PSH-16-0001

*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: January 14, 2016 ) Case No.: PSH-16-0001
)
__________________________________________)
Issued: May 2, 2016
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 March 2013, the individual was arrested and charged with assault of a
family member. As a result, he was placed on probation for one year, starting in August 2013,
during which time he was required, among other things, to abstain from alcohol. On July 29
and 30, 2014, shortly before the expiration of his probationary period, the individual drank
alcohol, and on July 30, 2014, he was arrested and charged with Driving Under the Influence
(DUI). During an October 2014 Personnel Security Interview (PSI) conducted by the Local
Security Office (LSO), the individual described the events that led to his two arrests. Because
alcohol was involved in each arrest, 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 did not suffer from any alcohol-related mental health
disorder. On April 7, 2015, the LSO sent a letter (Notification Letter) to the individual advising
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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him that it had 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 one potentially disqualifying criterion set forth
in the security regulations at 10 C.F.R. § 710.8, subsection (l) (hereinafter referred to as Criterion
L).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 seven
other witnesses. The LSO submitted 24 numbered exhibits into the record. The exhibits will be
cited in this Decision as “Ex.” followed by the appropriate numeric 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.
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
2 Criterion L concerns information that an individual has “[e]ngaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest, reliable, or trustworthy . . . Such conduct or
circumstances include, but are not limited to, criminal behavior . . . .” 10 C.F.R. § 710.8(l).
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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 Criterion L, the LSO cites the individual’s March 3,
2013, arrest for Assault Causing Bodily Injury to a Family Member, his July 30, 2014, DUI
arrest, and his admissions during his October 23, 2014, PSI that he had consumed alcohol on
July 29 and 30, 2014 in violation of his probation. Ex. 1.
I find that there is ample information in the Notification Letter to support the LSO’s reliance on
Criterion L. Criminal activity, including arrests and violation of probation, creates doubt about a
person’s judgment, reliability, and trustworthiness, and calls into question his ability or
willingness to comply with laws, rules, and regulations. 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 J.
IV. Findings of Fact
During his first marriage, the individual was a social drinker. Tr. at 110, 122. In 2010, he
remarried; he and his second wife drank alcohol regularly. Id. at 111, 164; Ex. 10 at 3. On
March 3, 2013, the individual and his wife argued, and the police, after being called to their
residence, found bruises on his wife allegedly caused by the individual. Ex. 20 at 9. The
individual was arrested and charged with Assault Causing Bodily Injury to a Family Member.
Id. at 7. Ultimately, the individual pleaded guilty and, as a condition of the plea, consented to
one year of probation starting on August 13, 2013. Ex. 15 at 5. He successfully completed a
court-ordered intensive outpatient program (IOP) that addressed, among other things, effective
communication, impulse control, anger and stress management, and substance abuse education.
Id. at 6; Ex. 11. He did not follow up this program with any additional treatment or counseling,
such as the weekly aftercare program offered by the IOP provider or Alcoholics Anonymous
(AA) meetings. Tr. at 16.
One term of the probation was that he not consume alcohol. Ex. 15 at 5. While on business
travel in another state in late July 2014, the individual decided that he could safely resume
drinking alcohol. Tr. at 136-37. On July 29, 2014, roughly two weeks before his probationary
period was to lapse, he consumed three beers with no apparent ill effects. Id. at 137; Ex. 22 at 7.
The following evening, he drank beer again, but then drove from his hotel in search of food and
was pulled over by the local police. Ex. 22 at 10-11. Testing established that he had a blood
alcohol content of .17, for which he was arrested and charged with DUI. Id. at 13. In addition to
the fines and penalties associated with his DUI conviction, the individual’s probationary period
was extended nine months, until May 13, 2015, and required that he “[s]ubmit to drug and
alcohol evaluation and successfully complete any treatment as recommended” and attend at least
three AA meetings per week. Ex. 13 at 4. He has complied with all his probation terms, and the
probation period has now expired. Tr. at 166.
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On the same day that his probationary period was extended, the individual returned to the IOP
provider for evaluation. A licensed professional counselor at that program, who testified at the
hearing, determined that the individual was suffering from Alcohol Abuse. Ex. 11; Tr. at 11, 32.
Because he had successfully completed the IOP in the preceding year and remained abstinent,
and because the counselor viewed the recent relapse as a common slip-up and the arrest as a life-
changing event for which he was embarrassed and distraught, she determined that participating
in the IOP a second time would not be appropriate in his case, and instead designed a treatment
program for him that included participation in weekly aftercare sessions and continued individual
counseling, along with his court-mandated AA participation. Ex. 11; Tr. at 15-17, 34. He
continues to participate in that treatment program. Tr. at 19-20, 31.
The DOE psychologist evaluated the individual in January 2015. Ex. 10. After reviewing the
individual’s personnel security file, interviewing him, and administering a number of
psychological tests to him, he determined that the individual did not meet the criteria for alcohol
dependence or alcohol abuse as set forth in the Diagnostic Statistical Manual of the American
Psychiatric Association, Fourth Edition Text Revised (DSM-IV-TR). Id. at 6. Nor did he find
that the individual used alcohol habitually to excess, while acknowledging that the individual
clearly abused alcohol on one occasion, which resulted in a DUI conviction in July 2014. Id.
At the hearing, the individual’s counselor testified that she believed the individual has been
abstinent since his arrest in July 2014. Tr. at 22, 30. She stated that he has been actively
involved in AA, aftercare, and individual counseling. Id. at 19-20. He has divorced his second
wife, who was a serious drinker, and has now married again, this time to a former drinker who
has been a non-drinker for many years. Id. at 29. She noted that the recent lapse occurred when
he was away from home and therefore away from his family support system. Id. at 27.
Although she diagnosed the individual with alcohol abuse in 2014, when the DOE psychologist
did not, she now finds that the individual’s condition is in full remission, after nearly two years
of abstinence and appropriate treatment. Id. at 30-32. She testified that the arrest taught him that
he cannot control his drinking but must instead abstain forever, and she believes he has embraced
that knowledge. Id. at 20, 28. Finally she expressed her opinion that the individual’s criminal
activity—the two arrests in 2013 and 2014—was related to alcohol consumption, and her
prognosis was that he will remain abstinent in the future. Id. at 18, 23, 33.
Other witnesses testified on the individual’s behalf at the hearing. His AA sponsor stated that
the individual is comfortable in his abstinence, is an active and focused participant in AA, and
“is on the right path” to maintaining long-term sobriety. Id. at 39, 43, 45, 47. A number of
witnesses spoke of his sources of support, which include his wife, his sons, and his church
community, in which he has grown more active since renewing his commitment to abstinence
following his 2014 arrest. Id. at 62-63, 65, 81-82, 113-14, 117-18, 123-24, 127. A co-worker
and one of his sons expressed their opinions that future criminal activity is very unlikely, because
the 2013 and 2014 arrests involved alcohol and they are convinced that the individual will
maintain his abstinence. Id. at 85, 114. The individual’s current wife testified that following
her own divorce she stopped drinking alcohol, and that there is no alcohol in their life together.
Id. at 90, 97. She was angry and shocked when she learned of his 2014 arrest but then observed
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his firmer devotion to his abstinence, his treatment program, and their church community. Id.
at 92, 98, 104.
Finally, the individual testified that he was remorseful, ashamed, and disappointed in himself for
choosing to drink alcohol in July 2014 after being abstinent. Id. at 135. He firmly believes that
alcohol contributed to both arrests. Id. at 19-20. He pointed out that he had had virtually the
same argument with his second wife in March 2013 two days before his arrest, but he had not
been drinking, and it was resolved without a confrontation. Two days later, he was drinking as
well as she, and the argument led to confrontation and an arrest. Id. at 143-44. He believes,
despite the DOE psychologist’s opinion, that he is an alcoholic, cannot control his drinking, and
must remain abstinent. Id. at 147. He also believes that he now possesses the tools as well as the
support structure to maintain his sobriety. Id. at 160.
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.
The individual has maintained his abstinence, through AA, counseling, aftercare, and family and
church support, since his DUI arrest in July 2014. I am convinced that the DUI arrest shocked
and embarrassed him, to such a degree that he is firmly committed to leading a life free of
alcohol. I am also convinced that his criminal activity, which is limited to his two arrests and his
violation of his probation terms, involved alcohol, which he was consuming with some regularity
during his second marriage, and has since renounced with apparent success. As a result of his
DUI arrest in July 2014, he has learned that he cannot drink at all. His commitment to
abstinence is now reinforced through AA, counseling, and a sturdy support system.
The Adjudicative Guidelines at Guideline J address the conditions that can raise security
concerns due two criminal activity. Those that apply to the facts in this case are “a single serous
crime or multiple lesser offenses” and “violation of parole or probation.” Guideline J, ¶ 31(a),
(e). I must also consider, however, whether any mitigating factors also apply to the facts in this
case. Only one mitigating condition stated in Guideline J is appropriate in light of the facts.
Paragraph 32(a) states that mitigation of a security concern may be appropriate where “so much
time as elapsed since the criminal behavior happened, or it happened under such unusual
circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment.” Guideline J, ¶ 32(a). Although the arrests did not take
place many years ago, some time has passed since their occurrence. More important to note,
however, is that the record before me consistently demonstrates that the individual has changed
his approach to his sobriety since his most recent arrest in such a manner that it is highly unlikely
that he will resume drinking alcohol, even on a social basis. Because I find that his criminal
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activity occurred in an environment of alcohol consumption and he no longer lives in that
environment, criminal activity is unlikely to recur. 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 arose from his alcohol use and associated conduct.
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 Criterion L. 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 brought forth sufficient evidence to resolve the security concerns
associated with this criterion. 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: May 2, 2016