PSH-16-0009

*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: February 18, 2016 ) Case No.: PSH-16-0009
)
_________________________________________ )
Issued: June 2, 2016
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX (“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 access
authorization should not be restored at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Local Security Office (LSO) received potentially derogatory information
regarding the Individual’s alcohol use. In order to address those concerns, the LSO summoned
the Individual for an interview with a personnel security specialist in August 2015. In October
2015, the LSO sent the Individual to be evaluated by a licensed psychologist (DOE psychologist).
The DOE psychologist diagnosed the Individual with alcohol abuse, which is an illness or medical
condition that causes or may cause a significant defect in judgment or reliability.
In January 25, 2016, the LSO sent a letter (Notification Letter) to the Individual advising him that
it possessed reliable information that created a substantial doubt regarding his eligibility to hold a
security clearance. See 10 C.F.R. § 710.21. In the Notification Letter, the LSO explained that the
derogatory information fell within the purview of two potentially disqualifying criteria set forth in
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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the security regulations at 10 C.F.R. § 710.8(h) and (j) (hereinafter referred to as Criteria H and
J).2
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. The LSO forwarded this request to the
Office of Hearings and Appeals (OHA), and the OHA Director appointed me as the Administrative
Judge. At a hearing on April 13, 2016, convened pursuant to § 10 C.F.R. § 710.25 (e) and (g), the
DOE introduced 14 exhibits (DOE Exs. 1-14) into the record and called the DOE psychologist as
a witness. The Individual presented his own testimony and the testimony of six witnesses. See
Transcript of Hearing, Case No. PSH-16-0006 (Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates 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 and 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 [or her] 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). This standard implies
that there is a presumption against granting or restoring a security clearance. 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); see also Dep’t of the Navy v.
Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard indicates
“that security determinations should err, if they must, on the side of denials”).
III. Notification Letter and Associated Security Concerns
As previously noted, the Notification Letter cited Criteria H and J as the basis for suspending the
Individual’s security clearance. Criterion H concerns information that an individual has an illness
or mental condition which causes or may cause a significant defect in judgment or reliability.
10 C.F.R. § 710.8(h). Further, federal agencies adjudicating security clearances must consider that
2 Criterion H concerns information that a person has “[a]n illness or mental condition of a nature which, in the opinion
of a psychiatrist or a licensed clinical psychologist, causes or may cause, a significant defect in judgment or reliability.”
10 C.F.R. § 710.8(h). Criterion J applies where an individual has been, or is, a user of alcohol habitually to excess or
has been diagnosed by a psychologist as alcohol dependent or suffering from alcohol abuse. Id. § 710.8(j).
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“[c]ertain emotional, mental, and personality conditions can impair judgment, reliability or
trustworthiness.” See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, The White House (December 19, 2005), Guideline I. Criterion J applies
where an individual has been, or is, a user of alcohol habitually to excess or has been diagnosed
by a DOE psychologist as alcohol dependent or suffering from alcohol abuse. 10 C.F.R. § 710.8(j).
Again, federal agencies adjudicating security clearances must consider that “[e]xcessive 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
Guidelines, Guideline G.
With respect to the Criteria above, the LSO asserts that the Individual was diagnosed by the DOE
psychologist with alcohol abuse. Ex. 1 at 1. Further, the DOE psychologist stated that the
Individual’s alcohol abuse was an illness or mental condition. Id.
IV. Hearing Testimony and Findings of Fact
On June 20, 2015, the Individual was arrested and charged with Driving While Intoxicated (DWI).
Ex. 1 at 1. After the arrest, which the Individual reported promptly to the LSO, the Individual
underwent a Personnel Security Interview (PSI) in August 2015 and was evaluated by the DOE
psychologist in October 2015. Ex. 10; Ex. 8; Ex. 13. After the evaluation, the DOE psychologist
diagnosed the Individual with alcohol abuse and opined that he suffered from an illness or medical
condition which causes or may cause a significant defect in judgement or reliability. Ex. 8 at 5.
At the PSI, the Individual stated that he was consuming 12 beers every evening after his divorce.
Ex. 13 at 63; Tr. at 25. Prior to his DWI, he would send his girlfriend a message in the evening
indicating the number of beers he had consumed. Tr. at 80. In addition to his June 2015 DWI, the
Individual had a previous DWI in February 2009. Ex. 1 at 1.
At the hearing, the Individual did not dispute the DOE psychologist’s diagnosis of alcohol abuse.
Tr. at 73. He stated that his last alcohol consumption was June 26, 2015, six days after his DWI
arrest. Tr. at 75. He started an Individual Outpatient Treatment Program (IOP) immediately after
the DWI. Tr. at 75. He completed the IOP program in a timely manner. Tr. at 111. The Individual
began aftercare in February 2016, after reading the DOE psychologist’s report which
recommended aftercare or Alcoholics Anonymous. Tr. at 82, 110. He also started to see his IOP
counselor regularly. Tr. at 111.
The Individual’s witnesses testified that his personality has undergone a transformation since he
stopped consuming alcohol. His sister, father, girlfriend, co-workers, and counselor all testified
that he is a different person. Tr. at 12, 25, 29, 37, 51, 106. His IOP counselor testified that, “[h]e
was a jerk,” the first time she met him, but that she’s seen a remarkable change that surprised her
because it was so dramatic. Tr. at 106, 107. The witnesses testified that he is “at peace.” Tr. at
12, 39, 44. The Individual’s witnesses also testified that he does not smell of alcohol, there is no
alcohol in his house, and when he is in a social situation, he drinks either water or tea. Tr. at 13,
20, 26, 68.
The DOE psychologist and the counselor testified that the Individual’s risk of relapse is low. Tr.
at 114, 124. However, the DOE psychologist still stated that the Individual needed one year of
sobriety before he would consider him rehabilitated or reformed. Tr. at 124.
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V. Administrative Judge’s 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 not be restored. 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.
As an initial matter, I find that the LSO has properly raised a security concern under Criteria H
and J, regarding the Individual’s alcohol misuse. The Individual does not dispute the DOE
psychologist’s diagnosis of alcohol abuse.
In considering whether the Individual has mitigated the properly raised security concerns, I must
look to the Adjudicative Guidelines in evaluating the evidence before me. The relevant paragraphs
list conditions that could mitigate these types of security concern, including, regarding Criterion
H:
(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
(c) recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by the U.S. Government that an individual's previous
condition is under control or in remission, and has a low probability of recurrence
or exacerbation;
(d) the past emotional instability was a temporary condition (e.g., one caused by a
death, illness, or marital breakup), the situation has been resolved, and the
individual no longer shows indications of emotional instability;
Adjudicative Guidelines, ¶ 29(a-d). And regarding Criterion J:
(a) so much time has passed, or the behavior was so infrequent, or it happened
under such unusual circumstances that it is unlikely to recur or does not cast doubt
on the individual's current reliability, trustworthiness, or good judgment;
(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol
abuser);
(c) the individual is a current employee who is participating in a counseling or
treatment program, has no history of previous treatment and relapse, and is making
satisfactory progress;
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(d) the individual has successfully completed inpatient or outpatient counseling or
rehabilitation along with any required aftercare, has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with
treatment recommendations, such as participation in meetings of Alcoholics
Anonymous or a similar organization and has received a favorable prognosis by a
duly qualified medical professional or a licensed clinical social worker who is a
staff member of a recognized alcohol treatment program.
Adjudicative Guidelines, ¶ 23(a)-(d).
Regarding the above factors, I cannot find that, as applied to the instant matter, they sufficiently
mitigate the security concerns raised by the LSO. With respect to ¶¶ 29(b), (c), and 23(d), the
Individual has not received an opinion by the DOE psychologist that the Individual’s alcohol abuse
is under control or in remission. The Individual’s counselor testified that the Individual is doing
well and his risk of relapse is low. Tr. at 117. The DOE psychologist also testified that the
Individual’s risk of relapse is low but stated that the Individual needs one year of abstinence before
the DOE psychologist could opine that the Individual is rehabilitated or reformed. Tr. at 124. The
DOE psychologist did state that the Individual has established a good pattern of abstinence with
aftercare and counseling. Tr. at 124.
Regarding ¶¶ 29(d) and 23(a), it is true that the Individual appears to have begun drinking more
heavily during his divorce, but his previous DWI, was while he was still married and had no
apparent marital problems. Further, his DWI was less than one year prior to the hearing and his
alcohol consumption was not infrequent. The hearing testimony indicates that he would frequently
send his current girlfriend text messages indicating how many beers he had consumed in an
evening. Tr. at 80.
It is possible that the remaining factors, ¶¶ 29(a) and 23(b) and(c) may weigh for the restoration
of the Individual’s security clearance. The Individual’s condition is identifiable and is controllable
with treatment, with which he is complying. The Individual has acknowledged his alcohol abuse,
provided evidence of his actions taken to overcome his problem and established a pattern of
abstinence. Finally, the Individual is a current employee and is participating in counseling. He
has no history of previous treatment and relapse. Both the DOE psychologist and his counselor
have testified that he is making excellent progress. Tr. at 114, 117, 125, 126.
Nevertheless, in prior cases involving Criteria H and J, Administrative Judges generally accord
deference to the opinion of mental health professionals regarding the issue of rehabilitation and
reformation. See, e.g., Personnel Security Hearing, Case No. TSO-1057 (2011); Personnel
Security Hearing, Case No. TSO-0562 (2008). The DOE psychologist did not change his original
recommendation that the Individual needs a total of 12 months of abstinence to achieve
rehabilitation or reformation after hearing the testimony presented. For this reason, I cannot find
that the Individual has resolved the security concerns raised by his alcohol misuse.
VI. Conclusion
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In the above analysis, I have found that there was derogatory information in the possession of the
DOE that was sufficient to raise 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 presented at the hearing, I
have found that the Individual has not brought forth sufficient evidence to resolve the security
concerns associated with Criteria H and J. I therefore cannot 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
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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: June 2, 2016