PSH-16-0024

*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: April 4, 2016 )
_________________________________________ ) Case No.: PSH-16-0024
Issued: August 4, 2016
_______________
Administrative Judge Decision
_______________
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
The LSO received information indicating that the Individual had a history of five alcohol-related
arrests. In order to address those concerns, the Local Security Office (LSO) issued a Letter of
Interrogatory (LOI) to the Individual on October 28, 2015, and a Personnel Security Interview
(PSI) of the Individual on November 18, 2015. Ex. 8, Ex. 5. Because the Individual’s responses
to the LOI and the PSI 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
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
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 April 8, 2016.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his spouse (the Spouse), his mother, his former attorney, his supervisor, and his
Psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-16-0024 (hereinafter
cited as “Tr.”). The LSO submitted 11 exhibits, marked as Exhibits 1 through 11, while the
Individual submitted 21 exhibits, which are marked as Exhibits A through W.
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 (f), (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 F refers to information indicating that the Individual has: “Deliberately misrepresented,
falsified, or omitted significant information from a Personnel Security Questionnaire, a
Questionnaire for Sensitive (or National Security) Positions, a personnel qualifications statement,
a personnel security interview, written or oral statements made in response to official inquiry on
a matter that is relevant to a determination regarding eligibility for DOE access authorization, or
proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f).
Specifically, the Notification Letter alleges that the Individual: intentionally omitted his
October 18, 2003, arrest for underage drinking, from the Electronic Questionnaire for
Investigations Processing (e-QIP) that he submitted on June 4, 2015, failed to timely report his
August 2, 2015, arrest for a domestic incident to the LSO, and omitted the August 2, 2015, arrest
from the response to the LOI he submitted on November 6, 2015. These circumstances
adequately justify the DOE’s invocation of Criterion F, 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, “Conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations can raise questions about an individual's reliability, trustworthiness and ability to
protect classified information” and therefore can raise a security concern under Adjudicative
Guideline E at ¶ 15. Of special interest is any failure to provide truthful and candid answers
during the security clearance process or any other failure to cooperate with the security clearance
process. Adjudicative Guideline E at ¶ 15.
Criterion J refers to information indicating that the Individual has: “Been, or is, a user of alcohol
habitually to excess … .” 10 C.F.R. § 710.8(j). Specifically, the Notification Letter alleges that
the Individual has incurred three alcohol-related arrests,3 and has admitted exceeding the United
States Department of Health and Human Services, National Institute on Alcohol Abuse and
Alcoholism, standards for excessive use of alcohol. These circumstances adequately justify the
3 As discussed in more detail below, the record shows that the Individual actually has a history of five alcohol-
related arrests.
3
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, . . . child or spouse abuse, disturbing the peace, or other incidents of concern,
regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent,
[and] (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless
of whether the individual is diagnosed as an alcohol abuser or alcohol dependent.” Adjudicative
Guideline G at ¶ 22(a) and (c).
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
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 three of the Individual’s five alcohol-related arrests (the two most recent of which
involved domestic violence), 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.
4
IV. FINDINGS OF FACT
The Individual has a history of five alcohol-related arrests since 2003. On October 4, 2015,
police arrested the Individual and charged him with Making Terroristic Threats, Unlawful
Restraint, and Simple Assault.4 Ex. 9 at 1. On August 2, 2015, police arrested the Individual
and charged him with Terroristic Threats.5 Ex. 4 at 4. On June 11, 2009, police arrested the
4 A police report dated October 4, 2015, provides the following account of this incident:
On Sunday, October 4, 2015 . . . Police Officers were sent to . . . for a report of a woman
screaming inside her condo, and the caller reported that it sounded like the woman was thrown
down the stairs. Upon our arrival we observed the [Spouse] sitting in her car. The [Spouse] stated
that her intoxicated ex-boyfriend, the [Individual], assaulted her while she was trying to retrieve
some of her personal belongings from the home because she is in the process of moving out. She
had made 6 or 7 trips in and out of the condo taking things to her car without incident. She was
walking back towards the door to the condo, and the defendant appeared in the door way. He
grabbed the [Spouse] and tried to pull her inside the condo. She tried to talk to the [Individual] and
get him to calm down and release her. He told her he was going to make her pay. She tried to grab
a pole to keep from being pulled into the condo, but he punched her in the area of her kidney on
her left side. The [Spouse] started screaming hoping that a neighbor would call the police, and she
was pulled inside the condo. He started punching her really hard on her left thigh. The [Spouse]
said she was able to dial 911 on the phone in her pocket, and was disconnected. 911 called her
phone back, and this made the [Individual] even more mad. He dragged the [Spouse] by the hair
up the stairs. He dragged her into the bedroom and shoved her face into some kitty litter she had
spilled while removing the kitty litter box earlier. He then punched her in her gut, and right
kidney. She was trying to dodge his punches and use her arms to deflect them, and one of the
punches was defected into her face. The [Individual] turned his back on the victim for a moment,
and she ran outside to her car. He chased after her, and the door slammed shut when he ran into it.
She was able to call the police from a phone she had in the car and the [Individual] ran back in the
condo. At this time police cars arrived on scene. The [Spouse]'s shirt was ripped, and she did have
scratches and marks on her stomach, side, and back.
Ex. 7 at 8.
5 A police report dated August 2, 2015, provides the following account of this incident:
[The Individual’s spouse] stated that . . . she was awakened by [the Individual] who reportedly had
his hands around her throat, choking her and demanding that she give him the password to her cell
phone. According to [the Spouse], she agreed to get him off of her and then she retreated to the
bathroom. [The Spouse] stated that [the Individual] followed her in the bathroom and continued
to slap her thighs as she was sitting on the toilet in a continued attempt to access her phone. As
[the Spouse] got off the toilet, . . . [the Individual] immediately threw her on the bed, jumped on
top of her and began to bite the fingers on her right hand, again in an effort to gain access to her
phone. [The Spouse] was unclear how she separated from [the Individual] but eventually she left
the apartment and walked toward [a grocery store] with [the Individual] following. [The Spouse]
told me that her goal was to get to a public place to call the police. Once at the [grocery store],
[the Spouse] stated that [the Individual] began threatening to kill her and calling her obscene
words. She was able to gain distance from [the Individual] and asked a customer to call the police.
As we were on scene, [a witness] approached [the Police] and stated that she witnessed [the
Individual] tell [the Spouse] ‘I'm going to kill you.’
Ex. 4 at 7.
5
Individual and charged him with Driving Under the Influence of Alcohol (DUI). Ex. 6 at 3-4.
On May 12, 2006, police arrested the Individual and charged him with DUI. Ex. 7 at 2. On
October 18, 2003, police charged the Individual with theft (of alcoholic beverages in a bar). Ex.
7 at 2-3.
A. The LOI
On October 28, 2015, the LSO issued the Individual a LOI in which it requested that the
Individual provide: (1) a copy of the police report form the October 4, 2015 arrest, (2) “a
detailed statement of the incident that resulted in your arrest,” (3) “results of your Employee
Assistance Program evaluation,” (4) “copies of the incident reports regarding your
arrest/citations for a 2003 theft; 2006 DUI; and 2009 DUI,” (5) a detailed narrative of the events
that led to each arrest, and (6) the amount of alcohol that was consumed prior to each arrest, and
the Individual’s blood alcohol level at time of both DUI arrests. Ex. 8 at 1.
On November 6, 2015, the LSO received the Individual’s Response to the LOI (the RLOI). In
the RLOI, the Individual provided a copy of the police report of the October 4, 2015, arrest. The
Individual stated that: “The police incident report regarding this matter contains information that
is either embellished, or simply false.” Ex. 7 at 2. The Individual provided the following
account of that incident:
On the evening of Sunday, October 4th, 2015, my fiancée, . . . engaged in an
argument that escalated to a point where neighbors called the . . . police because
of the noise. After the police arrived, they cited me with making terroristic
threats, unlawful restraint, and simple assault. I was required to appear in front of
the . . . Judge on Thursday, October 8, 2015 where I contested these charges.
Ex. 7 at 1. The Individual further reported that the Judge ordered him to undergo a drug and
alcohol evaluation and to follow any recommended treatment. Ex. 7 at 1. The Individual stated:
As you will see, the results of the . . . Alcohol Use Screening recommend me to
seek consultation with a mental health professional, which I have done. I will
execute the allotted five sessions, as provided by our [EAP], then execute five
additional sessions with my chosen professional after January 1st, 2016, as further
provisioned by [his EAP]. I have also been regularly attending support group
meetings to facilitate and maintain a healthy lifestyle.
Ex. 7 at 1-2. The RLOI also provided the Individual’s account of the circumstances which led to
his 2003,6 2006,7 and 20098 arrests. The Individual supplemented the RLOI on November 10,
6 The Individual provided the flowing account of his 2003 arrest:
On October 18th, 2003, I was with a number of fraternity brothers in a ‘dive bar’ . . .. There
happened to be a cooler near the bar, one typical of supermarket check-out lines, in order for
patrons to purchase six-packs to go. On that day, dissatisfied with the pace of service, a friend
helped himself and others to one of the aforementioned six-packs. Once discovered, the police
were called and citations were issued.
6
2015, by submitting the police report for his 2009 arrest. Ex. 6 at 1. The RLOI and its
supplement do not contain any mention of the Individual’s August 4, 2015, arrest.
B. The PSI
The LSO conducted a PSI of the Individual on November 18, 2015. Ex. 5 at 1. During this PSI,
the Individual admitted that he had been arrested on October 4, 2015, for making Terroristic
Threats, Simple Assault, and Unlawful Restraint. Ex. 5 at 5. The Individual admitted that prior
to the incident which resulted in this arrest, he “had consumed a significant amount of alcohol,”
(estimating that he had consumed 10 to 12 beers over the course of a number of hours, beginning
in the early afternoon and that he was intoxicated during this incident). Ex. 5 at 8, 17. The
Individual stated that he suspected his girlfriend9 was seeing another man. Ex. 5 at 9. When she
came home, she began removing her possessions from their home and he “tried to prevent her
from leaving.” Ex. 5 at 9-10. Specifically, the Individual stated: “I attempted to physically take
her from outside and pull her back into the condominium.” Ex. 5 at 11. His girlfriend fought his
attempt to force her back inside. Ex. 5 at 10. According to the Individual, their yelling at each
Ex. 7 at 2.
7
The Individual provided the flowing account of the circumstances leading to his 2006 arrest:
On May 12th, 2006, while visiting my former undergraduate roommates at their residence . . . the
police were called to the residence due to a noise complaint. After arriving on the scene, the police
asked a number of us to clean up trash that had accumulated on the sidewalk outside of the row
home. While parallel parked (and also blocked in by multiple police cars), I entered my car to
retrieve a pack of cigarettes. I was arrested for DUI on a technicality being that I was occupying
my vehicle while also having the keys on my person. At no point did I operate the vehicle, nor did
I have any intention of operating any vehicle that evening as I planned on spending the night with
my former roommates. Believing that I was being wrongfully arrested, I refused a breathalyzer
(much to my later detriment). Though there is at this point no way to know what my BAC was, I
am confident that at the time of arrest, it was in excess of the legal limit.
Ex. 7 at 2.
8 The Individual provided the flowing account of the circumstances which led to his 2009 arrest:
On June 9, 2009, while home on leave in between my specialty Navy training and permanent
change of station orders . . . , I met with my Navy recruiter. . . . [who] took me out to a "liquid
lunch," which then turned into a "liquid dinner." When I was finally on my way home, after the
sun had gone down, I was pulled over for failing to use my headlamps (it was a well-lit area
despite the sun having gone down). Of course the police officer . . . was easily able to detect the
strong odor of alcohol on my breath. Though I did reasonably well of the field sobriety tests, I
failed the breathalyzer and the subsequent blood test. All the while, I was respectful and courteous
to the police officers. As such, they were quite willing to be extremely flexible with delayed court
dates as to accommodate multiple overseas deployments. Once finally pleading guilty and being
sentenced, I paid thousands of dollars' worth of costs and fines, served a driver's license
suspension, and served a probationary period, all satisfactorily and without a single incident.
Ex. 7 at 3.
9 His girlfriend is now his spouse.
7
other alerted their neighbors. Ex. 5 at 11. The interviewer asked the Individual if he had
threatened his girlfriend during this incident. The Individual responded by stating that he did not
say “I’m going to make you pay” to his girlfriend, but that he did admit: “I likely said, made
some sort of threatening words to her,” and “I would not deny that I made, said, spoke, yelled
threatening words to her.” Ex. 5 at 12. The Individual admitted that he hit his girlfriend in the
leg during this incident. Ex. 5 at 12. He claimed that his girlfriend was fighting back and hitting
him in his face during this incident. Ex. 5 at 12. The Individual stated that his girlfriend emptied
a litter box into their bed. Ex. 5 at 13. The Individual claimed that he forced his girlfriend on to
the bed with him, not realizing that she had emptied the litter box on their bed. Ex. 5 at 13. He
admitted her face made contact with the kitty litter. Ex. 5 at 13. The Individual acknowledged
that his behavior on October 4, 2015, was “massively unacceptable.” Ex. 5 at 14. As a result of
this incident, a court ordered the Individual to undergo evaluation by the Employee Assistance
Program (EAP). Ex. 5 at 18. The Individual claimed that the (October 4, 2015) police report
was somewhat exaggerated and had inaccuracies in it. Ex. 5 at 65. The interviewer asked the
Individual for examples of the police report’s exaggerations or inaccuracies. The Individual
responded by stating that the kitty litter never made contact with his girlfriend’s face. Ex. 5 at
65. He claimed that he did not recall pulling her hair. Ex. 5 at 66.
The Individual admitted that he had three additional alcohol-related arrests. Ex. 5 at 19. The
Individual further admitted that when he plead guilty to the 2009 DUI, the Court required him to
attend DUI school, and placed him on probation for 18 months. Ex. 5 at 26-27. When the
Individual was asked by the interviewer about the 2006 DUI, the Individual recalled that he had
been drinking with some friends at one of their apartments when the police were summoned
because of noise complaints. Ex. 5 at 31. The Individual admitted that he was very intoxicated
during this incident, estimating that he consumed approximately 12 drinks over four and one-half
hours prior to the 2006 arrest. Ex. 5 at 32, 34. The Individual claimed he was arrested for
entering his parked car while intoxicated, even though he had no intention to operate it. Ex. 5 at
32-33. The police also accused him of resisting arrest. Ex. 5 at 33.
When the interviewer asked the Individual about his 2003 arrest for petty theft, he recounted that
he and four or five friends had visited a bar. One of his friends had stolen a six pack of beer that
was in a cooler and gave the Individual a beer, which he began to consume. Ex. 5 at 39.
Someone alerted the police, and the Individual was arrested. Ex. 5 at 39. The Individual
admitted that he been consuming alcohol when this incident occurred, and that he was a minor in
possession of falsified identification at this time. Ex. 5 at 39-40.
The Individual reported that his drinking has tapered since July 2014. Ex. 5 at 45. The
Individual stated that he “very often” has a glass of wine or a beer with dinner on week days, and
two to four beers on Fridays and Saturdays. Ex. 5 at 46. The Individual admitted that his
girlfriend and family have expressed concern about his drinking. Ex. 5 at 48-49, 56. The
Individual acknowledged that he has experienced an increase in the amount of alcohol he has
consumed. Ex. 5 at 50. The Individual acknowledged that he had consumed two beers the night
before the PSI. Ex. 5 at 51. The Individual acknowledged that his alcohol use had cost him “a
lot of lost time” from work when he would sleep in or not be “fully functional the next day.” Ex.
5 at 52. The Individual also admitted that he had driven, without incident, while intoxicated in
June 2015. Ex. 5 at 52. The last time he was intoxicated was when he was arrested on October
8
4, 2015. Ex. 5 at 53. The interviewer asked the Individual if he ever thought he should cut down
on his drinking. The Individual responded by stating: “I have thought that I need to develop the
emotional maturity, and the coping mechanisms to deal with life, and not use alcohol as a crutch.
And, it's unhealthy. It's not normal to drink 12 beers.” Ex. 5 at 53. The Individual also admitted
feeling bad or guilty after each of the incidents discussed above. Ex. 5 at 55. The Individual
could not explain why he continues to drink after the incidents discussed above. Ex. 5 at 55.
The Individual indicated he had attended four Alcoholics Anonymous (AA) meetings since
October at his own behest. Ex. 5 at 68-69. The Individual indicated that he does not believe he is
an alcoholic or that he has an alcohol disorder. Ex. 5 at 69. He stated that he intended to abstain
from further alcohol use. Ex. 5 at 69. The Individual stated that he is working hard to resolve
his issues through the EAP. Ex. 5 at 63. He has begun seeing a counselor though his EAP. Ex.
5 at 73.
During the PSI, the interviewer asked the Individual: “Any other arrests that we haven't talked
about?” The Individual responded by stating: “Not to my recollection, sir.” Ex. 5 at 41. Later
on during the PSI, the Individual was asked if that were “any other domestic disturbances at all?”
The Individual then reported that he had been arrested for a domestic incident in August 2015.
Ex. 5 at 57. This was the first time that he had reported this incident to the LSO. The Individual
admitted that he had not yet reported this arrest to the LSO because he “was awaiting a court
date.” Ex. 5 at 57. The Individual indicated that he was aware that he was expected to report the
arrest within two days, but did not do so because he was nervous and unsure about what would
happen. Ex. 5 at 57. The Individual also explained that he was waiting for the chance to discuss
this incident in person. Ex. 5 at 62. The Individual explained that his girlfriend had been seeing
another man. Ex. 5 at 59. When she received some text messages and voice mails from this
other man professing his love for her, he woke her up to demand the pass code to her phone so
he could read the text messages and listen to the voice mails. Ex. 5 at 59-60. She refused to
provide him with the pass codes and an argument ensued. Ex. 5 at 60. She then suggested that
they go for a walk and they walked to a nearby grocery store. Ex. 5 at 60. The Individual
claimed that he and his girlfriend were not arguing, but “eventually somebody called the police,
because this, at this point it was like 1:30 in the morning.” Ex. 5 at 60, 82. The Individual
admitted that he had consumed four or five beers on the night of the August 2, 2015, arrest. Ex.
5 at 61.
C. The Hearing
The Individual attempted to resolve the security concerns discussed above by submitting the
testimony of his Psychologist, Spouse, Mother, and Supervisor, as well as by providing his own
testimony. The Individual also submitted 21 documentary exhibits.10
10 These exhibits included some helpful information: including letters of reference (Ex. A, I), proof of his AA
meeting attendance (Ex. Q), proof of his-court mandated counseling program completion (Ex. O, P), court records
indicating the disposition of his two recent arrests (Ex. R, Ex. S), psychological records (Ex. N, Ex. U, Ex. V), and
documents which detailed his distinguished military career (Ex. J, K, L). However, many of the exhibits submitted
by the Individual were of questionable relevance to the issues before me: including the Individual’s autobiography
(Ex. C), resume (Ex. D), driver’s license (Ex. F), academic transcript (Ex. G), list of collegiate extracurricular
experiences (Ex. H), marriage vows (Ex. W), and family photographs (Ex. E).
9
During his hearing testimony, the Individual testified that he is remorseful for his actions. Tr. at
180. He further testified that “I know with every fiber of my being that I am not a security risk.”
Tr. at 180. The Individual testified that he has the support of his friends, family, and especially,
his Spouse. Tr. at 182. The Individual tried to explain why he delayed reporting his August 2,
2016, arrest until his November 18, 2015, PSI: stating that he delayed because he was “scared”
and “afraid,” and because his personal life was in upheaval. Tr. at 192. He further testified: “My
flawed logic was then I'm going to wait until the disposition hearing for this event, which I was
reasonably confident was going to end favorably, that the charge was going to be dismissed. And
at that time, I would then report the incident.” Tr. at 193. The Individual admitted that his
friends and family had expressed concerns about his alcohol consumption, to which he would
respond defensively. Tr. at 196. The Individual acknowledged he has a problem with alcohol,
and that alcohol was a common denominator is all of his legal issues. Tr. at 199-200, 204-205,
238-239. He testified that in order to deal with his emotional issues, he needed to remove
alcohol from the equation. Tr. at 202. The Individual testified that he is committed to long-term
abstinence form the use of alcohol. Tr. at 220. He testified that as a result, he is happier and has
“experienced a clarity that I have never had before.” Tr. at 202. The Individual testified that he
did not believe that the police report for the August 2015 incident “is truly representative of the
course of events.” Tr. at 207. When the Individual was asked what he did wrong during this
incident, he stated:
What did I do wrong? Well, I emotionally was incapable of handling the events
and life circumstances that led me to that event. Next, what was wrong was I
decided to consume alcohol, the very common denominator in every other
instance or problem in my life. So that's -- that's a huge problem. I think I also
was placing blame for the events evening happening. I blamed it on my fiancée.
I blamed it on that other man. You know, they were doing this to me. I didn't
consider the fact that I'm not the best version of myself. I wouldn't want to date
myself. How could I possibly blame my fiancée for not wanting to be with me? I
was deflecting responsibility for it.
Tr. at 208. Turning to the October 2015 incident, the Individual acknowledged that he had
attempted to physically force the Spouse back into their home and had struck the Spouse in her
leg. Tr. at 213-214. The Individual stated that he did not report the 2003 arrest as alcohol-
related because he was charged with theft, and therefore did not consider it to be an alcohol-
related arrest, even though the item stolen was a beer. Tr. at 225. The Individual testified that he
was certainly not trying to be deliberately vague or deceptive, when he omitted this arrest from
his e-QIP. Tr. at 226-227. The Individual was asked why, during the PSI, he did not initially
admit that he had been arrested in August 2015, when he was asked if there were any other
arrests that he had not reported to the LSO. The Individual responded by stating: “I don't recall
specifically the sequence of questions. I had resolved that I was going to disclose the August
incident in that personnel security interview, although going into it, I didn't know exactly when I
was going to, I just knew that I was.” Tr. at 230. The Individual acknowledged that he was
hoping that he could report the incident after it had been resolved in his favor. Tr. at 232. The
Individual admitted consuming alcohol prior to the August 2015, and October 2015 incidents.
Tr. at 234. The Individual testified that he is now more able to handle intrapersonal conflict
though communication. Tr. at 240. When the Individual was given the chance to contradict the
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October 4, 2015, police report, the Individual denied the report’s claims that he had thrown the
Spouse down the steps, that he had punched her in the gut and kidney, and that he had dragged
her into the bedroom and put her face in kitty litter. Tr. 246-248. When the Individual was
given the chance to contradict the August 2, 2015, police report, the Individual denied choking
the Spouse or putting his hands around her throat, slapping her thighs, biting the Spouse, or
threatening to kill her. Tr. at 248-250.
The Spouse testified on the Individual’s behalf at the hearing. She testified that she has known
the Individual for 17 years. Tr. at 140. The Spouse testified that the some of the information she
supplied to the arresting officers during the August 2015 and October 2015 incidents may have
been inaccurate because she was intoxicated and emotionally charged when she provided it. Tr.
at 132-134. She admitted that the Individual emotionally and physically harmed her during these
incidents. Tr. at 133. The Spouse opined that the Individual has “deep-seated underlying issues
that he just never dealt with.” Tr. at 134. She further opined that these issues were “fueled” by
alcohol “to a level that . . . made it impossible to deal with. He would try to numb whatever he
was dealing with by alcohol in an attempt to erase the problems, and it only caused more.” Tr. at
135. The Spouse testified that their difficult relationship always had a strong foundation, and
that their relationship is now “really strong,” because the Individual has overcome his
relationship ambivalence and because he stopped using alcohol. Tr. at 139. The Spouse testified
that the Individual did not seem to be having any problems with abstaining from the use of
alcohol. Tr. at 157. She testified that they do not keep alcohol in their home anymore. Tr. at
158. She testified that the Individual had attended several AA meetings, but has not done so
since October or November of 2015. Tr. at 161, 172. She believes that the Individual’s
attendance at AA meetings, counseling sessions with the Psychologist, and his impending
fatherhood motivated him to stop using alcohol. Tr. at 161. The Spouse believes that the
Individual was a binge drinker. Tr. at 163. She believes that the Individual is committed to
remaining abstinent from alcohol. Tr. at 164. She testified that she and the Individual are
undergoing marriage counseling. Tr. at 165. The Spouse testified that the Individual’s friends
support his decision to abstain from alcohol use. Tr. at 169. She testified that the Individual had
attended between 10 and 20 anger management classes. Tr. at 173. She testified that the
Individual now communicates with her instead of “stewing.” Tr. at 176. The Spouse said that
she has known the Individual for 17 years, and that the August 2015 and October 2015 incidents
were the only occasions that he had been involved in violence. Tr. at 141. The Spouse testified
that the August 2015 incident began with the Individual waking her up and yelling at her about
text messages. Tr. at 147. She realized he had been drinking and got him to take a walk with her
in order to de-escalate the situation. Tr. at 147. The Spouse testified that the October 2015
incident began when she returned to their home from a car trip with her mother and nieces. Tr.
at 150. The Individual, who she believes to have been intoxicated at the time, accused the
Spouse of being with another man. Tr. at 150. The Spouse then started to move out of their
home, and a physical altercation ensued. Tr. at 150-151. The Spouse testified that she dumped
their cat’s litterbox on a bed, which infuriated the Individual. Tr. at 151-152. When she left
their home, he tried to physically pull her back inside. Tr. at 152. At some point, he struck her
in her leg. Tr. at 152. She retreated to her car and tried to call the police. Tr. at 153.
The Individual’s mother testified at the hearing. Tr. at 107. She testified that she has been
concerned about the Individual’s use of alcohol, and that she and his father have discussed their
11
concerns about his alcohol use with him. Tr. at 116-117. She has noticed marked improvement
since he has undergone counseling. Tr. at 117. His marriage also seems to have been a positive
turning point for her son. Tr. at 118. She testified that her son is now a happier, and more
compassionate, person. Tr. at 118-119, 127. She has not observed any signs of alcohol use on
the part of her son, since the October 2015 incident. Tr. at 121, 123. He has told her, and his
family, that he plans to abstain from using alcohol. Tr. at 121-123, 126.
The attorney (the Attorney) who had defended the Individual for his August 2015, and October
2015, arrests testified on his behalf at the hearing. The Attorney testified that the Individual was
a friend of his son’s and that he had known him for about 20 years. Tr. at 65. The Attorney
testified that he has been in practice for thirty-nine years and that 75-80 percent of his practice is
criminal defense. Tr. at 65. He further testified that he is familiar with the local prosecutor’s
offices, the people in the local court system, and the local police department. When he was
asked if he was concerned that the police reports for the August 2015 and October 2015 arrests
had been falsified, the Attorney testified: “no.” Tr. at 81. He further testified that he was
unaware of any exaggeration in the police reports for either of the incidents. Tr. at 82. He
testified that he knew the officers who had prepared the reports, and had no experiences with
them being dishonest. Tr. at 82.
The Psychologist, a Clinical Psychologist, testified on the Individual’s behalf at the hearing. Tr.
at18. The Psychologist testified that he has been treating the Individual for relationship
problems and alcohol abuse since November 14, 2015, when the Individual was referred to him
by his EAP. Tr. at 21-22. The Psychologist testified that he has had a total of nine counseling
sessions with the Individual. Tr. at 29, 54. The Psychologist testified that he believed that the
Individual had been candid, frank, sincere, and straightforward with him. Tr. at 23-26. He
testified that he did not observe any defensiveness or denial on the part of the Individual, and that
the Individual took responsibility for his actions. Tr. at 26. The Psychologist testified that the
Individual has abstained from using alcohol since October 2015.11 Tr. at 28, 44-45. When the
Individual’s attorney asked the Psychologist whether the Individual is capable of responsible
alcohol use at some point in the future, he responded by stating: “that is going to be his decision.
I think he has learned and knows what is possible when he uses or overuses, and it would be
advisable not to get into that if possible.” Tr. at 28. The Psychologist noted that the Individual
has “resolved a major decision in his life, involving an interpersonal relationship, and has been
abstinent from alcohol since October of his own volition.” Tr. at 29. The Psychologist testified that
he had diagnosed the Individual with an anxiety disorder. Tr. at 29. He further testified that the
Individual now seems “more calm and resolved” since he passed “an extremely troubling choice
point in his life.” Tr. at 30. The Individual is now more aware of his triggers for anxiety, and “has
made great progress in sort of his own self-understanding and his communication process, in
particular.” Tr. at 31, 37. The Psychologist testified that the Individual has developed improved
coping strategies, noting that the Individual “describes himself, of late, as just being much more
communicative with significant people in his life, and much more focused on things that upset
him, and if you will, on getting them out instead of internalizing them.” Tr. at 31, 35-36. The
Psychologist testified that the Individual has learned to be “open and proactive in his
communicative process so that he does not over internalize -- if you will – these cognitive
11 During the PSI, the Individual had stated that his last use of alcohol had occurred on November 16, 2015. Ex. 5 at
51.
12
fantasies or distortions.” Tr. at 36. The Psychologist testified that the Individual was using
alcohol to “assuage or medicate” his anxieties. Tr. at 31. The Psychologist opined that he
believes that the Individual is now equipped to face his anxieties. Tr. at 32. The Psychologist
further opined that the Individual has an alcohol use disorder, under the American Psychiatric
Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM-5), of “mild severity.” Tr.
at 32-33, 40. The Psychologist testified that incidents leading to the Individual’s two recent
arrests were “isolated incidents.” Tr. at 35. The Psychologist opined that the Individual decision
to marry his spouse, and his impending fatherhood, has motivated him to “change for the better.”
Tr. at 36. The Psychologist opined that the Individual’s alcohol disorder is now in partial
remission. Tr. at 45. The Psychologist testified that he would like to see the Individual become
involved in an AA or similar program to help him address any temptations to use alcohol. Tr. at
46. The Psychologist acknowledged that the potential for setbacks in his relationship with his
spouse, and his impending fatherhood constitute risk factors to his recovery. Tr. at 47. The
Psychologist testified that he fully expects that the Individual will achieve full remission once he
has abstained from using alcohol for a period of twelve months. Tr. at 50. The Psychologist
testified that that the Individual’s prognosis is “pretty good.” Tr. at 54.
V. ANALYSIS
A. Falsification
The record shows that the Individual deliberately concealed his August 2, 2015, arrest for
Terroristic Threats from the LSO, by failing to report this request, as required, to the LSO in a
timely manner. 12 The Individual continued concealing this information from the LSO for over
three months, until his November 18, 2015, PSI, when he finally, upon repeated questioning,
reported this incident. The security concerns raised by the Individual’s concealment of his
August 2, 2015, arrest are magnified by the Individual’s conduct during the PSI, where he
replied in the negative when he was initially asked if he had any other arrests he wished to
disclose. Moreover, the Individual, during both the PSI and the hearing, has attempted to avoid
responsibility for his actions leading to this arrest by impeaching the credibility of the police
report. These attempts to impeach the police report’s credibility were not supported by the
testimony of the Spouse or the Attorney. Adjudicative Guideline E provides a list of seven
conditions that can mitigate security concerns arising from an individual’s personal conduct.
Guideline E at ¶ 17. None of those conditions are present in the instant case.
12 The Notification Letter asserts that the Individual’s failure to report the August 2, 2015, arrest in his response to
the LOI raises an additional security concern. However, none of the questions in the LOI required the disclosure of
the August 2, 2015, arrest. Accordingly, the Individual’s answers to the questions posed to him in the LOI were full
and complete, and do not raise any additional security concerns. The Notification Letter also notes that Question 22
of the eQIP submitted by the Individual on June 4, 2015, required him to disclose any alcohol-related arrests. The
Individual omitted his 2003 arrest from his answer to this question, after disclosing his 2006, 2009 arrests. (The
2015 arrests had not yet occurred when the Individual submitted his June 4, 2015, eQIP). The Individual has
explained that, while his 2003 arrest involved the theft of beer, he did not consider it an alcohol-related arrest
because he was charged with theft, rather than any offense pertaining to alcohol. Since I find this explanation
plausible, I am of the opinion that, in this case, the Individual was not attempting to deceive the LSO by omitting
this arrest from his eQIP. Accordingly, I find that the security concerns raised by the Individual’s omission of his
2003 arrest from the June 4, 2015, eQIP are sufficiently mitigated.
13
After carefully considering all the evidence, I find that the Individual has not mitigated the
concerns raised by his deliberate concealment of his August 2, 2015, arrest from the LSO.
Accordingly, I find that the security concerns raised by his personal conduct under Criterion F
have not been resolved.
B. Habitual Use of Alcohol to Excess and Criminal Conduct
The Individual has a history of five arrests, which raises significant security concerns, especially
since two of these arrests occurred fairly recently. Each of these five arrests have a common
denominator: the Individual had been consuming alcohol (often in large quantities) prior to the
incidents which led to the arrests. As a result, I cannot consider the security concerns raised by
the Individual’s history of five arrests sufficiently mitigated unless I am convinced that he has
resolved his alcohol issues.13
The LSO has not relied upon the opinion of a mental health or substance abuse professional in
raising issues concerning the Individual’s alcohol use under Criterion J, relying on its finding
that the Individual is “a user of alcohol habitually to excess.” 10 C.F.R. § 710.8(j). No expert
opinion is necessary for finding that an Individual uses alcohol habitually to excess, since that
term is not regularly used by mental health and substance abuse professionals, but rather is a
regulatory term of art that essentially means that he is accused of becoming intoxicated on an
excessively frequent basis. The phrase “user of alcohol habitually to excess” is not set forth in
the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as a formal psychiatric
diagnosis, nor is it defined in the Part 710 regulations. However, OHA Administrative Judges
have addressed the application of this phrase in numerous Decisions, and have defined it as
properly applying to individuals who drink to intoxication as a customary practice or pattern.
See, e.g., Personnel Security Hearing, Case No. PSH-12-0113 (2012); Personnel Security
Hearing, Case No. TSO-0738 (2009); Personnel Security Hearing, Case No. TSO-0793 (2009);
Personnel Security Hearing, Case No. TSO-0738 (2009); Personnel Security Hearing, Case No.
TSO-0453 (2007). The Notification Letter, however, relies upon the LSO’s finding that the
Individual meets the United States Department of Health and Human Services, National Institute
on Alcohol Abuse and Alcoholism, standards for excessive use of alcohol, to find that the
Individual habitually uses alcohol to excess. However, OHA Administrative Judges have found
that reliance on such standards are crafted to preserve physical health, rather than mental health
or to identify security concerns, and are therefore not appropriately used as a standard for
determining whether an individual uses alcohol habitually to excess. Personnel Security
Hearing, Case No. PSH-14-0020 (2014).
Nevertheless, the Individual acknowledges that he has a problem with alcohol, and has sought
counseling, attended a number of AA meetings, and most importantly, has been abstaining from
the use of alcohol with a stated intention to permanently abstain from alcohol use.
The question before me then is whether the Individual is likely to permanently abstain from
using alcohol. I note that the Individual’s treating Psychologist testified that he diagnosed the
13 The resolution of the Individual’s alcohol issues is a necessary, but not sufficient, condition precedent for finding
that the security concerns raised by his pattern of five arrests have been resolved.
14
Individual with Alcohol Use Disorder, Mild under the DSM-V (or alternatively Alcohol Abuse
Disorder under the DSM-IV-TR). The Psychologist further testified that the Individual’s
Alcohol Use Disorder was in partial remission and that the Individual’s prognosis was “pretty
good.” While there is no contrary expert opinion, I am not convinced that the Individual’s
recovery has sufficiently progressed to resolve the security concerns arising from his frequent
intoxication and from his demonstrated pattern of engaging in criminal conduct while under the
influence of alcohol. I note that, at the time of the hearing, the Individual had only abstained
from using alcohol for six and a half months. In most cases, mental health and substance abuse
practitioners generally require a year’s abstinence before concluding that a patient is in sustained
remission, and this standard is incorporated in the DSM-V. DSM-V at page 491. Moreover, the
treatment program undertaken by the Individual, i.e. sporadic attendance of AA meetings in late
2015 (without the Individual having obtained a sponsor or working the Twelve-Step Program),
nine counseling sessions with the Psychologist (in which the focus was upon relationship issues,
rather than substance abuse) was not particularly intensive. The Individual has made progress as
a result of these efforts. However, the Individual’s recovery is obviously still in its beginning
stages. Therefore, 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 to
resolve the concerns arising from the risk that he might return to habitual use of alcohol to
excess. Accordingly, I find that the security concerns raised under Criterion J have not been
resolved.
The Individual’s five alcohol-related arrests demonstrate a pattern of criminal conduct that raises
security concerns under Criterion L. 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 resolved, the
concerns about the Individual’s judgment, reliability and trustworthiness raised by his criminal
conduct under Criterion L have not yet been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria F, 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 F, 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
Date: August 4, 2016