PSH-15-0059

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: July 13, 2015 )
) Case No.: PSH-15-0059
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Issued: October 8, 2015
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 be restored.
I. Background
The individual works for a DOE contractor in a position that requires that he hold a DOE
security clearance. In January 2015, the individual was arrested and charged with assault.
During a February 2015, Personnel Security Interview (PSI) conducted by the Local
Security Office (LSO), the individual admitted that he had consumed a significant
quantity of alcohol before his arrest. He had also been arrested and charged with Public
Intoxication in 2003. As a result, the LSO referred the individual to a DOE consultant
psychologist (DOE psychologist) for a mental health evaluation, from which the DOE
psychologist concluded that the individual suffers from Alcohol Abuse. On June 10,
2015, the LSO sent a letter (Notification Letter) to the individual advising him that it had
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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reliable information that created a substantial doubt regarding his eligibility to hold a
security clearance. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell 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).2
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations to request an administrative review hearing, and I was appointed the
Administrative Judge in the case. At the hearing, the individual presented his own
testimony and that of four other witnesses, and the LSO presented the testimony of one
witness, the DOE psychologist. In addition to the testimonial evidence, the LSO
submitted nine numbered exhibits into the record and the individual submitted nine
exhibits as well, identified as Exhibits A through I. 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.
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 Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (“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”); Dorfmont 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).
The individual must come forward at the hearing with evidence to convince the DOE that
restoring his 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 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 Criterion H concerns information that a person suffers from “[a]n 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). Criterion J relates to information that a person 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).
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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 support for its security concerns under Criteria H and J, the LSO relies on the opinion
of the DOE psychologist, who determined that the individual suffers from Alcohol
Abuse, a mental condition that, in her opinion, causes or may cause significant defects in
the individual’s judgment and reliability. In addition, the LSO cites the individual’s
January 31, 2015, arrest for Simple Assault, his September 13, 2003, arrest for Public
Intoxication, and his admissions during his February 12, 2015, PSI that he had consumed
two shots of liquor and 44 ounces of beer before his 2015 arrest and an unknown amount
of alcohol before his 2003 arrest. Ex. 1.
I find that there is ample information in the Notification Letter to support the LSO’s
reliance on Criteria H and J. The excessive consumption of alcohol is a security concern
because that behavior can lead to the exercise of questionable judgment and the failure to
control impulses, which in turn can raise questions about a person’s reliability and
trustworthiness. See 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) at
Guideline G.
IV. Findings of Fact
The individual began drinking alcohol while in college. He estimates that he became
intoxicated on weekends once or twice a month, generally after drinking beer, either five
or fewer over a relatively short period, or more than five over a longer period. Ex. 7 at 4.
His consumption decreased somewhat after he completed his studies in 2002, and
decreased again around 2012 to three to five pints of craft beer over four to five hours; he
estimated he was intoxicated roughly once a month. He has not driven while intoxicated
since he was in his 20s, but has driven in recent years after consuming two or three beers.
Id. at 5.
He was arrested in 2003 for Public Intoxication. He admitted he was intoxicated after a
day of tailgating (and drinking), and by chance crossed paths with police officers who
were searching an area in response to gunfire, near a bar from which he had just stepped
outside. He pled guilty, paid a fine, and the charge was “dismissed on costs and time
served.” Id. at 4.
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Other alcohol-related events revolved around a relationship with a former girlfriend that
lasted roughly two years. In July 2014, the individual, his girlfriend, his brother, and
others were at a bar, and the girlfriend was drinking heavily and became belligerent. The
individual left the bar and called a friend to get a ride home. Later that evening, the
girlfriend arrived at the individual’s home and began yelling and beating on the door with
her shoe. The police ultimately arrived and arrested her for Public Intoxication. The
individual informed the girlfriend that he would break up with her if anything similar
were to recur. Tr. at 43-46 (testimony of brother); Ex. 7 at 3. In November 2014, after a
night of barhopping with a group that included the individual, the girlfriend, the brother,
and two close friends, the girlfriend again became belligerent toward the individual, who
was trying, unsuccessfully, to calm her down. Although no police were involved that
evening, the girlfriend’s behavior caused the group to check out of the hotel in which
they were staying in the middle of the night and drive back home. Tr. at 26 (testimony of
friend); 40 (testimony of brother).
Finally, in late January 2015, after an evening consuming alcohol at two bars, the
individual and his girlfriend argued in the car on their way back to his home. On arrival,
he would not let her inside, as he wanted her to go to her own home. She began once
again pounding on his front door; he opened the door and attempted to stop her by
holding her by the arms; she shouted that he had assaulted her; he let her inside to keep
her from being arrested again, as the neighbors had called the police; she barricaded
herself in his bedroom until the police arrived. Because the girlfriend had red marks on
her arms, the police arrested the individual for domestic assault. Ex. 7 at 3. Ultimately,
the matter was settled on the court date, at which time all the parties agreed that the
individual had not in fact assaulted her, but rather had prevented her from entering his
home against his wishes. Id. The case was “passed” for six months, at which time it
would be dismissed provided the individual had no further incidents of this type. Ex. F.
This incident did, however, end the relationship. Ex. 7 at 3.
Following the arrest, the individual immediately reported the event to his employer,
which scheduled him for an interview with the on-site medical examiner. Ex. 6. The
medical examiner produced a report in which she described the individual as “highly
psychologically healthy” and lacking any personality disorder or “diagnosable alcohol
disorder.” Ex. A. He stopped drinking alcohol as of the night of his arrest, maintaining
abstinence through his court date in late March. He then resumed drinking alcohol, but
“was definitely watching it.” Tr. at 77; 86-87.
The DOE psychologist evaluated the individual in April 2015. She determined that the
individual met the criteria for Alcohol Abuse as set forth in the Diagnostic Statistical
Manual of the American Psychiatric Association, Fourth Edition Text Revised (DSM-IV-
TR). Ex. 7 at 12. She based her opinion on the individual’s report of his drinking
behavior since 2012, including his report of intoxication roughly once a month, and his
report of alcohol consumption at specific events, including the night of his arrest. Id.
at 8-9. While she stated that the individual’s Alcohol Abuse was a condition that could
cause significant defects in judgment or reliability, she also stated that her evaluation did
not uncover any data that suggested any other illness or mental condition. Id. at 10-11.
She found it understandable that the individual had no alcohol education or treatments,
because his alcohol use “has never seemed problematic to him,” he functions at a high
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level in most domains, and he is not in psychological distress. Id. at 11. She stated,
however, that the individual would benefit from six months of counseling to address his
alcohol use and a “tendency at times to tend to others’ vulnerabilities while
underestimating his own.” Id. at 11. She recommended at least six months of abstinence
and participation in at least six Alcoholics Anonymous (AA) meetings and at least six Al-
Anon meetings. Id. at 12.
In late May, the individual’s access authorization was suspended, and he decided to
abstain from alcohol permanently at that time. Tr. at 77. He testified that he has no plans
to drink and intends to complete six months of abstinence, but realizes that, if at some
time in the future, he decided to drink he would follow self-imposed rules, including not
driving after drinking. Id. at 88. He has attended both AA and Al-Anon meetings,
though as a non-drinker, he finds Al-Anon more helpful and intends to continue attending
those meetings. Id. at 89, 92-94, 96.
Shortly after receiving the DOE psychologist’s report in mid-June, he sought a
recommendation for a counselor from a friend, and began meeting with a faith-based
counselor on June 26, 2015. Id. at 49, 77. The pastoral counselor testified that they have
met in eight two-hour sessions so far, and intend to continue meeting. Id. at 49, 69. The
counselor works with the individual primarily on relational issues, which he views as
having been exacerbated in the past by the individual’s alcohol consumption. Id. at 50.
He has assigned the individual readings about alcohol addiction and feels that he obtains
good information from AA and Al-Anon meetings. Id. at 55, 61. He also stated that he
would discontinue meeting with the individual if the individual resumed drinking; he
would in that case refer him to alcohol treatment and continued AA and Al-Anon
participation. Id. at 63, 68. The counselor is pleased with the individual’s self-reflection
and motivation to change and avoid alcohol incidents in the future. He is confident that
the individual will maintain his abstinence and, through continued counseling and
education, adopt a new life-style. Id. at 55, 58.
A supervisor, a long-time friend, and one of the individual’s brothers also testified at the
hearing. The supervisor attested to the individual’s excellent work ethic, attendance,
character, and value to his organization. Id. at 15. The friend, who is one of a group that
meets at bars to drink socially, confirmed that the individual continues to socialize with
the group but simply stopped consuming alcohol with them and maintains that he enjoys
not drinking. Id. at 24-25. The brother, the individual’s closest friend, testified that the
individual has not consumed any alcohol since May, reports that he enjoys the counseling
he is receiving, and has even convinced him to cut back on his own drinking. Id. at 32-
35.
In her testimony at the hearing, the DOE psychologist expressed her opinion that the
individual had met nearly all the recommendations that she had set forth in her evaluative
report. She weighed a number of factors that contribute to rehabilitation and determined
that most were in the individual’s favor, including the relatively mild severity of the
Alcohol Abuse; the individual’s insight and motivation for change, as demonstrated by
independent research he conducted to address his confusion over the effects of alcohol on
the human body; his compliance with all recommendations; his good coping skills
regarding life stresses; a good support system of family and friends; and his lack of
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cravings, reactivity to triggers (such as when with others who are drinking alcohol),
family history of alcohol disease, and presence of other neurological or psychological
conditions. Id. at 115-121. She also praised the pastoral counseling the individual was
receiving; though it is in some respects unorthodox with regard to its approach to
substance abuse, she was satisfied that it met the individual’s needs. Id. at 127. Her
chief concern was that, as of the hearing, the individual had completed only about three
and one-half months of abstinence. Considering all the factors she addressed, in
particular the lack of severity and the high likelihood of compliance, she determined that
an exception to the six-month duration of abstinence was appropriate in this case. Id.
at 122-23. In her opinion, the individual’s risk of relapse is low, particularly in light of
his internal resolve and “how connected he is” to his counselor, his on-site medical
director, and his support system. Id. at 124-26.
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 be restored. I 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.
I find that the individual was properly diagnosed as suffering from Alcohol Abuse.
Nevertheless, the record, in particular, the testimony of the individual, his pastoral
counselor, and the DOE psychologist, establishes a period of abstinence and an amount
of alcohol education that satisfies the experts who testified at the hearing. The
concurrence of the mental health experts regarding his current status demonstrates to me
the confidence they have in the individual’s progress through treatment and his
motivation to remain sober at all times. Furthermore, I am convinced that the individual
has learned a great deal as a result of his January 2015 arrest, both through alcohol
education and through enduring the personal and financial consequences of his actions,
and is highly motivated to avoid a similar situation in the future. I have taken into
consideration a number of mitigating factors in his favor, specifically his abstinence, his
voluntary participation and significant progress in a treatment program, and the DOE
psychologist’s favorable prognosis of the individual. Adjudicative Guidelines at
Guideline G, ¶ 23. After considering all the testimony and written evidence in the record,
I am convinced that the individual has resolved the LSO’s security concerns that arise
from his alcohol use.
VI. Conclusion
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 Criteria H and J. After
considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all the testimony and other evidence
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presented at the hearing, I have found that the individual has brought forth sufficient
evidence to resolve the security concerns associated with these criteria. I therefore 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 be restored.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: October 8, 2015