PSH-15-0032

*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: May 7, 2015 ) Case No.: PSH-15-0032
)
____________________________________)
Issued: August 21, 2015
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Administrative Judge Decision
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 individual’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The following facts are not in dispute. The individual has been employed by a Department of
Energy (DOE) contractor since March 1999, and was granted a security clearance in connection
with that employment. During the period between 1992 and 2008, the individual was arrested
four times on alcohol-related charges: in 1992 and 2008 for Driving While Intoxicated (DWI),
and in 1996 and 2002 for Open Container. Following the 2008 DWI, the individual participated
in alcohol counseling through the DOE’s Employee Assistance Program (EAP), and met
regularly with an EAP counselor for over one year. He also attended several Alcoholics
1An access authorization is an administrative determination that an individual is eligible for
access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA
website located at http://www.oha.doe.gov. The text of a cited decision may be accessed 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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Anonymous (AA) meetings. Although no formal diagnosis was made, the EAP counselor
recommended that the individual completely and permanently refrain from further alcohol
consumption.
The individual remained abstinent from 2009 until 2013, when he resumed drinking. From
November 2013 to March 2014, he drank one to two beers over a one to two hour period during
holiday gatherings and special occasions. In March and April 2014, he drank three or four times
per month, consuming three or four beers over a three or four hour period and becoming
intoxicated. He would also feel hungover the day after drinking this much alcohol. By the
summer of 2014, he was drinking on both Friday and Saturday of every other weekend, and was
consuming five to six beers over the course of three or four hours. However, he admitted to
exceeding this amount on three occasions, during which he drank eight to ten beers over a four or
five hour period. One such occasion was on Sunday July 27, 2014. On the following morning,
the individual was given a random Breathalyzer examination at his place of employment, and his
blood alcohol content (BAC) was measured at .04 and .038. Because the DOE contractor’s
policies prohibited employees from working with a BAC in excess of .02, the individual was
temporarily relieved of duty and was eventually given a written reprimand and a two day
suspension without pay. He was also required to abstain from alcohol consumption and to
participate in counseling. As part of his treatment program, the individual took part in an
Intensive Outpatient Program (IOP) in September 2014.
Because this information raised significant security concerns, the Local Security Office (LSO)
summoned the individual for an interview with a personnel security specialist in September
2014. After this Personnel Security Interview (PSI) failed to resolve the concerns, the LSO
referred the individual to a local psychologist (hereinafter referred to as “the DOE psychologist)
for an agency-sponsored evaluation. The DOE psychologist prepared a written report based on
that evaluation, and submitted it to the LSO. In this report, the DOE psychologist questioned the
reliability of the individual’s accounts of his alcohol usage. He estimated that based on the
timing of the individual’s drinking on the day before the Breathalyzer and the BAC
measurements, the individual drank approximately six more beers than he admitted to
consuming. The DOE psychologist diagnosed the individual as suffering from Alcohol
Dependence with Physiological Dependence, and opined that this is an illness or mental
condition that causes, or could cause, a significant defect in his judgment or reliability. He stated
that in order to demonstrate adequate evidence of rehabilitation or reformation, the individual
would have to remain abstinent for a full year, and participate in aftercare as a follow-up to his
IOP and AA, or a similar program, for a full year, i.e., until September 2015. DOE Exhibit (Ex.)
4 at 4.
After reviewing 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. It informed the individual of this determination in a letter that set forth the
DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter
as the Notification Letter. 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 access authorization.
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The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced 12
exhibits into the record of this proceeding and presented the testimony of the DOE psychologist
at the hearing. The individual introduced five exhibits and presented the testimony of five
witnesses, in addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (h) and (j) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a psychiatrist or licensed clinical psychologist causes,
or may cause, a significant defect in the individual’s judgment or reliability.10 C.F.R. § 710.8(h).
Criterion (j) defines as derogatory information indicating that the individual “has been, or is, a
user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or licensed clinical
psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). As
support for these criteria, the Letter cites the diagnosis of the DOE psychologist, his finding that
the individual’s condition causes, or may cause, a significant defect in his judgment or reliability,
and the four alcohol-related arrests mentioned in the previous section of this Decision.
These circumstances adequately justify the DOE’s invocation of criteria (h) and (j), and raise
significant security concerns. Mental conditions that involve the excessive consumption of
alcohol often lead to the exercise of questionable judgment or the failure to control impulses, and
can therefore raise questions about an individual’s reliability and trustworthiness. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The
White House (December 19, 2005), Guidelines G and I.
III. 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 or unfavorable, that has a bearing on the question of whether granting or
restoring 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).
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A DOE administrative 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. 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).
IV. FINDINGS OF FACT AND ANALYSIS
A. Mitigating Evidence
At the hearing, the individual did not contest the allegations set forth in the Letter or the DOE
psychologist’s diagnosis of Alcohol Dependence With Physiological Dependence. Instead, he
attempted to demonstrate, through his own testimony and that of his AA co-sponsors, his wife,
his supervisor, and a co-worker, that he has been rehabilitated, and that he is not currently
suffering from any defect in his judgment or reliability.
The individual addressed the questions of why he resumed drinking after his 2008 DWI despite
the recommendation of the EAP counselor, and why he believes that he will now be able to
abstain from all future alcohol use. He testified that although he learned a lot from the EAP
counselor, “the treatment did stop . . . and . . . I got comfortable, I lost focus, [and] I felt like I
could have a drink or two.” Hearing Transcript (Tr.) at 52. “This time around,” he continued, “I
really feel I have a strong commitment to sobriety. My treatment was a lot more rigorous. I
attended IOP, and it was real eye-opening.” Id. After his 2008 DWI, he went to AA “a couple of
times,” but now his intention is to continue going to meetings. Tr. at 54-55. He also characterized
his support system, consisting of his wife, his two co-sponsors, and his management at work as
“great.” Tr. at 54.
The individual’s first AA co-sponsor testified that he and the individual have talked in depth
about the individual’s “triggers,” i.e., the things that induce him to drink. Tr. at 30. They attend
an AA meeting every week together, they meet at least every other week for breakfast so as to
discuss the individual’s upcoming week and to go over the AA’s 12 steps, and they have a lot of
communication by telephone. Tr. at 37, 39. During his 11 years in AA, the first co-sponsor
continued, he has “learned a lot of steps and tools to help keep me sober,” and has passed that
information on to the individual. For example, before the individual’s sister’s wedding, they
discussed whether there was going to be alcohol, who was going to be drinking, and whether the
individual had an “escape plan” if his continued presence would lead to him drinking. Tr. at 37.
The individual “is very dedicated to his new life of sobriety,” and the co-sponsor sees the same
determination and motivation in the individual that has enabled the co-sponsor to remain
abstinent for 11 years. Tr. at 38. The individual is an active participant in the AA meetings, and
is gaining the tools that he needs to live a sober lifestyle. Tr. at 40-41.
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The individual’s second co-sponsor testified that he has been running AA meetings for 15 years,
and the most successful people have been the ones who participate in those meetings. Tr. at 47-
48. The individual is one of those people, and the second co-sponsor has been “impressed” with
his progress. Tr. at 47. After each meeting, he will meet with the individual and the other co-
sponsor and talk about what they are doing. He also offers his time to the individual if the first
co-sponsor is unavailable. Tr. at 48. The second co-sponsor estimated the individual’s chances of
remaining abstinent at 95 percent if he continued in AA. Tr. at 49.
The individual’s wife testified that to the best of her knowledge, her husband had not consumed
alcohol since the day before he tested positive for alcohol at work, in late July 2014, and that he
has been “very, very vigilant” in pursuing his treatment program and maintaining his sobriety.
Tr. at 24-25. She does not think that he will ever drink again, and if he did, they “would continue
to seek family counseling.” Tr. at 26. Both the individual’s supervisor and co-worker testified
that they had not seen any evidence in the workplace that the individual had a drinking problem,
and the supervisor described his trustworthiness and reliability as “outstanding.” Tr. at 13, 14,
20. The individual’s exhibits include documentation of his participation in the IOP and aftercare,
and a number of negative alcohol test results from the period of time between July 2014 and June
2015.
B. Administrative Judge’s Decision
This evidence establishes that the individual had abstained from alcohol use for approximately
11 months as of the date of the hearing, and that he had diligently participated in his alcohol
treatment program for about nine months, or since September 2014. Despite this mitigating
evidence, however, I find that the individual has not demonstrated adequate evidence of
reformation or rehabilitation from Alcohol Dependence. I base this finding primarily on the
testimony of the DOE psychologist and on the individual’s previous relapse into an abusive
pattern of alcohol consumption.
After witnessing all of the other testimony at the hearing, the DOE psychologist testified that he
continued to adhere to the recommendations in his report that the individual would have to
demonstrate a full year of abstinence and a full year of treatment in order to demonstrate
adequate evidence of rehabilitation or reformation. Tr. at 58. This testimony was not contradicted
by any other expert testimony, and was based on “research, and . . . a psychological
understanding of [the importance of] going through the entire year, including the anniversary of
when he got in trouble.” Tr. at 59-60. The DOE psychologist explained that “some people will
start drinking again on the anniversary of when they got in trouble, it’s an anniversary reaction.”
Tr. at 60. He also pointed out that an important holiday was approaching, one often accompanied
by the consumption of alcohol. Id.
My finding is also based on the individual’s previous unsuccessful attempt to permanently
refrain from alcohol use. After meeting with the EAP counselor for over a year and remaining
abstinent for over three years, the individual relapsed despite the recommendation of the EAP
counselor that he quit drinking permanently. This relapse occurred despite the apparent absence
of any stressors that might lead someone to drink excessively, Tr. at 23, and appeared to be the
result of the individual coming to believe, with the passage of time since his 2008 DWI, that he
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could drink responsibly. Given this relapse, I conclude that the recommendations made by the
DOE psychologist are reasonable. At the hearing, the individual agreed that he stopped his
previous treatment too soon. Tr. at 63-64. I am concerned that if that happened again, the
individual’s risk of another relapse would be unacceptably high. The individual has not
adequately addressed the DOE’s security concerns under criteria (h) and (j).
V. CONCLUSION
For the reasons set forth above, I find that significant security concerns remain regarding the
individual’s alcohol usage. Consequently, I cannot conclude that restoring his access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. Accordingly, I find that the DOE should not restore the individual’s security
clearance at this time. Review of this decision by an Appeal Panel is available under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: August 21, 2015