PSH-15-0098

*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: December 1, 2015 )
_________________________________________ ) Case No.: PSH-15-0098
Issued: March 30, 2016
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (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 not be restored at this
time.2
I. BACKGROUND
On May 7, 2015, police arrested the Individual and charged him with Public Intoxication (PI),
Disorderly Conduct, Resisting Arrest, and Bribery of a Public Servant. Ex. 8 at 2-4. In order to
address those concerns, the Local Security Office (LSO) conducted a Personnel Security
Interview (PSI) of the Individual on June 3, 2015, and sponsored a forensic psychiatric
examination of the Individual which occurred on August 5, 2015. Because the PSI and forensic
psychiatric examination did not resolve these concerns, 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 OHA. The Director of
OHA appointed me as the Administrative Judge in this matter on December 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 took testimony from the
Individual, his former supervisor, a coworker, his counselor (the Counselor), and a DOE
consultant psychiatrist (the Psychiatrist). See Transcript of Hearing, Case No. PSH-15-0098
(hereinafter cited as “Tr.”). The LSO submitted 15 exhibits, marked as Exhibits 1 through 15,
while the Individual submitted 17 exhibits, which are marked as Exhibits A through Q.
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), (j), and (l) 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 psychiatrist or 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 the Individual has been diagnosed by a
psychiatrist with Alcohol Abuse (under the American Psychiatric Association’s Diagnostic and
Statistical Manual-Fourth Edition Text Revision, DSM-IV-TR). 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, 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(l). Specifically,
the Notification Letter alleges that the Individual has been diagnosed by the Psychiatrist with
Alcohol Abuse after incurring three alcohol-related arrests. These circumstances adequately
justify the DOE’s invocation of Criterion J, and raise significant security concerns. “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. “Conditions that could raise a security concern and may be
disqualifying include: . . . alcohol-related incidents away from work, such as driving while under
the influence, . . . or other incidents of concern, regardless of whether the individual is diagnosed
as an alcohol abuser or alcohol dependent, [and] (d) diagnosis by a duly qualified medical
professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol
dependence.” Adjudicative Guideline G at ¶ 22(a) and (d).
Criterion L refers to information indicating that the Individual has: “Engaged in any unusual
conduct or is subject to any circumstances which tend to show that the individual is not honest,
reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to
pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the
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best interests of the national security. Such conduct or circumstances include, but are not limited
to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation
of any commitment or promise upon which DOE previously relied to favorably resolve an issue
of access authorization eligibility.” 10 C.F.R. § 710.8(l). Specifically, the Notification Letter,
citing the Individual’s three-alcohol related arrests, alleges that the Individual has exhibited a
pattern of criminal conduct. “Criminal activity creates doubt about a person's judgment,
reliability and trustworthiness. By its very nature, it calls into question a person's ability or
willingness to comply with laws, rules and regulations.” Adjudicative Guideline J at ¶ 30.
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
The Individual has a history of three alcohol-related arrests. On May 7, 2015, he was arrested
and charged with PI, Disorderly Conduct, Resisting Arrest, and Bribery of a Public Servant.3 On
3 The Police Report for the May, 7, 2015, incident states in pertinent part:
On 05/0712015 at 19:30 hours, Officer . . . responded to a disturbance . . . Upon arrival, I spoke to
the suspect, [The Individual]. I detected a strong odor of alcohol on his breath and person, blood
shot watery eyes, slurred speech, and the suspect was hostile. The suspect started yelling at mall
security officers and cursing. I told the suspect to turn around and put his hands behind his back
and that he is being placed under arrest. The suspect looked at me and stated, "what are you going
to do?" I grabbed the suspect by the left arm and attempted to use directional controls to get him
into a cuffing position. The suspect jerked away and pushed me. I again attempted to grab the
suspect with the help of mall security, and the suspect stood up and became more hostile. I
retrieved my X-26 Taser, and told the suspect to lay down on the ground and put his arms behind
his back. The suspect refused. I again gave him the command to quit resisting and get on the
ground. The suspect again refused. I deployed my X-26 Taser into the suspects left side and he fell
to the ground. I told the suspect to stop resisting and to put his arms behind his back. The suspect
attempted to stand up again. I deployed my Taser a second time, bringing the suspect back down
to the ground. I then got on top of the suspect and applied handcuffs. . . . While in my custody the
suspect offered to take me to an ATM and withdraw money if I were to let him go. He offered to
4
September 15, 2012, he was arrested and charged with PI and Resisting Arrest.4 On September
22, 2006, he was arrested and charged with Driving Under the Influence of Alcohol (DUI). The
May 7, 2015, arrest led the LSO to reinvestigate the Individual’s eligibility to hold a DOE
security clearance, which in turn led to the present proceeding.
The LSO conducted a PSI of the Individual on June 3, 2015. Ex. 12 at 1. During this PSI, the
Individual was asked how many beers he had consumed before the incident which resulted in his
May 7, 2015, arrest, the Individual stated “I don't know three or four, we had a pitcher.” Ex. 12
at 16. The Individual further reported that he had left a bar and proceeded to a local mall. Ex. 12
at 18. The Individual reported that he was feeling “a little buzz” but was not intoxicated. Ex. 12
at 18. While he was at the mall, his estranged spouse called him on his cell phone and they
began a conversation concerning their contentious divorce settlement and custody arrangements
for their minor daughters. Ex. 12 at 22. When his estranged spouse told him she wanted part of
his pension and retirement benefits, he began raising his voice at her. Ex. 12 at 24. A mall
security officer observed the Individual raising his voice and asked him to quiet down. Ex. 12 at
24. The Individual then told the mall security officer to mind his own business and to leave him
alone. Ex. 12 at 25. The mall security officer summoned the police. Ex. 12 at 25. The
Individual reported that he told the police officer to leave him alone and to stay out of his
business. Ex. 12 at 26. The police officer then tried to handcuff him, which he resisted, and the
police officer used a Taser on him. Ex. 12 at 26-27. The Individual reported that he was angry
with the police officer because the police officer would not explain why he was being
handcuffed and arrested. Ex. 12 at 28. The Individual reported that he was so emotional that the
first Taser did not hurt much or incapacitate him. Ex. 12 at 30-31. A second Taser incapacitated
him. Ex. 12 at 32. The Individual then begged the officer to let him go and then tried to bribe
the officer to let him go. Ex. 12 at 34. The Individual claimed that the police officer “had it out”
pay me money several times to be released. The suspect was taken to [a local medical center] to be
treated for his injuries.
Ex. 8 at 5.
4 An LSO Incident Report provides the flowing account of the incident that led to the Individual’s September 15,
2012, arrest:
[The Individual] and his friend tailgated from 12:30 till 4:30 PM prior to [a college] football game.
He estimates he drank 6-7 beers. The group walked over a mile to the stadium, where beer is not
sold. During the game, [the Individual] came to his feet, cheering loudly whenever [the home
team] made a good play. Several [of the visiting team’s] fans were sitting in the area, one directly
in front of [the Individual]. During one episode of cheering, [the Individual] accidently kicked
over the cup of Coke that was sitting on the stadium floor. It spilled down [a visiting team’s] fan's
back. The [visiting team’s] fan was reportedly incensed and contacted an usher who called [the
Individual] and his friend out to the aisle. When [the Individual] expressed his indignation, the
usher contacted the highway patrolman who was helping to police the arena. The patrolman
escorted the 2 men to the gate. As they approached the gate, some [of the visiting team’s] fans
taunted him and [the Individual] responded in kind. When he was turned over to the City police
officer outside the gate, the police officer made a verbally "aggressive" statement. Once again,
[the Individual] responded in kind. The officer "took him down" and kicked and hit him. He was
taken to jail.
Ex. 7 at 5.
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for him. Ex. 12 at 34-35. The Individual seemed surprised that the officer charged him with
bribery, stating: “Who, who, who charges somebody with a felony, you know what I mean?” Ex.
12 at 34. The Individual questioned whether he was intoxicated and hostile enough to warrant
being arrested, while simultaneously admitting that he had behaved inappropriately. Ex. 12 at
38-43. After he reported this incident and his arrest to his employer and the LSO, his employer
had him evaluated by a counselor who recommended that he undergo stress management
counseling, and enroll in an intensive outpatient program (IOP) for alcohol treatment. Ex. 12 at
64. The Individual enrolled in the IOP and began seeing the Counselor for stress management
counseling once a week. Ex. 12 at 66, 73. The Individual stated that when he was evaluated for
an alcohol problem, he was told that he did not need treatment. Ex. 12 at 70. The Individual
reported that he had been attending Alcoholics Anonymous (AA) meetings three times a week,
and that he has a sponsor, whom he speaks with on a daily basis. Ex. 12 at 79, 216. The
Individual admitted that in the year leading up to the May 7, 2015, incident he would drink up to
five to seven beers in a sitting, once or twice a month. Ex. 12 at 161-162, 172. He stated that it
would take nine or ten beers to intoxicate him. Ex. 12 at 165. The Individual stated that he
drank to relieve stress and to escape the hurt and pain of his divorce. Ex. 12 at 166. The last
time he consumed alcohol was on May 7, 2015. Ex. 12 at 187-188. The Individual admitted that
he continued to use alcohol even after he had been cautioned by mental health and healthcare
providers against using alcohol. Ex. 12 at 195-196. When the Individual was asked about his
future intentions concerning alcohol, he stated he plans to “refrain.” Ex. 12 at 204.
At the request of the LSO, the Psychiatrist evaluated the Individual on August 5, 2015. Exhibit 4
at 1. In addition to conducting a 1.75-hour forensic psychiatric interview of the Individual, the
Psychiatrist reviewed the Individual’s personnel security file, and sent him to a laboratory to
obtain a blood sample. Exhibit 4 at 1. During this examination, the Individual reported that his
last use of alcohol occurred on May 7, 2015. Ex. 4 at 6. The Individual further admitted to:
developing a tolerance to alcohol; “extended times of using and recovering from the use of
alcohol;” extensive legal problems resulting from his alcohol use; and complaints and arguments
with his then-wife about his alcohol use. Ex. 4 at 9. The Individual has also ignored repeated
medical advice to curtail or cease his alcohol use, but continued to do so in order to “calm his
anger about his marital strife.” Ex. 4 at 11. After completing his evaluation of the Individual,
the Psychiatrist issued a report (the Psychiatric Report) on August 12, 2015, in which he found
that the Individual had a mental condition, Alcohol Abuse, which he opined causes, or may
cause, a significant defect in his judgment or reliability. Exhibit 4 at 11. The Psychiatrist noted
that while the Individual had begun to attend AA meetings, and had obtained an AA sponsor, the
Individual did not yet identify as an “alcoholic,” and did not appear to be fully engaged in his
AA program. Ex. 4 at 9, 11. The Psychiatrist further noted that the Individual’s future intention
towards alcohol was to eventually return to occasional alcohol use. Ex. 4 at 9. During his
Psychiatric examination, the Individual denied that he has a problem with alcohol. Ex. 4 at 10.
The Psychiatrist further reported that the Counselor had reported to him that it had been difficult
for her to break through the Individual’s defenses and that therapeutic progress had been slow.
Ex. 4 at 10. He noted that the Individual’s laboratory results revealed no overt evidence of
recent alcohol use. Ex. 4 at 11. The Psychiatrist opined that the Individual’s prognosis appeared
to be “fairly poor.” Ex. 4 at 11. The Psychiatrist opined that in order to demonstrate
rehabilitation or reformation from his Alcohol Abuse, the Individual should: (1) participate in a
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12-step recovery program, (2) gain familiarity with a recovery model, and have least one year of
complete sobriety. Exhibit 4 at 12.
V. ANALYSIS
A. Alcohol Abuse
During his hearing testimony, the Individual testified that his last use of alcohol occurred on May
7, 2015.5 Tr. at 50, 55. The Individual recounted the events leading up to his May 7, 2015,
arrest for PI. The Individual’s testimony concerning this incident indicated that he attributes his
actions on May 7, 2015, to: his inability to handle his divorce, the inexperience of the mall
security official and the inexperience of the arresting police officer, rather than his use of alcohol
prior to this incident. Tr. at 64, 83-86. He further testified that he only had “a couple” of beers
earlier in the day on May 7, 2015.6 Tr. at 82.
The Individual testified that he does not have an alcohol problem, or an alcohol use disorder. Tr.
at 116-118. However, the Individual admitted to a past alcohol problem, where he would drink
when he was depressed and then become more depressed. Tr. at 86-87. The Individual further
admitted that he consumed part of a bottle of beer on January 2, 2016. Tr. at 68, 94. The
Individual testified he caught himself, and ended up throwing the beer away before he finished it
and called his father. Tr. at 69. The Individual testified if he felt like drinking again, he would
contact a member of his support system for help. Tr. at 116.
The Individual testified that he has been undergoing individual counseling for anger and stress
management. Tr. at 58, 62, 88, 92, 98-99, 104-108. The Individual further testified that he is
working on steps six and seven of the AA Twelve Step Program in his individual counseling
sessions. Tr. at 107-108. Through his individual counseling, he has learned to open up about his
issues. Tr. at 63. The Individual testified that he has also been attending AA meetings, has a
sponsor, and has completed the first five steps of AA’s Twelve-Step Program. Tr. at 58, 92-93.
The Individual further testified that he has attended, and completed, an IOP, where he completed
the first five steps of AA’s Twelve-Step Program. Tr. at 59-60; 90. Although the IOP has an
aftercare program, he does not attend those meetings regularly. Tr. at 92. The Individual has
been prescribed an anti-depressant medication to address his depression and anxiety. Tr. at 87-
88, 96-97. The Individual believes that this medication is effective. Tr. at 113. The Individual
testified that he has a strong support system, which consists primarily of his parents and the
Counselor. Tr. at 74-76, 95. The Individual testified that he does not have cravings for alcohol.
Tr. at 103-104. The Individual testified that he plans to abstain from future alcohol use. Tr. at
78, 91, 115.
5 The Individual has submitted the results of a number of drug and alcohol tests taken after that date which are
negative for drugs or alcohol. Ex. B; Ex. C; and Ex. Q.
6 During his PSI, the Individual described his alcohol consumption on May 7, 2015, as follows: “I don't know three
or four, [beers] we had a pitcher.” Ex. 12 at 16.
7
The Counselor, a board-certified, licensed clinical social worker, testified on the Individual’s
behalf at the hearing. Tr. at 120. The Counselor testified that she has treated hundreds of clients
with substance abuse issues. Tr. at 120. The Counselor testified that she has been treating the
Individual for over eight months. Tr. at 127. When the Counselor was asked if she believed that
the Individual has an alcohol problem, she responded by stating that the Individual’s “behaviors,
his maladaptive behaviors are exacerbated when he drinks [and that] he has less impulse control
at those times.” Tr. at 121. She testified that the focus of her work with the Individual was “to
help him identify some of the underlying issues such as his anger, his blaming, his sense of
victimization.” Tr. at 121. The Counselor testified that the Individual has made progress during
his therapy. Tr. at 122-125, 127. When the Counselor was asked if the Individual has the “tools
and skills necessary to abstain,” she responded by stating “I believe he is filling up his tool box
presently.” Tr. at 124. She testified that between his participation in the IOP, AA and his
individual counseling, the Individual “has followed every recommendation that has been given to
him. He has been extremely responsible in his therapy and it has been very trying at times. He
is utilizing the verbal skills he is developing, he is utilizing the things he is learning about
appropriate boundaries.” Tr. at 136. She further opined that the Individual is particularly honest.
Tr. at 137. The Counselor testified that the Individual now fully recognizes that danger that
alcohol presents to his well-being. Tr. at 150. She testified that the Individual’s insight is
“growing.” Tr. at 150-151. Moreover, the Counselor testified that having his security clearance
suspended has alerted him to the importance of his sobriety, and that he is now “committed to
abstinence.” Tr. at 140- 141. While the Counselor testified that she has diagnosed the Individual
with Alcohol Disorder, Mild and Adjustment Disorder with Mixed Disturbance of Emotions and
Conduct, she further testified that his current diagnoses do not significantly affect the
Individual’s judgment and reliability. Tr. at 126-127, 132, 148-149. The Counselor further
testified that the Individual has “a very positive prognosis.” Tr. at 127. The Counselor testified
that the Individual is presently “adequately rehabilitated and reformed.” Tr. at 131.
At the hearing, the Psychiatrist listened to the testimony of each of the other witnesses before he
testified. The Psychiatrist testified that the testimony he had observed at the hearing did not
change his original conclusions. Tr. at 153. The Psychiatrist still believes that the Individual
needs at least one year of sobriety before he can be considered to be reformed or rehabilitated
from his Alcohol Abuse.7 Tr. at 154. The Psychiatrist testified that the Individual has exhibited
a great deal of resistance to recognizing that he has a problem with alcohol, even though he has
apparently abstained from alcohol use. Tr. at 154. The Psychiatrist noted that the Individual
denied having a problem with alcohol during his psychiatric examination and during the hearing.
Tr. at 155. The Psychiatrist noted that this denial continues to persist even in the face of the
Individual’s three alcohol-related arrests. Tr. at 155, 161. Although, the Psychiatrist testified
that the Individual has gained “some insight.” Tr. at 157-158. The Psychiatrist testified that he
would like to see the Individual’s counseling treatment to focus more on being “more anger
specific and depression specific;” to help the Individual understand how his anger and depression
are dangerous to his sobriety; and to realize that he has a pattern of using alcohol to medicate his
anger and depression. Tr. at 159. The Psychiatrist testified that the Individual’s prognosis is
“fair to good” and his likelihood of relapse is “moderate.” Tr. at 160, 162. The Psychiatrist
noted that the Individual’s participation in therapy was encouraging, that he is taking the right
steps towards recovery, he is being honest about his relapse, that he is “finally” starting to realize
7 The Psychiatrist testified that he considered the Individual to have nine months of sobriety. Tr. at 154.
8
that he gets in trouble when he drinks, and that there could be serious consequences if he
continues to use alcohol. Tr. at 160-162, 165. However, the Individual still does not accept that
he has a problem with alcohol and is still in denial. Tr. at 161-162. The Psychiatrist
characterized the Individual’s level of insight as “still pretty poor” but improving. Tr. at 162.
The Psychiatrist noted that in order to recover, the Individual needs “to come to the
understanding or the appreciation that it is a problem and certainly we are not there yet.” Tr. at
164-165.
After carefully considering all the evidence, I find that the Individual has not shown that he is
sufficiently reformed or rehabilitated from his Alcohol Abuse Disorder. Accordingly, I find that
the security concerns raised by his Alcohol Abuse diagnosis under Criteria H and J have not been
resolved. The Individual has, with one small exception, refrained from using alcohol for the past
nine months, attended an IOP, attended AA, began working AA’s Twelve-Step Program,
obtained a sponsor, and received individualized counseling. The Individual has made progress
as a result of these efforts. However, the Individual’s recovery is obviously still in its beginning
stages. He does not yet accept that he has an alcohol problem or recognize the obvious role that
it has played in his three alcohol-related arrests.
B. Criminal Activity
The Individual’s three alcohol-related arrests demonstrate a pattern of criminal conduct that
raises security concerns under Criterion L.8 This conduct is clearly symptomatic of his Alcohol
Abuse Disorder. Given the role that alcohol has played in the Individual’s past conduct, I find
that since the concerns raised by his Alcohol Abuse Disorder have been not been sufficiently
resolved, the concerns about the Individual’s judgment, reliability and trustworthiness raised by
his criminal conduct under Criterion L are also not resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L.
After considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that Individual has not sufficiently mitigated the Criteria H, J, and L security concerns.
Accordingly, the Individual has not demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual's security clearance should not be restored at this time. The Individual
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
8 In addition to his three alcohol-related arrests, the Notification Letter also cites two minor traffic violations that the
Individual has been cited for: on January 1, 2013, he was cited for Speeding; in 2010, he was cited for a Stop Sign
Violation. Because these citations were for such minor infractions, I find that they do not raise any security
concerns and therefore I need not discuss them further or consider their implications.
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Date: March 30, 2016