PSH-16-0008

United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
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Filing Date: February 9, 2016 ) Case No.: PSH-16-0008
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_________________________________________ )
Issued: May 19, 2016
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXXXXX (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 fully
discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In August 2015, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns
about his alcohol-related arrests and his alcohol use. In addition to the PSI, the LSO requested the
individual’s medical records and recommended a psychological evaluation of the individual by a
DOE consultant psychologist (DOE psychologist). The DOE psychologist examined the
individual in October 2015 and memorialized his findings in a report (Psychological Report).
According to the DOE psychologist, the individual suffers from Alcohol Abuse, as well as being
a user of alcohol habitually to excess without adequate evidence of rehabilitation or reformation.
The DOE psychologist further concluded that the individual’s Alcohol Abuse is a mental illness
that causes or may cause a significant defect in his judgment and reliability.
In December 2015, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created substantial doubt regarding his eligibility to hold an
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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access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of three potentially disqualifying criteria set forth
in the security regulations at 10 C.F.R. § 710.8, subsections (h), (j) and (l) (hereinafter referred to
as Criteria H, J and L respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and the
OHA Director appointed me as the Administrative Judge in this case. At the hearing that I
convened, the individual presented his own testimony and that of four witnesses. The DOE
Counsel called two witnesses, the DOE psychologist and a DOE consultant-psychiatrist. Both the
DOE and the individual submitted a number of written exhibits prior to the hearing.
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 denial”); 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 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 Administrative Judge’s Decision
2 Criterion H relates to information that a person has “[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). Criterion L relates, in relevant part, to information that a person 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; 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 best interest of the national
security. . . .” 10 C.F. R. § 710.8(l).
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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 in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites three criteria as bases for suspending the individual’s security
clearance: Criteria H, J and L. To support Criterion H, the LSO relies on the diagnosis of the
DOE psychologist that the individual suffers from Alcohol Abuse, and the expert’s opinion that
Alcohol Abuse is a mental illness that could cause a significant defect in the individual’s judgment
and reliability. As for Criterion J, the LSO cites the DOE psychologist’s opinion, the individual’s
alcohol-related arrests as well as his alcohol use. See Exh. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s alcohol use under both Criteria H and J. First, a mental condition such as
Alcohol Abuse can impair a person’s judgment and reliability and 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). Second, the excessive consumption of
alcohol itself 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 id. at Guideline G.
To support its reliance on Criterion L, the LSO cites the individual’s criminal conduct, including
four alcohol-related arrests and one alcohol-related citation. Criminal activity creates a doubt
about a person’s judgment, reliability and trustworthiness and by its very nature, it calls into
question a person’s ability or willingness to comply with laws, rules and regulations. See
Guideline J of the Adjudicative Guidelines.
IV. Findings of Fact
The individual has had a number of alcohol-related arrests. In February 2007, he was arrested and
charged with Aggravated Driving Under the Influence (DUI) and Reckless Driving and in March
2007, he was cited with Minor in Possession of Alcohol. Exh. 1. On August 8, 2010, the individual
was arrested and charged again with Aggravated DUI and Reckless Driving. Id. Later, on
August 12, 2012, he was arrested and charged with Battery Against a Household Member. The
individual admitted to consuming three mixed drinks and one beer prior to the incident. Finally,
on July 22, 2015, the individual was arrested and charged with Aggravated Driving While Under
the Influence of Intoxicating Liquor or Drugs (2nd Offense), and Required Position and Method of
Turning at Intersections. Id. He denied consuming any alcohol at the time. However, the deputy
detected an odor of an alcoholic beverage coming from his breath, noticed he had bloodshot watery
eyes, and appeared extremely nervous. Id. The individual refused to submit to a breathalyzer test.
Id.
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Based on this information, the individual was referred to a DOE psychologist for a psychological
evaluation. On October 22, 2015, the DOE psychologist evaluated the individual. In his Report,
he concluded that the individual met the Diagnostic Statistical Manual of Mental Disorders, IVth
Edition TR (DSM-IV-TR) criteria for Alcohol Abuse. He further concluded that the individual
used alcohol habitually to excess. The DOE psychologist also concluded that the individual
possesses an illness or mental condition, which causes, or may cause, a significant defect in
judgment and reliability. Exh. 4.
V. Analysis
I have thoroughly considered the record in 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)3 and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s access authorization should not be restored. Based on the facts in
this record, 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.
1. Criterion H and J: The Diagnosis of Alcohol Abuse
The individual does not dispute the DOE psychologist’s diagnosis of Alcohol Abuse.4 Therefore,
the focus of the analysis will be on whether the individual has demonstrated adequate evidence of
rehabilitation or reformation.
a. Evidence of Rehabilitation and Reformation from Alcohol Abuse
During the hearing, the individual explained his July 2015 DUI. According to the individual, he
was stopped by a police officer and accused of making a right turn from a left turn lane. Transcript
of Hearing (Tr.) at 68 and 69. The individual testified that there was no kind of arrow or signage
on the road to indicate that a right turn was prohibited. Id. After the individual was stopped, the
police officer asked him if he had anything to drink and the individual’s response was “no.” Id. at
69. The individual testified that the police officer asked him to perform field sobriety tests which
3 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances surrounding
the conduct, to include knowledgeable participation, the frequency and recency of the conduct, the age and maturity
at the time of the conduct, the voluntariness of his 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.
4 The individual disputes his July 2015 DUI and asserts that he was under the influence of alcohol at the time of the
incident.
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he performed, but after feeling vulnerable based upon the officer’s questions and demeanor, the
individual refused to submit to a breathalyzer test. Id. at 72. The individual acknowledged that
his refusal to take a breathalyzer test may have been a poor decision and may have shown a lack
of maturity. Id. at 71. He testified that he believed the officer was accusing him of something that
he did not do. Id. at 72. The individual testified that he was then taken to jail and was not asked
to submit to a breathalyzer test again. Because of the individual’s previous DUI charges, the
individual was required to have an Interlock device installed on his car. The individual testified
that, after a plea, his DUI charge was reduced to a Careless Driving offense. Id. at 76; Exh. B. He
stated that while in jail he was placed in a Soberlink program which required him to “blow” into a
device five times a day to monitor his alcohol use. According to the individual, he remained in
this program for two months after his release. Id. at 77. The individual maintains that he has not
consumed any alcohol since the night before his arrest. Id. at 79. He testified that upon his release
from jail, he voluntarily sought the advice of an alcohol counselor in the Employee Assistance
Program (EAP) and has met with him weekly since that time. The individual further testified that
he has also attended individual therapy with another alcohol counselor on three occasions. Id. at
88. Finally, the individual maintains that he has abstained from alcohol since July 2015 and has
focused on maintaining a healthy lifestyle. Id. at 84. When asked about his future intentions
regarding his total abstinence from alcohol, the individual testified that he will take it “day by day”
and follow the guidance of his alcohol counselors. He reiterated that his lifestyle and future goals
do not involve alcohol. Id. at 93.
During the hearing, the individual also offered the testimony of his EAP alcohol counselor, two
managers and a friend. The EAP counselor testified that the individual consulted with him after
his July 2015 DUI, and that he reported to him that he had not consumed alcohol on the day of his
arrest. He testified that the individual has been consistent in his reporting about the DUI. Id. at
11. The EAP counselor noted that the individual disputed the DUI charge and that the charge has
been dropped to a lesser offense of Careless Driving. According to the EAP counselor, the
individual has discussed his past drinking habits with him, consuming periodically two drinks with
meals, and testified that the individual appears to have his alcohol consumption under control. The
EAP counselor has met with the individual for 14 sessions and believes the individual has been
compliant with his recommendations regarding his alcohol consumption. Id. at 15. He testified
that he reviewed the DOE psychologist’s report and agrees with the diagnosis of Alcohol Abuse.
However, he believes the individual has matured a lot and is headed in the right direction. The
EAP counselor stated that he is satisfied that the individual has not been drinking since July. Id.
at 23. Both of the individual’s supervisors testified that the individual is honest and reliable and
that they have never seen any indication on the job that the individual has an alcohol problem. Id.
at 38 and 54. In addition, the individual’s friend who has known the individual for eight years
testified that the individual is reliable and trustworthy. Id. at 48.
The DOE psychologist listened to all the testimony at the hearing before testifying himself. He
testified that he met with the individual twice, but last evaluated him on October 22, 2015 and
concluded that he is suffering from Alcohol Abuse. Id. at 121. The DOE psychologist testified
that he asked the individual to submit to a Gamma-Glutamyltransferase Test (GGT) as part of his
evaluation. He noted that this test determines whether the individual is likely to be a frequent
heavy user of alcohol. According to the DOE psychologist, the individual’s test results showed an
elevated level of the GGT liver enzyme at 113 international units per liter (IU/L) with a normal
range of 0 to 65 IU/L. The DOE psychologist testified that this test provided strong evidence that
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the individual had been drinking heavily, and had been drinking far more than he was reporting.
Id. at 107; Exh. 5. Although he acknowledged that there are several conditions that can raise a
person’s GGT value, he testified the individual does not have any of those conditions. He also
dismissed the individual’s use of supplements as contributing to the individual’s elevated GGT
value. 5 The DOE psychologist testified that the individual is in denial regarding his alcohol
consumption and noted that the individual has not followed the recommendations he suggested in
his report. He specifically noted that the individual has not participated in an intensive outpatient
alcohol treatment program and has not yet participated in a group process such as Alcoholics
Anonymous (AA). Id. at 113. The DOE psychologist further testified that, although the individual
is consulting with two alcohol counselors, there is no objective evidence that the individual has
not been drinking. Id. at 114. He stated that he has questions about the individual’s truthfulness
regarding his alcohol consumption and indicated that the only objective evidence in the record still
remains the individual’s GGT value which suggests that he has likely been drinking. Id. Finally,
the DOE psychologist testified that the individual has not yet established adequate evidence of
rehabilitation and opined that the individual should abstain from alcohol for one year. Id. at 115.
He further suggested that the individual should undergo random testing to monitor his drinking.
Id. at 116.
b. Administrative Judge’s Evaluation of the Evidence
In the administrative process, Administrative Judges accord deference to the expert opinion of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).6 At the outset, I am
persuaded by the testimony of the DOE psychologist that the individual has not yet achieved
adequate evidence of rehabilitation. Moreover, the Adjudicative Guidelines describe factors that
could mitigate security concerns involving psychological conditions and alcohol consumption. See
Adjudicative Guideline, Guidelines G and I, ¶ 23 and ¶ 29, respectively. In this case, the individual
has not satisfied the following mitigating factors: (1) the individual has not readily acknowledged
his alcohol problem, and has not yet established a pattern of responsible use; (2) the individual has
not successfully completed an inpatient or outpatient alcohol program, nor has he demonstrated a
clear and established pattern of abstinence in accordance with his treatment recommendations, i.e.,
he has not participated in recovery meetings such as AA or a similar organization, and has not
received a favorable prognosis by a duly qualified medical professional; and (3) the DOE
psychologist has not opined that the individual’s condition has a low probability of recurrence. Id.
For these reasons, I find that the individual has not sufficiently resolved the DOE’s security
concerns under Criteria H and J.
2. Criterion L: Criminal Conduct
5 A DOE consultant psychiatrist testified that the DOE psychologist submitted the individual’s GGT test to him and
he confirmed that the individual’s value was 113. Id. at 98. He testified that, in the absence of any physical causes,
this elevated GGT value suggests that the individual was using significant amounts of alcohol. Id. He also testified
that there are no real studies that indicate that supplements such as Creatine elevate GGT levels. Id. at 99.
6 Decisions issued by 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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The DOE’s concerns under Criterion L relate to the individual’s criminal conduct, including his
2007 DUI and his 2007 citation for Minor in Possession of Alcohol, his 2010 DUI, his 2012 arrest
and charge with Battery Against a Household member and his most recent July 2015 DUI arrest
and charge.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
criminal conduct are (1) so much time has elapsed since the criminal behavior happened, or it
happened under such unusual circumstances that it is unlikely to recur and does not case doubt on
the individual’s reliability, trustworthiness, or good judgment; (2) the person was pressured or
coerced into committing the act and those pressures are no longer present in the person’s life; (3)
evidence that the person did not commit the offense; and (4) there is evidence of successful
rehabilitation; including but not limited to the passage of time without recurrence of criminal
activity, remorse or restitution, job training or higher education, good employment record, or
constructive community involvement. Adjudicative Guideline J at ¶ 32 (a)-(d). None of these
mitigating factors apply in this case. Although the individual’s 2007, 2010 and 2012 alcohol-
related incidents occurred a number of years ago, his July 2015 DUI was recent and there has not
been a sufficient passage of time since the criminal behavior occurred. In addition, the individual
has not yet established evidence of successful rehabilitation as there has not been a sufficient
amount of time without recurrence of criminal activity. Moreover, based on my conclusion that
the individual’s use of alcohol continues to be a security concern, I correspondingly find that the
Criterion L security concern with the individual’s reliability remains unresolved. After
considering the “whole person,” I am not yet convinced that the DOE can rely on the individual’s
ability to make sound judgment calls regarding the safeguarding of classified information. See
Adjudicative Guidelines at (2)a. I therefore find that the individual has not sufficiently resolved
the LSO’s concerns under Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criteria H, J and 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
find that the individual has not brought forth convincing evidence to adequately resolve the
security concerns associated with Criteria H, J and L. I therefore cannot find that restoring the
individual’s access authorization would not endanger the common defense and security and would
be consistent with the national interest. Accordingly, I find that the individual’s access
authorization should not be restored. The parties may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Officer of Hearings and Appeals
Date: May 19, 2016