PSH-16-0068

*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: July 26, 2016 ) Case No.: PSH-16-0068
)
_________________________________________ )
Issued: October 31, 2016
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxx (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 be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a DOE
security clearance. In February 2016, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns
about her alcohol use. In addition to the PSI, the LSO requested the individual’s medical records
and recommended a psychological evaluation of the individual by a DOE consultant psychologist
(DOE psychologist). The DOE psychologist examined the individual in April 2016 and
memorialized his findings in a report (Psychological Report). According to the DOE psychologist,
the individual is a user of alcohol habitually to excess without adequate evidence of rehabilitation
or reformation. The DOE psychologist further concluded that the individual’s use of alcohol
habitually to excess is a mental illness that causes or may cause a significant defect in his judgment
and 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.
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In June 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 two potentially disqualifying criteria set forth in the security
regulations at 10 C.F.R. § 710.8, subsections (h) and (j) (hereinafter referred to as Criteria 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 her own testimony and that of four witnesses. The DOE
Counsel called one witness, the DOE psychologist. Both the DOE and the individual submitted
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
her 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 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 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 Administrative Judge’s Decision
2 Criterion H relates to information that a person 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 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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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 two criteria as bases for suspending the individual’s security
clearance: Criteria H and J. To support Criterion H, the LSO relies on the diagnosis of the DOE
psychologist that the individual has been a user of alcohol habitually to excess, and the expert’s
opinion that the individual’s use of alcohol habitually to excess is a mental illness that could cause
a significant defect in the individual’s judgment and reliability. As for Criterion J, the LSO cites
the DOE psychologist’s opinion and the individual’s alcohol use. See Ex. 1.
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
the use of alcohol habitually to excess can impair a person’s judgment and reliability and
trustworthiness. See Guideline I 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). 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 use beginning at approximately 18 years of age, when she
entered college. During her freshman year, the individual learned to drink heavily, becoming
intoxicated on average once a week. According to the individual, there were periods when she
drank to intoxication three nights a week and other times where she did not drink for several weeks
at a time. This pattern of drinking characterized her consumption of alcohol until about age 24.
Between ages 28 and 40, the individual stated that her consumption of alcohol varied depending
on her stress level. She described her drinking between the ages of 40 and 45 as mild. She admitted
to drinking two to four glasses of wine, two to three nights a week with dinner. In the summer of
2015, the individual’s drinking increased to a bottle of wine six or seven days a week. The
individual stated that the increase of her alcohol consumption was due to mounting stress with her
supervisor. Ex. 1 and 4.
On December 9, 2015, shortly after she arrived at work, the individual’s supervisor smelled alcohol
on her breath. She was immediately escorted to occupational medicine where two breath tests
were performed as well as a urinalysis. The individual tested positive for alcohol, registering .034
on the breathalyzers. She admitted that she reported to work around 9:00 am after consuming
three drinks of Bourbon and Coke between the hours of 2:30 am and 4:30 am. According to the
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individual, the night before, she had been working at home until about 1:30 am and attempted to
go to sleep around 2:30 am. However, she stated that she could not fall asleep and had “racing
thoughts” because she could not stop thinking about the tasks she had to complete for a project at
work. She stated that she poured herself a “stiff” bourbon drink, further stating that she did not
measure while pouring the drink. At 4:00 am, the individual stated that she was still awake so she
made another Bourbon and Coke drink and then another at about 4:30 am. The individual further
stated that when she left for work she did not feel the effects of the alcohol she consumed. Id.
Based on this information, the individual was referred to a DOE psychologist for a psychological
evaluation. On April 11, 2016, the DOE psychologist evaluated the individual. In his Report, he
concluded that the individual is a user of alcohol habitually to excess and under the Diagnostic
Statistical Manual of Mental Disorders, 5 (DSM-5) warrants the diagnosis of Substance Use
Disorder, mild. The DOE psychologist also concluded that the individual possesses an illness or
mental condition, which causes, or may cause, a significant defect in judgment and 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 be restored. Based on the facts in this
record, 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.
The individual does not dispute the DOE psychologist’s diagnosis that she is a user of alcohol
habitually to excess. Therefore, the focus of the analysis will be on whether the individual has
demonstrated adequate evidence of rehabilitation or reformation.
A. Evidence of Rehabilitation and Reformation
During the hearing, the individual testified about her December 2015 alcohol-related incident at
work. Transcript of Hearing (Tr.) at 66. She readily acknowledged that her alcohol consumption
has been excessive at times and testified that she takes full responsibility for her actions. Id. at 67.
However, the individual testified that since the incident at work, she has actively participated in
rigorous alcohol treatment. Id. She completed an intensive outpatient treatment program (IOP)
on February 29, 2016, and has been participating in weekly aftercare meetings since March 1,
2016. Id. at 68. The individual testified that she viewed her IOP as on opportunity to get better
physically, mentally and emotionally. Id. She further testified that she enjoyed the IOP,
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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participated fully and learned a great deal about her alcohol problem. Id. Before her first day at
IOP, the individual started attending Alcoholic Anonymous (AA) meetings. Id. at 69. She
currently attends daily meetings and is actively working the Twelve Steps of AA with a sponsor.
Id. In addition to IOP, aftercare meetings and AA meetings, the individual testified that she has a
strong support network including her fiancé, who regularly attended IOP and aftercare meeting
with her, her mother and friends. Id. at 70. Finally, the individual testified that she has been
completely abstinent from alcohol since the incident in December 2015, almost ten months. Id. at
67. She further testified that she is fully committed to living a life of complete sobriety. Id.
According to the individual, she has become a new person and has changed her perspective, her
priorities and attitude toward life. Id. at 71. The individual stated that her urge to drink has been
replaced by her faith. Id.
During the hearing, the individual also offered the testimony of her IOP therapist, her fiancé, and
two of her co-workers. Her IOP therapist, who is a licensed alcohol and drug counselor, testified
that the individual entered IOP with a great deal of motivation to succeed and was not in denial.
Id. at 83. He further testified that the individual’s risk of relapse is low, if she continues to work
the program, noting that he had high confidence that the individual will continue with her
treatment. Id. at 86. The individual’s fiancé, who has known the individual since 2001, testified
that after the individual’s December 2015 incident, she immediately confided in both him and the
individual’s mother. Id. at 15. He testified that the individual took complete responsibility for her
actions, voluntarily removed alcohol from her home, and immediately began a course of action to
address her alcohol problem by entering in an IOP. Id. The individual’s fiancé corroborated the
individual’s testimony that she has been completely abstinent from alcohol for about ten months.
Id. at 16. He further testified that since her sobriety date, the individual has successfully managed
holidays and other important life events. Id. at 20. The individual’s fiancé stated that the
individual no longer has an urge or desire to drink and has a new positive outlook on life. Id. at
21. He stated that the individual is a dedicated, reliable and trustworthy person and believes that
she will remain abstinent for the rest of her life. Id. at 24. Finally, the individual’s two co-workers
both testified that they have never seen the individual in an intoxicated state and believe the
individual has changed her life for the better. Id. at 42 and 51. They also testified that the
individual is honest and trustworthy. Id. at 46 and 58.
In his April 2016 Report, the DOE Psychologist recommended that the individual should remain
abstinent for another six months to support her assertion that she will not drink again and to provide
sufficient evidence of her control over her use of alcohol. Ex. 4. After listening to all of the
testimony at the hearing before testifying himself, the DOE psychologist opined that the individual
has fulfilled her recommendation and believes that she has a very good prognosis with a low risk
for relapse. Tr. at 109. He noted that the individual has strong support system. The DOE
psychologist further opined that although he cannot give a lifetime prognosis, he is confident that
the individual “will not drink for the next couple of years and probably not drink beyond that.” Id.
B. Administrative Judge’s Evaluation of the Evidence
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 achieved adequate
evidence of rehabilitation. Moreover, the Adjudicative Guidelines describe factors that could
mitigate security concerns involving psychological conditions and alcohol consumption. See
Adjudicative Guideline, Guidelines G and I, ¶ 23 and ¶ 29, respectively. In this case, the individual
has satisfied the following mitigating factors: (1) the individual has readily acknowledged her
alcohol problem, and has established a pattern of responsible use; (2) the individual has
successfully completed an inpatient or outpatient alcohol program, and has demonstrated a clear
and established pattern of abstinence in accordance with her treatment recommendations, i.e., she
has participated in recovery meetings such as AA or a similar organization, and has received a
favorable prognosis by a duly qualified medical professional; and (3) the DOE psychologist has
opined that the individual’s condition has a low probability of recurrence. Id. For these reasons,
I find that the individual has sufficiently 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 Criteria 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
find that the individual has brought forth convincing evidence to adequately resolve the security
concerns associated with Criteria H and J. I therefore 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 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
Officer of Hearings and Appeals
Date: October 31, 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 accessed by entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.