PSH-17-0015

*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: March 1, 2017 ) Case No.: PSH-17-0015
)
__________________________________________)
Issued: June 6, 2017
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Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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, issued on December 29, 2005, by the Assistant to the President for National
Security Affairs, The White House (Adjudicative Guidelines), I have determined that the
individual’s access authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold
DOE access authorization. As a holder of access authorization, the individual is subject to
periodic security reinvestigations. During such a reinvestigation, the Local Security Office
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.
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(LSO) received information that the individual had a previously undisclosed arrest, which
occurred approximately 35 years earlier, for driving under the influence of alcohol (DUI).
See Exhibit 5. As a result of this information, the LSO conducted a personnel security
interview (PSI) with the individual in September 2016. See Exhibit 10. The PSI did not
resolve the security concerns arising with respect to the individual’s alcohol consumption
and, as a result, the LSO referred the individual to a DOE consultant psychologist (DOE
psychologist) for an evaluation. See Exhibit 4.
The individual is also subject to random alcohol testing at his workplace. In October 2016,
approximately two weeks following the PSI but prior to the psychological evaluation, the
individual was selected for a random breath alcohol test (BAT), on which he tested positive
with an alcohol level in excess of that permitted at his work site. As a result, the individual
was suspended from work for 30 days. See Exhibit 6.
In November 2016, the individual was evaluated by the DOE psychologist. See Exhibit 7.
Since neither the PSI nor the psychological evaluation resolved the security concerns
arising with respect to the individual’s alcohol consumption, the LSO informed the
individual in a letter dated January 23, 2017 (Notification Letter), that it possessed reliable
information that created substantial doubt regarding his eligibility to hold a security
clearance. In the Notification Letter, the LSO explained that the derogatory information
raised one or more security concerns under “Guideline G: Alcohol Consumption” of the
Adjudicative Guidelines (Guideline G).2 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his 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 11 numbered exhibits into the record and presented the
testimony of one witness, the DOE psychologist. The individual, represented by counsel,
introduced five lettered exhibits (Exhibits A – E) into the record and presented the
testimony of three witnesses, including that of himself and his alcohol treatment counselor.
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
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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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
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 G as the basis for suspending the individual’s
security clearance. Guideline G relates to security risks arising from alcohol consumption.
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. See Adjudicative Guidelines at Guideline G ¶ 21. With respect to
Guideline G, the LSO relied upon the November 2016 written evaluation by the DOE
psychologist which concluded that the individual is a user of alcohol habitually to excess
and met both the diagnostic criteria set forth in the Diagnostic Statistical Manual of the
American Psychiatric Association, Fifth Edition (DSM-5), for Alcohol Use Disorder,
Moderate, and the diagnostic criteria set forth in the Diagnostic Statistical Manual of the
American Psychiatric Association, Fourth Edition, Text Revision (DSM-IV-TR), for
Alcohol Dependence, in each case without adequate evidence of rehabilitation or
reformation. Ex. 1 at 1; Ex. 7 at 13-15. Additionally, the LSO alleged, inter alia, that the
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individual: (1) acknowledged during the PSI that his alcohol consumption resulted in his
experiencing intoxication once a week; (2) tested positive on a BAT administered while he
was working at a DOE site; and (3) had been arrested for DUI in 1976, 1980 and 1985.
Ex. 1 at 1-2.
In light of the information available to the LSO, the LSO properly invoked Guideline G.
IV. Findings of Fact
Although the individual testified that he had exaggerated his alcohol consumption during
the PSI and the DOE psychological evaluation, his testimony acknowledged the accuracy
of much of the information set forth in the Notification Letter. In those instances where the
individual contested matters set forth in the Notification Letter, I have carefully considered
the totality of the individual’s testimony, the entirety of the written record, and the
arguments presented by both the individual and the LSO in reaching the findings of fact
set forth below.
The individual was arrested for DUI in 1976, 1980 and 1985. Tr. at 15, 48, 51. He was not
prosecuted or convicted following any of those arrests. Id. at 51.
The individual requires DOE access authorization in conjunction with his employment by
a DOE contractor. During a periodic reinvestigation of his eligibility for access
authorization, the LSO learned of the individual’s DUI in 1980, which the individual had
not disclosed. See Ex. 5. As a result of this information, the LSO conducted a PSI with the
individual in September 2016, focusing on the individual’s patterns of alcohol
consumption. See Ex. 5; Ex. 10.
At the time of the PSI, the individual was typically consuming two 750 ml bottles of wine
and two six-packs of 12 ounce beers over the course of the weekend (three days). Ex. 7 at
4. He became intoxicated once a week. Ex. 10 at 33.
Less than two weeks after the LSO conducted the PSI, the individual tested positive (.038)
on a random BAT while on duty at a DOE site. Tr. 17, 53. His employer suspended him
from work for 30 days and sent him for an alcohol assessment. Ex. 6 at 1. The evaluator
diagnosed the individual as meeting the DSM-5 diagnostic criteria for Alcohol Use
Disorder, Mild, and recommended that the individual undertake 12 weekly individual
counseling sessions for alcohol abuse and attend two meetings of Alcoholics Anonymous
each week for 12 weeks. Ex. A at 2; Ex. B at 1. The individual successfully completed the
recommended program at the end of December 2016. Ex. B at 3-4; Tr. at 18-20, 37-39. At
the end of the program, his treatment counselor recommended that the individual maintain
abstinence from alcohol indefinitely. Id. at 91, 140.
Contemporaneously, the LSO referred the individual for an evaluation by a DOE
psychologist which was conducted in November 2016. The DOE psychologist diagnosed
the individual as meeting both the DSM-5 diagnostic criteria for Alcohol Use Disorder,
Moderate, and the DSM-IV-TR diagnostic criteria for Alcohol Dependence, in each case
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without adequate evidence of rehabilitation or reformation. Ex. 7 at 14. To evidence such
rehabilitation and reformation, the DOE psychologist recommended the individual
complete an intensive outpatient substance abuse treatment program and maintain alcohol
abstinence for two years. Id. at 14-15. At the hearing, the DOE psychologist confirmed that
the 12-week program completed by the individual in December 2016 satisfied his
recommendation for an intensive outpatient treatment program. Tr. at 182-183. The
individual received a written copy of the DOE psychologist’s evaluation in January 2017
and, therefore, was aware of his recommendation that the individual maintain abstinence
for two years. Id. at 55.
In mid-February 2017, the individual had a “celebratory” drink with a family member. He
subsequently had two dinners where he consumed wine. Id. at 23, 28, 64-65.
In anticipation of the administrative review hearing, the individual returned to counseling
with his alcohol treatment counselor in late February. Ex. E at 3. Although he had broken
his abstinence with the “celebratory” drink, he reported to his counselor that he had
continued his abstinence since their last meeting in December. Ex. E at 3; Tr. at 94. A
month later he reported the “celebratory” drink to his counselor without specifying when
it had occurred. Id. at 143, 146-147. The counselor’s recommendation to the individual was
that he remain abstinent from alcohol. Id. at 41-42, 57-58, 87, 91, 114, 118, 140. The
individual did not disclose to the counselor his two dinners with wine prior to the
individual’s testimony during the administrative review hearing in the counselor’s
presence. Id. at 42, 144.
Immediately prior to the administrative review hearing, the individual’s treatment
counselor evaluated the individual using a diagnostic test and prepared a written report
addressed to DOE for the hearing. See Ex. E at 3-5. The treatment counselor concluded
that the individual met the DSM-5 diagnostic criteria for Alcohol Use Disorder, Mild. Id.
at 2, 5. Although the counselor was aware that the individual had broken his abstinence on
at least one occasion, he omitted that information from his written evaluation prepared for
the hearing and addressed to DOE. See Ex. 5; Tr. at 147-148.
V. 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)4 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
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.
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authorization should not be restored. I cannot 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
In mitigation of the Guideline G security concerns alleged with respect to his alcohol
consumption, the individual’s primary arguments are that: he has completed a 12-week
alcohol treatment program, has recently returned to individual counseling and is attending
one meeting of Alcoholics Anonymous each week; his experts have concluded that he has
a less severe alcohol disorder than diagnosed by the DOE psychologist; and he has made
substantial progress in modifying his pattern of alcohol consumption (which the DOE
psychologist acknowledged at the hearing) and has received a favorable prognosis from his
treatment counselor.
For these reasons, the individual argues that he has sufficiently mitigated the security
concerns noted by the LSO under Guideline G.
B. Administrative Judge Evaluation of Evidence
As an initial matter, I note that legitimate security concerns exist as a result of the
individual’s consumption of alcohol. Even if one were to discount the individual’s three
incidents of DUI due to the age of such occurrences, the individual acknowledges that: (1)
he drank to the point of intoxication on a regular basis until late last year; (2) he was
suspended from work due to failing a random BAT last October; and (3) his own mental
health experts have concluded that he meets the diagnostic criteria set for in the DSM-5 for
an Alcohol Use Disorder. Ex. 10 at 33; Ex. A at 2; Ex. E at 2, 5; Tr. at 17, 53, 59. The
individual’s alcohol consumption was the focus of a PSI conducted by the LSO last
September and yet, while clearly on notice of those concerns, he consumed alcohol to such
excess that he failed a random BAT at his worksite less than two weeks after the PSI.
Ex. 6. While the individual has attempted to minimize the failed BAT as an aberration, the
proximity of the failed BAT to the PSI evidences that the individual had either an inability
or unwillingness to control his alcohol consumption. Tr. at 32-33. Any one of these factors
is disqualifying for access authorization. See Adjudicative Guidelines at Guideline G
¶ 22(b), (c), (d), (e).
In light of the existence of such disqualifying factors, the issue before me is whether the
individual has sufficiently mitigated the security concerns arising from his alcohol
consumption.
The individual attempted to walk-back from the amount of alcohol consumption that he
self-reported during the PSI and the DOE psychological evaluation, but there is little doubt
that he consumed a significant amount of alcohol, regularly, prior to his suspension from
work following the positive result on the random BAT. Tr. at 21-22, 53, 59. With respect
to this period of time, the individual testified during the hearing that he typically become
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intoxicated once a week, as he had reported during the PSI. Id. at 53. Subsequently, he
changed that testimony and testified that he only drank to intoxication once every second
or third week during the period preceding the PSI. Id. at 59. Based on such inconsistencies
in the record, I have concluded that the individual is not a reliable reporter of his historic
alcohol consumption. During the hearing, the individual testified that he had over-reported
his alcohol use to the DOE psychologist because he was irritated at the repeated
questioning by DOE with regard to his alcohol consumption. Id. at 21-22, 27. The DOE
psychologist noted the individual’s “vague and guarded interview style” in the
psychologist’s written evaluation. Ex. 7 at 14. The individual’s irritation, bordering on
anger, was also apparent during his testimony at the hearing. For these reasons, I have
given minimal evidentiary weight to the individual’s testimony that seeks to recast
information he provided during the PSI and the DOE psychological evaluation.
All of the mental health experts who have evaluated the individual found that he had a
DSM-5 diagnosable condition. See Ex. 7 at 13-15; Ex. A at 2; Ex. 5 at 2, 5. The only
difference was with respect to severity. The individual’s experts concluded that he has
Alcohol Use Disorder, Mild, while the DOE psychologist concluded that he has Alcohol
Use Disorder, Moderate. The individual’s treatment counselor concluded that the
individual has a favorable prognosis. Ex. E at 3. Both the individual’s mental health experts
and the DOE psychologist affirm that the treatment program completed by the individual
conforms to their recommendations. Ex. B at 3, 4; Tr. at 182-183. For this, the individual
is to be commended.
The individual’s treatment counselor prepared a report addressed to DOE and he testified
at the hearing at the request of the individual. See Ex. E at 3-5. At the hearing, the treatment
counselor testified that he had recommended complete abstinence for the individual, both
at the time the individual initially completed his treatment in December 2016 and as of the
date of the hearing. Tr. at 41-42, 57-58, 87, 91, 114, 118, 140. The individual returned for
additional counseling in February 2017 in anticipation of the hearing. Ex. E at 3. The prior
week, the individual had broken his abstinence with a “celebratory” drink with a family
member; however, he reported to his counselor that he had maintained his abstinence. Id.
at 3; Tr. 94. The individual reported the “celebratory” drink to his counselor about a month
later. Id. at 143, 146-147. The individual acknowledged at the hearing that he had
subsequently had two dinners that included drinking wine; these had not been reported to
his treatment counselor and the counselor learned of them for the first time during the
individual’s testimony at the hearing. Id. at 42, 144. For these reasons, I have concerns
about the individual’s candor with his counselor.
Additionally, the counselor’s report addressed to DOE describes that, upon the individual’s
return to counseling in February, the individual reported his continued abstinence since
completing his treatment program the prior December. Ex. E at 3. At the time that the
counselor prepared his report, he was aware that the individual had broken his abstinence
with the “celebratory” drink; however, that relapse was not disclosed in the report. At the
hearing, the counselor had no explanation for his decision to exclude that information from
the report prepared for the hearing. Tr. at 147-148. In light of this omission from the
counselor’s written report addressed to DOE, I have concerns about the treatment
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counselor’s candor with the DOE. At the hearing, the counselor learned of the two
additional relapses by the individual, all within two months of the hearing, and testified
that he viewed them as not significant. Id. at 144. I cannot reconcile this conclusion in light
of the counselor’s on-going recommendation that the individual abstain from alcohol
consumption. For these reasons, as well as the individual’s lack of candor with the
counselor discussed in the preceding paragraph, I have accorded limited evidentiary weight
to the conclusions of the individual’s treatment counselor with respect to the efficacy of
the individual’s treatment and his prognosis.
At the hearing, the individual was unable to consistently articulate his goal with respect to
future alcohol consumption, once testifying that his present intent was stay as “abstinent as
possible” (Id. at 64) and, at another time, testifying that abstinence was best “but every
once in a while I may have a glass of wine at dinner … and that’s where I’m going to leave
it” (Id. at 44).
In the two months preceding the hearing, the individual consumed alcohol on three
occasions, all at a time that he was aware that both his treatment counselor and the DOE
psychologist had recommended that he maintain abstinence from alcohol. While both his
counselor and the DOE psychologist agreed that on these occasions the individual
consumed significantly less alcohol than he had routinely consumed prior to his treatment,5
these occasions still represent three instances of the individual failing to comply with
treatment recommendations and represent relapses. Id. at 105, 145-146. These all occurred
following the individual’s completion of his treatment program in December 2016 and
during the two-month period preceding the hearing. Therefore, I cannot conclude that the
individual is making satisfactory progress with respect to his treatment of Alcohol Use
Disorder. Cf. Adjudicative Guidelines at Guideline G ¶ 22(c).
For the reasons set forth above, I find that the individual has not resolved the security
concerns associated with Guideline G arising with respect to his alcohol consumption.
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 Guideline G. 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 not brought forth sufficient evidence to
resolve the security concerns associated with Guideline G. Accordingly, I have determined
that 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.
5 These conclusions assume the accuracy of the individual’s self-reports with respect to his alcohol
consumption. Based on my observations of the individual and his testimony, I question the appropriateness
of those assumptions.
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Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: June 6, 2017