Shiwali G. Patel
Administrative Judge
Office of Hearings and Appeals
Date: August 5, 2015,