PSH-15-0037

*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 8, 2015 ) Case No.: PSH-15-0037
)
____________________________________)
Issued: August 17, 2015
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (“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 DOE should not restore the Individual’s access
authorization at this time.
I. Background
The Individual is a DOE employee in a position that requires that he hold a DOE security
clearance. In response to the Individual failing a random breath alcohol test at work, the Local
Security Office (LSO) summoned the Individual for an interview with a personnel security
specialist in December 2014. After the Personnel Security Interview (PSI), the LSO asked that
the DOE consulting psychologist evaluate the Individual. After receiving the psychologist’s
report, the LSO determined that there was sufficient derogatory information that cast into doubt
the Individual’s eligibility for access authorization. The LSO informed the Individual of this
1 Access authorization, also known as a security clearance, is an administrative determination that an Individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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determination in a letter that set forth the DOE’s security concerns and the reasons for those
concerns (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 an access authorization.
On April 28, 2015, the Individual exercised his right under the Part 710 regulations to request an
administrative hearing. The LSO forwarded this request to the Office of Hearings and Appeals
(OHA), and the OHA Director appointed me the Administrative Judge. At the hearing, the DOE
introduced 20 exhibits (Exs. 1-20) into the record. The Individual presented the testimony of
four witnesses, including his own testimony and no exhibits. See Transcript of Hearing, Case
No. PSH-15-0037 (Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates 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).
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). 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). Ex. 1. In support of its
Notification Letter, the LSO cited the following: 1) a DOE psychologist concluded that the
individual is a user of 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 November 2014, the individual failed a random breath alcohol test at his
employment; and 3) in 1989, the Individual was arrested and charged with public intoxication.
Ex. 1.
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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”). I further
find that this information adequately justifies the DOE’s invocation of Criteria H and J, 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), Guideline G. Accordingly, the Individual’s alcohol consumption and his diagnosis by a
psychologist that his consumption causes or may cause a significant defect in his judgment or
reliability raise serious security concerns.
IV. Findings of Fact and Analysis
The facts of this case are essentially undisputed. The Individual failed a random breath alcohol
test performed by his employer in November 2014. The DOE psychologist, who evaluated him
in January 2015, concluded that the Individual is a user of alcohol habitually to excess, without
adequate evidence of rehabilitation or reformation. Ex. 11 at 5. The DOE psychologist further
concluded that the Individual’s pattern of alcohol use is an illness or mental condition which
causes, or may cause, a significant defect in his judgment or reliability. Ex. 11 at 5.
At the hearing, the Individual and his wife testified that they both stopped consuming alcohol on
January 1, 2015. Tr. at 13, 51. They both also testified that the Individual completed an
intensive outpatient treatment program (IOP), continuing with aftercare and also Alcoholics
Anonymous (AA). Tr. at 14-15, 56-57, 62. In addition, the Individual’s wife testified that there
is no alcohol present in their house, with the exception of what their 21-year-old son occasionally
brings in the house. Tr. at 22. The Individual’s friend and current employer confirmed there is
no alcohol present, and that he has not smelled it on him. Tr. at 36.
The Individual’s counselor testified that the Individual has a low risk of relapsing to his
excessive use of alcohol. Tr. at 98. She opined that the Individual found the motivation to
become abstinent because he was shocked when he tested positive. Tr. at 92. She stated that the
Individual is organized, controlled, and regimented, which supports his intention of remaining
abstinent but also makes it difficult for him to choose an AA sponsor. Tr. at 92-93, 96. She
confirmed that the Individual was an active participant in the IOP and has been compliant with
her suggestions. Tr. at 102-05.
The DOE psychologist confirmed his diagnosis and opined that he would still want the
Individual to be abstinent for one year before finding that he was rehabilitated or reformed. Tr.
at 107. He agreed that the Individual’s “abstinence has been impressive.” Tr. at 111. In his
hearing testimony, the DOE psychologist stated that he would now change his answer to the final
question that DOE asked him to answer, “Does [the Individual] have an illness or mental
condition, which causes, or may cause, a significant defect in judgment or reliability?” Tr. at
113. At the time of the hearing, the DOE psychologist believes that the Individual no longer had
an illness or mental condition. Tr. at 113. The DOE psychologist also stated that the
Individual’s risk of relapse is low, stating that the Individual’s rigidity improves the likelihood of
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continued abstinence. Tr. at 115. Nonetheless, the DOE psychologist was not prepared to find
reformation and rehabilitation without a year of abstinence. Tr. at 107.
Due to the DOE psychologist’s opinion that the Individual no longer has an illness or mental
condition which causes, or may cause, a significant defect in judgment or reliability, I find that
the Individual has mitigated the Criterion H security concern raised by the DOE psychologist’s
prior diagnosis. I do commend the individual for having entered the IOP on his own shortly after
his failed breath alcohol test in November 2014. However, despite all the positive testimony
regarding the Individual’s abstinence, the DOE psychologist maintained at the hearing that the
individual needed a full year of treatment and monitoring of his abstinence. I find that his
opinion was well-founded and reasonable, and is consistent with the findings in other cases of
the significance of a one-year period of abstinence. See, e.g., Personnel Security Hearing, Case
No. PSH-12-0100 (2012); Personnel Security Hearing, Case No. TSO-0591 (2008); Personnel
Security Hearing, Case No.TSO-0445 (2007); Personnel Security Hearing, Case No. TSO-0256
(2005). In the end, OHA Administrative Judges accord deference to mental health professionals
regarding issues of rehabilitation, reformation and risk assessment. I, therefore, cannot find that
he has sufficiently mitigated the Criterion J security concerns relating to his alcohol use. I am
convinced that, despite his successful six-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 the
DOE psychologist’s opinion that the Individual should be abstinent for one year. Adjudicative
Guidelines at Guideline G, ¶ 23.
V. Conclusion
For the reasons set forth above, I find that the Individual has sufficiently mitigated the security
concerns under Criterion H. However, I also find derogatory information in the possession of
the DOE that raises serious security concerns relating to the Individual’s alcohol use under
Criterion 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 mitigate all of the security concerns at issue. I therefore cannot find that restoring
the Individual’s access authorization will not endanger the common defense and be consistent
with the national interest. Accordingly, I have determined 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: August 17, 2015