PSH-17-0026

*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: April 17, 2017 ) Case No.: PSH-17-0026
)
_________________________________________ )
Issued: July 11, 2017
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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, 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 and the
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information,
The White House (December 29, 2005) (Adjudicative Guidelines), I conclude that the individual’s
access authorization should be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a DOE
security clearance. The Local Security Office (LSO) received potentially derogatory information
regarding the individual’s alcohol use. In order to address those concerns, the LSO summoned the
individual for an interview with a personnel security specialist in August 2016 (PSI). Following
the August 2016 PSI, the LSO sent the individual for an evaluation with a DOE consultant-
psychiatrist.
On March 17, 2017, the LSO sent the individual a letter (Notification Letter) advising her that the
DOE possessed reliable information that created substantial doubt regarding her eligibility to
continue to hold an access authorization. In an attachment to the Notification Letter, the LSO
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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explained that the derogatory information fell within the purview of Guideline G (alcohol
consumption) of the Adjudicative Guidelines.
Upon receipt of the Notification Letter, the individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. The Director of the Office of Hearings
and Appeals (OHA) appointed me the Administrative Judge in the case, and I subsequently
conducted an administrative hearing in the matter. At the hearing, the individual presented the
testimony of two witnesses and testified on her own behalf. The DOE Counsel presented the
testimony of the DOE psychiatrist. The DOE submitted eleven exhibits (Exhibits 1-11) into the
record, and the individual also tendered eleven exhibits (Exhibits A-K). The exhibits will be cited
in the 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.2
II. Regulatory Standard
A. Individual’s Burden
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).
The individual must come forward at the hearing with evidence to convince the DOE that restoring
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 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). Hence, 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
2 OHA decisions are available on the OHA website at www.energy.gov. A decision may be accessed by entering the
case number in the search engine at www.oha.gov/search.htm.
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by the regulations to resolve any doubt as to a person’s access authorization eligibility in favor of
the national security. Id.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s continued eligibility for access authorization. The
information in the letter specifically cites Guideline G of the Adjudicative Guidelines, which
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 Guideline G at ¶ 21.
In citing Guideline G, the LSO stated that it was relying upon the November 2016 written
evaluation by the DOE psychiatrist. The LSO stated that the DOE psychiatrist had concluded that
the individual was 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, 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 Early Full Remission, in each case without adequate evidence
of rehabilitation or reformation.3 Additionally, the LSO alleged that the individual: (1)
acknowledged during the PSI that on one occasion, at a local bar, she consumed alcohol to an
extent that caused her to black out; (2) admitted during the PSI that from 2014 to June of 2016,
she consumed seven to eight beers to the point of intoxication almost nightly; and (3) was arrested
and charged with Driving Under the Influence (DUI) in 2007. I conclude that, under the
circumstances, Guideline G was properly invoked.
IV. Findings of Fact
Following a divorce, the individual visited an Employee Assistance Program (EAP) therapist in
December 2015. Tr. at 12, 60-61. She expressed that she was depressed and revealed that she had
a problem with alcohol use. Id. at 13-14. She continued to visit the therapist throughout January
2016. Id. at 15. In March 2016, the individual was involved in an altercation at a local bar while
she was intoxicated. Id. at 63-65. A concerned person called the therapist and informed him of the
altercation. Id. at 16. In May 2016, the therapist called the individual into his office and confronted
her about the incident. Id. at 15-16. The individual did not remember much of the incident due to
an alcohol-induced blackout. Id. at 64. The therapist encouraged the individual to seek treatment
for her alcohol consumption. Id. at 16-17.
In May 2016, the individual sought out an intensive outpatient treatment program. Id. at 71-72.
She self-reported her admittance into the treatment program to the LSO on June 8, 2016. Ex. 6.
She ceased using alcohol on June 10, 2016, and she successfully completed the twenty-week-long
treatment program in November 2016. Id. at 37, 39, 77; Ex. D. Just weeks before her completion
of the program, the LSO sent the individual for evaluation with the DOE psychiatrist. Ex. 8. He
3 I have reviewed the DOE consultant psychiatrist’s evaluation, and note that, contrary to the LSO’s assertion, his
diagnosis was not in fact based upon the DSM-5. The psychiatrist diagnosed only Alcohol Dependence in Early Full
Remission pursuant to the diagnostic criteria set forth in the DSM-IV-TR. See Ex. 8.
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determined that the individual suffered from Alcohol Dependence with Physiological Dependence
in Early Full Remission. Id. at 9. At the time of the evaluation, the individual had been abstinent
for approximately five months and, although the psychiatrist noted that she had “made an excellent
start toward rehabilitation[,]” he recommended that she have at least nine months of sobriety and
treatment to show adequate evidence of reform and rehabilitation. Id. at 8.
Although she has now completed the intensive outpatient treatment program and has remained
abstinent from alcohol for over a year, the individual continues to attend three hours of aftercare
and counseling every other week to prevent relapse. Tr. at 73, 91. She also attends weekly
Alcoholics Anonymous (AA) meetings. Id. at 79. Finally, as a result of the individual’s self-
reporting and these administrative proceedings, the individual’s employer has administered fifty-
one blood alcohol content tests, each of which resulted in a 0.0 reading. Ex. E; Ex. K.
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) and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s security clearance 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.
At the hearing, the individual testified that she has struggled with depression since she was a child,
and she used alcohol to self-medicate. Tr. at 61-62. The individual stated that when the EAP
therapist called her into his office and confronted her about the March 2016 incident in the bar,
she could not remember the altercation due to a blackout, and she was “embarrassed,” “horrified,”
and “disappointed in” herself. Id. at 68. She explained that after she met with the therapist, she
“cut down” on her alcohol use but was fearful of becoming abstinent because alcohol had become
a part of her and a part of her routine. Id. at 69-70. The individual described how she felt that she
“hit rock bottom” and did not like who she was, and at that point, she sought out the intensive
outpatient treatment program. Id. at 71-72. The individual testified that she completed the program,
and continues to attend the aftercare programs, counseling, and AA meetings. Id. at 73, 79. She
stated that she has a strong support system in her boyfriend, her EAP therapist, her alcohol
treatment counselor, her AA colleagues, and her family. Id. at 87-89. The individual explained that
now that she has stopped drinking, she has a positive outlook on life, better self-esteem and more
confidence, and she is stronger than she ever thought she was. Id. at 62, 93.
To support her reports of positive progress and abstinence, the individual called two witnesses: her
EAP therapist and her alcohol treatment counselor. Id. at 10, 33. Both witnesses testified that, to
the best of their knowledge, the individual has remained abstinent since June 10, 2016. Id. at 19,
22, 37, 43. Additionally, both witnesses echoed the individual’s testimony, stating that she has
developed a strong support system through her recovery. Id. at 30, 51. The individual’s alcohol
treatment counselor affirmed that she voluntarily and successfully completed the intensive
inpatient treatment program, continues therapy and aftercare, and has the tools to deal with alcohol-
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related issues in the future. Id. at 39-40, 44-45, 50. Similarly, the individual’s EAP therapist stated
that he is “very optimistic about her … continue[d] abstinence and her success.” Id. at 22.
The DOE psychiatrist testified after listening to the testimony of all of the other witnesses. Id.
at 108. He explained that not only has the individual maintained her sobriety, but she is also in
recovery and not demonstrating any “alcohol-like behaviors.” Id. at 109. He stated that the
individual realizes the severity of the negative impacts that alcohol has had on her life, and she has
a good support system and the appropriate tools to deal with her depression without alcohol. Id.
at 109-110. The psychiatrist noted that the individual has a “good prognosis” with a low risk of
relapse. Id. at 110. He additionally stated that she has shown “adequate evidence of reform and
rehabilitation at this time” and noted that not only has she complied fully with his
recommendations, but she has taken additional steps to maintain her sobriety. Id. at 109, 111.
Considering these facts, I conclude that the security concerns raised under Guideline G have been
sufficiently mitigated. Prior to receiving the Notification Letter, the individual voluntarily sought
out and successfully completed an intensive outpatient alcohol treatment program. She continues
to engage in therapy, participate in aftercare groups, and attend weekly AA meetings. The
individual has been abstinent for over a year and has fulfilled all recommendations provided in the
DOE psychiatrist’s report. See Guideline G at ¶ 23(d). With regard to the incident of DUI cited in
the Notification Letter, I conclude that the event, which occurred nearly ten years ago, is unlikely
to recur, given the amount of time that has passed and the individual’s continued abstinence. See
id. at ¶ 23(a). Furthermore, the DOE psychiatrist indicated at the hearing that the individual has
now shown adequate evidence of reformation and rehabilitation, and expressed his opinion that
her risk of relapse is now low. See id. at ¶ 23(d). Not only do I defer to the DOE psychiatrist’s
expert opinion in this case, but I further conclude that his revised opinion is consistent with the
witness testimony and my observations of the individual.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Guideline G. However, after
considering all 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
find 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 DOE should restore the individual’s access authorization.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: July 11, 2017