TSO-1016

* 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 27, 2011
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: March 7, 2011
Case Number: TSO-1016
This Decision concerns the eligibility of XXXX X. XXXXX (hereinafter referred to as “the
Individual”) to obtain a security clearance 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, I have determined that a security clearance should not be granted to the Individual.
I. BACKGROUND
The administrative review proceeding began with the issuance of a Notification Letter to the
Individual. See 10 C.F.R. ' 710.21. The letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. Specifically, the Local Security Office (LSO) characterized this information as
indicating that the Individual had deliberately misrepresented or omitted required information
during the DOE security clearance process, had engaged in illegal drug use, engaged in unusual
conduct which brought his honesty, trustworthiness, and reliability into question, and been
diagnosed by a psychiatrist as suffering from alcohol abuse, an illness or mental condition of a
nature which causes, or may cause, a significant defect in judgment or reliability.1
1 The Notification Letter alleges that the Individual has: (1) “[d]eliberately misrepresented, falsified, or omitted
significant information from a Questionnaire for Sensitive (or National Security) Positions . . . in response to
official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or
proceedings conducted pursuant to ' 710.20 through ' 710.31,@ 10 C.F.R. ' 710.8(f); (2) “[t]rafficked in, sold,
transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled
Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana,
cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to
dispense drugs in the practice of medicine, or as otherwise authorized by Federal law,@ 10 C.F.R. ' 710.8(k); (3)
“[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); (4) “[b]een, or is, a
2
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in
this matter on March 9, 2011.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his girlfriend, his supervisor, his union steward, four of the Individual’s coworkers
and a DOE consultant psychiatrist (Psychiatrist B). See Transcript of Hearing, Case No.
TSO-1016 (hereinafter cited as ATr.@). The LSO submitted 31 exhibits, marked as Exhibits 1
through 31, while the Individual submitted three exhibits, marked as Exhibits A through C.
II. FINDINGS OF FACT
The present proceeding involves an Individual who has an extensive pattern of criminal activity.
In 1986, he vandalized a motor vehicle. In September 1989, he was cited for soliciting a
prostitute. He was arrested for Driving While Intoxicated (DWI) on five occasions: April 27,
1989, August 19, 1989, May 19, 2000, April 9, 2005, and October 26, 2005. On March 21,
1991, the Individual was arrested for Domestic Violence.
In 1990, the Individual received 12 weeks of treatment for alcohol abuse. Exhibit 4 at 3. The
Individual was evaluated by a counseling agency (the Counseling Agency) in December 2005.
The Counseling Agency diagnosed him with alcohol dependence. Id. at 8. As part of the
Individual’s treatment plan, he was required to attend at least two Alcoholic’s Anonymous (AA)
meetings a week, a weekly individual counseling session and a weekly group counseling session.
Id. The Individual stopped attending AA meetings and discontinued counseling in December
2008. Id.
The Individual has completed, signed, and submitted at least 13 Questionnaires for National
Security Positions (QNSP) to the LSO during the time period beginning on March 9, 1992, and
ending on February 5, 2010.2 The LSO has conducted at least five Personnel Security Interviews
of the Individual: the first was conducted on January 21, 1993, and the most recent was
conducted on September 22, 2010.3
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); and (5) “[e]ngaged 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,”
10 C.F.R. ' 710.8(l).
2 Copies of these QNSPs appear in the record as Exhibits 14 through 26.
3 Transcripts of these PSIs appear in the record as Exhibits 27 through 31.
3
On January 21, 1993, the Individual signed a DOE Drug Certification.4 The Individual has also
signed at least 11 DOE Security Acknowledgements during the time period beginning on
June 14, 1993, and ending on November 20, 2009.5 The Individual has admitted that he used
marijuana on one or two occasions while holding a security clearance in 1994 or 1996.6
Exhibit 6 at 10. In his August 4, 2004, PSI, the Individual admitted that he had violated his DOE
Drug Certification on multiple occasions. Exhibit 28 at 35-38.
The LSO has documented at least 31 instances in which the Individual has intentionally provided
false or misleading information in his QNSPs in order to conceal his arrest record, involvement
in alcohol-related incidents, termination from employment resulting from his misconduct, and
illegal drug use. The LSO has also documented at least four instances where the Individual has
intentionally provided false information during a PSI, in order to conceal his criminal conduct,
alcohol use, and illegal drug use. The LSO has documented at least two instances where the
Individual has intentionally provided false information to a DOE Psychiatrist during a
psychiatric evaluation, in order to conceal the extent of his alcohol use.
The Individual has been evaluated by DOE psychiatrists on at least two occasions. He was
evaluated by DOE Psychiatrist A, on October 15, 2005. Psychiatrist A issued a report of his
evaluation on October 25, 2005.7 Psychiatrist A found that the Individual met the criteria for
alcohol abuse set forth in the Diagnostic and Statistical Manual of Mental Disorders-Fourth
Edition, Text Revision (DSM-IV-TR). Psychiatrist A further found that the Individual did not
show adequate evidence of rehabilitation or reformation.
Psychiatrist B conducted a psychiatric evaluation of the Individual on October 28, 2010.
Psychiatrist B issued a report of his evaluation on November 1, 2010.8 During this psychiatric
evaluation, the Individual informed Psychiatrist B that he continues to drink in moderation.
Exhibit 4 at 8. The Individual also opined that he is not an alcoholic. Id. Psychiatrist B found
that the Individual met the criteria for alcohol abuse, set forth in the DSM-IV-TR. Psychiatrist B
also opined that the Individual should never attempt to drink in moderation. Id. at 1.
Psychiatrist B further found that the Individual did not show adequate evidence of rehabilitation
or reformation.
The Individual has also admitted that he has engaged in extensive illegal drug use. During his
October 28, 2010, psychiatric evaluation, he admitted using marijuana during a hunting trip that
occurred in 2007 or 2008. Exhibit 4 at 1, 10 and 15. During the September 22, 2010, PSI, the
Individual admitted using marijuana and cocaine from the early 1980s until 2004. Exhibit 22 at
10-31. The Individual submitted QNSPs on February 5, 2010, and November 20, 2009,
4 This DOE Drug Certification appears in the record as Exhibit 12.
5 These DOE Security Acknowledgments appear in the record as Exhibit 13.
6 The Individual had maintained a security clearance from May 19, 1993, until June 12, 2000. Exhibit 4 at 3.
7 A copy of the October 25, 2005, psychiatric report appears in the record as Exhibit 6.
8 A copy of the November 1, 2010, psychiatric report appears in the record as Exhibit 4.
4
reporting that he had used marijuana on approximately 30 occasions from December 2005 to
July 2006. Exhibits 14 and 15. On July 16, 2004, the Individual tested positive for marijuana.
Exhibit 9.
III. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual, and to render a decision based on that evidence. See 10 C.F.R. ' 710.27(a).
The regulations state that A[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all the relevant information, favorable or
unfavorable, as to whether the granting of 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). I have considered the following factors in rendering this opinion: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R.
'' 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
IV. ANALYSIS
A. Criterion F
The Notification Letter alleges that the Individual omitted or provided false information to LSO
officials on at least 38 occasions about his illegal drug use, arrest record, alcohol use, and
criminal activities. This extensive pattern of omission, falsification, and minimization raises
serious concerns about the Individual under Criterion F. Deliberately omitting or concealing
relevant facts, or providing false information in a process for determining eligibility for access
authorization demonstrates questionable judgment and lack of candor, and can also raise
questions about an individual’s reliability, trustworthiness and ability to protect classified
information. See Guideline E 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).
The Individual’s testimony has not resolved the security concerns arising from his omissions.
The Individual testified that many of these omissions or provisions of incorrect information have
occurred because he misunderstood the questions being posed to him, or because he was unable
to recall past occurrences accurately. The Individual further testified that his omissions and
provisions of false information resulted from “the thing that alcohol and drugs do to a person.”
Tr. at 115. He also testified that as a result of his involvement with AA and counseling he has
“learned a lot” and become a better person. Tr. at 74. However, the Individual’s testimony at
the hearing only made it more difficult to believe that he was not trying to conceal the truth when
he omitted or provided false information to LSO officials.
5
During the Individual’s testimony he repeatedly contradicted himself. For example, the DOE
Counsel confronted the Individual with his contradictory statements concerning his last use of
alcohol. The DOE Counsel noted that, during his September 22, 2010, PSI, the Individual had
stated that he was last intoxicated in 2004, while during his October 28, 2010, psychiatric
evaluation, the Individual told Psychiatrist B that he was last intoxicated at his birthday party in
March 2010. Tr. at 69-70. The Individual responded by stating
Yes, I did tell [Psychiatrist B] that, but I don’t understand why I told him that,
because, like I stated, there was no party, there was a dinner between [my
girlfriend] and myself, and there was no drinking. I don’t – I can’t honestly say
why I said anything of a party going on. I didn’t lie to him. There was no party. I
mean, I did tell him that, but I really don’t have a good explanation for that, sir.
Tr. at 71-72.
When the DOE Counsel confronted the Individual with his admission to Psychiatrist B that his
last use of marijuana took place during a hunting trip that occurred in 2007 or 2008, the
Individual denied that he had smoked marijuana or had even been hunting during those years.
Tr. at 77. However, the Individual acknowledged that he had, in fact, admitted using marijuana
on a hunting trip to Psychiatrist B. Id.
The DOE Counsel confronted the Individual with his admission, during his September 22, 2010,
PSI, that he had used illegal drugs on approximately 30 occasions. Tr. at 116. The Individual
testified “I don’t agree with that amount. I don’t think it was even close to that.” Id.
The DOE Counsel confronted the Individual with the fact that he had indicated, in his
February 6, 2010, QNSP, that he had left employment at a DOE subcontractor in 2004 due to a
reduction in force, when in fact he had been fired for failing a drug test. Tr. at 119-120. The
Individual responded by admitting he had been using drugs and had failed the drug test. But the
Individual further testified that he was not fired and that he had reported that incident in the
QNSP. Id. at 120. The DOE Counsel invited the Individual to identify that portion of his
February 6, 2010, QNSP where he had reported that he had failed a drug test. Id. The Individual
first claimed that the copy of the February 5, 2010, QNSP that appears in the record9 was not
accurate and complete. Id. at 123. The Individual eventually admitted that he could not show
that he had reported his positive drug test in the QNSP. Id. at 127.
The DOE Counsel asked the Individual whether he used illegal drugs while holding a security
clearance. The Individual stated “I never used drugs while I had the clearance in my hand, while
it was with me.” Tr. at 148.
The Individual’s demonstrated lack of candor during the hearing has prevented him from
mitigating the security concerns raised by the 38 documented instances of deliberate omission or
provision of false information set forth in the statement of charges. While the Individual claims
that his omissions and provisions of false information were unintentional, his willingness to
9 See Exhibit 14.
6
repeatedly prevaricate under oath at the hearing strongly suggests otherwise. Moreover, the
continuation of the Individual’s pattern of dishonesty during the hearing belies his contention
that he is now a changed and more honest person.
For the reasons set forth above, I find that the Individual has not resolved the security concerns
raised under Criterion F.
B. Criteria J and H
The Individual has a history of at least five DWIs: on April 27, 1989, August 19, 1989, March
21, 1991, May 19, 2000, and October 26, 2005. In addition, the Individual has admitted
consuming six beers prior to his March 21, 1991, arrest for Domestic Violence. Exhibit 4 at 4.
This pattern of alcohol-related arrests and other information indicating that his use of alcohol
might be problematic raise security concerns about the Individual under Criterion J. In addition,
two DOE psychiatrists have diagnosed the Individual with alcohol abuse. This diagnosis, along
with the derogatory information concerning alcohol discussed above, raises security concerns
under Criterion H. Excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about an individual's
reliability and trustworthiness. Adjudicative Guidelines at ¶ 21. In addition to the evidence in
the record showing that at least three mental health care professionals have diagnosed the
Individual with an alcohol related disorder, the Individual himself now acknowledges that he has
a serious problem with alcohol, and is a “recovered” alcoholic. Tr. at 131, 163-164. Yet the
Individual also testified that he no longer has an alcohol problem. Id. at 163.
The remaining issues under Criteria J and H are whether the Individual is reformed or
rehabilitated. The Adjudicative Guidelines provide that an individual can mitigate security
concerns arising from alcohol abuse when “the individual acknowledges his or her alcoholism or
issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has
established a pattern of abstinence . . . or responsible use.” Adjudicative Guidelines at ¶ 23(b).
The Individual has submitted evidence that he has attended a substantial number of AA
meetings. Exhibit A. However, the Individual stopped attending AA meetings in 2008.
Moreover, the Individual began receiving individual counseling from his Employee Assistance
Program (EAP) on March 21, 2011, less than two months prior to his hearing. The Individual’s
EAP counselor was not present at the hearing.
The Individual also claims that he has stopped consuming alcohol. The Individual testified that
he last consumed alcohol at a professional football game in September 2010, approximately eight
months prior to the hearing. Tr. at 136. However, the Individual would not commit to
permanent abstention from alcohol and testified that he believes it is safe for him to drink in
moderation.10 Id. at 139, 164.
The Individual has not mitigated the security concerns raised by his alcohol abuse and
problematic alcohol use. Psychiatrist B was present for the testimony of each of the other
witnesses during the hearing. After the other witnesses had concluded their testimony,
10 However, the Individual subsequently testified that he had decided to “keep alcohol out of [his] life.” Tr. at 146.
7
Psychiatrist B testified. Psychiatrist B testified that he continued to believe that the Individual is
not sufficiently reformed or rehabilitated. I agree with his assessment. The Individual has not
sufficiently acknowledged his issues of alcohol abuse. Moreover, my concerns about the
Individual’s credibility, discussed at length above, make it difficult to rely on his self-reported
recent drinking history. Accordingly, I find that the Individual has not mitigated the security
concerns raised under Criteria H and J.
C. Criterion K
The LSO has invoked Criterion K, noting the Individual has admitted extensive marijuana use
from the 1980s through as recently as 2007, and experimentation with cocaine. The use of an
illegal drug, such as marijuana or cocaine, raises questions about an individual’s reliability and
trustworthiness, both because illegal drug use may impair judgment and because engaging in
illegal activity raises questions about a person’s ability or willingness to comply with laws, rules
and regulations. Adjudicative Guidelines at ¶ 11 (Guideline H).
At the hearing, the Individual attempted to deny (or minimize) his previous drug use, and to
claim that he no longer uses illegal drugs. Tr. at 147-149. However, given his previous
reporting of cocaine experimentation and extensive marijuana use, as well as the Individual’s
lack of credibility, as discussed at length above, the Individual has not convinced me that he did
not use marijuana extensively and as recently as 2007. In fact, given the Individual extensive
history of lying to the LSO, often about his illegal drug use, I cannot trust the Individual’s
assertion that he no longer uses illegal drugs. Accordingly, the security concerns raised under
Criterion K by his extensive and recent illegal drug use have not been resolved.
D. Criterion L
The Individual has a significant history of criminal conduct and other rule violations. The
Notification Letter sets forth a history of at least six arrests, extensive illegal drug use, multiple
falsifications during security clearance investigations, illegal drug use while employed at a DOE
facility after having signed several DOE security acknowledgements that illegal drug use was
against DOE policy, and multiple violations of a DOE Drug Certification signed by the
Individual. In addition, the Individual has a pattern of leaving at least five different employers
under unfavorable circumstances. This information raises security concerns under Criterion L.
“Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations can raise questions about an individual's reliability,
trustworthiness and ability to protect classified information. Of special interest is any failure to
provide truthful and candid answers during the security clearance process or any other failure to
cooperate with the security clearance process.” Adjudicative Guidelines at ¶ 15. “Criminal
activity creates 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 ¶ 30. Moreover, the “deliberate omission, concealment, or falsification of
relevant facts from any personnel security questionnaire, personal history statement, or similar
form used to conduct investigations, determine employment qualifications, award benefits or
status, determine security clearance eligibility or trustworthiness, or award fiduciary
8
responsibilities” raises serious security concerns. Id. at ¶ 16.
The sheer volume of well documented security concerns raised under Criterion L raise
particularly grave concerns about the Individual’s judgment, reliability and trustworthiness. The
Individual has repeatedly shown that he is either unwilling or unable to follow laws, rules and
regulations. Moreover, the Individual’s actions show that he cannot be trusted to provide truthful
information, and that he has a propensity to fail to uphold his promises. The Individual’s lack of
candor at the hearing shows that he continues to exhibit poor judgment, and cannot be relied
upon or trusted. Accordingly, I find that the security concerns raised under Criterion L remain
unresolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria F, H, J, K, and
L. I find that unmitigated security concerns remain under each of these criteria. Accordingly,
the Individual has not demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual should not be granted a security clearance. The Individual may seek review of this
Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. ' 710.28.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: June 27, 2011