PSH-16-0032

*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 18, 2016 ) Case No.: PSH-16-0032
)
_________________________________________ )
Issued: August 9, 2016
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Administrative Judge Decision
____________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXX (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 October 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 the individual’s falsification and alcohol use. On April 6, 2016, 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 access authorization. In an attachment to the
Notification Letter, the LSO explained that the derogatory information fell within the purview of
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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three potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8,
subsections (f), (h) and (j) (hereinafter referred to as Criteria F, H and J, 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: two of his
managers, his brother and his sister. The DOE counsel presented the testimony a DOE consultant
psychologist who examined the individual upon the request of the LSO. Both the DOE and the
individual presented 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).
2 Criterion F pertains to information that a person has “[d]eliberately misrepresented, falsified, or omitted significant
information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National Security) Positions,
a personnel qualifications statement, a personal 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). Criterion H concerns
information that a person has “an illness or mental condition of a nature, which, in the opinion of a board-certified
psychiatrist, causes, or may cause, a significant defect in his judgment or reliability.” 10 C.F.R. § 710.8(h). Finally,
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).
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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
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 potentially disqualifying criteria as bases for suspending
the individual’s security clearance, Criteria F, H and J. To support its reliance on Criterion F, the
LSO alleges that the individual deliberately omitted significant information related to his alcohol-
related offenses and alcohol treatment from his 2004, 2010 and 2015 Questionnaires for National
Security Positons (QNSPs). In addition, the LSO alleges that the individual deliberately omitted
significant financial information from his 2010 and 2015 QNSPs. See Ex. 1.
From a security standpoint, false statements made by an individual in the course of an official
inquiry regarding a determination of eligibility for DOE access authorization raise serious issues
of honesty, reliability and trustworthiness. The DOE security program is based on trust, and when
a security clearance holder breaches that trust, it is difficult to determine to what extent the
individual can be trusted again in the future. See Guideline E 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).
To support Criterion H, the LSO relies on the diagnosis of the DOE psychologist that the individual
suffers from Alcohol-Related Disorder Not Otherwise Specified, and the expert’s opinion that this
condition is a mental illness that could cause a significant defect in the individual’s judgment and
reliability. The LSO also relies on the DOE psychologist’s conclusion that the individual has a
history of omitting critical and required information or providing misinformation when it is to his
advantage to do so. As for Criterion J, the LSO cites the DOE psychologist’s opinion that the
individual is a user of alcohol habitually to excess and the individual’s alcohol-related incidents.
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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-Related Disorder Not Otherwise Specified can impair a person’s judgment and reliability
and trustworthiness. See Guideline I of the 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.
IV. Findings of Fact
The individual has a history of alcohol consumption and has been involved in a number of alcohol-
related incidents. He began consuming alcohol at age 18 when he joined the military. Over time
during his military career, the individual’s alcohol use increased causing a number of legal
problems for him, including a denial for re-enlistment. On July 12, 1981, the individual was
charged with Driving Under the Influence (DUI). Following this DUI, the individual attended a
military-directed detoxification and 30-day in-patient treatment program for alcohol abuse. On
September 29, 1981, he was charged with Drunk and Disorderly Conduct. Later, in March 1984,
the individual was charged with Drunk on Station and in April 1991, he was charged with Public
Intoxication. Ex. 1. In 2004, the individual began drinking a six-pack of beer once or twice per
week, and continued at that frequency and quantity until March 2013. Later in 2013, the individual
reported that he consumed three to four beers over a two to four hours, every other day during the
week, and six to eight beers over three to six hours on Friday and Saturday nights. During his
October 2015 PSI, the individual admitted that he experienced an alcohol-induced blackout as
recently as the month prior to his PSI. According to the individual, he was last intoxicated on
December 31, 2015, New Year’s Eve. Id.
The individual also has a history of omitting significant information from his QNSPs. On
March 15, 2004, the individual signed a QNSP certifying that he had never been charged with an
offense involving alcohol or drugs. However, during his October 2015 PSI, he admitted that he
should have listed his 1981 alcohol offenses and his 1991 alcohol-related offense. Likewise, on
January 29, 2010 and March 9, 2015, the individual signed QNSPs certifying that he had never
been charged with an offense involving alcohol or drugs. However, again during his October 2015
PSI, he admitted that he should have listed all four of his alcohol-related offenses. On his 2015
QNSP, the individual also certified that he had never received counseling treatment as a result of
his use of alcohol and has never been ordered, advised, or asked to seek counseling or treatment
as a result of his use of alcohol. However, in his October 2015 PSI, the individual admitted that
he attended a military-directed detoxification and 30-day in-patient treatment program for alcohol
abuse in 1981. He further admitted that he should have listed this on his QNSP and that his answer
was incorrect. Id.
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In addition to omitting significant information related to his alcohol use, the individual also omitted
significant information related to his finances. On his January 2010 QNSP, the individual certified
that in the past seven years he had not had any accounts charged offed. However, during his 2015
PSI, he admitted that he should have listed a 2010 charge-off account with a bank. Also, on his
March 2015 QNSP, the individual signed and certified that in the past seven years he had not filed
a petition under any chapter of the bankruptcy code. During a June 2010 PSI and his October 2015
PSI, the individual admitted that he deliberately failed to list a 2007 Chapter 13 Bankruptcy
petition for fear of losing his job. He further admitted that his QNSP answers were incorrect and
the 2007 bankruptcy should have been listed. Id.
On January 7, 2016, the DOE psychologist evaluated the individual. In her report, she concluded
that the individual suffers from Alcohol-Related Disorder Not Otherwise Specified without
adequate evidence of rehabilitation or reformation which is an illness or condition that may cause
a significant defect in the individual’s judgment or reliability. Ex. 5. The DOE psychologist
further concluded that the individual is a user of alcohol habitually to excess without adequate
evidence of rehabilitation or reformation. She also concluded that the individual’s history of
omitting critical and required information, and providing misinformation when it is to his
advantage to do so, is a mental condition which causes, or may cause, a significant defect in
judgment or reliability. Id.
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. 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.
A. Criterion F
The key issue under Criterion F is whether the individual has brought forward sufficient evidence
to demonstrate that he can now be trusted to be consistently honest and truthful with the DOE. In
considering this question, I found that the nature of the individual’s omissions was serious. The
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.
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individual’s lack of candor concerning his alcohol use, alcohol-related offenses and finances could
increase his vulnerability to coercion or blackmail and raises important security concerns. The
DOE must rely on individuals who are granted access authorization to be honest and truthful. This
important principle underlies the criteria set forth in 10 C.F.R. § 710.8(f).
During the hearing, the individual was questioned about his omissions on his QNSPs. He readily
admitted that he deliberately failed to list his 2007 Chapter 13 Bankruptcy from his 2010 QNSP.
The individual testified that when he began working for DOE, he took a pay cut and that his
finances “got out of hand.” Transcript of Hearing (Tr.) at 114. His financial situation prompted
him to file a Chapter 13 Bankruptcy in 2007. Id. The individual testified that he did not list this
bankruptcy because he feared that he would lose his job. Id. He expressed remorse for not
responding truthfully on his 2010 QNSP, and testified that after being warned about being honest
about his bankruptcy in the future, he disclosed his bankruptcy on his 2015 QNSP. According to
the individual, this information relating to his bankruptcy is the only significant information that
he deliberately omitted from his QNSP. With respect to the omissions regarding his alcohol-
related incidents in 1981, 1984 and 1991, his alcohol treatment in 1981 as well as his 2010 charge-
off account, the individual testified that he did not intentionally omit this information from his
QNSPs. Specifically, the individual testified that that he did not read the questionnaires carefully
when completing them and mistakenly believed the questions asked him to report only alcohol-
related incidents and treatments within a 7 to 10-year time frame. Id. at 119. The individual stated
that his alcohol-related incidents and treatment occurred over 25 years ago and that he did not
believe he had to list this information. He reiterated that he rushed when completing his QNSPs
and did not intentionally seek to hide this information from DOE. Id. at 122. Likewise, with
respect to his 2010 charge-off account that he omitted from 2015 QNSP, the individual testified
that he believed this debt had been discharged during his Chapter 13 bankruptcy and that he had a
zero balance on that account. Id. at 123 and 124. He again reiterated that he did not intentionally
omit this information. Id.
Based on the foregoing, I find that the individual deliberately omitted his 2007 Chapter 13
Bankruptcy from his 2010 QNSP. However, to determine whether the individual has sufficiently
mitigated Criterion F concerns related to all of the significant information he omitted from his
QNSPs, I considered the relevant factors set forth in the Adjudicative Guideline E. Some of the
conditions that could mitigate security concerns raised under Criterion F include the following: (1)
the individual made prompt, good-faith efforts to correct the omission before being confronted
with the facts; (2) the omission was caused by improper or inadequate advice of authorized
personnel or legal counsel advising the individual of the security clearance process; (3) the offense
is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment; (4) the individual has acknowledged the behavior
and obtained counseling to change the behavior or taken other positive steps to alleviate the
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stressors, circumstances, or factors that caused the untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur; and (5) the individual has taken positive steps to
reduce or eliminate vulnerability to exploitation, manipulation, or duress. See Guideline E at ¶ 17
(a), (b), (c), (d), and (e). I find that none of these relevant factors apply in this case.
First, the individual did not make a prompt, good-faith effort to correct his omissions before being
confronted with the facts during his June 2010 and October 2015 PSIs. He acknowledges that
during a 2010 PSI, the investigator warned him to be completely honest and include his 2007
bankruptcy in subsequent QNSPs. Second, although the individual asserts that he “rushed” and
did not carefully read his QNSPs, he does not assert that his omissions were caused by improper
or inadequate advice of authorized personnel. Third, the individual’s omissions are serious and,
other than his omission about his bankruptcy which he omitted on a January 2010 QNSP, his other
omissions occurred most recently when he completed his March 2015 QNSP. He omitted his
alcohol-related offenses in both 2010 and more recently in 2015. Other than his assertion that he
rushed on his QNSPs and that with respect to the alcohol-related incidents he believed the
questions referred to a 7 to 10-year time frame, the individual has not demonstrated that his
omissions happened under such unique circumstances that they are unlikely to recur. Fourth,
although the individual has acknowledged his behavior regarding his omissions, I did not find the
individual’s testimony credible that he simply misunderstood the time frames referred to in the
questions. I am not convinced at this time that this behavior is unlikely to recur. For these reasons,
I find that the individual has not sufficiently resolved the security concerns associated with
Criterion F.
B. Criteria H and J
The individual does not dispute the DOE psychologist’s diagnosis of Alcohol-Related Disorder
Not Otherwise Specified. Therefore, the focus of the analysis will be on whether the individual
has demonstrated adequate evidence of rehabilitation or reformation from Alcohol-Related
Disorder Not Otherwise Specified as well as from issues related to his candor.
During the hearing, the individual testified that he has abstained from alcohol since February 29,
2016. He acknowledged that his drinking has been a problem in the past while in the military and
for a period after his military service. Id. at 94. The individual further testified that he was
surprised by the DOE psychologist’s report and stated that his drinking had decreased by the time
he was evaluated by the DOE psychologist. Id. at 95. The individual testified that he did not
believe he had a drinking problem because he did not drink to excess all the time, rather just on
certain occasions such as special events or holidays. Id. at 95 and 99. He further testified that his
daily drinking never caused him any issues, particularly at work. Id. at 99. According to the
individual, after meeting with the DOE psychologist, talking to an investigator during his October
PSI and losing his security clearance, he realized that he needed to stop drinking. Id. at 100. The
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individual testified that he met with an Employee Assistance Program (EAP) counselor who
referred him to an Intensive Outpatient Treatment Program (IOP) which he successfully completed
in May 2016. He has received counseling in an aftercare program and regularly attends AA. In
addition, all of the individual’s random alcohol and drug tests have been negative. Finally, the
individual testified that the IOP was an educational experience for him. He now accepts that he
has a problem with alcohol and that is life has changed since participating in treatment. He testified
that the IOP and his AA meetings have given him structure and that he has a number of family and
friends to support him throughout his recovery process. Id. at 109.
During the hearing, the individual also offered the testimony of two managers, his brother and his
sister. Both of the individual’s managers testified that the individual is a reliable and trustworthy
person who never showed any signs of alcohol consumption at work. Id. at 11 and 26. The
individual’s brother corroborated the individual’s testimony that he stopped drinking on
February 29, 2016, about a 150 days prior to the hearing. Id. at 27. Finally, his sister testified that
although the individual drank while in the military, he is a different person now. She further stated
that she would not consider the individual to be a habitual drinker. Id. at 49.
The DOE psychologist listened to the testimony at the hearing before testifying herself. She
testified that she did not learn anything in the hearing testimony that would change her
recommendations in her Report. Id. at 131. While she believes that the steps the individual is
taking, including completion of an IOP, aftercare counseling meetings and AA, are the appropriate
steps for the individual, she still has concerns about the individual’s alcohol issues given his
alcohol history, the period of time he has spent in treatment and the period of time he has been
abstinent, about four months. Id. According to the DOE psychologist, the individual has not yet
achieved adequate evidence of rehabilitation or reformation. In her report, she recommended that
the individual remain abstinent for a period of one year. In addition to the individual’s alcohol
issues, the DOE psychologist testified that she still has concerns regarding the individual’s candor.
Id. at 132. She explained that she stated in her report that there were significant differences and
discrepancies in the individual’s reporting of his alcohol consumption. The DOE psychologist
further testified that she believed the individual’s omissions regarding his alcohol incidents were
self-serving and despite his assertion that he was rushed when completing his QNSPs, the
omissions were only on those questions that would be problematic for him. She reiterated that she
still has a concern regarding the individual’s intention when he responded to questions about
alcohol on his QNSPs. Id. at 139. Finally, the DOE psychologist opined that the individual’s
issues related to his candor continue to cause a significant defect in his judgement and reliability.
Id. at 137.
In the administrative process, Administrative Judges accord deference to the expert opinion of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
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reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).4 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, I find that none of the mitigating factors outlined
in the Adjudicative Guidelines apply in this case. See Adjudicative Guidelines, Guidelines G and
I, ¶ 23 and ¶ 29, respectively. For example, although the individual now acknowledges that he has
an alcohol problem and has taken actions to overcome his problem, he has not yet established a
pattern of abstinence in accordance with treatment recommendations. The individual admitted
that he experienced an alcohol-induced blackout as recent as the month prior to his October 2015
PSI. In addition, the DOE psychologist has not yet given the individual a favorable prognosis.
See Adjudicative Guidelines at Guideline G, ¶ 23(a)-(d). Moreover, with regard to Guideline I,
the DOE psychologist’s opinion that the individual still has a current alcohol problem as well as
concerns related to his candor does not allow me to resolve the individual’s psychological
conditions. In short, the individual has not yet established adequate evidence of rehabilitation, and
therefore I am unable to make a favorable predictive assessment of his future behavior with respect
to his alcohol use and candor. For these reasons, I find that the individual has not yet resolved the
DOE’s security concerns under Criteria H and J.
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 Criterion F, 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
cannot find that the individual has not brought forth convincing evidence to resolve the security
concerns associated with Criteria F, H and J. 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
Office of Hearings and Appeals
Date: August 9, 2016
4 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 accesses by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.