PSH-16-0052

*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 13, 2016 )
) Case No.: PSH-16-0052
__________________________________________)
Issued: September 2, 2016
______________________
Administrative Judge Decision
______________________
William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXX 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
discussed below, after carefully considering the record before me in light of the relevant
regulations and the Adjudicative Guidelines, I have determined that the individual’s access
authorization should be restored.
I. Background
The individual works for a DOE contractor in a position that requires that he hold a DOE
security clearance. On October 23, 2015, the individual was arrested and charged with Driving
Under the Influence of Liquor or Drugs (DUI) with a Breath Alcohol Content (BAC) of .20. The
individual reported the incident to his security office, and on December 8, 2015, a Personnel
Security Interview (PSI) was conducted by the Local Security Office (LSO). Because it was
unable to resolve its concerns about his alcohol use, the LSO referred the individual to a DOE
consultant psychologist (DOE psychologist) for a mental health evaluation. In her February 22,
2016, report of her evaluation of the individual, the DOE psychologist concluded that the
individual has been a user of alcohol habitually to excess, a mental illness or condition that, in
her opinion, causes or may cause a significant defect in judgment or reliability.
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.
2
On May 9, 2016, the LSO sent a letter (Notification Letter) to the individual advising him that it
had reliable information that created a substantial doubt regarding his eligibility to hold a
security clearance. In the attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of three potentially disqualifying criteria set forth
in the security regulations at 10 C.F.R. § 710.8, subsections (h), (j), and (l) (hereinafter referred
to as Criteria H, J, and L, respectively).2
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. At the hearing, the individual presented his own testimony and that of two
other witnesses, his supervisor and his counselor, and the LSO presented the testimony of one
witness, the DOE psychologist. In addition to the testimonial evidence, the LSO submitted 11
numbered exhibits into the record, and the individual submitted eight exhibits, identified as
Exhibits A through H. The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric or alphabetic designation. The hearing transcript in the case will be cited as
“Tr.” followed by the relevant page number.
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 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).
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
2
Criterion H concerns information that a person suffers from “[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 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). Criterion L concerns information that a person
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….” 10 C.F.R. § 710.8(l).
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broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may
be admitted. 10 C.F.R. § 710.26(h). Hence, 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.
III. The Notification Letter and the Security Concerns at Issue
As support for its security concerns under Criteria H and J, the LSO relies on the opinion of the
DOE psychologist, who determined that the individual has been a user of alcohol habitually to
excess, a mental illness or condition that, in her opinion, causes or may cause a significant defect
in judgment or reliability. Ex. 1. In further support of these criteria, and with regard to
Criterion L, the LSO cites:
 The individual’s October 23, 2015, arrest for DUI and his admission during a PSI later
that year that he had consumed three to four 16-ounce beers and two 20-ounce beers
before the arrest;
 His December 27, 2009, arrest for DUI and his admission during the 2015 PSI that he had
consumed four beers before the arrest;
 His 1986 citation for Minor in Possession of alcohol.
Id.
I find that there is ample information in the Notification Letter to support the LSO’s reliance on
Criteria H, J and L. The excessive consumption of alcohol 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 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) at Guideline G. In addition, criminal activity creates a 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. Id. at
Guideline J.
IV. Findings of Fact
The individual first started drinking alcohol at age 17 or 18. Ex. 4 at 4. At age 18 or 19, he was
issued a citation for Minor in Possession; the local police found an unopened beer under the seat
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of the vehicle he was driving. Ex. 11 at 13-14. Beginning at age 21, the individual would
consume an average of three to six 12-ounce beers per week and an occasional glass of wine on
the weekend with dinner. Ex. 4 at 4. He maintained that pattern until his recent abstinence, but
admitted that he has been intoxicated, which he defined as having a BAC exceeding .08, four or
five times since age 21, including the two incidents described below. Id.; Tr. at 37-38.
On December 27, 2009, the individual drank four beers over the course of roughly three hours at
a family holiday dinner. After leaving the dinner, he was stopped by the police; he took a
breathalyzer test, was found to have a BAC of .13, and was arrested for DUI. Ex. 4 at 4. His
license was suspended, and he completed a court-ordered program for DUI offenders. In
addition, he voluntarily sought help from his facility’s Employee Assistance Program (EAP),
through which he obtained one-on-one counseling and entered into, and successfully completed,
a one-year abstinence agreement. Tr. at 31, 41.
The individual was arrested again for DUI on October 23, 2015. His uncle had died earlier in the
day, the most recent of five family deaths within 18 months. The individual recalls that he drank
three or four 16-ounce beers between 3:00 and 5:00 in the afternoon, while doing manual labor
with some friends. He then drove home, and four hours later went to a restaurant, where he
consumed two 20-ounce beers within an hour and a half. It was after leaving the restaurant that
the police stopped him, determined that he had a BAC of .20, and arrested him. Ex. 4 at 4-5.
As a consequence of his 2015 arrest, the individual was required to attend an 18-month court-
ordered program for DUI offenders, of which he has completed about half. Tr. at 52. He again
voluntarily sought assistance from the EAP. Because this was his second DUI, the EAP asked
that he enter into a two-year agreement to abstain from alcohol, as well as participate in
counseling, six Alcoholics Anonymous (AA) meetings, and 24 random alcohol tests. He has
maintained abstinence since his arrest nine months before the hearing, has met with his counselor
13 times, attended the required AA meetings within the first month of returning to the EAP for
treatment, and has consistently passed each of the 19 alcohol tests he has been administered to
date. Id. at 41, 43, 46; Ex. 4 at 5; Exs. B, F, H. He will continue to meet with his EAP counselor
throughout the pendency of his two-year abstinence agreement, and will continue meeting with
her beyond that period if recommended to do so. Tr. at 23.
In February 2016, the DOE psychologist evaluated the individual at the LSO’s request. By the
time of that evaluation, the individual had been working with the EAP counselor for nearly four
months. While recognizing his efforts to address his involvement with alcohol, the DOE
psychologist found discrepancies between his reported alcohol consumption and his blood
alcohol content at the time of his DUI arrests and deduced that he was under-reporting the
amount of alcohol he was drinking, both on the days he was arrested and in general.3 She
concluded that he habitually used alcohol to excess, though she stated that she lacked the
evidence to conclude that he exhibited symptoms of Alcohol Use Disorder, Alcohol Dependence,
or Alcohol Abuse. Ex. 4 at 9. She found that his reported abstinence of about four months and
3 At the hearing, the DOE psychologist questioned the individual about what she felt was his intentional under-
reporting of his alcohol consumption. He agreed with her that he may have been inaccurate in his estimates,
admitting to her that he may have occasionally lost track of how much he was drinking. Tr. at 68-69. His response
appears to have resolved her concerns about his candor.
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voluntary participation in EAP programs did not constitute sufficient evidence of adequate
rehabilitation, for which she would require completion of an outpatient alcohol program and
abstinence for eight months. Id. at 10.
At the hearing, the individual explained that after meeting with the DOE psychologist, he
decided to enroll in an intensive outpatient program (IOP) and to abstain from alcohol
permanently. Tr. at 22. He started the IOP in mid-March 2016 and completed it in May 2016.
Id. at 29, 77. He testified that he had no difficulty stopping his alcohol consumption and
declared that he had been alcohol-free for 293 days. He has learned to use tools and coping
skills to maintain his abstinence, and is surrounded primarily by non-drinkers, his girlfriend and
his sisters. He is not uncomfortable, however, in situations where others are drinking alcohol
while he does not. Id. at 23-25, 28. When asked why his response to his second DUI arrest is
different from his reaction to his first DUI arrest, the individual explained that he regarded his
first arrest as a “one-off, . . . it happens to a lot of people. But the second time around, [that]
doesn’t happen to a lot of people.” Id. at 35-36, 50. Despite his counseling and voluntary
(though shorter) abstinence agreement after the 2009 DUI arrest, his frame of mind was entirely
different from his present mind-set. Id. at 33. He testified, “I’ve basically realized, and
obviously the evidence suggests, that . . . alcohol is not something that works for me.” Id. at 20.
The EAP counselor who testified at the hearing had worked with the individual from 2009 to
2011, after his first DUI arrest, as well as since his second DUI arrest, in 2015. Id. at 41. When
asked about the difference in the individual’s reaction to the two arrests, the counselor stated
that, as a social drinker who did not drink to excess routinely, the individual did not experience
serious consequences from his drinking, which allowed him to minimize the consequences after
his first DUI. She believed, however, that he was truly surprised when he was arrested a second
time, and had to look at his alcohol consumption differently. Id. at 42-43. He requested an
unscheduled meeting with her following the DOE psychologist’s evaluation, during which he
sought the counselor’s help to enroll in an IOP, which he began within the next week. Id. at 43.
The counselor’s concern was not his frequency of consumption, but rather his pattern of
consumption when he does drink, and acknowledged his “life decision” not to drink in the future.
Id. at 45. She stated that the individual has made significant progress with respect to his alcohol
use, through his abstinence, his continuing treatment, and his willingness to continue recovery
and maintenance activities. Id. at 45-46. She further observed that what the individual learned
in his court-ordered DUI class, in his IOP, and in his conversation with the DOE psychologist
“was an accumulation of factors that got him to the point that he was internally motivated to look
at [his behavior toward alcohol] and to say . . . alcohol doesn’t work for me.” Id. at 51-52. The
counselor also expressed her opinion regarding the individual’s alcohol-related criminal arrests,
stating that he shows no disregard for the laws of society. Id. at 59.
Finally, the DOE psychologist testified at the hearing. She stated in her February 2016 report
that, though she did not observe distress or impairment that met the criteria for an alcohol-related
diagnosis, she was concerned that his pattern of consumption had led to two DUI arrests with
significantly high BAC readings. Ex. 4 at 9. She expressed her opinion in her testimony that,
following the 2009 arrest, the individual wanted to be responsible and fulfilled his court-ordered
and voluntary commitments, but was not motivated by a sense that his drinking was problematic.
Tr. at 69-70. In contrast, she found that in the wake of his 2015 arrest, he has undergone a shift
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in internal motivation, leading to a life decision to avoid alcohol, a commitment that was not
imposed on him externally. Id. at 70. She also noted that the individual had no difficulty
stopping his use of alcohol in 2009 or in 2015, and now spends the majority of his time in the
company of non-drinkers. Id. at 75. While she maintained her initial position that the individual
is still somewhat vulnerable to drinking again, she expressed her confidence that the risk of
relapse is now low. Id. at 64, 74, 79. She based her opinion that the individual had demonstrated
adequate evidence of rehabilitation or reformation on the individual’s period of abstinence in
excess of the eight months she recommended in her evaluation, his completion of the
recommended IOP, and his internal motivation to make a lifelong commitment to abstinence. Id.
at 77-79.
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 access authorization should be restored. I
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.
I find that the individual was properly identified as using alcohol habitually to excess.
Nevertheless, the record, in particular, the testimony of the individual, his EAP counselor, and
the DOE psychologist, establishes a period of abstinence and an amount of alcohol treatment that
satisfies the experts who testified at the hearing. The concurrence of the mental health experts
(evidenced in hearing testimony and exhibits entered into the record) demonstrates to me the
confidence they have in the individual’s progress through treatment and his motivation to abstain
from alcohol in the future.
I have taken into consideration a number of mitigating factors in his favor, specifically his
abstinence, his voluntary participation and significant progress in a treatment program, and the
DOE psychologist’s favorable prognosis of the individual. Adjudicative Guidelines,
Guideline G at ¶ 23(a), (b), (c). After considering all the testimony and written evidence in the
record, I am convinced that the individual has resolved the LSO’s security concerns that arise
from his alcohol use.
I further find that the LSO’s security concerns raised by the individual’s history of law
enforcement activity have been resolved. Because I have found, above, that he has resolved the
security concerns regarding his alcohol consumption, for the same reasons, concerns about future
criminal activity related to alcohol consumption are similarly resolved. Adjudicative Guidelines,
Guideline J at § 32(a), (d).
VI. Conclusion
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In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criteria H, J and L. 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 have found that the individual has brought forth sufficient evidence to resolve the
security concerns associated with these criteria. I therefore find that restoring the individual’s
access authorization will not endanger the common defense and is clearly consistent with the
national interest. Accordingly, I have determined that the individual’s access authorization
should be restored.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: September 2, 2016