PSH-15-0046

*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 5, 2015 )
_________________________________________ ) Case No.: PSH-15-0046
Issued: August 11, 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 granted at this time.2
I. BACKGROUND
The Individual is an applicant for a DOE security clearance. In October 2005, police arrested the
Individual and charged him with Minor in Possession of Alcohol (MIP). The Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the Individual on January 9, 2015,
and sponsored a forensic psychological evaluation of the Individual which occurred on March 13,
2015. Because the PSI and forensic psychological evaluation raised concerns about the extent and
frequency of the Individual’s alcohol consumption, the LSO began the present administrative
review proceeding by issuing 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 the OHA. The Director of OHA
appointed me as the Administrative Judge in this matter on June 8, 2015.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his co-habitant, his friend, his supervisor, and a DOE consultant psychologist (the
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.
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Psychologist). See Transcript of Hearing, Case No. PSH-15-0046 (hereinafter cited as “Tr.”). The
LSO submitted nine exhibits, marked as Exhibits 1 through 9, while the Individual submitted one
exhibit, which is marked as Exhibit A.
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.” 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 the
Psychologist “concluded that [the Individual] is a user of alcohol habitually to excess, and that the
Individual has admitted that he consumes “one to two, 16 ounce beers, two to three times a week,”
and “becomes intoxicated one to two times per month when he consumes more than three alcoholic
drinks.” 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
incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or
alcohol dependent; . . . (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; . . . [and] (g) failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence.” Adjudicative Guideline G at ¶ 22(a), (c), and (g).
III. REGULATORY STANDARDS
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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
The Individual has history of one alcohol-related arrest, which occurred almost ten years ago. In
October 2005, he was arrested and charged with MIP. He was 19 years old at the time of this
arrest.
During his January 9, 2015, PSI, the Individual stated that the MIP charge occurred when he was
a sophomore in college. Exhibit 8 at 11. At the time of this arrest, the Individual had a BAL of
.07 percent. Exhibit 8 at 16. The Individual further admitted that he had violated the terms of his
probation for that offense by consuming alcohol once a month. Exhibit 8 at 23. The Individual
stated that he would become intoxicated when he consumed over three alcoholic beverages,
depending upon the time period over which the alcoholic beverages are consumed. Exhibit 8 at
37, 61. The Individual stated that he consumed alcohol two to three times a week. Exhibit 8 at
57. He then stated that he gets a six-pack a week and has two beers at a sitting. Exhibit 8 at 57,
59. The Individual indicated that he would get intoxicated once every other week. Exhibit 8 at
60-61. He recalled becoming intoxicated on New Year’s Eve. Exhibit 8 at 64. He further recalled
becoming intoxicated at a research workshop he had attended the week before the PSI.3 Exhibit 8
at 66. The Individual reported having a hangover once every two months. Exhibit 8 at 70.
At the request of the LSO, the Psychologist evaluated the Individual on March 13, 2015. Exhibit
6 at 2. In addition to conducting a one-hour forensic psychological interview of the Individual,
the Psychologist reviewed the Individual’s personnel security file. Exhibit 6 at 6. After
completing his evaluation of the Individual, the Psychologist issued a report (the Psychological
Report) on March 13, 2015, in which he found that the Individual had a mental condition: “Being
a user of alcohol habitually to excess” which, he opined, causes, or may cause, a significant defect
in judgment or reliability. Exhibit 6 at 5. The Psychologist further opined that the Individual was
3 Accordingly, the Individual admitted that he had become significantly intoxicated on two occasions during the nine
days preceding the January 9, 2015, PSI. In fact, the Individual admitted consuming six alcoholic beverages at the
research workshop, and two shots of vodka, four beers and from 6 to 12 ounces of champagne on New Year’s Eve.
Exhibit 8 at 61-66.
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neither reformed nor rehabilitated because the Individual had last become intoxicated two months
prior to his psychological examination, and therefore, according to the Psychologist, had not had
sufficient time to demonstrate self-control. Exhibit 6 at 5. The Psychologist found that the
Individual needed to limit his consumption of alcohol to two or three drinks on most occasions for
a period of six months in order to demonstrate “adequate evidence of rehabilitation or
reformation.” Exhibit 6 at 11.
At the hearing, the Individual testified that he did not believe that he has a problem with alcohol.
Tr. at 43. He noted that the term “intoxication” can be somewhat ambiguous. He further stated
that if intoxication is defined as having a blood alcohol level of .08, he is only intoxicated a few
times a year. Tr. at 58-59, 61. The Individual testified that he began consciously limiting his
drinking to two or three drinks at a sitting after his January 9, 2015, PSI (over six months prior to
the hearing). Tr. at 69-70. The Individual further testified that he intends to avoid drinking to
intoxication in the future. Tr. at 73, 77. In order to avoid intoxication, the Individual testified that
he intends to drink no more than two or three alcoholic beverages in a sitting, spread out over a
period of several hours. Tr. at 73, 77. The Individual’s witnesses corroborated his description of
his alcohol consumption since the PSI.
Before he testified at the hearing, the Psychologist observed each of the other witnesses’ testimony.
The Psychologist admitted that, at the time he evaluated the Individual, he was not drinking “to a
large level of intoxication.” Tr. at 84. The Psychologist testified that since that time the Individual
had fully complied with his recommendations and had therefore demonstrated adequate
reformation. Tr. at 86.
After carefully considering the evidence in the record, I find that the Individual has mitigated the
security concerns raised by his use of alcohol habitually to excess, by establishing that he has
significantly moderated his alcohol intake and now uses alcohol in a responsible, controlled
manner. Moreover, I am 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 granting his request for a 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 granted at this time. 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: August 11, 2015