PSH-17-0057

*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: August 17, 2017 ) Case No.: PSH-17-0057
)
_________________________________________ )
Issued: January 16, 2018
____________________________
Administrative Judge Decision
____________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as “the
individual”) to obtain 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 National Security Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information or Eligibility to Hold a Sensitive Position (June 8, 2017)
(Adjudicative Guidelines), 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 that he hold access
authorization. On a Questionnaire for National Security Positions (QNSP) that he completed in
2013, he disclosed an arrest in 2008 for Driving While Intoxicated (DWI) and, during an interview
with a security investigator, he disclosed two earlier DWIs. See Exhibit 9 and Exhibit 13. In light
of this information, the Local Security Office (LSO) conducted a personnel security interview
(PSI) with the individual in February 2016. See Exhibit 13.
Since the PSI did not resolve concerns with respect to the individual’s alcohol consumption, the
LSO referred the individual to a DOE consultant-psychiatrist, who evaluated the individual in
November 2016. See Exhibit 5. Shortly after the DOE psychiatrist completed his written
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.
2
evaluation, he received a hand-written note from the individual, indicating that the individual had
been dishonest during the clinical interview with respect to the amount of alcohol that he
consumed. See Exhibit 6. Following receipt of this information, the LSO conducted a second PSI
with the individual, in February 2017, with respect to the individual’s alcohol-related disclosures
during both the psychiatric evaluation and the earlier PSI. See Exhibit 8.
On July 19, 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
an access authorization. See Exhibit 1. In an attachment to the Notification Letter, the LSO
explained that the derogatory information fell within the purview of Guideline E (personal
conduct) and Guideline G (alcohol consumption) of the Adjudicative Guidelines. See Exhibit 2.
Upon 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. I subsequently conducted
an administrative hearing in the matter. At the hearing, the individual testified on his own behalf
and tendered one lettered exhibit (Exhibit A). The LSO presented the testimony of a Personnel
Security Specialist and the DOE psychiatrist, and submitted sixteen numbered exhibits (Exhibits
1-16) into the record. 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 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
regulations require me, as the Administrative Judge, to issue a Decision that reflects my
comprehensive, common-sense judgment, made after consideration of all of 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). 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
him 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.
2 OHA decisions are available on the OHA website at www.energy.gov.
3
III. Notification Letter and Associated Security Concerns
As previously noted, the LSO cited Guidelines E and G as the bases for denying the individual’s
security clearance.
Guideline E relates to “conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations.” Guideline E at ¶ 15. Such conduct “can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified
information.” Id. Of special interest is any failure to provide truthful and candid answers during
the access authorization process. Id. With respect to Guideline E, the LSO cited: (1) the
individual’s letter to the DOE psychiatrist acknowledging the individual’s inaccurate reporting of
his alcohol consumption during the psychiatric evaluation; (2) the individual admitting, during the
2017 PSI, that he had been dishonest with regard to his alcohol consumption during the psychiatric
evaluation and during the 2016 PSI; and (3) the individual admitting, during the 2017 PSI, that he
believed that an honest reporting of his alcohol use would have affected his eligibility to obtain a
security clearance. See Ex. 2 at 1-2.
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 Guideline G at ¶ 21.
With respect to Guideline G, the LSO relied upon the written assessment of the DOE psychiatrist,
in which the DOE psychiatrist diagnosed the individual as meeting the criteria set forth in the
Diagnostic and Statistical Manual of the American Psychiatric Association, IVth Edition, Text
Revision (DSM-IV-TR) for Alcohol Abuse. Additionally, the LSO cited in the Notification Letter
that the individual had been charged with DWI in 1994, 2004 and 2008.
In light of the information available to the LSO, the LSO properly invoked Guidelines E and G.
IV. Findings of Fact
At the hearing, the individual acknowledged the factual accuracy of the matters that the LSO
alleged in the Notification Letter. Tr. at 50-52. I have carefully considered the totality of the record,
including the individual’s acknowledgements, in reaching the findings of fact set forth below.
The individual was charged with DWI on three separate occasions – in 1994, 2004, and 2008. Id.
at 50. Following his 2008 arrest, he completed a court-ordered 18-month treatment program and,
during that time, abstained from consuming alcohol. Id. at 41-42, 52. The individual acknowledged
in the second PSI and at the hearing that he resumed consumption of alcohol around 2011 to 2012
and, since that time, has consistently consumed three to four alcohol drinks on four to five
occasions per week. Id. at 42-43. (The DOE psychiatrist believes the amount of alcohol consumed
by the individual may be as high as 120 drinks per month. Id. at 92.) Generally, the individual
consumes alcohol at home, in the evenings, while doing chores on his farm. Id. at 53-54.
4
During the initial PSI (February 2016), the individual stated that he has an occasional beer when
he goes out to dinner, perhaps once a month. Ex. 13 at 2. The individual has since acknowledged
that this was a false statement. Tr. at 51.
During the clinical interview with the DOE psychiatrist (November 2016), the individual stated
that his typical alcohol consumption was approximately one drink per week. Ex. 5 at 7. The
individual has since acknowledged that this was a false statement. Ex. 6; Tr. at 51.
In the DOE psychiatrist’s written report following the psychiatric evaluation, he diagnosed the
individual as meeting the DSM-IV-TR criteria for Alcohol Abuse in Early Partial Remission,
without evidence of adequate rehabilitation or reformation. He recommended that the individual
abstain from alcohol consumption for a minimum of 12 months and complete an intensive
outpatient substance abuse treatment program. Ex. 5 at 9-10.
As part of the psychiatric assessment, the DOE psychiatrist ordered a phosphatidylethanol (PEth)
test, which he described as “a very sensitive and specific test to detect chronic heavy drinkers, with
a window of detection of 28 days.” Id. at 8. Approximately three weeks after the psychiatric
assessment, the DOE psychiatrist received a handwritten note from the individual which stated, “I
never realized what the blood test was for … until I talked to my wife. So I just wanted to let you
know that I guess I was not honest about my drinking, but you have the test results….” Ex. 6.
Approximately two weeks prior to the hearing, the LSO requested the DOE psychiatrist to update
his evaluation of the individual and to incorporate in that update the handwritten letter the
psychiatrist had received from the individual following the initial assessment and the transcript
from the second PSI (2017). See Ex. 15. The psychiatrist did not contact the individual as part of
the updated assessment. In his written update, the psychiatrist concluded that the individual
appeared to have met the criteria set forth in the Diagnostic and Statistical Manual of the American
Psychiatric Association, 5th Edition (DSM-5) for Alcohol Use Disorder, Moderate, for the period
from November 2004 to 2008, and, since 2011, the individual’s alcohol consumption had been
habitual and excessive. Ex. 15 at 4. At the hearing, the DOE psychiatrist clarified that he
concluded, in retrospect, that the individual lacks the functional impairments necessary for an
alcohol diagnosis (other than from 2004 to 2008) and that the individual has no current DSM
diagnosable disorder. Tr. at 86-87.
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 at this time. 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.
5
In mitigation of the security concerns, the individual noted that he promptly informed the DOE
psychiatrist that he had not been honest during the clinical interview about the amount of alcohol
that he consumed. Tr. at 48. He also asserted that he was not vulnerable to coercion or exploitation
as the result of his DWI charges. Id. at 49. Finally, the individual stated that his “work record
speaks for itself,” explaining that he arrives to work on time and has worked for his employer for
“four-and-a-half years and [has] never had an issue with anybody.” Id. at 50. I understood his
argument to be that his alcohol consumption occurred away from his employment and did not
interfere with his work performance in any way.
A. Guideline E
Both holders of and applicants for DOE access authorization are expected to be candid and honest
under all circumstances in their dealings with the agency, especially with respect to information
that might be personally detrimental. Self-disclosure is critical to the protection of national
security, as security officials can only assess and address security risks if they receive timely and
accurate information. For this reason, Guideline E emphasizes as a “special interest … any failure
to cooperate or provide truthful and candid answers during national security or adjudicative
processes.” Guideline E at ¶ 15.
In this case, the individual knowingly provided false information during both the 2016 PSI and the
psychiatric evaluation about the amount of alcohol he consumes. He knew both the PSI and the
psychiatric evaluation were part of the security clearance process and acknowledged that he
falsified the amount of alcohol he consumed because he was concerned that an honest response
would be detrimental to his receiving access authorization. Tr. at 45, 46. This type of behavior
causes grave concern under Guideline E. Additionally, the individual made no effort to correct his
statements until he realized that the PEth test would likely reveal his falsifications. Contra,
Guideline E at ¶ 17(a).
For these reasons, I conclude that the individual has failed to resolve the security concerns arising
under Guideline E.
B. Guideline G
In his initial assessment, the DOE psychiatrist concluded that the individual met the DSM-IV-TR
criteria for Alcohol Abuse in Early Partial Remission. Ex. 5 at 9. Although I found his written
report unclear on aspects of his analysis, I have not focused on those matters as that diagnosis
appears superseded by his updated evaluation and his testimony at the hearing. At the hearing, the
DOE psychiatrist testified that he is unable to conclude that the individual has any clinically
significant impairment or distress resulting from his alcohol consumption and, therefore, the
individual does not currently qualify for a DSM diagnosis. Tr. at 73-76, 86-89. The psychologist
does believe that (1) the individual qualified for an Alcohol Abuse diagnosis under the DSM-5
during the period of 2004-2008 and (2) since the individual resumed alcohol consumption in 2011
following his court-ordered treatment, the individual has consumed alcohol excessively and
habitually. Ex. 15 at 3. The psychiatrist’s DSM-5 analysis is difficult to follow as he cites to the
DSM-5 diagnostic criteria using a numbering system that does not align with that used in the DSM-
5 itself and his factual supports for the diagnostic criteria cited appear vague. While I questioned
6
him on these matters at the hearing, my concerns remain unresolved and the DOE psychiatrist
appeared to acknowledge some of those concerns. Tr. at 79-92.
Notwithstanding the foregoing, the individual testified at the hearing that he continues to consume
three to four drinks on four to five occasions per week. Id. at 54. He believes that he has built up
a high tolerance for alcohol, but he acknowledges his typical drinking likely results in his being
legally intoxicated on those occasions. Id. at 56, 59. While he feels he is “impaired” in some ways
by his typical alcohol consumption, he states that it does not interfere with his ability to complete
evening chores. Id. at 57.
While the individual argues that his drinking has not interfered with his ability to accomplish his
work, whether on the job or on his farm, a holder of access authorization is held to higher standards
than an ordinary citizen. Security can be breached whether lapses occur on the job or at home.
Consuming alcohol to the point of impairment and/or legal intoxication four to five times a week
creates a valid security concern. See Guideline G at ¶ 22(c). As of the date of the hearing, the
individual’s alcohol consumption has continued unabated and without moderation. The individual
evidences no understanding of the need to alter his alcohol consumption.
For these reasons, I conclude that the individual has failed to resolve the security concerns arising
under Guideline G.
VI. 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 Guidelines E and 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 Guidelines E and G. Accordingly, I have determined that the
individual’s access authorization should be not granted at this time. The parties may seek review
of this Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals