PSH-17-0040

*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: May 31, 2017 ) Case No.: PSH-17-0040
)
__________________________________________)
Issued: August 31, 2017
__________________________
Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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, entitled, “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 the
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information, The White House (Adjudicative Guidelines) (December 29, 2005), 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
DOE access authorization. In September 2016, the individual was arrested and charged
with driving under the influence of alcohol (DUI) after her car was observed swerving
several times onto the shoulder of the road. This incident was promptly reported to the
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.
**This document contains information which is subject to withholding from
disclosure under 5 U.S.C. § 552.**
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local security office (LSO). See Exhibit 7. The individual’s security file revealed that she
had been arrested and charged with DUI on three prior occasions – 2006, 2009 and 2013.
See Exhibit 8, Exhibit 9, Exhibit 10.
As a result of this information, the LSO conducted a personnel security interview (PSI)
with the individual in December 2016. See Exhibit 14. During the PSI, she stated that she
consumed alcohol to cope with anxiety and stress. See Exhibit 7. The PSI did not resolve
the security concerns arising from the individual’s alcohol consumption and raised
potential concerns about her psychological condition. Therefore, the LSO referred the
individual to a DOE consultant psychologist (DOE psychologist) for an evaluation.
In February 2017, the individual was evaluated by the DOE psychologist. See Exhibit 19.
Although the psychological evaluation resolved the security concerns with respect to the
individual’s consumption of alcohol and her psychological condition, security concerns
arising from her DUIs and other traffic infractions between 2006 and 2016 remained
unresolved. See Exhibit 7. Therefore, the LSO informed the individual in a letter dated
April 27, 2017 (Notification Letter), that it possessed reliable information that created
substantial doubt regarding her eligibility to hold a security clearance. In the Notification
Letter, the LSO explained that the derogatory information fell within the purview of
security concerns under Guideline J (Criminal Conduct) of the Adjudicative Guidelines.2
See Exhibit 1.
Upon her receipt of the Notification Letter, the individual exercised her right under the Part
710 regulations by requesting an administrative review hearing. See Exhibit 2. The Director
of the Office of Hearings and Appeals (OHA) appointed me the Administrative Judge in
the case and, subsequently, I conducted an administrative hearing in the matter. At the
hearing, the LSO introduced 19 numbered exhibits into the record and presented no
witnesses. The individual introduced 11 lettered exhibits (Exhibits A – K) into the record
and presented the testimony of six witnesses, including that of herself. 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.3
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
2 See Section III below.
3 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed by
entering the case number in the search engine at www.energy.gov/oha.
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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).
An individual must come forward with evidence to convince the DOE that granting or
restoring his or 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 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.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited Guideline J as the basis for suspending the individual’s
security clearance.
Guideline J relates to security risks associated with criminal conduct. Criminal activity
creates doubt about a person’s judgment, reliability and trustworthiness because, by its very
nature, such conduct calls into question a person’s ability or willing to comply with laws,
rules, and regulations. See Adjudicative Guidelines at Guideline J ¶ 30. With respect to
Guideline J, the LSO cited five instances of criminal conduct: (1) the individual’s four
arrests for DUI between 2006 and 2016; and (2) the individual being cited for driving
approximately 10 miles per hour in excess of the speed limit in 2016. Ex. 1 at 1.
In light of the information available to the LSO, the LSO properly invoked Guideline J.
IV. Findings of Fact and 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
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guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)4 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.
A. Mitigating Evidence
The individual accepts as factually accurate the matters set forth in the Notification Letter,
with the exception of the date of the speeding citation. Ex. 2 at Encl. 1; Tr. at 95-96. With
respect to her 2006 arrest for DUI, she notes that the charges were dismissed by the court
based on insufficient evidence that her blood alcohol concentration (BAC) was in excess
of the legal limit. Ex. 2 at Encl. 1. Additionally, she argues that the counseling and
treatment that she has received subsequent to her 2016 arrest for DUI sufficiently mitigates
the security concerns raised by the LSO under Guideline J. Since her 2016 arrest, the
individual has completed an intensive outpatient program (IOP) for alcohol treatment and
has renewed her participation in Alcoholic Anonymous (AA), which she consistently
attends five times each week. She stated that her intent is to remain abstinent from alcohol
indefinitely. Ex. 2 at Encl. 1 and Encl. 2; Tr. at 103. Additionally, she stated that she
believes that in the past she has resorted to alcohol to alleviate anxiety and, having
identified anxiety as an underlying trigger for her alcohol misuse, she has sought and
obtained counseling focused on the management and reduction of anxiety. Ex. 2 at Encl.
1; Tr. at 75-77.
B. Administrative Judge Evaluation of Evidence and Findings of Facts
In the Notification Letter, the LSO raised security concerns under Guideline J based on the
individual having been arrested and charged on four occasions between 2006 and 2016 for
DUI and related traffic violations5 and cited on a separate occasion in 2016 for driving
approximately 10 miles per hour in excess of the speed limit. Ex. 1 at 1. The individual
notes that her first DUI was dismissed by the court for there being insufficient evidence
that her BAC exceeded the legal limit. Ex. 2 at Encl. 1. Even accepting the argument that
the individual did not in 2006 violate criminal statutes prohibiting driving while
4 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.
5 The charges in 2006 included Failure to Keep in Lane; in 2009, Lane Use Improper; in 2013, Driving
Without Headlights; and in 2016, Failure to Maintain Lane and having an Open Container [of alcohol]. Ex.
1 at 1. The individual has acknowledged the factual accuracy of these allegations. Tr. at 95-96.
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intoxicated,6 the individual acknowledges that she was arrested, charged, and faced
sanctions for alcohol-related driving offenses in 2009, 2013 and 2016. Tr. at 95-96. Even
a single instance of driving while legally intoxicated raises serious, legitimate security
concerns under Guideline J, as such conduct reflects an unwillingness or inability to
comply with laws, rules and regulations. See Adjudicative Guidelines at Guideline J
¶ 31(a). The individual engaged in such conduct on at least three occasions.
A determination that an individual’s past conduct raises security concerns is not a bar to a
person having access authorization under the Adjudicative Guidelines and the Part 710
regulations. Rather, having reached such a determination, an evaluation is required to
assess whether, in light of such past conduct, the individual’s future conduct will endanger
national security.
Administrative Judges regularly hear cases in which a local security office raises security
concerns under Guideline J with respect to alcohol or drug related offenses and also raise
additional security concerns under Guidelines G (Alcohol) or H (Drug Involvement). In
those cases, if the individual resolves the alcohol or drug related security concern through
evidence of adequate reformation and rehabilitation of the substance disorder, the related
criminal behavior is often found to be unlikely to recur in light of the individual’s
reformation and rehabilitation of the underlying substance concerns. See Personnel
Security Hearing, Case No. PSH-17-0028 (2017); Personnel Security Hearing, Case No.
PSH-15-0009.
In this case, the LSO sent the individual to a DOE psychologist for a psychological
evaluation, which was conducted in February 2017, approximately five months after the
individual’s most recent DUI. Ex. 3 at 1. The DOE psychologist concluded that the
individual met the diagnostic criteria set forth in the Diagnostic Statistical Manual of the
American Psychiatric Association, IVth Edition, Text Revision (DSM-IV-TR), for alcohol
abuse, in sustained partial remission; however, he further opined that the individual had
evidenced adequate rehabilitation and reformation of her alcohol abuse, and that she did
not have any emotional, mental or personality disorder that could impair her judgment,
reliability or trustworthiness. Ex. 19 at 10-11. Based on the psychological evaluation, the
LSO found the individual had sufficiently mitigated the Guideline G security concerns and
such concerns were, therefore, not set forth in the Notification Letter. Ex. 3 at 1-2.
Subsequent to the individual’s most recent DUI, she has completed an IOP and returned to
AA, attending meetings five times per week. Ex. 2 at Encl.1 and Encl. 2. She testified that
her intent is to abstain from alcohol consumption indefinitely. Tr. at 103. This treatment
and progress would typically be sufficient to resolve security concerns arising from
alcohol-related criminal conduct. However, in this case, the individual has had repeated
alcohol-related criminal conduct over a number of years and, after each instance, has
6 Under the Adjudicative Guidelines, criminal conduct can raise security concerns regardless of whether a
person is formally charged, formally prosecuted or convicted. See Adjudicative Guidelines at Guideline J ¶
31(b). The court’s determination that there was legally insufficient evidence that the individual’s BAC
exceeded the legal limit in 2006 is not a determination that the individual’s BAC was below the legal limit.
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completed alcohol-related treatment, participated in AA and maintained abstinence for
substantial periods of time (typically two to three years). Ex. 2 at Encl. 1; Tr. at 67-87. In
light of her episodic relapsing into alcohol-related criminal conduct, the issue is whether
she can avoid such relapses in the future.
The record reflects that the individual also shares the concern that she not relapse and has
pursued treatment to avoid such relapses. While she clearly is motivated by her desire to
maintain access authorization, her primary motivation appears to be her desire to be present
for herself and her family, and to avoid physical harm to others. Id. at 92-93. Three
members of her home AA meeting testified that since her 2016 DUI she has not only
returned to AA meetings, but has additionally exhibited a sense of commitment and
community that they had not previously seen. Id. at 41-65.
More importantly, the individual credibly testified that she realized that she was never
alcohol dependent but that she used alcohol in order to cope with stress and anxiety. Id. at
71, 92. She identified anxiety as a trigger for her DUIs. Id. at 84, 99. At the suggestion of
a sibling, she underwent medical tests to ascertain a possible genetic basis for her anxiety.7
Id. at 80-81. Her conclusions with respect to the role of anxiety in her alcohol misuse is
reinforced by the views of various mental health professionals. The DOE psychologist
stated in his written discussion with respect to the individual’s rehabilitation and
reformation of her alcohol abuse that he “encouraged [the individual] to follow up in regard
to treatment for anxiety … which she verbalized an intent to do once she completed [her
IOP].” Ex. 19 at 10. Her IOP treatment counselor wrote that he had worked with the
individual on mindfulness practices for her anxiety issues and believed that these issues
were partially responsible for her alcohol-related offenses. Ex. 2 at Encl. 3. At the
conclusion of her IOP, her treatment counselor referred her to a counselor who specialized
in treatment of anxiety. Tr. at 74-75. The individual continued to be in treatment with that
counselor as of the hearing. The counselor opined that it was her “clinical opinion that [the
individual]’s alcohol use was an attempt to mitigate her severe and persistent anxiety.” Ex.
G at 1. At the hearing, the individual was able to describe the treatment she was receiving
for anxiety and to clearly articulate her understanding of the physiological manifestations
of her anxiety and the role of the therapeutic interventions she is receiving in addressing it.
Tr. at 75, 78-79, 85-86, 100-101, 105-106, 108.
In light of the treatment the individual has received for alcohol, supplemented by her
treatment for anxiety which appears to be an underlying trigger for her alcohol misuse, I
find that she has demonstrated rehabilitation of her alcohol-related criminal conduct and
that such conduct is unlikely to recur. See Adjudicative Guidelines at Guideline J ¶ 32(a)
and (d).
In addition to the alcohol-related criminal conduct, the LSO raised Guideline J security
concerns with respect to a traffic citation issued to the individual in 2016 for driving
approximately 10 miles per hour in excess of the speed limit, for which she was assessed
7 While the individual offered testimony on the results of such medical tests, the record does not include any
documentation of these tests or expert evaluation of the meaning of these tests and, therefore, I have given
minimal weight to the individual’s testimony with respect to the genetic basis for her anxiety.
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and paid a $130 fine. Ex. 1 at 1; Ex. 2 at Encl. 1. The individual credibly testified that she
had received no traffic citations other than those specified in the Notification Letter. Tr. at
99. A single traffic citation on which the fine was $130 is not a significant violation of
criminal laws, as is reflected by the DOE security regulations which exempt minor traffic
violations from the requirement to report legal infractions. DOE Order 472.2, Attach. 4 at
1. Cf. Adjudicative Guidelines at Guideline J ¶ 31(a);
For the reasons set forth above, I find that the individual has resolved the security concerns
associated with Guideline J.
V. Conclusion
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 the Guideline J. After
considering all of 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 Guideline J. Accordingly, I have determined
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.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: August 31, 2017