PSH-17-0052

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: August 9, 2017 ) Case No.: PSH-17-0052
)
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Issued: November 8, 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 (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
National Security Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information or Eligibility to Hold a Sensitive Position, effective June 8, 2017
(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 him to hold
DOE access authorization. A holder of access authorization is required to report certain
occurrences and, in November 2016, the individual properly self-reported that he had been
arrested and charged with driving while intoxicated (DWI). See Exhibit 8. As a result of
this information, the local security office (LSO) conducted a personnel security interview
(PSI) with the individual in February 2017. See Exhibit 11. 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 9.
In April 2017, the individual was evaluated by the DOE psychologist. See Exhibit 9. Since
neither the PSI nor the psychological evaluation resolved the security concerns arising with
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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respect to the individual’s alcohol consumption, the LSO informed the individual in a letter
dated June 29, 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 12 numbered exhibits (Exhibits 1-12) into the record
and presented the testimony of one witness, the DOE psychologist. The individual,
represented by counsel, introduced 7 lettered exhibits (Exhibits A – G) into the record and
presented the testimony of five witnesses, including the individual and his 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
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
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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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 April 2017 written evaluation by the DOE
psychologist which concluded that the individual has been a habitual user of alcohol and
has been found to frequently binge drink to the extent that his judgment is impaired. Ex.
1 at 1; Ex. 9 at 6. Additionally, the LSO cited, inter alia, that the individual: (1) had been
arrested and charged in November 2016 with DWI; (2) had been intoxicated on numerous
occasions between 1998 and 2016; (3) had operated a motor vehicle while under the
influence of alcohol 15 to 20 times prior to November 2016; and (4) had experienced two
blackout episodes. Ex. 1 at 2.
In light of the information available to the LSO, the LSO properly invoked Guideline G.
IV. Findings of Fact
The individual does not dispute the facts alleged in the Notification Letter and, at the
hearing, stipulated as to the factual accuracy of the summary of security concerns attached
to the Notification Letter. Tr. at 10. I have carefully considered the totality of the record,
including the individual’s stipulation, in reaching the findings of fact set forth below.
The individual was charged and arrested for DWI in 2016. Ex. 1 at 1; Tr. at 9. Following
the 2016 arrest, the individual attended an outside resource for an alcohol assessment, and
the individual was diagnosed with a “mild form of Alcoholism.” Ex. 4 at 1.
As a result of that diagnosis, the individual commenced an Intensive Outpatient Program
(IOP) for alcohol treatment approximately three weeks after his 2016 arrest for DWI. Id.
The IOP encompassed twenty-four, two-and-a-half hour sessions, covering a six week
period. Id. He completed the IOP on schedule in January 2017 and, thereafter, has
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complied with the IOP’s aftercare recommendations of participating in weekly aftercare
sessions. Id.
In April 2017, the individual was evaluated by the DOE psychologist, who concluded that
the individual was a habitual or binge user of alcohol to the point of impaired judgment.
Ex. 9 at 6. While acknowledging the individual’s alcohol treatment and four months of
alcohol abstinence as of the date of the psychological evaluation, the DOE psychologist
opined that the fact that the individual did not consider his binge drinking was a personal
problem was concerning. Id. at 6. He opined that the individual should maintain abstinence
for a minimum of a 15-month period, the length of his probation. Id. at 6. The DOE
psychologist concluded that the individual needed “to demonstrate sufficient control over
his desire to drink by abstaining during [his] 15-month [probationary] period.” Id. at 7.
As of the date of the hearing, the individual had been abstinent from alcohol for 11 months
and continued to be compliant with the aftercare recommendations of his IOP. Tr. at 12,
13, 52. In addition to the aftercare, the individual has continued monthly counseling. Id.
at 52. The individual testified as to his present intent to continue, for an indefinite period
of time, both his abstinence, his weekly participation in one IOP aftercare session, and his
individual counseling. Id. at 12, 20, 33.
At the hearing, both the individual’s counselor and the DOE psychologist testified to the
adequacy of the individual’s rehabilitation and reformation. Id. at 58, 59, 82. The
individual’s counselor opined that the individual is “very cooperative, and open, seemingly
genuine. . . . forthcoming.” Id. at 52. She continued that the DWI and IOP enlightened the
individual. Id. at 53. She stated that he has a viable plan in place, which includes: (1)
abstinence; (2) aftercare; (3) changing the people that he has historically socialized with,
and the places that he has historically done so; and (4) adding new activities. Id. at 54. She
concluded that he has been rehabilitated and reformed, and that he has a good prognosis.
Id. at 52, 59.
The DOE psychologist opined that the individual was not “addicted to alcohol.” Id at 61.
At the time of the evaluation, the DOE psychologist was concerned that the individual did
not believe that his binge drinking was a personal problem. Id at 77; Ex. 9 at 6. At the
hearing, the DOE psychologist testified that the individual finally “seems to have
understood that he did have . . . a problem.” Tr. at 78. He concluded that the individual
has a very low risk of relapse, citing that the individual has the strength of character to not
consume alcohol because it is important to him and to the DOE. Id. at 81.
Finally, the individual’s two character witnesses testified that they have seen a change in
the individual’s alcohol consumption since his DWI. Id. at 37, 45. Both asserted that the
individual has only ordered water or a soft drink when they go out together. Id. They both
also stated that the individual does not have any alcohol in his house. Id. at 42, 47. They
concluded that he is open and honest, and very reliable in his interactions with them, and
that he has been forthright about his DWI. Id. at 36, 39, 43, 46.
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The individual’s supervisor also testified that the individual had been open and honest with
her about his DWI. Id. at 68. She concluded that he is reliable, responsible, and dedicated.
Id.
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
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.
A. Mitigating Evidence
The individual disputed neither the facts alleged by the LSO in the Notification nor the
opinion of the DOE psychologist that he is a habitual user of alcohol and frequently binge
drinks to an extent that is likely to impair his judgment. Instead, he argues that he has
sufficiently mitigated the Guideline G security concerns noted by the LSO through: (1) his
abstinence from alcohol; (2) his completion of an IOP; (3) his compliance with the IOP’s
aftercare recommendations; (4) his monthly counseling sessions; and (5) his future intent
to continue such abstinence, aftercare, and counseling.
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. The individual’s DWI arrest in 2016 is disqualifying.
Additionally, the DOE psychologist stated that the individual is a habitual or binge
consumer of alcohol to the point of impairment. Ex. 9 at 6. The individual does not dispute
the diagnosis. Tr. at 10. Therefore, the issue before me is whether the individual has
sufficiently mitigated the security concerns arising from his alcohol consumption.
The individual credibly testified that he has been abstinent from alcohol since his DWI
arrest in November 2016. Id. at 17. This testimony was corroborated by the testimony of
the individual’s counselor and his friends. Tr. at 37, 41, 42, 45, 54. The DOE psychologist
testified as the final witness at the hearing, having been present during the testimony of all
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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other witnesses, that as of the date of the hearing the individual had established an
appropriate pattern of abstinence from alcohol. Id. at 79. Cf. Adjudicative Guidelines at
Guideline G ¶ 23(b) (mitigation of alcohol related security concerns possible where an
individual acknowledges his alcoholism, evidences actions taken to overcome the problem,
and has established a pattern of abstinence).
The individual’s abstinence is supported by his having completed an IOP, and his
continuing participation (for nine months, as of the date of the hearing) in a weekly
aftercare session offered by his IOP provider, and monthly individual counseling. Tr. at 12,
13; Ex. D; Ex. E. The documentation from his IOP and the testimony of his counselor both
support that the individual’s participation in these sessions is active and meaningful. Tr.
at 52; Ex. D; Ex. E at 1. The individual credibly testified that his present intent is to abstain
from alcohol at least until his probation is completed on the DWI charge, and to continue
his participation in both the IOP’s aftercare program and counseling indefinitely. Tr. at 20.
The DOE psychologist testified that the testimony presented at the hearing demonstrated
that the individual continues to have growing insight into his alcohol problem. Id. at 77.
Both he and the individual’s counselor opined at the hearing that the individual had
evidenced adequate rehabilitation and reformation of his habitual and binge consumption
of alcohol, and has a favorable prognosis. Id. at 58, 59, 79, 82. Cf. Adjudicative Guidelines
at Guideline G ¶ 23(d) (mitigation of alcohol related security concerns possible where an
individual has completed outpatient counseling along with any aftercare, demonstrated a
clear and established pattern of abstinence, and has received a favorable prognosis by a
duly qualified medical professional).
For the reasons set forth above, I find that the individual has 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 brought forth sufficient evidence to
resolve the security concerns associated with Guideline G. 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: November 8, 2017