PSH-17-0031

*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: May 11, 2017 ) Case No.: PSH-17-0031
)
_________________________________________ )
Issued: July 10, 2017
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Administrative Judge Decision
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Janet R.H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (“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 not be granted at this time.
I. Background
The individual is employed by a DOE contractor 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 alcohol use. In order to address those concerns, the LSO summoned the
individual for an interview with a personnel security specialist in November 2016. Following the
November 2016 interview, the LSO referred the individual for an evaluation with a DOE
consultant-psychiatrist.
On March 29, 2017, the LSO sent the individual a letter (Notification Letter) advising him that the
DOE possessed reliable information that created substantial doubt regarding his eligibility to hold
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of Guideline G (concerning alcohol consumption)
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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of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information,
The White House (December 29, 2005) (the Guidelines).
Upon his receipt of the Notification Letter, the individual exercised his 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 his own behalf. The DOE Counsel presented the
testimony of its psychiatrist. The DOE submitted five exhibits (Ex. 1-5) into the record, and the
individual tendered two exhibits (Ex. A-B).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 granting
his 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 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
by the regulations to resolve any doubt as to a person’s access authorization eligibility in favor of
the national security. Id.
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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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 ability to obtain access authorization. The information
in the letter specifically cites Guideline G, 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 February 2017 written evaluation
by the DOE psychiatrist, which concluded that the individual is a habitual consumer of alcohol.
Additionally, the LSO alleged that the individual admitted during the November 2016 Personnel
Security Interview (PSI) that: (1) during the period 2009 to 2016, he became intoxicated three to
four times a week after consuming four ounces of alcohol, (2) during the period 1981 to 1985, he
consumed eight ounces of alcohol three to four times per week, and (3) during the period 1985 to
1995, he consumed eight ounces of alcohol daily. The LSO noted that the individual stated during
the PSI that he became intoxicated every time he consumed four ounces or more of alcohol.
IV. Findings of Fact
There was no precipitating event that led to these administrative proceedings. Hearing Transcript
(Tr.) at 46. Instead, in this particular case, the individual self-reported his alcohol use. Id. During
the PSI, the individual stated that he began drinking at age nineteen, and he described his drinking
at the time to be “too much and too often,” consuming approximately eight ounces of alcohol per
night. Ex. 5 at 31-32, 36. The individual reported that he became intoxicated nearly every time he
drank. Id. at 36. This continued until around 1995, when the individual decided to abstain from
alcohol. Id. at 37. His abstinence lasted approximately twelve years, until he began dating a
woman who consumes alcohol.3 Id. at 42-43; Tr. at 68. At that point, in 2008, the individual was
drinking about four to six ounces of alcohol, three to four times per week. Ex. 5 at 42-43. The
individual stated that at the time of the PSI, he felt intoxicated anytime he drank four ounces per
night, which was every night, and on occasion, his drinking could be as high as eight ounces per
night on weekends. Id. at 46. The individual clarified that he only drank at his home. Id. at 47.
Following the PSI, the individual was referred to the DOE consultant-psychiatrist for evaluation.
The psychiatrist found that the individual is a habitual consumer of alcohol, drinking at least five
to seven days per week since 2009. Ex. 4 at 12. The psychiatrist noted that the individual drinks
to intoxication every time he drinks, and that he consumes approximately 1.75 liters of alcohol
every one and a half weeks. Id. Furthermore, the psychiatrist described the individual’s pattern of
alcohol consumption as “binge drinking.” Id. The psychiatrist reported that the individual 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 Abuse, in each case without
adequate evidence of rehabilitation or reformation. Id. The psychiatrist advised that in order to
3 The individual’s recollection of when he was abstinent is inconsistent in the various exhibits. It appears that he was
abstinent for somewhere between 12 and 14 years. Tr. at 68; Ex. 5 at 42; Ex. 3 at 1.
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show adequate evidence of rehabilitation or reform, the individual would need to abstain from
alcohol for six months, participate in Alcoholics Anonymous for six months, and successfully
complete an intensive outpatient substance abuse program. Id. Since receiving the psychiatrist’s
report, the individual has not abstained from alcohol, nor has he participated in any substance
abuse program or therapy.
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 not be granted. I cannot find that
granting 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, in testifying on his own behalf, the individual stated that he is a “tightly wound[,]…
closed-off person[,]” and alcohol helps him relax and lowers his inhibitions. Tr. at 63. He clarified
that he only drinks at home with his girlfriend, and he does not socialize or go out. Id. at 50. He
stated that, on weekends, he typically consumes four drinks, containing two ounces of alcohol
each, over a period of six hours. Id. at 61-62. He stated that he never drinks before 5:00 p.m., and
if he goes to bed earlier, he has less to drink. Id. The individual stated that, on a night preceding
a day he must report to work, he will consume no more than two drinks, each containing two
ounces of alcohol. Id. at 57, 59. He clarified that this only occurs approximately one or two times
per week, and he is always in bed by 9:00 p.m. Id. at 57, 60.
The individual testified that he has not been abstinent since receiving the DOE consultant-
psychiatrist’s report. Id. at 44. The individual stated that he did not disagree with the diagnosis,
and while he has reduced the amount he consumes, he stated that he knows the reduction in his
consumption is insufficient to change the diagnosis. Id. at 53, 108, 119. The individual clarified
that in answering questions during this administrative process, he considered intoxication to be
“the very first feeling of relaxation.” Id. at 92. However, he stated that if the definition of
intoxication includes behavior such as slurring words, he could not recall the last time he was
intoxicated. Id. at 93.
The individual stated that he is not concerned about his drinking and that he maintains
communication with his physician regarding healthy amounts of alcohol consumption. Id. at 46.
He stated that he does not want to abstain from alcohol because it is something he enjoys, and he
feels he should be able to set his own limits and exercise free will. Id. at 67. The individual
explained that in the past, he abstained from alcohol for twelve years, and prior to his appointment
with the DOE psychiatrist, he stopped drinking for ten days without any problems. Id. at 68-69.
He stated that he feels that he could stop drinking, as he is not physically dependent, but he does
not want to. Id. at 70-71. While the individual acknowledged that he drinks more than the medical
or legal community would consider appropriate or acceptable, he felt that his above-average
consumption did not make him a risk to national security. Id. at 87. Finally, the individual
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highlighted that in the last twenty-three years, there has been no indication of any alcohol-related
problems in his life, and there is nothing in his record that shows any irresponsibility. Id. at 74.
To support his claims that his alcohol use does not affect his life, the individual called two
witnesses: his coworker, and his partner and girlfriend of ten years. Id. at 12, 19. The coworker
testified that he had never seen the individual’s alcohol use as a problem, has never seen him use
alcohol at work or at lunch, and has never seen him hungover. Id. at 15, 16, 17-18. His partner
testified that she and the individual have been together for ten years, living together for nine, and
she has never worried about the individual’s alcohol consumption. Id. at 19-20, 38. She confirmed
his description of his drinking habits, and she stated that when he drinks, he does not behave
erratically, go to bars, drink and drive, or become mean, rowdy, harmful, or inappropriate. Id. at
20, 25, 26. Instead, she stated that the individual just laughs and becomes more talkative with
regard to social or scientific topics. Id. at 26-27. She clarified that he does not discuss work. Id.
Finally, she stated that she has never felt that he displayed poor judgment as the result of his alcohol
consumption. Id. at 31.
The final witness, the DOE consultant-psychiatrist, sat through the entire hearing, listening to the
testimony of all the witnesses. Id. at 94. The psychiatrist stated that his opinion had not changed
since he wrote the evaluation, and the individual’s pattern and amount of alcohol consumption had
not changed. Id. at 98. The psychiatrist noted that while the individual claims to be making an
effort to drink less, the quantity of his consumption remains the same as when the evaluation was
performed. Id. at 82, 98. He stated that he would still classify the individual as a habitual consumer
who, at times, engages in binge drinking. Id. at 98.
Considering these facts, I conclude that the security concerns raised under Guideline G have not
been sufficiently mitigated. With regard to alcohol use during the period 1981 to 1995 cited in the
Notification Letter, I conclude that this drinking pattern, which occurred over twenty years ago,
does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment. See
Guideline G at ¶ 23(a). However, with regard to the individual’s current alcohol consumption, I
conclude that the security concerns have not been mitigated. While the individual argued that
there have been no indications that his alcohol consumption negatively affects his life or his
judgment and reliability, as stated previously, the burden is on the individual to convince the DOE
that granting his access authorization “will not endanger the common defense and security and
will be clearly consistent with the nation interest.” 10 C.F.R. § 710.27(d). The individual has
been diagnosed by a duly qualified psychiatrist with Alcohol Abuse, and stated that he agrees with
the diagnosis, although he does not acknowledge that he abuses alcohol. Furthermore, he has not
demonstrated that he has participated in counseling or treatment, nor has he shown that he has
taken any other actions to overcome his abuse of alcohol. See Guideline G at ¶¶ 22(d), 23(b)-(c).
The DOE consultant-psychiatrist indicated that his opinion has not changed since issuing the
report, and the report stated that the individual had not shown adequate evidence of reform and
rehabilitation. See id. at ¶ 22(d). Not only do I defer to the DOE consultant-psychiatrist in this
case, but I further conclude that his opinion is consistent with the witness testimony and my
observations in this case.
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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. 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 not brought forth sufficient evidence to resolve the security concerns
associated with that Guideline. I therefore cannot find that granting 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). Accordingly, I have determined that the DOE should not
grant the individual’s access authorization. The parties may seek review of this Decision by an
Appeal Panel under the regulation set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: July 10, 2017