PSH-15-0041

*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: June 2, 2015 )
_________________________________________ ) Case No.: PSH-15-0041
Issued: September 2, 2015
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXXXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set
forth at 10 C.F.R. Part 710, Subpart A, 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 be restored.2
I. BACKGROUND
On the morning of August 7, 2014, the Individual’s employer administered a random breath
alcohol test to the Individual. That test indicated that the Individual’s blood alcohol level was .034
percent. This incident led the Local Security Office (LSO) to conduct a Personnel Security
Interview (PSI) of the Individual on August 26, 2014, and to sponsor a forensic psychological
evaluation of the Individual, which occurred on February 27, 2015. Because the PSI and forensic
psychological evaluation raised concerns about the extent and frequency of the Individual’s
alcohol consumption, the LSO issued a Notification Letter to the Individual informing him that he
was entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
regarding his eligibility for a security clearance. See 10 C.F.R. § 710.21. The Individual requested
a hearing and the LSO forwarded the Individual’s request to OHA. The Director of OHA
appointed me as the Administrative Judge in this matter on June 2, 2015.
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 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.doe.gov/OHA.
2
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I heard testimony from the
Individual, his Counselor, his friend, his coworker, his supervisor, and a DOE consultant
psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-15-0041 (hereinafter
cited as “Tr.”). The LSO submitted ten exhibits, marked as Exhibits 1 through 10, while the
Individual submitted two exhibits, which are marked as Exhibits A and B.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That 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.
Criterion H refers to information indicating that the Individual has: “An illness or mental condition
of a nature which, in the opinion of a . . . licensed clinical psychologist, causes or may cause, a
significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). Specifically, the Notification
Letter alleges that a psychologist “concluded that [the Individual] is a user of alcohol habitually to
excess, without adequate evidence of rehabilitation or reformation” which, in the opinion of the
Psychologist, “is an illness or mental condition, which causes, or may cause a significant defect in
his judgment or reliability.”3 Exhibit 1 at 1. These circumstances adequately justify the DOE’s
invocation of Criterion H, and raise significant security concerns. 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) state that an opinion by a duly qualified mental health professional that
an individual has a condition that may impair judgment, reliability, or trustworthiness, raises a
security concern under Adjudicative Guideline I at ¶ ¶ 27 and 28(b).
Criterion J refers to information indicating that the Individual has: “Been, or is, a user of alcohol
habitually to excess…” 10 C.F.R. § 710.8(j). Specifically, the Notification Letter alleges that (1)
the Psychologist “concluded that [the Individual] is a user of alcohol habitually to excess,” (2) the
Individual tested positive on a random alcohol test administered to him by his employer, after he
had consumed six 16-ounce beers the previous evening, (3) the Individual admitted that he drinks
to intoxication on a monthly basis, and (4) the Individual had been arrested for Driving While
Intoxicated in May 1984. Exhibit 1 at 1. These circumstances adequately justify the DOE’s
invocation of Criterion J, and raise significant security concerns. The Adjudicative Guidelines
provide 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.” Adjudicative Guideline G at ¶ 21.
Adjudicative Guideline G sets forth a series of conditions that could raise a security concern and
may be disqualifying, including: (a) alcohol-related incidents away from work, . . . or other
3 The Notification Letter erroneously asserts that the Psychologist concluded that the Individual “met the Diagnostic
and Statistical Manual of the American Psychiatric Association, IV Edition (DSM-IV) criteria for consuming alcohol
habitually to excess.” Statement of Security Concerns ¶ A. Neither the DSM-IV, nor the DSM-V recognizes
“consuming alcohol habitually to excess” as a valid diagnosis. Tr. at 79. Moreover, the Psychologist did not cite the
DSM-IV (or the DSM-V) in support of his conclusion that the Individual habitually consumes alcohol to excess.
Exhibit 7.
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incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or
alcohol dependent; . . . [and] (c) habitual or binge consumption of alcohol to the point of impaired
judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol
dependent.” Adjudicative Guideline G at ¶ 22(a), and (c).
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common sense judgment, made after consideration of all the relevant information,
favorable and unfavorable, as to whether the granting of access authorization would not endanger
the common defense and security and would be clearly consistent with the national interest.” 10
C.F.R. § 710.7(a). In rendering this opinion, I have considered the following factors: the nature,
extent, and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R. §§ 710.7(c),
710.27(a). The discussion below reflects my application of these factors to the testimony and
exhibits presented by both sides in this case.
IV. FINDINGS OF FACT AND ANALYSIS
After testing positive for alcohol at work on August 7, 2014, the Individual recognized that he had
a problem with alcohol. He had his first appointment with the Counselor, on August 13, 2014,
who recommended that the Individual attend an intensive outpatient program (IOP) for substance
abuse. Tr. at 23. The Counselor further recommended that the Individual abstain from the use of
alcohol, meet with her on a monthly basis, and attend aftercare on a weekly basis upon completion
of the IOP. Tr. at 25. The Individual testified that he last used alcohol on August 20, 2014, and
intends to remain alcohol-free. Tr. at 54-55, 66, 69. The Individual successfully completed the
IOP and then began attending aftercare. Tr. at 25-26, 55. The Counselor testified that the
Individual was an active participant in his IOP, and that he did very well under the program. Tr.
at 25. She testified that the Individual “appears to be quite honest and forthcoming” and had fully
complied with her treatment recommendations. Tr. at 25-27, 29. The Counselor testified that the
Individual had also complied with the treatment recommendations set forth in the Psychologist’s
report. Tr. at 29. She further testified that the Individual’s prognosis was “very good,” and that
the Individual had a low probability of resuming alcohol consumption. Tr. at 30-31. Since he
originally tested positive, the Individual has also undergone six random alcohol breath tests, each
of which has been negative. Tr. at 57.
The Psychologist evaluated the Individual on February 20, 2015, at the request of the LSO. Exhibit
7 at 1. In addition to conducting a forensic psychological interview of the Individual, the
Psychologist reviewed the Individual’s personnel security file. Exhibit 7 at 1. After completing
his evaluation of the Individual, the Psychologist issued a report on February 27, 2015, in which
he found that the Individual had “abused alcohol habitually to excess” which, he opined, causes,
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or may cause, a significant defect in judgment or reliability. Exhibit 7 at 5-6. The Psychologist
further opined that the Individual was neither reformed nor rehabilitated because the Individual
had not had sufficient time to demonstrate rehabilitation or reformation. Exhibit 7 at 6. The
Psychologist found that, in order to demonstrate “adequate evidence of rehabilitation or
reformation,” the Individual needed to: (1) abstain from alcohol use for 12 months, (2) continue to
participate in the IOP and then aftercare, in accordance with the instructions of the Counselor, and
(3) be randomly tested for alcohol use.4 Exhibit 7 at 6.
Before he testified at the hearing, the Psychologist observed each of the other witnesses’ testimony.
During his testimony, the Psychologist opined the Individual’s alcohol use did not constitute “the
kind of an intensive pattern that would lead me to believe that he had an intractable issue with
alcohol.” Tr. at 74. He testified that the Individual has learned that alcohol can be a problem for
him. Tr. at 76. The Psychologist testified that the Individual had complied with his treatment
recommendations. Tr. at 76-77. The Psychologist testified that the Individual has “a high
prognosis for abstinence and responsibility and reliability.” Tr. at 77. The Psychologist further
testified that the Individual has shown adequate evidence of reformation or rehabilitation. Tr. at
78.
After carefully considering the evidence in the record, I find that the Individual has sufficiently
mitigated the security concerns raised by his use of alcohol habitually to excess, by establishing
that he has fully complied with his Counselor’s (as well as the Psychologist’s) treatment
recommendations, abstained from using alcohol for a year, and that he intends to permanently
abstain from using alcohol. Both of the expert witnesses who testified at the hearing have agreed
that the Individual has shown that he is reformed or rehabilitated from his habitual use of alcohol
to excess. I am therefore convinced that the Individual has modified his behavior so that, going
forward, his alcohol consumption is unlikely to present an unacceptable risk to national security.
V. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H and J.
However, after considering all the evidence, both favorable and unfavorable, in a common sense
manner, I find that Individual has sufficiently mitigated the Criteria H and J security concerns.
Accordingly, the Individual has demonstrated that restoring security clearance would not endanger
the common defense and would be clearly consistent with the national interest. Therefore, the
Individual's security clearance should be restored. The LSO may seek review of this Decision by
an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: September 2, 2015
4 The Counselor testified that she agreed with the conclusions and recommendations set forth in the Psychologist’s
report. Tr. at 28-29.
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