PSH-16-0016

*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: March 15, 2016 ) Case No.: PSH-16-0016
)
_________________________________________ )
Issued: June 30, 2016
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. During an August 4, 2015, personnel security interview (PSI), the individual
admitted that from 2010 to April 2015, he abused and illegally used the prescription medication
Oxycodone, a Scheduled II Drug listed on the Controlled Substance Act of 1970. In addition, the
individual admitted to excessive alcohol use. During that PSI, the individual was referred to a
DOE consultant psychologist (DOE psychologist) for an agency-sponsored evaluation.
On February 5, 2016, after reviewing the DOE psychologist’s report, the transcript of the PSI, and
the rest of the individual’s personnel security file, the LSO sent the individual a letter (Notification
Letter) advising him that the DOE possessed reliable information that created substantial doubt
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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regarding his eligibility to hold an access authorization. In an attachment to the Notification Letter,
the LSO explained that the derogatory information fell within the purview of 50 U.S.C. § 435c
(the Bond Amendment) and four potentially disqualifying criteria set forth in the security
regulations at 10 C.F.R. § 710.8, subsections (h), (j), (k) and (l) (Criteria H, J, K and L,
respectively).
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, the individual
presented his own testimony and that of six witnesses, including his Alcoholics Anonymous (AA)
sponsor, his supervisor, two co-workers, his sister and his son. The DOE counsel presented the
testimony of the DOE psychologist. Both the DOE Counsel and the individual submitted a number
of written exhibits prior to the hearing.
II. The Notification Letter and the Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s continued eligibility for access authorization. The
information noted in the letter specifically cites to the Bond Amendment and Criteria H, J, K and
L.
The Bond Amendment provides, in pertinent part, that a Federal agency may not grant or renew a
security clearance for a covered person who is an unlawful user of a controlled substance or an
addict. 50 U.S.C. § 435c(b). As support of its invocation of this amendment, the Notification
Letter cites the individual’s misuse of prescription medication Oxycodone from 2010 to April
2015. 2
Criterion (H) defines as derogatory information indicating that an individual has an illness or
mental condition which, in the opinion of a licensed clinical psychologist, causes or may cause a
significant defect in her judgment or reliability. In this case, the Notification Letter cites the
diagnoses of the DOE psychologist that the individual suffers from Opioid Dependence in early
remission, and Alcohol Dependence in early remission, conditions which, he opined, causes or
could cause a significant defect in the individual’s judgment or reliability.
Criterion (K) pertains to information indicating that the individual has transferred, possessed or
used a drug listed in the Schedule of Controlled Substances established pursuant to Section 202 of
the Controlled Substances Act of 1970, except as prescribed or administered by a physician or
otherwise authorized by federal law. In support of this Criterion, the Notification Letter cites the
individual’s admission that he abused and illegally used the prescription medication Oxycodone
from 2010 to 2015 as well as his admission that he used other illegal drugs, including marijuana,
hashish and cocaine in the past.
2 On August 12, 2009, the DOE Deputy Secretary issued DOE Notice 470.5, which implemented the Bond
Amendment in the DOE. In that Notice, the Deputy Secretary, among other things, asserted that persons subject to
the Bond Amendment (1) will continue to be processed for Administrative Review in cases where the Agency is
unable to “waive” the Bond Amendment; and (2) will receive the same due process rights that existed before the
implementation of the Bond Amendment.
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Criterion (J) defines as derogatory information indicating that the individual has been, or is a user
of alcohol habitually to excess, or has been diagnosed by a licensed clinical psychologist as alcohol
dependent or as suffering from alcohol abuse. Under this Criterion, the Notification Letter refers
to the diagnosis of the DOE psychologist that the individual suffers from Alcohol Dependence, as
well as to several admissions by the individual regarding his excessive use of alcohol, his alcohol-
related incidents, and his alcohol treatment.
Under Criterion (L), information is derogatory if it tends to show that the individual has engaged
in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable
or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion,
exploitation or duress which may cause him to act contrary to the best interests of national security.
Under this Criterion, the Notification Letter cites the individual’s criminal conduct including a
2015 arrest for Driving Under the Influence (DUI), his illegal use and purchase of prescription
medication Oxycodone as well as his operation of a vehicle while intoxicated on numerous
occasions.
This derogatory information adequately justifies the DOE’s invocation of Criteria (H), (J), (K) and
(L), and raises significant security concerns. Conduct involving questionable judgment,
untrustworthiness, or unwillingness to abide by rules and regulations could indicate that a person
may not properly safeguard classified information. Improper or illegal involvement in drugs may
also indicate that a person may be unable to safeguard such information. Emotional and mental
disorders are security concerns because they may indicate a defect in judgment, reliability, or
stability. Also, excessive consumption of alcohol is a security concern because this behavior can
lead to the exercise of questionable judgment and the failure to control impulses. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The
White House (December 19, 2005), Guidelines E, G, H, and I (Adjudicative Guidelines).
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 the national security. 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 material factors. 10 C.F.R. § 710.9(c).
The purpose of a DOE administrative proceeding under 10 C.F.R. Part 710 is to provide the
individual an opportunity to submit information in support of 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
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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). 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. Findings of Fact and Analysis
At the hearing, the individual did not dispute the allegations in the Notification Letter. Instead, he
attempted to demonstrate, through his testimony and that of his witnesses, that he does not suffer
from a significant defect in judgment and reliability, and that the behavior related to his illegal
drug use and his alcohol use is unlikely to recur.
A. Criteria (H) and (J)
The Adjudicative Guidelines describe factors that could mitigate security concerns involving
psychological conditions. Those factors include information indicating that: (i) the condition is
readily controllable with treatment, and the individual has demonstrated ongoing and consistent
compliance with the treatment program; (ii) the individual has voluntarily entered into, and is
participating in, a counseling or treatment program for a condition that is amenable to treatment,
and has received a favorable prognosis by a duly qualified mental health professional; (iii) there is
a recent opinion by a duly qualified mental health professional retained by, or acceptable to, the
U.S. Government that the individual’s condition is under control, or in remission, and has a low
probability of recurrence; (iv) the individual’s condition is temporary and has been resolved, with
the individual showing no current signs of emotional instability; and (v) there is no indication of a
current problem. See Adjudicative Guidelines, Guideline I, ¶ 29.
At the outset, I note that the favorable testimony of the DOE psychologist establishes the existence
of mitigating factor (iii), and, along with the testimony of the individual, convinces me that he has
adequately addressed the DOE’s security concerns under Criteria (H) and (J). The individual has
a past history of alcohol use. DOE Exh. 4. According to the individual, he began drinking alcohol
at an early age. By age 16, he was drinking heavily, consuming a six-pack of beer once a week
and becoming intoxicated. Id. In 1982, the individual enlisted in the United States Army and
states that he drank on an “almost” daily basis. Id. In 1983, the individual had his first Driving
While Intoxicated (DWI) arrest. Id. At the time, his blood-alcohol concentration was measured at
.08. After this arrest, he entered his first alcohol abuse treatment program, but admits that after
his alcohol counseling he continued to have problems with is use of alcohol. In 1984, he was
discharged from the Army because of his alcohol use. The individual admitted that from 1990 to
1997, he stopped drinking alcohol “because his drinking was getting old and he was experiencing
hangovers once in a while.” He began drinking again in 1998 and drank excessively becoming
intoxicated three to four times a year. In 2004, the individual was involved in an automobile
accident. He admitted that that at the time of the accident he was intoxicated after drinking eight
to nine, 12-ounce beers, and three to four shots of whiskey. In January 2005, he was admitted to
a 28-day inpatient alcohol treatment program. During this program, the individual was diagnosed
with Alcohol Dependence. Despite his counselor advising him during the inpatient treatment not
to drink alcohol ever again, he started drinking again in 2013. The individual admitted that from
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2013 to April 2015, he drank to intoxication every time he consumed alcohol. In April 2015, he
was arrested and charged with DUI 1st Offense. He admitted that he drank about one fifth of a
bottle of whiskey prior to his arrest. His blood-alcohol concentration measured at .21. In May
2015, the individual was admitted into another treatment program. Prior to his admission, he drank
two, 12-ounce beers, and two shots of whiskey. Id.
The individual also has a past history of illegal drug use. He reported that he first tried marijuana
in 1974 when he was about 10 years old. Id. The individual admitted that from 1982 to 1987, he
used marijuana twice. From 1983 to 1986, he used hashish three times in combination with
marijuana. He also admitted that he used cocaine three times from 1982 to 1983 and once in 1985.
The individual used LSD once in 1983 and once in 1986. He reported that, from 1990 to 1997, he
did not use any illegal drugs or alcohol. When he resumed drinking in 1997, he also resumed his
marijuana usage, using marijuana about once a week. From 2000 to December 2004, the individual
used marijuana once a month or less. Id.
In 2008, the individual’s primary care physician began prescribing narcotic pain medication for
treatment of the individual’s back pain. He was initially prescribed Oxycodone, 10 mg tablets, to
be taken as needed for pain. He reported that later, in 2010, a nurse practitioner began prescribing
the medication at a higher dosage, 20 mg, and the individual began taking the medication up to
three times daily. It was at this time that the individual began abusing Oxycodone. According to
the individual, from 2010 to April 2015, he abused the prescription Oxycodone by taking 80 to
100 milligrams of the drug every day. He admitted that during this period, his wife and children
were concerned about him abusing the medication. The individual also admitted that he reported
to work under the influence of Oxycodone approximately ten times. Id.
During the hearing, the individual testified about his alcohol and illegal drug use. He testified that
he no longer desires to drink or use drugs and has decided to make better choices in his life.
Transcript of Hearing (Tr.) at 103. The individual last drank alcohol on May 4, 2015. He testified
that he has experienced a certain “freedom” since completing an inpatient alcohol treatment
program in June 2015. Id. at 104 and 105. The individual stated that his most recent treatment
was different, noting that he participated in previous treatment programs for the wrong reasons,
including to save his marriage. Id. According to the individual, he is now focusing on recovery
for himself and on rebuilding relationships with his family members. He testified that his most
recent alcohol treatment program taught him how to deal with stressful issues in his past that
contributed to his abuse of alcohol and drugs, including the death of his father and an abusive
stepfather. Id. at 108. The individual stated that he experienced a “spiritual awakening” in
treatment and now wants to be someone who is accountable for his actions. Id. at 109. He added
that he is working through the steps of AA with his sponsor. With respect to his back pain, the
individual testified that he is no longer in major pain because he is taking care of himself
physically. Id. at 110.
The individual’s son corroborated the individual’s testimony that he has been “clean and sober”
for over a year now. Id. at 17. He acknowledged that the individual has made bad decisions with
alcohol and drugs in the past, but is now taking a more positive approach to life. Id. at 18. The
individual’s son testified that he sees a totally different person in his father now, noting that after
his 2015 treatment, his father “got it” and now understands the importance of abstaining. Id. at
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20. He further testified that he feels confident that the individual has his life under control. Id. at
22. According to the son, the individual has changed his lifestyle, including his eating habits and
social activities. Likewise, the individual’s sister testified that the individual now understands the
consequences of his destructive behavior and is confident he will remain sober in the future. Id.
at 85. The individual’s AA sponsor, who has sponsored the individual for about a year, testified
that he believes the individual has been sober for about 13 months. He testified that he individual
has worked through all of the 12 steps of AA and now looks at the world in a more positive light.
Finally, the individual’s foreman and two co-workers testified that the individual is an honest,
trustworthy and reliable person.
After listening to the individual and his witnesses’ testimony, the DOE psychologist noted first
that, after his October 2015 evaluation, he recommended two years of treatment for the individual
to be considered adequately rehabilitated or reformed because the individual’s disorders were
severe. Id. at 132. He further noted that at the time of his evaluation, the individual only had
about five months of sobriety and treatment under his belt. Id. However, the psychologist testified
that although the individual has only been in treatment for about a year, he heard something
“unusual” in the hearing testimony that changed his recommendation for the individual. Id. at 135.
The psychologist testified that the individual has made exceptional progress in his treatment. He
noted the impressive testimony from the individual’s son and sister as well as the individual’s AA
sponsor. He also noted the positive recommendation made by the individual’s treatment provider
at DOE and particularly the good prognosis given to the individual. Exh. A. In light of these
positive factors, the psychologist opined that he now believes the individual has achieved adequate
evidence of rehabilitation from his two disorders, Alcohol Dependence and Opioid Dependence.
Id. at 137. He testified that the individual has the mechanisms in place to be successful and further
testified that the individual’s prognosis is good and his risk of relapse is low. Id. at 140.
After reviewing all of this testimony, I agree with the DOE psychologist that the individual’s risk
of relapse is acceptably low, and that his conditions do not currently cause a significant defect in
his judgment and reliability. As an initial matter, the individual, through his most recent inpatient
treatment program, has confronted the issues of his past that significantly contributed to his alcohol
and drug use. The individual described this treatment program as “life changing” and now
understands the consequences of his past behavior. As the DOE psychologist stated, the individual
has the mechanisms and persons in place to support his sobriety. In addition, the individual no
longer has the desire or urge to drink or use drugs and is committed to abstaining in the future. I
am convinced that the individual is adequately rehabilitated from his alcohol and drug problems.
For these reasons, I find that the individual has successfully addressed the DOE’s security concerns
under Criteria (H) and (J).
B. Criteria (K) and (L) and the Bond Amendment
I reach a similar conclusion with regard to Criteria (K) and (L) and the Bond Amendment. The
Adjudicative Guidelines that pertain to the individual’s abuse and illegal use of the prescription
medication Oxycodone from 2010 to April 2015, as well as his use of other illegal drugs, all
provide that the isolated nature of the conduct, unusual circumstances leading up to the conduct,
and the likelihood that the conduct will not be repeated, can act as mitigating factors. See
Adjudicative Guidelines E, H and J.
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The individual abused and illegally used prescription medication Oxycodone by taking 80 to 100
milligrams of the drug every day. He initially took Oxycodone in smaller doses to address his
chronic back pain, but then became addicted to the drug and increased his usage. During the
hearing, the individual testified that during his June 2015 inpatient treatment program, he
confronted the issues that contributed to his drug and alcohol abuse, including the death of his
father and his abusive stepfather. The individual testified that he had a “spiritual awakening”
during treatment and is now fully accountable for his actions. Considering these facts, I conclude
that the individual’s abuse and illegal use of prescription Oxycodone happened under such
circumstances that are unlikely to recur in the future and his use of illegal drugs in the past occurred
so long ago that it does not cast doubt on the individual’s reliability, trustworthiness or good
judgement; and to the extent that the behavior raised security concerns under Criterion K, I
conclude that such concerns have been successfully resolved. I further conclude, for the same
reasons, that the individual is not “an unlawful user of a controlled substance or an addict,” within
the meaning of the Bond Amendment. See id.; Personnel Security Hearing, Case No. TSO-0938
(2010).
Similarly, the concerns raised under Criterion L are incidents of criminal conduct tied to the
individual’s alcohol and drug abuse, including the individual’s April 2015 DUI. There is ample
evidence in the record establishing that the individual is a very honest, reliable, and trustworthy
person, both professionally and personally, who can be relied upon to exercise good judgment, and
who follows laws and rules. See, e.g., Tr. at 13, 34, 53, 61, 67 and 76 (testimony of individual’s
son, sister, foreman, AA sponsor and co-workers/friends). In addition, there is evidence of
successful rehabilitation from the individual’s two disorders, Alcohol Dependence and Opioid
Dependence. I believe the individual’s criminal conduct occurred under such unusual
circumstances that it is unlikely to recur and does not cast doubt on his future honesty, reliability
and trustworthiness. For these reasons, I find that the individual has resolved the Criterion L
concerns cited in the Notification Letter.
V. Conclusion
I find that no valid security concerns remain regarding the Bond Amendment and Criteria (H), (J),
(K) and (L). I therefore conclude that the individual has demonstrated that restoring his access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. Accordingly, the individual’s security clearance should be restored. Any party
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: June 30, 2016