PSH-17-0010

*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: February 22, 2017 ) Case No.: PSH-17-0010
)
_________________________________________ )
Issued: May 25, 2017
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (“the Individual”) for access
authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710,
Subpart A, entitled, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s access authorization should be restored at this time.
I. Background
The Individual is employed by a contractor with the DOE in a position that requires him to hold a
DOE security clearance. The Local Security Office (LSO) received potentially derogatory
information regarding the Individual’s arrest for Suspicion of Driving Under the Influence of
Alcohol (DUI). In order to address those concerns, the LSO summoned the Individual for an
interview with a personal security specialist in August 2016. Following the interview, the LSO
sent the Individual for an evaluation with a DOE consulting psychologist (DOE psychologist).
On December 21, 2016, the LSO sent a letter (Notification Letter) to the Individual advising him
that it possessed reliable information that created a substantial doubt regarding his eligibility to
hold a security clearance. See 10 C.F.R. § 710.21. After receipt of the Notification Letter, the
Individual exercised his right under the Part 710 regulations to request an administrative review
hearing. The LSO forwarded this request to the Office of Hearings and Appeals (OHA), and the
OHA Director appointed me as the Administrative Judge. At a hearing convened pursuant to 10
C.F.R. § 710.25 (e) and (g), the DOE introduced eleven exhibits (DOE Exs. 1-11) into the record
1 Access authorization, also known as a 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.
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and presented the testimony of a DOE psychologist. The Individual presented his own testimony
and the testimony of his wife, his brother, and one co-worker. The Individual also submitted six
exhibits (Ind. Exs. A-F). See Transcript of Hearing, Case No. PSH-17-0010 (Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that, in these proceedings, an Administrative Judge must undertake a careful review of all
of the relevant facts and circumstances, and make a “common-sense judgment . . . after
consideration of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all
information, favorable and unfavorable, that has a bearing on the question of whether granting or
restoring a security clearance would compromise national security concerns. Specifically, the
regulations compel me to consider the nature, extent, and seriousness of the Individual’s conduct;
the circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the Individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his [or her] eligibility for access authorization.” 10 C.F.R.
§ 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security
concerns, the burden is on the Individual to produce evidence sufficient to convince the DOE that
granting or restoring 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). This standard implies
that there is a presumption against granting or restoring a security clearance. The regulations
further instruct me to resolve any doubts concerning the Individual’s eligibility for access
authorization in favor of the national security. 10 C.F.R. § 710.7(a); see also Dep’t of the Navy v.
Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard indicates
“that security determinations should err, if they must, on the side of denials”).
III. Notification Letter and Associated Security Concerns
As previously noted, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to Guideline G of the Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19,
2005) (Adjudicative Guidelines). Under Guideline G, the LSO alleges that the Individual
consumed alcohol excessively, which could lead 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, Guideline G, at ¶ 21. Among those conditions set forth
in the Guidelines that could raise a disqualifying security concern are “alcohol-related incidents
away from work, such as driving while under the influence, fighting, child or spouse abuse,
disturbing the peace, or other incidents of concern, regardless of whether the individual is
diagnosed as an alcohol abuser or alcohol dependent” and “habitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an
alcohol abuser or alcohol dependent.” Adjudicative Guidelines, Guideline G, at ¶ 22 (a) and (c).
DOE Ex. 1; see DOE Ex. 6; DOE Ex. 7; DOE Ex. 8.
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IV. Hearing Testimony and Evidence
In July 2016, the Individual was arrested and charged with DUI. DOE Ex. 1; DOE Ex. 6; DOE Ex.
7; DOE Ex. 8 at 8, 9; DOE Ex. 10 at 13, 17-47, 75, 87. At the hearing, the Individual testified that
prior to the arrest he consumed six to eight beers between the hours of approximately 3 p.m. and
9 p.m. Tr. at 8. His wife and brother confirmed his recollection. Tr. at 14, 24. His wife testified
that he was very upset by the arrest, and he has completely changed his drinking habits since then.
Tr. at 14, 17. His brother testified that the Individual was shocked and disappointed by his arrest.
Tr. at 24. He also stated that the Individual has changed his alcohol consumption since the arrest.
Tr. at 25. The Individual, his wife, and his brother all testified that prior to July 2016, he would
consume alcohol only on weekends, while he was renovating his home. Tr. at 13, 22, 53.
The Individual testified that he has attended eleven of twelve group therapy sessions, with his last
session scheduled to be the Wednesday after the hearing. Tr. at 46-47. He also testified that he is
attending Alcoholics Anonymous (AA) online. Tr. at 52. His wife stated that he accesses the
online AA at the kitchen table. Tr. at 16. Occasionally, she will look over his shoulder to see what
he is doing. Tr. at 16. The Individual stated that he started going to individual counseling prior to
receiving the DOE psychologist’s report; when he read the report, he changed from individual
counseling to the group therapy sessions suggested by the DOE psychologist. Tr. at 49.
The Individual has been open with his family and co-worker regarding his DUI arrest and current
abstinence. Although the Individual’s wife, brother, and supervisor all testified that his goal is to
be abstinent for one year, the Individual and his wife both stated that he does not intend to consume
alcohol again. Tr. at 15, 18, 27, 43, 56. The DOE psychologist stated that it would be possible for
the Individual to drink socially in the future. Tr. at 78. The supervisor testified that, “[h]e's always
been forthright and honest with me in his personal and business dealings, and especially in this
situation, he has been very -- very good at keeping me filled in on what's going on.” Tr. at 41.
The supervisor also testified that “I don't really see a change in his work ethic or how he went
about doing his work. If I would say I saw a change in [the Individual], I would say it would be
in his attitude. I think he has a better attitude than he did at that time.” Tr. at 44-45.
The Individual’s wife testified that she would know if the Individual started consuming alcohol
again, because they are “always together.” Tr. at 18. Both the Individual and his brother testified
that he has a great support system. Tr. at 34, 62. The Individual added that his supervisor is a
recovering alcoholic. Tr. at 63. He stated that they have had discussions about the Individual’s
alcohol consumption and abstinence. Tr. at 63. He continued that his wife has been very
supportive. Tr. at 62. When questioned, the Individual stated that he knows the “triggers” that
would end his abstinence. He testified that most of past triggers have been eliminated from his
life. Tr. at 64. Both he and his wife testified that there is alcohol in the house that they are currently
residing in, because they live with her cousin and he has some beer in the refrigerator. Tr. at 17,
68-69. All of the Individual’s witnesses testified that he has not consumed any alcohol since his
arrest. Tr. at 17, 25, 43, 54.
After his PSI in January 2016, the Individual was evaluated by a DOE psychologist. DOE Ex. 8.
Following the evaluation, the DOE psychologist opined that the Individual had been a user of
alcohol habitually to excess. DOE Ex. 8 at 8. He continued that there was not adequate evidence
of rehabilitation or reformation. DOE Ex. 8 at 8. At the hearing, held six months after the DOE
psychologist’s evaluation, he opined that he was persuaded by the Individual’s abstinence, and
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confident that he would not be triggered to consume alcohol in the future. Tr. at 75. The DOE
psychologist cited the Individual’s accomplishment of the steps recommended to show
rehabilitation or reformation, and he noted that those steps were started prior to receiving the
recommendations. Tr. at 76. The DOE psychologist testified that the Individual’s prognosis is
good and his risk of relapse is in the low range. Tr. at 78, 80. He concluded that the Individual
has made an excellent effort, understands his triggers, and is taking his abstinence seriously. Tr.
at 79-80. When asked about the effectiveness of the online AA sessions, the DOE psychologist
stated that he suggested them to the Individual and gave him some links to various sessions. Tr.
at 80.
V. Administrative Judge’s Findings 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 guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) 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.
As an initial matter, I find that the LSO has properly raised security concerns under Guideline G,
based on the opinion by the DOE psychologist that the Individual was consuming alcohol
habitually to excess, and his July 2016 DUI. 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, ¶ 21. Alcohol-related
incidents such as driving while under the influence, along with habitually consuming alcohol, raise
a security concern. Adjudicative Guidelines, ¶ 22 (a), (c).
In considering whether the Individual has resolved the properly raised security concerns, I must
look to the Adjudicative Guidelines in evaluating the evidence before me. The relevant paragraph
lists conditions that could mitigate the Guideline G security concern, including:
(b) the individual acknowledges his . . . alcoholism or issues of alcohol abuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence
(c) the individual is a current employee who is participating in a counseling or
treatment program, has no history of previous treatment and relapse, and is making
satisfactory progress;
(d) the individual has successfully completed inpatient or outpatient counseling or
rehabilitation along with any required aftercare, has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with
treatment recommendations, such as participation in meetings of Alcoholics
Anonymous or a similar organization and has received a favorable prognosis by a
duly qualified medical professional or a licensed clinical social worker who is a
staff member of a recognized alcohol treatment program.
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Adjudicative Guidelines, ¶ 23 (b)-(d).
Given the above factors, I find that the Individual has resolved the security concerns raised by the
LSO. The Individual has acknowledged his previous issues with alcohol; he is attending AA and
group therapy sessions; the Individual has been abstinent since his DUI arrest; and the DOE
psychologist expressed the opinion that the Individual is making good progress. All these factors
satisfy ¶¶ 23 (b), (c) above.
Finally, the DOE psychologist opined at the hearing that the Individual no longer uses alcohol
habitually to excess and that he has a low risk of relapse. The DOE psychologist based his
testimony on the Individual’s demeanor at the hearing; the testimony of his witnesses; his
participation in treatment; and his sincerity in his abstinence. Tr. at 75-76. The DOE
psychologist’s testimony satisfies ¶ 23 (d).
Based on the foregoing, I find that the Individual has resolved the security concerns raised by the
DOE psychologist’s opinion that the Individual was a user of alcohol habitually to excess, and his
DUI.
VI. Conclusion
In the above analysis, I have found that there was derogatory information in the possession of the
DOE that was sufficient to raise serious security concerns under Guideline G. After considering
all of the relevant information, favorable and unfavorable, in a comprehensive common-sense
manner, including weighing all of 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 that guideline. I therefore find that restoring the Individual’s access
authorization will not endanger the common defense and is clearly consistent with the national
interest. 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: May 25, 2017