PSH-17-0067

*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: September 22, 2017 ) Case No.: PSH-17-0067
)
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Issued: December 27, 2017
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (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 not
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 February 2016, the individual properly self-reported that he had been
arrested and charged with driving under the influence (DUI). See Exhibit 8. As a result of
this information, the local security office (LSO) conducted a personnel security interview
(PSI) with the individual in June 2016. See Exhibit 8. 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 psychiatrist (DOE psychiatrist) for an
evaluation. See Exhibit 3.
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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In April 2017, the individual was evaluated by the DOE psychiatrist. See Exhibit 9. 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 September 7, 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). 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 Initial Request dated
September 22, 2017, attachment Hearing Election Choice. 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 psychiatrist. The individual, represented by counsel,
introduced 4 lettered exhibits (Exhibits A – D) into the record and presented the testimony
of four witnesses, including the individual. 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.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 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
restoring the individual’s 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
2 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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individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
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
psychiatrist 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
4; Ex. 3 at 10. Additionally, the LSO cited, inter alia, that: (1) the individual had been
arrested and charged with DUI in February 2016; (2) the individual stated that he had been
intoxicated three to four times a month between 2009 and 2013; (3) the individual stated
that, after 2013, he had been intoxicated seven to eight times a month; and (4) the individual
had driven while intoxicated two to three times. Ex. 1 at 6.
In light of the information available to the LSO, the LSO properly invoked Guideline G.
IV. Findings of Fact and Hearing Testimony
The individual does not dispute the facts alleged in the Notification Letter. Tr. at 8-9. I
have carefully considered the totality of the record, including the individual’s admissions,
in reaching the findings of fact set forth below.
The individual was arrested and charged with DUI in 2016. Ex. 1 at 4; Tr. at 9. Following
the 2016 arrest, the individual attended an alcohol highway safety school, DUI intervention
classes, and a few Alcoholics Anonymous meetings. Ex. D; Tr. at 41. The individual
seemed embarrassed by his DUI. Tr. at 84-85. Further, when asked why he consumed
alcohol during his probationary period, although it violated the terms of his probation, the
individual stated that he “had not really been forthcoming with my DUI to everyone.” Tr.
at 84. He continued that he was concerned what his friends might think. Tr. at 84, 85. In
fact, one of the individual’s witnesses corroborated that she did not know about the DUI,
but had seen a change in the individual’s alcohol consumption. Tr. at 66. She continued
that he told her about the DUI only when she was going to testify at the hearing. Tr. at 72-
73.
The individual’s three character witnesses, two friends and his girlfriend, testified that they
have seen a change in the individual’s alcohol consumption since his DUI. His girlfriend
testified that they met at work and started dating in March 2017. Tr. at 13. She stated that
they go to a bar about twice a month, and the individual never drives after consuming
alcohol. Id. She attested that she has only seen him consume more than four alcoholic
drinks two or three times. Tr. at 17. The individual’s first friend testified that he saw a
change in the individual’s alcohol consumption about 18 months prior to the hearing. Tr.
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at 23. He confirmed the girlfriend’s statement that the individual only frequents a bar
approximately twice a month. Tr. at 24. He also confirmed that he has only seen the
individual consume more than four alcoholic drinks two or three times in the last 18
months. Id. The individual’s first friend also testified that he has seen a change in the
individual’s social circle over the last 18 months. Id. at 37. The individual’s second friend
supported the other witnesses’ testimony. Tr. at 59. She stated that the individual has
consumed less alcohol in the past 18 months. Id. She concluded that the individual is a
private person and that he was embarrassed about the DUI. Id. at 73.
In April 2017, the individual was evaluated by the DOE psychiatrist, who concluded that
the individual was a habitual or binge user of alcohol to the point of impaired judgment.
Ex. 3 at 13. The DOE psychiatrist affirmatively stated that the individual has not fully
mitigated any concerns that he (the DOE psychiatrist) may have. Tr. at 117. While
acknowledging the individual’s decrease in alcohol consumption, the DOE psychiatrist
opined that he would like the individual to have one year of his current level of controlled
drinking without an issue. Id. at 126. The DOE psychiatrist indicated that it is not unusual
for an individual to consume alcohol during probation. Id. at 112. The DOE psychiatrist
concluded that the individual’s risk of relapse is dependent on social factors, including his
relationship with his present girlfriend. Tr. at 126.
As of the date of the hearing, the individual had reduced his alcohol consumption for
approximately six months. Tr. at 100. The individual completed all of the alcohol
education required by his DUI conviction, but violated his probation by consuming alcohol
during the probationary period. Ex. D.
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)3 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
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.
3 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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A. Mitigating Evidence
The individual disputed neither the facts alleged by the LSO in the Notification nor the
opinion of the DOE psychiatrist 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 his
reduced alcohol consumption and his DUI alcohol education.
B. Administrative Judge’s 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 DUI arrest in 2016 is disqualifying.
Additionally, the DOE psychiatrist stated that the individual is a habitual or binge
consumer of alcohol to the point of impairment. Ex. 3 at 12. The individual does not
dispute the diagnosis. Tr. at 40. 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 reduced his alcohol consumption since April
2017. Id. at 17. This testimony was corroborated by the testimony of the individual’s
witnesses. Tr. at 37, 41, 42, 45, 54. The DOE psychiatrist testified as the final witness at
the hearing, having been present during the testimony of all other witnesses, that as of the
date of the hearing the individual had established an appropriate pattern of alcohol
consumption. Id. at 79. However, the DOE psychiatrist testified that the individual’s
pattern of controlled alcohol consumption is too short a period--only six months--to resolve
the concern raised by his previous alcohol use and the DOE psychiatrist’s opinion that he
is a habitual or binge consumer of alcohol to the point of impairment. 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). As stated above, the individual
has not established a sufficient pattern of abstinence.
The individual’s reduced alcohol consumption is supported by his witnesses’ testimony.
Tr. at 13, 14, 16, 30, 31, 59. My concern regarding the individual’s attempt to resolve the
security concerns raised by the LSO relates to three issues. First, the individual consumed
alcohol during his probationary period. Although the DOE psychiatrist testified that it is
not an unusual occurrence, such consumption concerns me. It shows that the individual is
unable to follow rules and regulations, and that alcohol is important enough to him to
violate the law. The second issue relates to the individual’s current consumption. All of
his witnesses testified to exactly the same level of consumption for the individual. They
testified that he never consumes more than two or three drinks, except for on two or three
occasions during the past 18 months when he has consumed four drinks. They also testified
that when he goes out to drink, the individual never drives, but instead uses a ride-sharing
service. The individual also testified that, when he knows he will be consuming alcohol,
he does not drive his car. However, the individual further testified that he has had one
drink and driven his car since April. Tr. at 88-89. One witness confirmed this occurrence.
Tr. at 71. Finally, the DOE psychiatrist opined that he would not consider the individual
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rehabilitated until he has sustained his current consumption pattern for one year. I must
agree with the DOE psychiatrist on this matter.
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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: December 27, 2017