PSH-16-0051

*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: June 9, 2016 ) Case No.: PSH-16-0051
)
____________________________________)
Issued: October 7, 2016
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Administrative Judge Decision
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXX XXX XXXX. (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, 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 following facts are undisputed. The individual has been employed by a Department of Energy
(DOE) contractor since 2003, and was granted a security clearance in connection with that
employment. In 2003, the individual was arrested for domestic violence, stemming from an
altercation with his then-wife during which he shoved a piece of pizza into her face. Because this
arrest raised security concerns, the Local Security Office (LSO) summoned the individual for an
interview with a personnel security specialist in 2004. During this Personnel Security Interview
(PSI), the individual reported drinking to intoxication prior to the altercation, having consumed
1An 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.oha.doe.gov. The text of a cited decision may be accessed by entering the
case number of the decision in the search engine located at http://www.oha.doe.gov/search.htm.
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“three or four” beers and three shots of tequila over the course of approximately two hours. DOE
Exhibit (Ex.) 15 at 46.
The LSO referred the individual to a local psychiatrist (hereinafter referred to as the DOE
psychiatrist) for an agency-sponsored evaluation in 2005. The DOE psychiatrist prepared a written
report based on that evaluation. In his report, the DOE psychiatrist stated that from 1989 to 1991,
the individual would drink a six-pack of beer a day, and that on approximately every other
weekend, he would drink a six-pack of beer a day and a pint of tequila. According to the DOE
psychiatrist, the individual’s first wife divorced him in 1991 due to his drinking. After the divorce,
the individual abstained from alcohol use for approximately six months, and then resumed drinking
heavily. The individual told the DOE psychiatrist that since that time, however, he had reduced his
level of consumption to an average of one six-pack of beer per month. Based on this information,
the DOE psychiatrist concluded that the individual used alcohol habitually to excess during the
years 1990 to 1993, that his current level of usage was not excessive, and that the individual did
not suffer from any alcohol use disorder or other illness or mental condition that was causing, or
could cause, any significant defect in his judgment or reliability. DOE Ex. 6.
In September 2015, the individual was arrested for Driving Under the Influence of Alcohol (DUI).
Because the ensuing PSI failed to resolve the security concerns raised by this arrest, the LSO
referred the individual to a local psychologist (hereinafter referred to as “the DOE psychologist)
for another agency-sponsored evaluation. In the DOE psychologist’s report, she said that the
individual reported having consumed four 12 ounce beers and two mixed drinks over a six hour
period prior to his arrest. 3 He further reported that from 2005 to the date of this most recent
evaluation, his alcohol consumption consisted of an average of six beers per week, with a range of
zero to 12 beers. He sometimes would drink all of the beers on the same day, and other times
would spread them out. It would take the consumption of 4 to 5 beers for the individual to become
intoxicated, and the DOE psychologist estimated that he was reaching this state 2 to 3 times per
month, based on the information that he provided. The individual admitted during the evaluation
that his second marriage may also have ended due, in part, to his alcohol consumption, and that he
had driven after drinking for many years. DOE Ex. 4 at 3-5, 9.
The DOE psychologist concluded that the individual has used alcohol habitually to excess in the
past, and continues to drink excessively “with some regularity.” Id. at 8. She diagnosed him as
suffering from Unspecified Alcohol Related Disorder, and she concluded that this is an illness or
mental condition that was causing, or could cause, a significant defect in his judgment or reliability.
In order to exhibit adequate evidence of reformation or rehabilitation, the DOE psychologist stated,
he would have to limit his alcohol consumption to no more than four drinks per day and no more
than 14 drinks per week, for an indefinite period of time. Id. at 10.
After reviewing this report and the rest of the individual’s personnel security file, the LSO
determined that derogatory information existed that cast into doubt the individual’s eligibility for
access authorization. It informed the individual of this determination in a letter that set forth the
3 She noted, however, that the individual’s blood alcohol content, measured at the time of his arrest
at .138 and .124, suggested the consumption of over twice as much alcohol over the same six hour
period as that claimed by the individual. DOE Ex. 4 at 9.
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DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter
as the Notification Letter. The Notification Letter also informed the individual that he was entitled
to a hearing before an Administrative Judge in order to resolve the substantial doubt concerning
his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced 15
exhibits into the record of this proceeding and presented the testimony of the DOE psychologist at
the hearing. The individual presented the testimony of his supervisor and his girlfriend, in addition
to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (h) and (j) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a psychiatrist or licensed clinical psychologist causes,
or may cause, a significant defect in the individual’s judgment or reliability.10 C.F.R. § 710.8(h).
As support for this criterion, the Letter cites the DOE psychologist’s diagnosis that the individual
suffers from Unspecified Alcohol Related Disorder, and her finding that this condition causes, or
could cause, a significant defect in the individual’s judgment or reliability.
Criterion (j) defines as derogatory information indicating that the individual “has been, or is, a user
of alcohol habitually to excess, or has been diagnosed by a psychiatrist or licensed clinical
psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). In
support of this criterion, the Letter relies on the information set forth in the preceding section of
this Decision.
These circumstances adequately justify the DOE’s invocation of criteria (h) and (j), and raise
significant security concerns. Mental conditions that involve the excessive consumption of alcohol
often lead to the exercise of questionable judgment or the failure to control impulses, and can
therefore raise questions about an individual’s reliability and trustworthiness. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The
White House (December 19, 2005), Guidelines G and I.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, an Administrative Judge must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of
all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable
or unfavorable, that has a bearing on the question of whether granting or restoring a security
clearance would compromise national security concerns. Specifically, the regulations compel me
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to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances
surrounding the conduct; the frequency and recency of the conduct; the age and maturity of the
individual at the time of the conduct; the absence or presence of rehabilitation or reformation and
other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct;
and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. The regulations further instruct me to resolve any doubts
concerning the individual’s eligibility for access authorization in favor of the national security.
10 C.F.R. § 710.7(a).
IV. FINDINGS OF FACT AND ANALYSIS
A. Mitigating Evidence
For the most part, the individual did not contest the allegations set forth in the Letter or the DOE
psychologist’s diagnosis. Instead, he attempted to demonstrate, through his own testimony and
that of his witnesses, that he no longer drinks to excess and that he is not currently suffering from
any defect in his judgment or reliability.
The individual testified that he has permanently stopped drinking, and has not consumed any
alcohol since he received the DOE psychologist’s report in late March 2016. Hearing transcript
(Tr.) at 28-29. He explained that he stopped because he was “amazed at how large [the report]
was,” and “how many times things have happened” to him as a result of his drinking. Tr. at 28.
Although his girlfriend, with whom he lives, and his closest friends still drink, the individual is not
tempted to join them, and is not uncomfortable in their presence. Tr. at 31-32. He further stated
that the prospect of losing his security clearance and his desire “to be somebody that people can
be proud of” provide an incentive for him to remain sober. Tr. at 32-33. His recent medical tests
have not shown any unusual liver enzyme readings that might be indicative of excessive alcohol
use. Tr. at 35.
The individual’s girlfriend also testified that he had not consumed any alcohol since he received
the DOE psychologist’s report in late March 2016. Tr. at 18. He told her that he was very upset
about the report, and that it caused him to “stop and pause and take a look at what was going on.”
Tr. at 19. She testified that he stopped drinking because “he feels better when he’s not drinking,”
adding that “[h]e’s very stubborn. When he gets something in his head, he just does it. And that
got in his head, and he made some life changes.” Tr. at 20. Even though she and his friends continue
to drink in his presence, the individual is “O.k.,” and never expresses an interest in resuming his
consumption of alcohol. Tr. at 21. The individual’s supervisor testified that the individual is a very
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good employee, and that he has never seen any indication in the workplace that the individual has
a drinking problem. Tr. at 11-12.
B. Administrative Judge’s Decision
Based on this testimony, I find that the individual has abstained from drinking for approximately
five and one-half months as of the date of the hearing. Despite this mitigating evidence, however,
I find that the individual has not demonstrated adequate evidence of reformation or rehabilitation.
I base this finding primarily on the testimony of the DOE psychologist and on the serious nature
of the individual’s drinking problem.
After witnessing all of the other testimony at the hearing, the DOE psychologist testified that the
individual was not exhibiting adequate evidence of rehabilitation or reformation. She said that the
individual’s abstinence of “almost six months” was “a really good start,” but that it was not yet
adequate evidence that the individual was reformed or rehabilitated from his disorder. Tr. at 37.
She described his chances of relapsing into an abusive pattern of drinking as being “moderate.” Id.
Although she took note of the individual’s girlfriend’s testimony about the individual’s
stubbornness and resolve, she observed that “life circumstances” often intervene and lead to a
relapse. Id.
I agree with the DOE psychologist that less than six months of abstinence is inadequate evidence
of rehabilitation or reformation from the individual’s disorder. At the outset, I note that the
individual has engaged in lengthy periods of excessive and binge drinking over the past 26 years.
During this time, his drinking contributed to, or caused, two divorces, two arrests, and multiple
instances in which the individual drove after drinking, but was not arrested. On an average of two
times per year, the individual would drink 12 beers over the course of a day. DOE Ex. 4 at 4. Given
the duration and severity of this excessive drinking, less than six months of abstinence is not
sufficient to convince me that the chances of a return to abusive drinking by the individual are
acceptably small.
Two other factors lead me to conclude that there is a significant risk that the individual may drink
to excess in the future. First, the individual’s girlfriend drinks, and he continues to associate with
friends who consume alcohol. Although the girlfriend testified about his stubbornness and resolve,
I believe that a relapse by the individual would be less likely if the people with whom he associated
were also abstinent. Second, there is no evidence in the record that the individual has participated
in any alcohol treatment or education programs. Although the DOE psychologist did not require
participation in such programs to demonstrate adequate evidence of reformation or rehabilitation,
I would have more confidence in the individual’s ability to abstain or to adhere to a non-abusive
pattern of consumption with the support that these programs can provide. The individual has not
adequately addressed the DOE’s security concerns under criteria (h) and (j).
V. CONCLUSION
For the reasons set forth above, I find that significant security concerns remain regarding the
individual’s alcohol usage. Consequently, I cannot conclude that restoring his access authorization
would not endanger the common defense and would be clearly consistent with the national interest.
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Accordingly, I find that the DOE should not restore the individual’s security clearance at this time.
Review of this decision by an Appeal Panel is available under the procedures set forth at 10 C.F.R.
§ 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: October 7, 2016