TSO-1111

* 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: September 19, 2011 )
) Case No.: TSO-1111
)
__________________________________________)
Issued: January 25, 2012
_______________
Hearing Officer Decision
_______________
Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXX X. XXX(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 his request for security clearance should not be granted.
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 engaged in unusual conduct which brought his honesty,
trustworthiness, and reliability into question, and had been found by a psychologist to meet the
criteria for alcohol abuse set forth in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (Text Revision) (DSM-IV-TR).1
1 The Notification Letter alleges that the Individual has: (1) “[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); and (2) “[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
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 a security clearance.
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 September 19, 2011.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his supervisor, his former girlfriend, a DOE consultant psychologist (the
Psychologist), and three of his coworkers. See Transcript of Hearing, Case No. TSO-1111
(hereinafter cited as “Tr.”). The LSO submitted 11 exhibits, marked as Exhibits 1 through 11,
while the Individual submitted no exhibits.
II. FINDINGS OF FACT
The Individual has an extensive criminal history. On July 16, 1986, he was charged with
Driving While Intoxicated (DWI). On February 24, 1987, he was charged with Fleeing from an
Officer, Driving on a Suspended License, and Minor in Possession of Alcohol. On March 13,
1987, he was charged with Driving on a Suspended License. In July 1989, the Individual was
charged with Felony Hit and Run. On August 2, 1992, he was charged with Possession of a
Concealed Weapon and DWI. On December 25, 1992, he was charged with Financial Interest in
Gaming. In July 1994, he was charged with Disorderly Conduct (the Individual admits that he
was consuming alcohol prior to this arrest. Tr. at 84). On February 5, 1995, he was charged
with Fleeing from a Police Officer and DWI. On September 25, 1995, he was charged with
Contempt-Failure to Pay. In June 1998, he was charged with Driving on a Suspended License.
On July 3, 1998, he was charged with Driving on a Suspended License, 2nd Offence. In March
2002, he was charged with Deposit Account Fraud.
At the request of the LSO, the Individual was evaluated by the Psychologist. The Psychologist
reviewed selected portions of the Individual’s personnel security file, administered two
standardized psychological tests2 and interviewed the Individual. After completing his
evaluation of the Individual, the Psychologist issued a report in which he concluded that the
Individual suffers from alcohol abuse, in partial remission, which causes a significant defect in
his judgment and reliability.3 Exhibit 10 at 4. The Individual also opined that the standardized
psychological tests that he administered to the Individual revealed “personality issues which
allow him to externalize self-responsibility and tendency to be self-aggrandizing.” Id. The
Psychologist also stated that the Individual was not reformed or rehabilitated from his alcohol
abuse. Id. The Psychologist opined that “in order for [the Individual] to achieve rehabilitation,
his habitual externalization and privilege of his own interests would have to be accounted for and
addressed. He would participate in an outpatient alcohol treatment program with the goal of
abstinence and would follow all subsequent aftercare recommendations including participation in
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 Specifically, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and Personality Assessment Inventory
(PAI).
3 A copy of the Psychologist’s report appears in the record as Exhibit 10.
3
Alcoholics Anonymous under the supervision of a credible sponsor.” Id.
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 “[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 J
The Individual has a history of five alcohol-related arrests or citations: a DWI on July 16, 1986,
a Minor in Possession charge on February 24, 1987, a DWI on August 2, 1992, a Disorderly
Conduct charge in July 1994, and a DWI charge on February 5, 1995. In addition, the
Psychologist diagnosed the Individual with alcohol abuse. The Individual’s pattern of five
alcohol-related arrests and alcohol abuse diagnosis raise security concerns about the Individual
under Criterion J. 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. 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 ¶ 21. In the present
case, a particularly strong association exists between the Individual’s consumption of alcohol
and his subsequent failure to exercise good judgment and to control his impulses, as evidenced
by his repeated engagement in activities while under the influence of alcohol that required the
intervention of law enforcement to protect the Individual and those around him.
Turning to the present case, I was convinced by the Psychologist’s testimony that the Individual
needs to abstain from the use of alcohol and undergo treatment for his alcohol abuse. However,
the Individual continues to use alcohol on a daily, or almost daily basis, and has not undergone
treatment for his alcohol abuse. The Individual correctly notes that his alcohol-related arrests
occurred in a time-limited period, from 1987 through 1995, and that his last alcohol-related arrest
occurred over sixteen years ago. The Individual contends that this sixteen-year period in which
he has not had any alcohol-related arrests is evidence that he has established a pattern of
4
responsible drinking. Tr. at 71-72, 90-92. The Individual contends that this pattern of
responsible drinking has resulted from his maturing, settling down, and deciding that he wanted
to change his life in order to provide for his children and to avoid living in the poverty that he
witnessed around him when he was growing up. Id. at 94-96, 100. The Individual presented the
testimony of three coworkers and his supervisor who each agreed that the Individual was an
extremely dedicated and responsible employee. Id. at 12-22, 33-45, 46-54, 55-68. As a
supervisor in an important safety related function, the Individual has continually exhibited the
utmost in honesty, trustworthiness, sound judgment and reliability. The mother of three of the
Individual’s children also testified on his behalf. Id. at 23-32. She testified that the Individual is
a dedicated father to their children.
The Psychologist was present for the testimony of each of the other witnesses during the hearing.
After the other witnesses had concluded their testimony, the Psychologist testified. The
Psychologist began his testimony by noting that the MMPI-2 and PAI tests that he had
administered to the Individual suggested that the Individual was minimizing and externalizing
some responsibility. Tr. at 104. The testing further suggests that the Individual is “in a category
of somebody who is high energy, kind of sensation seeking, but who arguably makes his own
rules.” Id. at 106. The Psychologist cited the Individual’s inconsistent reporting, during his
interview of the Individual and the Individual’s two Personnel Security Interviews (PSI), of the
amount and frequency of his alcohol use, as cause for further concern about the Individual’s
alcohol consumption.4 Id. at 107. The Psychologist testified that the Individual’s inconsistent
reporting of his alcohol use and continuing use of alcohol leads him to conclude that the
Individual’s alcohol abuse is only partially in remission. Id. at 107, 113, 116. The Psychologist
testified that the Individual has a “moderate” risk of “recidivism.” Id. at 107, 114, 116, 122. The
Psychiatrist further testified that if the Individual continues to drink, there is “a likelihood that at
some point, [he] will return to an abusive pattern of alcohol use.” Id. at 112, 114, 116, 122.
Based upon the compelling testimony of the Psychologist, I find that the Individual has not
mitigated the security concerns raised under Criterion J.
C. Criterion L
The Individual has a significant history of criminal conduct, and incidents where his failure to
exercise appropriate self-control required the intervention of law enforcement, between July 16,
1986 and March 2002. The Notification Letter sets forth his history of five alcohol-related
arrests or citations, three for DWI’s, one for Minor in Possession, and one for Disorderly
Conduct. In addition, the record shows that the Individual had been arrested or cited on seven
additional occasions. The Individual, who has been quite straight forward in describing the
circumstances leading to the other arrests and citations, disputes the validity of his 2002 arrest.
However, even if that arrest was not warranted, his history of criminal conduct is quite
significant. This significant pattern of criminal conduct raises security concerns under Criterion
L.
4 A copy of the transcript of the Individual’s June 16, 2006, PSI appears in the record as Exhibit 11. A copy of the
transcript of the Individual’s June 30, 2010, PSI appears in the record as Exhibit 8.
5
“Conduct involving questionable judgment, . . . or unwillingness to comply with rules and
regulations can raise questions about an individual's reliability, trustworthiness and ability to
protect classified information.” 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.
The most recent example of the Individual’s criminal conduct occurred in either 1998 or 2002,
either ten or fourteen years ago. Paragraph 32 of the Administrative Guidelines sets forth a
number of conditions which may mitigate concerns arising from an Individual’s past criminal
conduct. Specifically, ¶ 32(a) and (d) both cite the passage of time as a mitigating condition for
criminal conduct. Moreover, ¶ 32(d) also cites a good employment record as a mitigating
condition from an Individual’s past criminal conduct. While the passage of time and the
Individual’s good employment record are strong mitigating factors, the sheer number of criminal
incidents diminishes the weight of these mitigating factors. Moreover, many of the Individual’s
arrests stemmed from his use of alcohol. As indicated above, the Individual has not yet
demonstrated adequate rehabilitation or reformation from his alcohol abuse. I therefore 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 J and L. I find
that unmitigated security concerns remain under both of these criteria. Accordingly, the
Individual has not demonstrated that granting him a security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual's security clearance should not be granted at this time. 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: January 25, 2012