PSH-15-0029

*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: April 30, 2015 ) Case No.: PSH-15-0029
)
_________________________________________ )
Issued: August 20, 2015
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxx (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
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In September 2014, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about the individual’s falsification and alcohol use. On April 6, 2015, the LSO sent a
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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letter (Notification Letter) advising the individual that it possessed reliable information that
created substantial doubt regarding his eligibility to hold an access authorization. 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 (f), (h) and (l) (hereinafter referred to as Criteria F, H and L,
respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Administrative Judge in this case. At the hearing that I
convened, the individual presented his own testimony and that of two witnesses: one of his
supervisors and his wife. The DOE counsel presented the testimony of five witnesses, including
the DOE consultant psychiatrist, a DOE designated psychologist, a Personnel Security Specialist
and two Managers. Both the DOE and the individual presented a number of written exhibits
prior to the hearing.
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 denial”); 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).
2 Criterion F pertains to information that a person has “[d]eliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National
Security) Positions, a personnel qualifications statement, a personal security interview, written or oral statements
made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE
access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f).
Criterion H concerns information that a person has “an illness or mental condition of a nature, which, in the opinion
of a board-certified psychiatrist, causes, or may cause, a significant defect in his judgment or reliability.” 10 C.F.R.
§ 710.8(h). Finally, Criterion L relates to information that a person has “[e]ngaged 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 . . .” 10 C.F.R. § 710.8(l).
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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 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 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 in favor of the
national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites three potentially disqualifying criteria as bases for
suspending the individual’s security clearance, Criteria F, H and L. To support its reliance on
Criterion F, the LSO alleges that the individual misrepresented information related to his alcohol
consumption during a September 2014 PSI and misrepresented information related to his current
prescribed medication during a January 2015 PSI. In addition, the LSO alleges that the
individual provided “less than forthcoming” information regarding his alcohol consumption to
the DOE consultant psychiatrist during an evaluation in December 2014.
From a security standpoint, false statements made by an individual in the course of an official
inquiry regarding a determination of eligibility for DOE access authorization raise serious issues
of honesty, reliability and trustworthiness. The DOE security program is based on trust, and
when a security clearance holder breaches that trust, it is difficult to determine to what extent the
individual can be trusted again in the future. See Guideline E of 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).
To support Criterion H, the LSO relies on the diagnosis of the DOE psychiatrist that the
individual suffers from Unspecified Alcohol Related Disorder, and the expert’s opinion that this
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condition is a mental illness that could cause a significant defect in the individual’s judgment and
reliability. Again, a mental condition such as Unspecified Alcohol Related Disorder can impair a
person’s judgment, reliability and trustworthiness. See Guideline I, Adjudicative Guidelines.
Finally, as for Criterion L, the LSO cites the individual’s admissions regarding his alcohol
consumption, two alcohol-related arrests, as well as the DOE psychiatrist’s diagnosis of
Unspecified Alcohol Related Disorder. The security concern at issue here is that 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. See id. at
Guideline G.
IV. Findings of Fact
The individual has a history of alcohol consumption and has been involved in two alcohol-
related incidents. In June 1979, the individual was arrested after becoming involved in a single
vehicle accident in which he disregarded a stop sign and collided into a roadside ditch. He was
arrested for public intoxication due to the fact that he was not in the vehicle at the time the police
arrived. In August 1981, the individual was arrested for Driving Under the Influence of Alcohol.
His blood alcohol content registered .11%. During a March 1990 PSI, the individual admitted
that his alcohol use was excessive during his teen years and only became more troublesome after
he joined the military, where he consumed alcohol on a daily basis. Ex. 1.
On August 12, 2014, the individual was selected for a random alcohol and drug screen. Three
breathalyzer tests were given to the individual. Id. He registered .054% on the initial test, .049%
on the second test, and .037% on the third confirmatory test. Id. The second test was discarded
because of a procedural error. The individual was sent home following the results of the three
tests. Id. During a PSI conducted on September 16, 2014, the individual was asked “how many
breathalyzer tests were given?” Id. The individual answered two. When asked again “how many
tests were given,” the individual again answered two. Id. After it was revealed to the individual
that the breathalyzer report indicated that three tests were given, the individual admitted to a
third test. Id. The individual was also asked, during the 2014 PSI, about his alcohol
consumption prior to his arrival at work on August 12, 2014. Id. He first stated that he
consumed one shot of bourbon at noon prior to going to bed and that he awoke at 5:30 pm and
left his house for work. After the interviewer explained to the individual that it was medically
impossible for one shot of bourbon at noon to register a .054% at 7:00 pm, the individual
admitted to consuming a 12-ounce coke to which he added approximately 5 ounces of bourbon
prior to arriving to work. The individual also admitted that he becomes intoxicated five times a
year and usually consumes twenty drinks to become intoxicated.3 Id.
3 In addition to these misrepresentations made during his September 2014 PSI, the individual was questioned about
his current prescribed medication during a January 2015 PSI. During this PSI, the individual indicated that he was
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On November 20, 2014, the DOE psychiatrist evaluated the individual. In his report dated
December 4, 2014, the DOE psychiatrist concluded that the individual suffers from Unspecified
Alcohol Related Disorder which may cause a significant defect in the individual’s judgment or
reliability. Ex. 5. The DOE psychiatrist further concluded that “[the individual] is less than
forthcoming about the amount he drinks, past or present, so I am unable to give him a diagnosis
of Alcohol Disorder.” He added that the individual indicates no need or willingness for
rehabilitation. Id.
V. Analysis
I have thoroughly considered the record in 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)4 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should not be restored. I cannot find
that restoring the individual’s DOE security clearance will not endanger the common defense
and security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The
specific findings that I make in support of this decision are discussed below.
A. Criterion F
The key issue under Criterion F is whether the individual has brought forward sufficient
evidence to demonstrate that he can now be trusted to be consistently honest and truthful with the
DOE. In considering this question, I found that the nature of the individual’s misrepresentations
was serious. The individual’s lack of candor concerning his alcohol and prescribed drug use
could increase his vulnerability to coercion or blackmail and raises important security concerns.
The DOE must rely on individuals who are granted access authorization to be honest and
truthful. This important principle underlies the criteria set forth in 10 C.F.R. § 710.8(f).
During the hearing, the individual was questioned about the conflicting answers he provided
during a number of interviews including his September 2014 PSI. Transcript of Hearing (Tr.) at
taking just two medications, Celebrex and Prilosec. However, when confronted with a positive test for opiates, the
individual amended his answer and admitted to taking Tylox (Oxycodone) for his arthritis. He stated that it was
prescribed to him by his doctor in November 2014.
4 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct, the age
and maturity at the time of the conduct, the voluntariness of his 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.
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178. He testified that prior to his August 2014 random alcohol and drug screen, he had one
glass of coke and added bourbon to it. Id. The individual further testified that he was not paying
attention to the amount of bourbon he was adding to his drink or to his consumption. He
testified that when the interviewer, during the September 2014 PSI, asked him to quantify the
amount of bourbon he drank, he felt nervous, anxious and “flustered.” Id. at 183. The individual
stated that he just gave a random number, five ounces of bourbon, because he wanted to be
cooperative. Id. He testified that he did not intentionally misrepresent the amount of alcohol he
consumed prior to his random screen, but rather he was nervous and confused about the
questions. Id. Likewise, when the interviewer questioned the individual about the number of
breathalyzer tests he was given during his random screen, the individual testified that he believed
he was given only two tests since one of them was discarded due to a procedural error. Id. at
187. He stated that again he was not trying to mislead the interviewer during his PSI. In
addition, when asked about how often he gets intoxicated in a year, the individual testified that
he did not know what to say and just guessed when he told the interviewer that he gets
intoxicated five times a year and consumes twenty drinks to become intoxicated. The individual
reiterated that he was trying to be cooperative and not trying to provide misleading answers. Id.
at 189-190. He also testified that he was not trying to hide anything when questioned about his
alcohol use, alcohol-related incidents and medication by the DOE psychiatrist. Id. at 198-200.
In addition, the individual acknowledged that he should have been more forthcoming with the
DOE designated psychologist about the amount he drank on the day of his random alcohol test.
Id. at 200.
To determine whether the individual has mitigated the Criterion F concerns, I considered the
relevant factors set forth in Adjudicative Guideline E. I find that two of the relevant factors
apply in this case. First, the individual credibly testified that the responses to questions
regarding his alcohol use as well as questions regarding his medication were guesses he made
and that he was unsure as to how to answer the questions. He also credibly testified that he was
anxious and nervous during his interviews and gave answers in an attempt to be cooperative. The
individual convinced me that, although he may have been in denial about his alcohol
consumption, he did not intentionally try to mislead the DOE in his responses. Under these
circumstances, I believe the individual’s behavior is unlikely to recur and does not cast doubt on
his reliability, trustworthiness, or good judgment. See Adjudicative Guidelines at ¶ 17(c)
Second, the individual has acknowledged his behavior with respect to his responses during his
PSIs and has taken positive steps to reduce or eliminate vulnerability to exploitation,
manipulation, or duress. During the hearing, the individual was open and candid about his
alcohol use as well as his confusion regarding what was being asked of him during his PSIs and
evaluation with the DOE psychiatrist. See id. at ¶ 17(c), (d). Again, I find that this behavior is
unlikely to recur. Accordingly, I conclude that the security concerns raised under Criterion F
have been sufficiently resolved.
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B. Criterion H
The individual does not dispute the DOE psychiatrist’s diagnosis of Unspecified Alcohol Related
Disorder. Therefore, the focus of the analysis of the Criterion H concerns will be on whether the
individual has demonstrated adequate evidence of rehabilitation or reformation from Unspecified
Alcohol Related Disorder.
During the hearing, the individual testified that he has abstained from alcohol since January
2015. He further testified that although he doesn’t believe Alcoholics Anonymous (AA) is the
right “fit” for him, he has attended (AA) on a regular basis since February 2015. Tr. at 194. The
individual stated that he has also attended ten counseling sessions through his employer’s
Employee Assistance Program. According to the individual, he has made positive changes since
January 2015 and believes the random alcohol and drug screen was a “wake up call” for him. He
testified that he is also taking medication to help with his anxiety. Ex. F. The individual further
testified that he is committed to remaining abstinent from alcohol. During the hearing, the
individual also offered the testimony of one of his supervisors and his wife. The supervisor
testified that he has known the individual for 31 years and that the individual is one of his
superior employees. He further testified that he did not know the individual drank alcohol and
that the individual’s random alcohol and drug screen results appeared to be out of character for
the individual. He also believes the individual is an honest person. The individual’s wife, who
has been married to the individual for 32 years, testified that she has only known the individual
to be a social drinker. She corroborated the individual’s testimony that he last consumed alcohol
on January 1, 2015. The individual’s wife also testified that the individual has never blacked
out. She stated that he is an honest person who made a mistake. 5
In addition to the individual’s witnesses, the DOE Counsel offered the testimony of a DOE
designated psychologist who performs Fitness for Duty exams as part of the Human Reliability
Program (HRP). The DOE psychologist first met the individual in 2004 as a member of the
HRP. Ex. 7; Tr. at 57. She evaluated the individual for Fitness for Duty following his positive
random alcohol test. Id. At the time of her evaluation, the DOE psychologist found that the
individual’s probability of having a substance use disorder to be low, and further that the
individual’s positive alcohol test appeared to have been an isolated occurrence. Id. However,
the individual told her that the night prior to the random alcohol test, he drank a single shot of
bourbon and then went to sleep. During the hearing, the DOE psychologist testified that had she
known the amount of alcohol the individual actually consumed prior to this random alcohol test
5 Two other managers, including the individual’s direct supervisor, testified during the hearing. Both testified that
aside from the individual’s random alcohol test result, the individual is a solid employee and an honest and
trustworthy person.
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she would have been concerned from an HRP standpoint and would have recommended that the
individual be evaluated off-site by a substance abuse expert. Id. at 61. She further testified that
the individual never gave her any indication that he was a heavy drinker. Id. at 62. According to
the DOE psychologist, the individual’s history of drinking perhaps five shots of bourbon prior to
work is suggestive of tolerance, i.e, the repeated usage of large quantities of alcohol. Id. at 63.
She noted that the individual may be in denial about his alcohol usage. Id. at 65.
Finally, the DOE psychiatrist listened to the testimony at the hearing before testifying himself.
He testified that, during his evaluation, the individual gave inconsistent statements regarding the
amount of alcohol he consumed and because he could not quantify the individual’s consumption,
he could not give him a diagnosis of Alcohol Abuse Disorder. Id. at 121. The DOE psychiatrist
further testified that he believes the individual has a problem with tolerance and reiterated that he
has not been forthcoming with his past history of alcohol consumption. Although the individual
is in treatment with a counselor and has been attending AA meetings, he believes the individual
has not yet achieved adequate rehabilitation and that he still has a mental condition that causes a
significant defect in his judgment and reliability. According to the DOE psychiatrist, the
individual should maintain abstinence for a period of one year. Id. at 138, 141, 154.
In the administrative process, Administrative Judges accord deference to the expert opinion of
psychiatrist, psychologist and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).6 At the outset, I am
persuaded by the testimony of the DOE psychiatrist that the individual has not yet achieved
adequate evidence of rehabilitation. Moreover, I find that none of the mitigating factors outlined
in the Adjudicative Guidelines apply in this case. See Adjudicative Guidelines, Guidelines G and
I, ¶ 23 and ¶29, respectively. For example, the individual’s past problematic alcohol use is
recent and although he now acknowledges that he has an alcohol problem and has taken actions
to overcome his problem, he has not yet established a pattern of abstinence to ensure a low risk
of relapse. In addition, the DOE psychiatrist has not given the individual a favorable prognosis.
See Adjudicative Guidelines at Guideline G , ¶ 23(a)-(d). Moreover, with regard to Guideline I,
the DOE psychiatrist’s opinion that the individual still has a current alcohol problem does not
allow me to find mitigation of the individual psychological condition. In short, the individual
has not yet established adequate evidence of rehabilitation, and therefore I am unable to make a
favorable predictive assessment of his future behavior with respect to his alcohol use. For these
reasons, I find that the individual has not yet mitigated the DOE’s security concerns under
Criterion H.
6 Decisions issued by OHA are available on the OHA website located at http://www.oha.doe.gov. The text of a
cited decision may be accesses by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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C. Criterion L
The DOE’s concerns under Criterion L are that 1) the individual reported to work under the
influence of alcohol on August 12, 2014, registered .054% on a Breathalyzer and was sent home
from work; 2) in his September 2014 PSI, the individual stated that he becomes intoxicated five
times a year and usually consumes 20 drinks to become intoxicated, and in a 1990 PSI, he
admitted that his alcohol use was excessive in his teen years and during the military; 3) the
individual has had two alcohol-related arrests (in 1979 and in 1981); and 4) the individual was
diagnosed with Unspecified Alcohol Related Disorder.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
lack of judgment and criminal conduct are: (1) the passage of time, the infrequency of the
behavior, or that the behavior happened under such unusual circumstances that it is unlikely to
recur in the future; (2) the individual has acknowledged the behavior or has taken positive steps
to alleviate the factors that caused untrustworthy, unreliable behavior and such behavior is
unlikely to recur; (3) the individual has taken positive steps to reduce or eliminate vulnerability
to exploitation, manipulation, or duress; and (4) association with persons involved in criminal
activity has ceased or occurs under circumstances that do not cast doubt upon the individual’s
reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. Id. at
¶ 17 (c), (d), (e) and (g). In this case, although the individual has acknowledged his behavior
with respect to his alcohol use and has taken some positive steps to alleviate the factors that
caused his behavior, all of these concerns are related to the individual’s alcohol problem and are
intertwined with the LSO’s concerns under Criterion H which have not yet been mitigated. I
cannot conclude at this time that the individual’s conduct is unlikely to recur in the future. After
considering the “whole person,” including the individual’s unresolved alcohol problems. I am
not yet convinced that the DOE can rely on the individual’s ability to make sound judgment calls
regarding the safeguarding of classified information. See Adjudicative Guidelines at (2)a. I
therefore find that the individual has not sufficiently mitigated the LSO’s concerns under
Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criterion F, H 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
find that the individual has brought forth convincing evidence to mitigate the security concerns
associated with Criterion F. However, I cannot find that the individual has brought forth
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convincing evidence to resolve the security concerns associated with Criteria H and L. I therefore
cannot find that restoring the individual’s access authorization would not endanger the common
defense and security and would be consistent with the national interest. Accordingly, I find that
the individual’s access authorization should not be restored. The parties may seek review of this
Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Officer of Hearings and Appeals
Date: August 20, 2015