PSH-15-0048

*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 9, 2015 ) Case No.: PSH-15-0048
)
_________________________________________ )
Issued: October 27, 2015
______________________
Administrative Judge Decision
______________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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
discussed below, after carefully considering the record before me in light of the relevant
regulations and the Adjudicative Guidelines, I have determined that the Individual’s access
authorization should not be restored at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires that she hold a DOE
security clearance. In September 2014, the Individual was arrested and charged with Driving
Under the Influence (DUI). On November 6, 2014, the Local Security Office (LSO) conducted a
Personnel Security Interview (PSI), during which the Individual acknowledged consuming
alcohol and prescription muscle relaxers and painkillers prior to her arrest. The LSO referred the
Individual to a DOE-consultant psychologist (DOE Psychologist) for an evaluation. On April 28,
2015, the LSO sent a letter (Notification Letter) to the Individual advising her that it had reliable
information that created a substantial doubt regarding her eligibility to hold a security clearance.
In an attachment to the Notification Letter, the LSO explained that the derogatory information
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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fell within the purview of two potential 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).2
Upon her receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. See Exhibit 2. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Administrative Judge in the case and,
subsequently, I conducted an administrative hearing in the matter. At the hearing, the Individual,
represented by counsel, presented her own testimony and that of four other witnesses, including
her treating psychologist; the LSO presented the testimony of one witness, the DOE
Psychologist. In addition to the testimonial evidence, the LSO submitted 33 numbered exhibits
into the record, and the Individual submitted 18 lettered exhibits (Exhibits A – R). The exhibits
will be cited in this Decision as “Ex.” followed by the appropriate numeric or alphabetic
designation. The hearing transcript in the case will be cited as “Tr.” followed by the relevant
page number.3
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 Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1998) (“clearly consistent with the
national interest” standard for granting security clearances indicates “that security determinations
should err, if they must, on the side of denials”); Dormont 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).
An individual must come forward at the hearing with evidence to convince the DOE that
granting or restoring his or her 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 or her 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 evidence
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.
2 See Section III below.
3 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed by
entering the case number in the search engine at www.energy.gov/oha.
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B. Basis for the 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 eligibility in favor of
the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited two criteria as the bases for denying the Individual’s security
clearance: Criterion H and Criterion J. Criterion H concerns information that person has “an
illness or mental condition of a nature which, in the opinion of a psychiatrist or licensed clinical
psychologist, causes, or may cause, a significant defect in judgment or reliability.” 10 C.F.R. §
710.8(h). It is well established that “certain emotional, mental, and personality conditions can
impair judgment, reliability, or trustworthiness.” See Guideline I 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). Conduct influenced by such psychological conditions can raise
questions about an individual’s ability to protect classified information. Criterion J refers to
information indicating that an individual has “[b]een, or is, a user of alcohol habitually to excess,
or has been diagnosed by a psychiatrist or a licensed clinical psychologist as alcohol dependent
or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). Excessive alcohol consumption raises
a security concern because it can lead to questionable judgment and the failure to control
impulses, which in turn can raise questions about a person’s reliability and trustworthiness. See
Adjudicative Guidelines at Guideline G; Personnel Security Hearing, Case No. PSH-11-0035
(April 19, 2012).
With respect to Criteria H and J, the LSO relied upon the February 2015 report of the DOE
Psychologist who concluded that the Individual met the diagnostic criteria set forth in the
Diagnostic Statistical Manual of the American Psychiatric Association IVth Edition TR (DSM-
IV-TR) for Alcohol Abuse (as well as the equivalent diagnosis as set forth in the Diagnostic
Statistical Manual of the American Psychiatric Association 5th Edition TR (DSM-5) for Alcohol
Use Disorder, Mild),4 without adequate evidence of rehabilitation or reformation. The DOE
Psychologist opined that these are illnesses or mental conditions, which cause, or may cause, a
significant defect in her judgment or reliability. Ex. 1 at 1. Additionally, the LSO cited the
Individual’s 2014 DUI; her 1992 arrest (noting that, during a 1993 PSI, the Individual admitted
to having consumed alcohol prior to the arrest); and her acknowledgements during a 2014 PSI
that she combined alcohol with her pain medication and had continued to consume alcohol in
combination with prescription medication subsequent to her DUI arrest.
4 Since the DOE Psychologist opined that her diagnoses under the DSM-IV-TR and the DSM-5 were equivalent
diagnoses of the same disorder, the balance of this Decision shall refer to the underlying illness as Alcohol Abuse,
which is the terminology used in the DSM-IV-TR and the Part 710 Regulation.
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In light of the information available to the LSO, the LSO properly invoked Criterion H and
Criterion J.
IV. Findings of Fact
The Individual agreed that most of the factual matters set forth by the LSO in the Notification
Letter are correct; however, in those instances of disagreement, I have carefully considered the
testimony and the record as a whole, including the arguments presented by both the Individual
and the LSO, in reaching the findings of fact set forth below.
On April 3, 1992, the Individual was arrested and charged with Resisting Arrest, Obstructing a
Peace Officer, Disorderly Conduct and Obstructing Highway or Other Passageway. Ex. 17. Prior
to her arrest, the Individual consumed alcohol; her consumption of alcohol affected her behavior
and contributed to her arrest. Ex. 32 at 6.
On September 21, 2014, the Individual was arrested and charged with a DUI. Ex. 14. Personnel
at a convenience store called the police in reference to an intoxicated driver. A police officer
found the Individual sitting in the driver’s seat with the car running. She smelled heavily of
alcohol, had slurred speech, and performed poorly on several field sobriety tests. Ex. 13.
After her arrest, the Individual self-reported to the LSO, and the LSO subsequently suspended
her access authorization. Ex. 14. The Individual acknowledged that on the night of her DUI she
consumed two or three beers (Ex. 31 at 40), two 10 milligram (mg) Cyclobenzaprine (muscle
relaxer) (Id. at 36), one .5 mg Lorazepam (Id. at 31), and one 5 mg Hydrocodone (Id. at 31).
The DOE Psychologist met with the Individual on January 29 and 30, 2015. In her report, dated
February 9, 2015, the DOE Psychologist determined that the Individual met the criteria for a
diagnosis of Alcohol Abuse under DSM-IV-TR (and the equivalent diagnosis for Alcohol Use
Disorder, Mild, under the DSM-5), without adequate evidence of rehabilitation or reformation.
The DOE Psychologist opined that this is an illness which causes, or may cause, a significant
defect in the Individual’s judgement or reliability. Ex. 11 at 14-15.
The Individual’s last consumed alcohol on July 11, 2015. Tr. at 77. Since her DUI, she has
participated in counseling through her employer’s Employee Assistance Program, attended
Alcoholics Anonymous (AA) meetings, and commenced counseling with a private psychologist
(Individual’s psychologist). Id. at 95, 98, and 132. The Individual’s psychologist diagnosed her
with a Generalized Anxiety Disorder. Id. at 178. As of the date of the hearing, he had had four
treatment sessions with the Individual, which focused on easing her anxiety without the use
alcohol or medication. Id.
At the hearing, the DOE Psychologist testified as the final witness, after having heard the
testimony of all of the prior witnesses, that the Individual continues to warrant the diagnosis of
Alcohol Abuse, without adequate evidence of rehabilitation or reformation, and that that is an
illness which causes, or may cause, a significant defect in her judgement or reliability. Id. at 207-
29, 240.
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V. Analysis
I have thoroughly considered the record of 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) and the Adjudicative Guidelines. After due
deliberation, I have determined that the Individual’s access authorization should not be restored
at this time. 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. Mitigating Evidence
The Individual testified that she last consumed alcohol on July 11, 2015, stating that her husband
has also joined her in abstaining. Tr. at 77. The Individual also testified that she is presently
committed to abstaining from alcohol and she avowed that she will never again consume alcohol
while taking prescription medication. Id. at 78.
In describing the night of her DUI, the Individual testified that she did not intend to drive home
that night, once she felt the effects of the alcohol. Id. at 83. Because she left her cellphone at
home, she just sat in her car, which is where the police found her. Id. at 81. After her arrest, the
Individual described feeling embarrassed, humiliated, and upset. Id. at 84. Attributing her
hindered state to the mixing of alcohol with the muscle relaxers, the Individual recognized that
her judgment was not sound when she decided to drive under the influence, and stated that it
would never happen again. Id. at 64-85.
During the hearing, the Individual also described the steps she has taken since her DUI to
address her issues. As required, she reported her DUI to work on September 23, 2014. Id. at 95;
Ex. 14. She complied with her work psychologist’s suggestion that an outside psychologist
evaluate her. Tr. at 95. She completed five sessions with a counselor through the Employee
Assistance Program, during which she learned how to deal with her day-to-day stressors in a
non-pharmaceutical way. Id. at 96-97. She also recently began counseling sessions with a
psychologist, and at the time of the hearing, had met with him two or three times. Id. at 98.
Although she does not believe she has a problem with alcohol, the Individual admitted that
alcohol has caused problems in her life. Id. at 103. The Individual began attending AA meetings
in July 2015, and had attended 18 meetings as of the date of the hearing. Id. at 132; Ex. D; Ex. F.
The Individual’s psychologist testified that his diagnosis of the Individual is that she suffers from
Generalized Anxiety Disorder, not an alcohol disorder, but that at times she may have used
alcohol in a self-medicating manner. Tr. at 182-83.
B. Administrative Judge Evaluation of Evidence
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The Individual does not dispute that she was arrested and charged with a DUI, though she
disagrees with the DOE Psychologist’s determination that she has an alcohol problem. Id. at 103.
During the hearing, the Individual testified that the weekend before her DUI, she strained her
back and was taking muscle relaxers to alleviate the pain. Id. at 79. The night of her DUI, the
Individual testified that she took a muscle relaxer before bed and had “about three or four
strawberry ales,” but was unable to sleep. Id. She later took another muscle relaxer and drank “a
couple more or two or three” beers. Id. at 80. After this, she made the decision not to go to work
the next day, and went to the store down the road with the intention to replace the beer she had
drank and to buy cigarettes. Id. The Individual’s primary argument is that this was the first time
that she had taken two prescription muscle relaxers, in conjunction with consuming alcohol, and
that she had not anticipated the effect of the second muscle relaxer. Id. at 85.
The Individual’s argument fails mitigate her DUI, or the security concerns arising from it. As a
holder of access authorization, the Individual is expected to anticipate the consequences of her
behavior. The DOE Psychologist points out that the Individual frequently combined prescription
medications and alcohol in an inappropriate manner. Under questioning at the hearing, the
Individual acknowledged that she never bothered to read the labels on her medication which
warned of the dangers of combining those medications with alcohol; the Individual cannot use
her failure to inform herself as a defense for her irresponsible behavior. Id. at 161-62.
With regard to security concerns arising under Criterion H and Criterion J, Administrative
Judges traditionally accord deference to the opinions of mental health professionals. Personnel
Security Hearing, Case PSH-14-0095 (October 22, 2014) at 7. In this case, the DOE
Psychologist and the Individual’s psychologist presented differing opinions with respect to the
individual.
The Individual’s psychologist testified that he believed the Individual’s alcohol problem was
more a situational problem brought on by the pain associated with her back rather than a
characterological or long-term problem. Tr. at 171-172. Although he believes the Individual is
sincere in her efforts, the Individual’s psychologist agreed with the DOE Psychologist’s
recommendation of monitoring the Individual’s alcohol intake. Id. at 177-178, 180. He does not
believe the Individual would make the same type of mistake in the future. Id.
When discussing the Criterion H security concerns, the Individual’s psychologist testified that he
believes the Individual’s issue is anxiety, not alcohol abuse, and diagnosed her with Generalized
Anxiety Disorder, Mild. Tr. at 170, 182. He reasoned that although she erred when deciding to
drive after mixing alcohol and her medications, the fact that she realized she could not make the
drive home from the store indicated that her judgment had not been affected. Id. at 171. The
Individual’s psychologist opined that the Individual’s prognosis was great and that there was no
impairment of her judgment or reliability. Id. at 202. Notwithstanding the foregoing, the
Individual’s psychologist stated that he will probably treat the Individual for at least six months,
as recommended by the DOE Psychologist, and believes that it is a good recommendation that
the Individual stop drinking for at least six months and be monitored to assure her alcohol
abstinence. Id. at 177-78, 186, 189. I found his recommendations with respect to abstinence and
monitoring difficult to reconcile with his testimony regarding his diagnosis of the Individual.
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The DOE Psychologist testified as the final witness at the hearing, having heard the testimony of
all the other witnesses. She stated that after her evaluation, she found that the Individual met the
criteria for Alcohol Abuse and that she also found a Generalized Anxiety Disorder, agreeing with
the Individual’s psychologist that the two were intertwined. Id. at 207. At the hearing, the DOE
Psychologist explained that she reached her diagnosis of the Individual based upon her satisfying
two of the four diagnostic criteria set forth in the DSM-IV-TR for Alcohol Abuse: substance use
in situations in which it is physically hazardous (such as driving an automobile or operation of a
machine when impaired by substance use) and recurrent alcohol use resulting in a failure to
fulfill major role obligations at work, school or home. Id. at 208 and 213. The DOE Psychologist
based this finding on the Individual’s DUI and this DUI resulting in the suspension of the
Individual’s security clearance at work, explaining that under the DSM-IV-TR even a singular
event (i.e., the suspension of the Individual’s security clearance which resulted in her inability to
perform work requirements) resulting from the Individual’s recurrent use of alcohol meets the
diagnostic criteria. Id. at 208-13. Further, she detailed the manner in which psychologists utilize
clinical inference in reaching diagnoses. In the case of the Individual, she explained that although
the Individual had only had one DUI in the 12 months preceding the diagnosis, her history of
combining medical, alcohol consumption, and driving allowed the DOE Psychologist make the
clinical inference that the Individual had used alcohol recurrently in physically hazardous
situations. Id. at 209-24. I found the testimony of the DOE Psychologist to be comprehensive,
consistent and reasonable.
In her February 2015 report, the DOE Psychologist opined that, to evidence adequate
rehabilitation and reformation of her Alcohol Abuse, the Individual would need to abstain from
alcohol consumption for six months and engage in psychological therapy with a mental health
professional who routinely works with substance abuse issues for six months, initially on a
weekly basis. Ex. 11 at 14-15. At the hearing, the DOE Psychologist stated that the Individual
had “demonstrated a remarkable willingness to embrace” the recommendations that she had
made in her report, agreeing with the Individual’s psychologist that the Individual is not
dependent on alcohol, and has a good prognosis if she completes those recommendations. Tr. at
229-230. She further testified that the Individual’s psychologist was providing excellent therapy
of the type she had recommended and that the Individual had made a good start on the alcohol
education that she needed. However, the DOE Psychologist’s opinion as to the length of such
abstinence and therapy remained unchanged and she concluded that the Individual’s one month
of abstinence and therapy were insufficient to evidence adequate reformation or rehabilitation.
Id. at 225-30, 240-41. Since the Individual had not evidenced adequate reformation and
rehabilitation, the DOE Psychologist concluded that she continues to suffer from an illness that
causes, or may cause, a significant defect in her judgment or reliability. Id. at 240.
As set forth above, I was persuaded by the reasonableness of the opinions presented by the DOE
Psychologist. Since the Individual continues to merit a diagnosis of Alcohol Abuse as of the date
of the hearing and has not established a pattern of responsible alcohol use as of that date, I find
that the Individual has not resolved the security concerns arising under Criterion H and Criterion
J. Cf. Adjudicative Guidelines at Guideline G, ¶ 23(a) and (b).
VI. Conclusion
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In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criterion H and 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 the
security concerns associated with these criteria. I therefore cannot find that restoring the
Individual’s access authorization will not endanger the common defense and is clearly consistent
with the national interest. Accordingly, I have determined that the Individual’s access
authorization should not be restored at this time. The parties make seek review of this Decision
by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: October 27, 2015