PSH-15-0085

*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: October 18, 2015 ) Case No.: PSH-15-0085
)
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Issued: January 25, 2016
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Administrative Judge Decision
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710,
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
The individual is employed by a Department of Energy (DOE) contractor and was granted
a security clearance in connection with that employment. In April 2015, the individual
received a citation for Possession of a Firearm While Under the Influence of Alcohol, and
was later charged with Negligent Use of a Deadly Weapon. Because this information raised
security concerns, the local security office (LSO) summoned the individual for an interview
with a personnel security specialist in June 2015. After this Personnel Security Interview
(PSI) failed to resolve these concerns, the LSO referred the individual to a local licensed
clinical psychologist (hereinafter referred to as “the DOE psychologist”) for an agency-
1An 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.oha.doe.gov . The text of a cited decision may be accessed
by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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sponsored evaluation. The DOE psychologist prepared a written report based on that
evaluation, and submitted it to the LSO. After reviewing that report and the rest of the
individual’s personnel security file, the LSO determined that derogatory information
existed that cast into doubt the individual’s eligibility for access authorization. It informed
the individual of this determination in a letter that set forth the DOE’s security concerns
and the reasons for those concerns. I will hereinafter refer to this letter as the 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 access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the
Office of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE
introduced eight exhibits into the record of this proceeding and presented the testimony of
the DOE psychologist at the hearing. The individual introduced four exhibits and presented
the testimony of five witnesses, in addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information
that created a substantial doubt as to the individual’s eligibility to hold a clearance. This
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.
Under criterion (h), information is derogatory if it indicates that an individual has an illness
or mental condition which, in the opinion of a psychiatrist causes, or may cause, a
significant defect in the individual’s judgment or reliability.10 C.F.R. § 710.8(h). Criterion
(j) concerns information indicating that the individual “has been, 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). As support for these criteria, the Notification Letter cites the
conclusion of the DOE psychologist that the individual is a user of alcohol habitually to
excess, without adequate evidence of rehabilitation or reformation. As further support for
its invocation of criterion (j), the Notification Letter refers to the individual’s citation for
Possession of a Firearm While Under the Influence of Alcohol, and the subsequent charge
of Negligent Use of a Deadly Weapon. The Notification Letter also cites the individual’s
statements during the June 2015 PSI that he consumes two beers, two to three times per
week, and six to twelve beers, once a month; that he becomes slightly intoxicated two times
per month when he consumes three to four beers and highly intoxicated one time per month
when he consumes six or more beers; and that he blacked out approximately five times
between August 2006 and May 2010, having also blacked out two times a year since then
when consuming more than twelve beers.
These circumstances adequately justify the DOE’s invocation of criteria (h) and (j), and
raise significant security concerns. As an initial matter, a duly qualified mental health
professional retained by the U.S. Government has determined that the individual has an
emotional, mental or personality condition that can impair his judgment or reliability.
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Moreover, the excessive consumption of alcohol often leads to the exercise of questionable
judgment or the failure to control impulses, and can therefore raise questions about an
individual’s reliability and trustworthiness. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December
19, 2005), Guidelines I and G.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part
710 dictate 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶
82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. 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).
IV. ANALYSIS
A. Mitigating Evidence
At the hearing, the individual attempted to show, through his own testimony and that of his
supervisor, a colleague, his roommate, his Employee Assistance Program (EAP) counselor,
and his licensed alcohol and drug abuse therapist (hereinafter referred to as “the therapist”),
that he is no longer a user of alcohol habitually to excess.
The individual testified that he never believed his drinking to be problematic until he got a
security clearance and became familiar with the DOE’s standards. Hearing Transcript (Tr.)
at 54. He stated that that his drinking had never previously caused him a problem, and when
he did overindulge, it was always in a safe location. Id. After meeting with the DOE
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psychologist, the individual realized how close his drinking was to being at a level of
concern. Tr. at 57-58.
The individual testified that he stopped consuming alcohol in August 2015 when the DOE
psychologist recommended that he abstain from alcohol for six months. Tr. at 59-60. The
individual testified that since he started abstaining from alcohol, his focus has been how he
was going to make himself better while going through the security clearance process. Tr.
at 67-68. He also indicated that the citation, which led to the suspension of his security
clearance, was eventually dismissed. Tr. at 60. Calling this incident a “huge wake-up call,”
the individual stated that his future intentions were to abstain from alcohol well past the
six-month recommendation. Tr. at 64-65.
The therapist also testified. The individual first contacted the therapist in August 2015, and
during their first session, the therapist performed an alcohol use assessment. Tr. at 22-23.
He testified that the individual was drinking according to the social norm of 27-28 year
olds, and had not adjusted his drinking habits in accordance with someone who was no
longer in college. Tr. at 23-25. The therapist testified that the individual participated in
“five or six” therapy sessions focused on alcohol, and additional individual therapy
regarding the stress caused by his legal issues and by this proceeding. Tr. at 28. He further
stated that he has tested the individual about 20 times for alcohol consumption since
August, including random testing, which the individual always passed. Tr. at 26. The
therapist believes that this situation, i.e. the suspension of the individual’s security
clearance, was a rude awakening for the individual, and gives the individual a “very good”
prognosis for the future. Tr. at 29, 32.
B. Administrative Judge’s Findings
After reviewing the evidence and the record as a whole, I am convinced that no valid
security concerns remain under criteria (h) and (j). I base this conclusion primarily on the
testimony of the therapist, which is summarized above, the positive prognosis of the EAP
Counselor, Tr. at 16-17, and on the testimony of the DOE psychologist.
The DOE psychologist testified that the individual has done more than what was asked of
him as it relates to his consumption of alcohol. Tr. at 69. Specifically, the individual
completed four sessions with his EAP counselor and the additional therapy described
above, even though such therapy was not required in the DOE psychologist’s report for a
showing of adequate reformation or rehabilitation. In that report, the DOE psychologist
recommended that the individual abstain from alcohol consumption for a six-month period,
and afterwards limit his consumption of alcohol to no more than two or three drinks per
occasion. Although as of the date of the hearing, the individual had abstained from all
alcohol use for approximately four and one half months, the DOE psychologist stated that
he was confident drinking would not be a problem going forward in the individual’s life.
Tr. at 71-72.
Based on the testimony and evidence presented, I conclude that the individual has
demonstrated adequate evidence of reformation or rehabilitation. Although at the time of
the hearing the individual had not yet reached the six-month mark, I am convinced by the
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expert testimony of the EAP Counselor, the therapist and the DOE psychologist that the
individual has his drinking under control and that it will not be an issue in the future.
V. CONCLUSION
For the reasons set forth above, I find that the individual has adequately addressed the
DOE’s concerns under criteria (h) and (j). Consequently, I am convinced that restoring his
access authorization would not endanger the common defense and would be clearly
consistent with the national interest. Accordingly, I find that the DOE should restore the
individual’s security clearance. Review of this decision by an Appeal Panel is available
under the procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: January 25, 2016