PSH-16-0046

United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: June 3, 2016 ) Case No.: PSH-16-0046
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Issued: November 15, 2016
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 discussed
below, after carefully considering the record before me, I have determined that the DOE should
not restore the Individual’s access authorization.
I. Background
The Individual is employed by a DOE facility in a position that requires him to hold a security
clearance. In April 2015, the Individual was escorted off an airplane due to the aircrew’s belief
that the Individual was suffering from alcohol intoxication (April 2015 Incident). Exhibit (Ex.) 9
at 1. The Local security office (LSO) then conducted a personnel security interview with the
Individual in May 2015 (May 2015 PSI). Ex. 10. Later, the LSO referred the Individual for a
forensic psychiatric examination by a DOE-contractor psychiatrist (DOE Psychiatrist). Ex. 3.
Because neither the forensic psychiatric examination nor the May 2015 PSI resolved the concerns
arising from the April 2015 Incident or his history of other alcohol-related incidents, the LSO
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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informed the Individual, in an April 2016 letter (Notification Letter), that it had reliable
information that created a substantial doubt regarding the Individual’s eligibility to hold a security
clearance. Ex. 1.
The Notification Letter explained that the derogatory information fell within the purview of the
potentially disqualifying criterion set forth in the security regulations at 10 C.F.R. § 710.8,
subsections (h), (j) and (l) (Criteria H, J and L respectively).2 The Notification Letter also cited
Guidelines E (Personal Conduct), G (Alcohol Consumption) and I (Psychological Conditions) of
the Revised Adjudicative Guidelines for Determining Eligibility for Access Classified
Information. See Revised Adjudicative Guidelines for Determining Eligibility for Access
Classified Information, The White House (December 19, 2005) (Adjudicative Guidelines).
Upon his receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing, and I was appointed the Administrative
Judge in the case. The DOE submitted 14 Exhibits (Exs. 1-14) into the record and presented the
testimony of the DOE Psychiatrist. At the hearing, the Individual presented his own testimony
along with seven Exhibits (Ex. A-G). See Transcript of Hearing, Case No. PSH-16-0046 (“Tr.”).
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 (1998) (“clearly consistent with the national
interest standard for granting security clearances indicates “that security determinations should err,
if they must, on the side of denials”); 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).
An individual must come forward 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
2 Criterion H describes information demonstrating that an individual has “[a]n illness or mental condition of a nature
which, in the opinion of a psychiatrist or licensed clinical psychologist, causes or may cause, a significant defect in
judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion J references information indicating that a person has “[b]een,
or is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed clinical psychologist
as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). Criterion L refers to information that
suggests that an individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to
show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual
may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best
interests of the national security.” 10 C.F.R. § 710.8(l).
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present evidence supporting his or her 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 evidence may be admitted. 10 C.F.R. §
710.26(h). Thus, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
B. Basis for the 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 eligibility in favor of
the national security. Id. In considering these factors, the Administrative Judge also consults the
Adjudicative Guidelines that set forth a more comprehensive listing of relevant factors and
considerations.
III. The Notification Letter and the Security Concerns at Issue
As Criteria H, J, and L derogatory information, the LSO cites the April 2015 Incident along with
a 2010 arrest for driving under the influence of alcohol (DUI), a 2010 incident (2010 Incident)
where the Individual missed his flight for government-related travel because of his alcohol use and
a November 2014 incident where his supervisor asked him about his possible use of alcohol while
on the job. Additionally, the LSO cited three incidents, two occurring in October 2015 (October
2015 Incidents) and one in December 2015 (December 2015 Incident) where the Individual’s
supervisor smelled alcohol on his breath during working hours. Also cited as Criteria H, J, and L
derogatory information, was a report by the DOE Psychiatrist diagnosing the Individual as
suffering from alcohol abuse. The LSO cited, as Criterion L derogatory information, the
Individual’s admission, during a May 2015 personnel security interview, that he believed his
behavior during the April 2015 Incident resulted from being under the influence of Ambien, a
prescription sleep medication for which he had not been prescribed.3 Given the Individual’s
admission in the May 2015 PSI and the DOE Psychiatrist’s Report, I find that the LSO had
sufficient grounds to invoke Criteria H, J, and L.
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.
Adjudicatory Guidelines, Guideline G at ¶ 21. Further, certain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness. Adjudicatory Guidelines,
Guideline I at ¶ 27. Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual's
3 The Individual stated during the May 2015 PSI that he had obtained this medication legally while overseas. Ex. 10
at 25.
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reliability, trustworthiness and ability to protect classified information. Adjudicatory Guidelines,
Guideline E at ¶ 15.
IV. Findings of Fact
The Individual admits that he has an alcohol problem and essentially does not dispute the
derogatory information recorded in the Notification Letter.4 Tr. at 11-12, 15. The Individual
testified that three months after his 2010 arrest for DUI he began to attend Alcoholic Anonymous
(AA) and began to see a licensed clinical social worker (Therapist). Tr. at 12, 56. The Individual
currently sees his Therapist once every two weeks. Tr. at 56. He stopped consuming alcohol for a
period of approximately 26 months. However, while attending AA meetings, the Individual did
not actively work on the recommended 12 steps of the AA program. Tr. at 31-32, 62.
Sometime in 2013, the Individual again began to consume alcohol. Tr. at 32. After the April 2015
incident, the Individual recognized that he had a significant problem regarding alcohol and decided
to seek intensive treatment. Tr. at 33. In December 2015, the Individual sought help from a
physician (Physician) regarding his alcohol problem. Tr. at 35.
During 2016, the Individual experienced three separate occasions where he relapsed and consumed
alcohol. Tr. at 38. The most recent relapse occurred when the Individual received a copy of the
DOE’s Exhibits in this matter during the summer of 2016. Tr. at 35-36. In July 2016, the Individual
then decided to enter an eight day detoxification program at a local treatment facility. Tr. at 36. At
the treatment facility, the Individual was eventually prescribed a prescription medication,
Antabuse, which produces discomfort if the Individual consume alcohol. Tr. at 36. Additionally,
the Individual was prescribed another medication to reduce his craving for alcohol. This
prescription has recently been discontinued. Tr. at 36-37, 41.
The Individual is also currently participating an intensive outpatient treatment program (IOP) at a
treatment facility. Tr. at 36. He currently speaks to a substance abuse counselor once a week. Tr.
at 37, 56. While participating in the IOP, the Individual is subject to breath and blood tests to
detect the use of alcohol. Tr. at 38, 59. During his participation in the IOP, the Individual has
attended approximately 100 AA meetings and intends to participate in AA meetings for the rest of
his life. Tr. at 37, 40-41. As of the date of the hearing, the Individual has been abstinent from
4 The Individual challenged the factual accuracy of the derogatory information regarding the October 2015 Incidents
and the December 2015 Incident. Tr. at 19. Specifically, the Individual asserts that the supervisor involved with the
incidents had engaged in a pattern of harassment and bullying and had made another false allegation that required the
Individual to undergo another personnel security interview. Tr. at 19. The Individual testified that during these
incidents he volunteered to take an alcohol test but that the DOE facility did not have the means to perform such a
test. Tr. at 20, 23. The Individual has also submitted a letter from a co-worker alleging a hostile workplace
environment. Ex. G at 1. As described infra, the Individual admits that he has an alcohol problem and asserts that he
is sufficiently rehabilitated to have his clearance restored. Despite this evidence, I do not find sufficient evidence
before me to discount the October 2015 Incidents or the December 2015 Incident. However, these incidents are not
directly relevant to my determination regarding the Individual’s rehabilitation.
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alcohol for 37 days. Tr. at 39. As part of the IOP, the Individual is required to talk daily to two
other individuals who suffer from substance abuse problems.
The Individual believes that he is now better able to manage stress. When he first met with his
Physician, he was uncomfortable with the Physician’s determination that he had “relapsed into
alcoholism.” Tr. at 58. Now the Individual accepts this fact and realizes that he will have to deal
with this problem for the rest of his life. Tr. at 58. He now is able to deal with triggers for alcohol
consumption. Tr. at 58. If tempted to consume alcohol, the Individual plans to immediately attend
an AA meeting. Tr. at 59. Further, he believes now that he has a better medical support team to
help him maintain sobriety. Tr. at 62.
As for his use of Ambien, the Individual was able to obtain Ambien because it is available outside
of the U.S. without a prescription. Tr. at 26. Because the Individual travelled internationally for
his job, he would take Ambien to help him sleep. The Individual no longer takes Ambien and has
been prescribed a different sleep medication. Tr. at 27-28.
A Behavioral Health Coordinator (Coordinator), who is a licensed therapist, testified that she
works with the Individual to provide support services and coordinate the Individual’s care. Tr. at
47. She has been working with him since May 2016. Tr. at 48. The Individual has been receptive
towards her suggestions regarding treatment. Tr. at 49. The Individual has an AA sponsor and an
AA home group. Tr. at 49. The Individual has reached out to her when he experiences “periods
of struggle.” Tr. at 49. The Individual accepted her recommendation regarding his need to enter a
detoxification program and has reached out to her during periods where he has had cravings. Tr.
at 50. The Coordinator believes that the Individual has a social support network but is not familiar
with the individuals that comprise his support network. Tr. at 51.
The Coordinator testified that the Individual has been attending his IOP faithfully. Tr. at 51-52. In
the Coordinator’s opinion, the Individual has been one of the most dedicated in working towards
recovery. Tr. at 52. She characterizes the Individual’s attitude as “[t]ell me what I need to do and
I will do it.” Tr. at 53.The Individual has also demonstrated significant insight recently in
recognizing that he cannot “fix” other people’s problems. Tr. at 53-54.
The DOE Psychiatrist testified that after hearing the hearing testimony, he believes that the
Individual suffers from alcohol dependence. Tr. at 66. He also believes that the Individual is
serious about his rehabilitation and now accepts the fact that he has an alcohol problem. Tr. at 67.
The DOE Psychiatrist testified that, if the Individual maintains his dedication to his treatment
program, the Individual’s prognosis is “very good.” Tr. at 68-69. However, the DOE Psychiatrist
further testified that, in order to make an accurate assessment as to the Individual’s ability to
maintain his sobriety, the Individual would have to maintain sobriety for a minimum period of six
months. Tr. at 73-74.
With regard to the Individual’s use of Ambien, the DOE Psychiatrist testified that he had visited a
pharmacy in another country and Ambien is indeed available without a prescription. Tr. at 69. He
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also testified that he believes that the Individual was using Ambien for sleep and that he does not
now find that the Individual has a problem with Ambien that requires specific treatment. Tr. at 69.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s security clearance should not be restored at this time.
With regard to the Criteria H and J derogatory information, the Individual has not presented
sufficient evidence whereby I can find that the concerns raised by his alcohol problem have been
resolved. I believe that the Individual is very committed to his treatment program. See Ex. E (letter
from Therapist). In this regard, the DOE Psychiatrist testified that the Individual has now accepted
that he has a serious alcohol problem. Tr. at 67. Nevertheless, as of the date of the hearing, the
Individual has been abstinent from alcohol for a relatively brief period (37 days) and he has not
yet completed his IOP. Tr. at 39, 72. I also find it significant that the Individual’s problem with
alcohol has been long standing. See Tr. at 70. Significantly, the DOE Psychiatrist testified that in
order to have better assurance that the Individual will not relapse, a period of abstinence of at least
six months would be required. Tr. at 74. While I believe that the Individual, with a commitment to
his current treatment program, could eventually obtain rehabilitation from his alcohol problem, it
is too early in his treatment program for me to be able to make a finding that the Criteria H and J
concerns have been resolved.
For the same reasons, I also must find that the Criterion L concerns have not been fully resolved.5
The Individual has submitted evidence regarding his distinguished service in the military, in other
agencies and his excellent work performance. Ex. G. However, this evidence does not outweigh
the Individual’s significant alcohol problem and the preliminary state of his recovery. In making
these determinations, I find that none of the relevant Adjudicatory Guideline mitigating factors are
applicable in this case. See Adjudicative Guidelines, Guideline G at ¶ 23; Adjudicative Guidelines,
Guideline I at ¶ 29; Adjudicative Guidelines, Guideline E at ¶ 17.
VI. Conclusion
In the above analysis, I found that there was reliable information that raised substantial doubts
regarding the Individual’s eligibility for a security clearance under Criteria H, J, and L of the Part
710 regulations. After considering all of the relevant information, favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all of the testimony and other
5 With regard to the Individual’s purchase of Ambien and the allegation that the Individual could have a problem with
Ambien misuse, I find that there is no evidence in the record which indicates that the Individual improperly obtained
Ambien in violation of U.S. law. Further, I found the DOE Psychiatrist’s testimony persuasive as to his finding that
the Individual does not have a problem regarding his prior Ambien use.
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evidence presented at the hearing, I find that the Individual has not presented sufficient information
to resolve the security concerns raised by the Criteria H, J, and L derogatory information recorded
in the Notification Letter. Thus, I cannot conclude that restoring the Individual’s suspended DOE
access authorization “will not endanger the common defense and is clearly consistent with the
national interest.” 10 C.F.R. § 710.7(a). Consequently, I find that the Individual’s access
authorization should not be restored at this time.
Richard A. Cronin, Jr.
Administrative Judge
Official of Hearings and Appeals
Date: November 15, 2016