TSO-1004

* 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.
June 23, 2011
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer’s Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 10, 2011
Case Number: TSO-1004
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter “the Individual”) to have
his suspended access authorization restored.1 After reviewing the testimony and evidence
presented in this matter, it is my decision that the Individual’s access authorization should not be
restored.2
I. APPLICABLE REGULATIONS
The regulations governing the Individual’s eligibility are set forth at 10 C.F.R. Part 710, “Criteria
and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.” Under Part 710, if derogatory information has been received regarding an individual
and a question concerning the individual’s eligibility to hold an access authorization has been
raised, the individual is given the opportunity to request an administrative review hearing.
10 C.F.R. § 710.21(b). At an administrative review hearing, the individual is offered the
opportunity to offer evidence as to his or her fitness to hold a security clearance. The burden lies
with the individual to prove that “the grant . . . of access authorization to the individual would
not endanger the common defense and security and would be clearly consistent with the national
interest.” See 10 C.F.R. § 710.27(a). The ultimate decision concerning eligibility is a
comprehensive, common sense judgment based on a consideration of all relevant information,
favorable and unfavorable. 10 C.F.R. § 710.7(a).
1 An access authorization (or security clearance) is an administrative determination that an individual is eligible for
access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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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II. BACKGROUND
The Individual has been a contractor employee at a DOE facility since 1975. Exhibit (Ex.) 9 at 7;
Ex. 13. In June 2010, the Individual reported to the facility’s local security office (LSO) that he
had recently been arrested for Driving Under the Influence (DUI). Ex. 6; Ex. 11.
To resolve the issues raised by the Individual’s recent arrest, the LSO conducted personnel
security interviews with the Individual in July 2010 (7/10 PSI) and September 2010 (9/10 PSI).
Ex. 14. Additionally, the Individual was referred to a DOE-contractor psychologist (DOE
Psychologist) for a psychological evaluation. Ex. 9. Because neither the PSIs nor the
psychological evaluation resolved the security concerns raised by the Individual’s recent alcohol-
related arrest and admitted alcohol usage, the LSO suspended the Individual’s access
authorization and issued a notification letter (Notification Letter) to the Individual in November
2010. Ex. 1; Ex. 2. In the Notification Letter, the Individual was informed of the suspension of
his access authorization. As grounds for the suspension, the LSO informed the Individual that the
DOE Psychologist had diagnosed the Individual as suffering from Alcohol Related Disorder, Not
Otherwise Specified, and that this diagnosis constituted derogatory information under 10 C.F.R.
§ 710.8(h) and (j) (Criteria H and J).3 Additionally, the Individual’s June 2010 alcohol-related
arrest, the Individual’s admissions in the 9/10 PSI that he had driven while intoxicated
approximately once a year, and the Individual’s stated intention to continue to consume alcohol
and drive were cited as derogatory information under Criteria H and J.
A hearing was held in this matter. At the hearing, DOE presented testimony from the DOE
Psychologist. The Individual testified on his own behalf and presented testimony from a co-
worker (Co-Worker). The DOE submitted 17 exhibits for the record (Exs. 1-17). The Individual
did not submit any exhibits.
III. FACTUAL FINDINGS
The facts in this case are essentially not in dispute.4 A brief summary is provided below.
In 2001, the LSO received information pursuant to an investigation that the Individual had been
seen in an intoxicated state. An interviewee informed an Office of Personnel Management
Investigator that the Individual consumed two glasses of wine on the weekends at home and that
3 Criterion H refers to information indicating 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 pertains to information indicating that an individual 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).
4 At the hearing, the Individual challenged the statement in the DOE Psychologist’s Report that he consumed beer
two or three times a month in high school. Tr. at 25-26; Ex. 9 at 3. The DOE Psychologist testified that she was
unsure where she obtained this information but noted that this information was not critical in making her diagnosis.
Transcript of Hearing (Tr.) at 73. This disputed fact is also not critical with regard to my decision in this case.
Consequently, I need not resolve this dispute.
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when he went to a local bar, the Individual consumed 3 to 4 beers during the course of a game.
Ex. 17 at 58. Additionally, the interviewee reported that the Individual became intoxicated once
a month by consuming 3 to 4 “shots” of liquor along with 8 beers. Ex. 17 at 58. The interviewee
further reported that, over the three or four weeks prior to the interview, she observed the
Individual intoxicated twice at a local bar. Ex. 17 at 58. Consequently, the LSO conducted a
personnel security interview with the Individual in April 2001 (4/01 PSI). Ex. 16. During the
4/01 PSI, the Individual stated that, on the occasions he would consume alcohol, he would
consume on average two beers or a glass of wine three times a week. Ex. 16 at 10-12, 28. The
Individual also admitted he was “a little cavalier” about his alcohol consumption but that as long
as he was responsible he did not worry about the amount of alcohol he consumed. Ex. 16 at 18.
During the 4/01 PSI, the Individual denied the interviewee accounts indicating that he had been
intoxicated twice in one month. Ex. 9 at 9; see Ex. 17 at 58.
The Individual was arrested in June 2010 for DUI. Ex. 11. The Individual reported his arrest to
the LSO several days later. Ex. 6.
Because of the Individual’s alcohol-related arrest, the LSO conducted the 7/10 PSI, at which the
Individual described his consumption of alcohol as follows. The Individual consumes three or
four “drinks” over a weekend three times a month during football season. Ex. 15 at 33-34.
During the rest of the year, he consumes the same amount of alcohol once a month. Ex. 15 at 34-
35. Additionally, the Individual consumes a couple of beers at a business meeting he attends on
three out of four Tuesdays a month with his son. Ex. 15 at 35-36.
At the 9/10 PSI, the Individual generally confirmed the circumstances regarding his DUI arrest
and informed the interviewer that, during the early 1990s, he consumed more alcohol that he
believed was wise – sometimes up to eight alcoholic beverages at an occasion. Ex. 14 at 79-81.
The Individual stated that he had driven in an intoxicated state approximately once a year for the
past 40 years and that his intention was to continue to drive on occasion after consuming
alcoholic beverages but only in circumstances where there was no chance that he would be
operating a vehicle while intoxicated. Ex. 14 at 79-81, 86-87.
During the DOE Psychologist’s examination in October 2010, the Individual informed the DOE
Psychologist that he intends to continue to consume alcohol and drive but that if he believes he
has consumed too much alcohol he will ask a friend to take him home or ride a taxi. Ex. 9 at 3.
The DOE Psychologist subsequently issued a report (Report) as to her psychological findings
concerning the Individual. Ex. 9 at 2. In her Report, the DOE Psychologist observed that despite
the alcohol-related concerns raised in the earlier 4/01 PSI, the Individual still demonstrated a
“cavalier” attitude concerning his alcohol use. Ex. 9 at 9. The DOE Psychologist noted that the
Individual had given differing accounts of his alcohol usage to different investigators. Ex. 9 at 9.
In the 7/10 PSI, the Individual indicated that he was restricting his consumption to two beers per
day yet in the 9/10 PSI the Individual admitted to having 20 ounces of margaritas on the day
prior to his 9/10 PSI, an amount which would contain more alcohol than two beers. Ex. 9 at 9.
The DOE Psychologist also concluded that “[i]f he is going over his limit every 2-3 months
when he is out, and he continues to drive himself, as he says he always does, he likely is driving
under the influence more often than he acknowledges.” Ex. 9 at 9. Given the discrepancies in the
Individual’s reported frequency of intoxication and the Individual’s intention to continue to
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consume alcohol and drive despite the concerns raised by the LSO in conducting the 4/01 PSI,
the DOE Psychologist diagnosed the Individual as suffering from Alcohol Related Disorder, Not
Otherwise Specified. Ex. 9 at 10. The DOE Psychologist also stated that adequate evidence of
rehabilitation or reformation in the Individual’s case would consist of abstinence for one year
along with twice weekly sessions with a mental health professional for one year. Ex. 9 at 10.
IV. ANALYSIS
The Criteria H and J concerns at issue in this case primarily arise from the Individual’s admitted
history of past alcohol misuse and the DOE Psychologist’s diagnosis of Alcohol Related
Disorder. Excessive use of alcohol raises a security concern due to the heightened risk that an
individual’s judgment and reliability may be impaired to the point that he or she may fail to
safeguard classified matter or special nuclear material. See Personnel Security Hearing, Case
No. TSO-0733 (July 13, 2009) (Criterion J case involving alcohol misuse). Excessive alcohol
consumption often leads to the exercise of questionable judgment, unreliability, and failure to
control impulses, and increases the risk of unauthorized disclosure of classified information due
to carelessness. “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. Given
the Individual’s recent diagnosis of Alcohol Related Disorder and history of excessive alcohol
consumption, I find the LSO had ample grounds to invoke Criteria H and J.
The Individual asserts that his recent misuse of alcohol is best characterized as isolated incidents
of “poor judgment.” Tr. at 26. In an attempt to resolve the derogatory information described
above, he presented the testimony of his Co-Worker to establish that his work performance has
been excellent and that there have been no alcohol-related work incidents. He also gave his own
testimony to establish that, given his recent DUI arrest experience, he will not ever again drive
while intoxicated. Tr. at 29.
In her testimony, the Co-Worker stated that she has known the Individual for 23 years. Tr. at 13.
They have worked together for most of those 23 years. Tr. at 13. The Co-Worker testified that, in
her years of work experience with the Individual, she has never had any doubts as to his work
performance. Tr. at 12. She went on to testify that in her opinion, the Individual exercises very
good judgment and is an excellent worker. Tr. at 19.
The Co-worker testified that, during the time they have worked together, she has not observed
the Individual having any workplace-related issues or absences due to alcohol use. Tr. at 14. In
the early 1990’s, the Co-Worker would often get together with the Individual and other friends
after work to consume alcohol, but in the past 10 years she has infrequently observed the
Individual consume alcohol during employee going-away parties. Tr. at 15. During the early
1990’s, the Co-Worker observed the Individual intoxicated on occasion. Tr. at 15-16. During the
period before the Individual’s DUI arrest, the Co-Worker had never been concerned with the
Individual’s use of alcohol. Tr. at 16.
The Co-Worker went on to testify that, after the Individual’s DUI arrest, she had an opportunity
to discuss the Individual’s consumption of alcohol with him. Tr. at 17. From this conversation,
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the Co-Worker testified she believes that the Individual’s arrest was a real “eye-opener” for him
and that he has learned a “lesson.” Tr. at 17. The Co-Worker testified that the consequential
driving restrictions arising from the Individual’s DUI arrest have been difficult for the
Individual. Tr. at 17.
In his testimony, the Individual explained that any discrepancies regarding his accounts of how
much alcohol he consumed over various periods of his life were unintentional and were not part
of an effort to deceive anyone regarding his alcohol consumption. Tr. at 24-25. While admitting
that he “probably drank too much” in the early 1990’s, the Individual testified that he has
reduced his alcohol consumption by 15 or 20 percent. Tr. at 42. He further testified that he now
will consume alcohol at “a moderate, controllable, good judgment level and frequency.” Tr. at
62. He also testified as to his belief that his current “rule” for the consumption of alcohol, a
“couple drink” limit, is reasonable and that he may go two or three weeks without consuming an
alcoholic beverage. Tr. at 27, 29-31, 40. After he consumes two alcoholic drinks, he then
consumes soft drinks or coffee. Tr. at 40.
The Individual testified that his current alcohol consumption is a couple of drinks with his son on
Tuesday nights and the consumption of a couple of drinks on one other night, usually a
Thursday, Friday or Saturday. Tr. at 44-45. The Individual also testified that on some Tuesday
nights he will continue to drive himself home but asserts that he is “not breaking the law.” Tr. at
60. The Individual testified that in the future should he have any doubt regarding whether he is
impaired by alcohol, he will not drive himself but call for a ride. Tr. at 29. The Individual
admitted in his testimony that if he became intoxicated, it would be on those three or four times a
year he hosts parties in his house and, therefore, he would not need to drive after consuming
alcohol. Tr. at 89. Further, the Individual testified that it was far from certain that he would
become intoxicated during those events. Tr. at 89.
The Individual also testified that over the past four years he has driven a car in an intoxicated
state approximately once a year. Tr. at 39. The Individual explains these incidents of driving
while intoxicated as incidents of “bad judgment.” Tr. at 30, 62. With regard to the other areas of
his life, the Individual believes that he shows good judgment. Tr. at 30. He went on to testify as
to his intention never to be arrested for DUI again and his consciousness of the dangers of
driving after having consumed alcohol. Tr. at 30, 40-41.
With regard to participation in an alcohol treatment program, the Individual testified that he has
not undertaken any treatment for his alcohol misuse because he does not believe he needs it. Tr.
at 53. He further testified to his belief that his DUI arrest and the resulting one night in jail and
restriction of his driving privileges for 90 days were a more effective treatment for him than
would be the recommended months of counseling. Tr. at 53-54.
After listening to all of the testimony, the DOE Psychologist testified as to her examination of
the Individual and the reasoning which led to her diagnosis of the Individual. With regard to the
inconsistency she noted in the Report, the DOE Psychologist testified that the inconsistencies in
the accounts of the Individual’s consumption of alcohol are not huge and, in themselves, are not
significant. She testified that her concern is that the inconsistencies reflect a lack of attention by
the Individual as to his alcohol consumption and reflect the Individual’s “cavalier” attitude
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regarding his alcohol consumption. Tr. at 74. She testified she did not believe that the Individual
was deliberately trying to deceive anyone. Tr. at 75.
The DOE Psychologist testified that, in her opinion, the Individual did not meet the diagnostic
criteria for alcohol abuse or alcohol dependency. Tr. at 77. However, the Individual sometimes is
not aware of his current alcohol consumption on the occasions he consumes alcohol and thus will
consume more alcohol than he intended. Tr. at 77. Consequently she diagnosed the Individual as
suffering from Alcohol Related Disorder, Not Otherwise Specified. Tr. at 77.
When asked if the Individual’s condition had changed since her examination in October 2010,
the DOE Psychologist testified that the Individual, as a result of the DUI arrest and the current
hearing regarding his security clearance, is more aware of the potential problems that alcohol
misuse may cause and that the Individual’s attitude is “a lot less offhand.” Tr. at 75-76.
Nonetheless, the DOE Psychologist testified that she is still concerned about the Individual’s
plan to consider driving after consuming alcohol, especially given the Individual’s recent DUI
arrest. Tr. at 79. In this regard, the DOE Psychologist believes that the Individual has “missed
the point” in that his alcohol consumption has caused problems in the past and thus the
Individual is “playing with fire.” Tr. at 78-79. The DOE Psychologist testified that the
Individual’s focus is on not consuming enough alcohol to be at risk for another arrest rather than
cutting down on his actual alcohol consumption. Tr. at 80. The DOE Psychiatrist also expressed
concern with the Individual’s belief that getting intoxicated at home was not an issue. Tr. at 83.
The DOE Psychiatrist testified that, in her opinion, the Individual has not demonstrated adequate
evidence of rehabilitation or reformation from his alcohol problem. Tr. at 84. She noted in her
testimony that the Individual has not undergone any type of treatment program nor abstained
from alcohol. Tr. at 84. However, because of the change in the Individual’s attitude concerning
his alcohol consumption, she believes adequate evidence of rehabilitation or reformation could
now be demonstrated by six months of abstinence from alcohol and six months of mental health
counseling. Tr. 85.
After considering all of the evidence and testimony in this matter, I find that the Individual has
not resolved the security concerns raised by his recent DUI arrest, his history of alcohol misuse,
and the DOE Psychologist’s diagnosis of Alcohol Related Disorder. The evidence in this case
indicates that the Individual has an increased sense of awareness of the hazards of driving while
intoxicated. The Individual has also demonstrated that he has not had any workplace incidents
caused by alcohol consumption. However, the security concern raised the Individual’s past
misuse of alcohol is not only with the Individual’s driving while intoxicated. As discussed above,
any excessive use of alcohol raises a security concern due to the heightened risk that an
individual’s judgment and reliability may be impaired to the point that he or she may fail to
safeguard classified matter or special nuclear material. At the hearing, the Individual seemed not
to be aware of this risk. Tr. at 62-63 (“I’m having a real problem seeing why this [past history of
driving home intoxicated] jeopardizes my clearance.”). When asked about the risk that he might
divulge classified information when intoxicated at home the Individual answered that
“[t]heoretically it’s possible. . . in the times that I was drinking to excess . . . I was with people I
knew . . . I was in a controlled situation.” Tr. at 63. Given the Individual’s limited sensitivity to
the security concerns attaching to his alcohol misuse, his failure to seek any type of treatment or
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counseling, and his admission that he has driven while intoxicated approximately once per year
for the past 40 years, I cannot find that the security concerns have been resolved.
V. CONCLUSION
As explained above, I find that the security concerns under Criteria H and J related to the
Individual’s misuse of alcohol and diagnosis of Alcohol Related Disorder have not been
resolved. Consequently, I cannot conclude that restoring the Individual’s access authorization
“would not endanger the common defense and security and would be clearly consistent with the
national interest.” 10 C.F.R. § 710.7(a). Therefore, the Individual’s access authorization should
not 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.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: June 23, 2011