PSH-17-0090

*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: December 18, 2017 ) Case No.: PSH-17-0090
)
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Issued: April 24, 2018
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX XXXXX (hereinafter referred to as
“the individual”) to retain a Department of Energy (DOE) access authorization1 under the 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 DOE’s access authorization should not be restored.2
I. Background
The individual is employed by a DOE contractor and he held a DOE security clearance. In April
2017, the individual was arrested by local police for Driving Under the Influence (DUI). The Local
Security Office (LSO) subsequently conducted a personnel security interview with the individual
in June 2017. As a result of the information discovered during the PSI, the LSO referred the
individual to a DOE contractor psychologist (DOE Psychologist) for a forensic psychological
examination.
On November 13, 2017, the LSO sent the individual a letter (Notification Letter) advising him that
his DOE security clearance was suspended and that DOE possessed reliable information that
created substantial doubt regarding his eligibility to retain a DOE access authorization. In an
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 At the time the individual’s employer sought a DOE access authorization for the individual, the individual possessed
a Department of Defense access authorization. Transcript of Hearing (Tr.) at 61.
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attachment to the Notification Letter, the LSO 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 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. The individual entered 15 exhibits (Exhibits A-
O) into the record. At the hearing, the individual testified on his own behalf and also presented the
testimony of a friend (Friend) and the Friend’s spouse (Friend’s Spouse), a long-time close friend
(Friend 2), and his counselor (Counselor). The DOE submitted 11 exhibits (Exhibits 1-11) into the
record and presented the testimony of the DOE Psychologist. The exhibits will be cited in the
Decision as “Ex.” followed by the appropriate numeric or alphabetic designation.
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 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.
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 eligibility for an access authorization. In describing the
derogatory information, the LSO cited Guideline G of the Adjudicative Guidelines. The LSO
referenced as Guideline G derogatory information a report (Report) issued by the DOE Psychologist
opining that the individual suffered from Alcohol Use Disorder, Mild, and that the individual had not
demonstrated adequate rehabilitation or reformation. Also cited were statements regarding the
individual’s alcohol misuse that the individual made during the PSI.
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I have reviewed the exhibits and find that the LSO had sufficient grounds to invoke Guideline G
in this case. 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. Adjudicatory Guideline G at ¶ 21.
IV. Findings of Facts
The individual does not dispute the factual allegations in the Notification Letter which are detailed
below and are adopted as my findings of facts. Tr. at 54.
On April 29, 2017, the individual was arrested by local police for two alcohol-related driving
offenses including DUI. Ex. 4; Ex. 5; Ex. 6. Three breathalyzer tests administered to the individual
at the time of the arrest indicated the presence of alcohol on the individual’s breath at the levels of
0.20g, 0.19g, and 0.189g per 210l which are all above the legal limit (0.08g per 210l) for operating
a vehicle. Ex. 4 at 2; Ex. 10 at 9.
The LSO conducted a PSI with the individual in June 2017. Ex. 10. During the interview, the
individual stated his belief that he had a problem with his alcohol consumption based upon his
April 2017 arrest for DUI. Ex. 10 at 71. The individual admitted during the PSI that he had again
consumed alcohol to the point of intoxication in June 2017. Ex. 10 at 71. The individual also
confirmed during the PSI that in October 2011, he was admitted to a hospital for alcohol
intoxication after passing out. Ex. 10 at 27-28. The individual also stated his belief that prior to his
admission to the hospital, he had consumed “an excessive amount” of beer and whiskey. Ex. 10 at
41.
The individual was examined by the DOE Psychologist in May 2017. Ex. 7. In August 2017, the
DOE Psychologist issued a written report (Report) outlining his diagnostic findings regarding the
individual. Ex. 7. The DOE Psychologist found that the individual met the criteria for a diagnosis
of Alcohol Use Disorder as described in the Diagnostic and Statistical Manual of the American
Psychiatric Association, 5th Edition (DSM-5). Ex. 7 at 14. The DOE Psychologist also found that
the individual’s Alcohol Use Disorder was a mental condition that could impair his judgment,
reliability or trustworthiness. Ex. 7 at 15. The DOE Psychologist determined that, for the individual
to demonstrate adequate evidence of rehabilitation or reformation, the individual should complete
one year of sobriety from alcohol and complete an outpatient substance abuse treatment program.
Ex. 7 at 15.
V. Analysis
I have thoroughly considered the record of this proceeding, including the exhibits 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. The Guideline G security concerns center
on the individual’s arrest for DUI and the DOE Psychologist’s determination that the individual
suffers from Alcohol Use Disorder. The individual has presented evidence to try to establish that
he is now rehabilitated and reformed from his alcohol problem. After due deliberation, I find that
the individual’s DOE security clearance should not be restored. The relevant evidence and my
specific findings in support of this decision are discussed below.
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In his testimony, the individual confirmed the accuracy of the derogatory information described in
the Notification Letter. Tr. at 54. The individual testified that he joined the U.S. Army in 2009. Tr.
at 54. After leaving the military in 2015, the individual would consume alcohol approximately
twice a month. Tr. at 59. On the day of his April 2017 DUI arrest, the individual went to a bar to
play a game of pool and have a drink. Tr. at 60. While at the bar he saw a number of friends he
met in high school and he began to consume additional alcohol. Tr. at 60. The individual was later
arrested for DUI after he left the bar. See Ex. 10 at 14.
After the DUI, the individual resolved to stop consuming alcohol. In June 2017, while attending a
two-week reserve military training session, the individual was invited to a bar to have a few drinks
with a friend who was leaving their unit. Tr. at 64. He did not believe that consuming alcohol
would be an issue because he believed that the real concern was making a decision to drive after
consuming alcohol. Tr. at 64. He decided to consume alcohol on this occasion because there was
no possibility that he would be driving. Tr. at 64-65. On this occasion, the individual testified that
he consumed four beers. Tr. at 65. The individual also testified that he consumed one gin and tonic
in August 2017 on the occasion of his brother’s wedding. Tr. at 65. The following day, the
individual began participation in a substance abuse treatment center program for veterans.3 Tr. at
68.
The individual recounted that, when he entered the program, he was informed that he would be
required to abstain from alcohol or illegal drugs. Tr. at 65. The program has a curriculum and
associated printed educational material which informs the participants about the effects of alcohol
and the effects alcohol can have on the participants’ families and friends. Tr. at 68. Additionally,
the individual testified that the program teaches the participants how alcohol disorders can stem
from various problems in a person’s life and helps the participants to examine if they have any
particular “triggers” that can lead to excessive alcohol use. Tr. at 68-69. As a result of the program,
the individual believes that being in situations where his friends are consuming alcohol can lead
to him wanting to consume alcohol. Tr. at 69. The program itself does not utilize Alcoholics
Anonymous (AA) meetings although some participants have AA sponsors. Tr. at 68. The
individual completed the educational and group segment of the treatment program approximately
one week before the hearing and currently attends one AA meeting a week. 4 Tr. at 95. Because
the individual attends college and is employed, he has limited opportunities to attend additional
AA meetings. Tr. at 95.
With regard to whether he believes he has a problem with alcohol, the individual testified that he
sometimes has mixed feelings.5 Tr. at 93. However, the individual is committed to not consuming
alcohol regardless of whether he subjectively believes that he has an alcohol problem. Tr. at 93.
3 This local “Veteran’s Court” monitored treatment program is offered by a judge to qualified veterans who have been
involved with a DUI arrest. Tr. at 73. Upon successful completion of the treatment program, the underlying DUI arrest
is expunged. Tr. at 73-74.
4 After completing the program, participants are required to be subject to random urinalysis testing for another six
months. Tr. at 83.
5 When pressed on examination on this issue, the individual testified that he has an alcohol problem but stated that,
because he does not intend to consume alcohol in the future, he does not have an “active” alcohol problem. Tr. at 94.
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The individual also submitted alcohol testing records from his treatment program, all of which
indicate that the individual has not consumed alcohol or illegal drugs since August 2017. Ex. H
(test results from August 2017 to February 2018). Additionally, the individual entered as exhibits
records from the center confirming his attendance and completion of the educational and group
segment of the treatment program. Ex. G.
The Counselor is a licensed substance abuse counselor at the individual’s treatment program. Tr.
at 73-74. The Counselor testified that he is responsible for the individual’s drug treatment at the
program. Tr. at 73. The program initially consists of three 90-minute drug and alcohol counseling
groups per week which use a curriculum based upon three books specified by the State. Tr. at 74.
Additionally, each participant attends a monthly 50-minute individual session. Tr. at 74.
While participating in the program, the individual was diagnosed as suffering from Alcohol Abuse,
as described in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th
Edition.6 Tr. at 77. The Counselor found that the individual did not suffer from any other mental
illness. Tr. at 79.
The individual complied with all treatment requirements and successfully completed the
educational and group segment of the treatment program in March 2018. Tr. at 81, 83. The
Counselor cited the individual’s willingness to participate in group meetings and willingness to
help other participants in the program as evidence of the individual’s success in the program. Tr.
at 82-83, 89. The Counselor testified that the individual informed him of his intention to continue
going to AA meetings. Tr. at 85. In assessing the individual’s risk of relapse, the Counselor opined
that he had “a really good feeling” about the individual’s risk and that the individual had a “very
good chance” of staying sober. Tr. at 89-90. The individual mentioned to the Counselor that he
had learned much about himself through the treatment program and that he learned not to get
behind the wheel of a car after consuming alcohol. Tr. at 89-90. Specifically, the Counselor
testified that the DUI and the associated consequences had scared the individual sufficiently to
ensure that the individual would remain sober. Tr. at 89.
The Friend, the Friend’s Spouse, and Friend 2 all testified that they have not seen the individual
consume alcohol since his DUI arrest. Tr. at 16, 30, 42. The Friend’s Spouse and Friend 2 have
been with the individual during various social events and testified that the individual had not
experienced any problems in abstaining from alcohol during these events. Tr. at 30, 42. Neither
the Friend, nor the Friend’s Spouse, observed the individual consume excessive amounts of alcohol
in the period prior to the April 2017 DUI. Tr. at 16, 31. Friend 2 testified that in the prior three
years, he had rarely observed the individual consume an excessive amount of alcohol beyond two
or three beers. Tr. at 40-41. The Friend and the Friend’s Spouse testified to the individual’s good
judgment, reliability and trustworthiness. Tr. at 22, 36. Friend 2 testified as to his belief that the
individual is very trustworthy and “always sticks to his word.” Tr. at 50.
He believes that if he would again start to consume alcohol, his alcohol consumption could easily become a problem.
Tr. at 94.
6 The treatment program does not utilize the most current diagnostic guide, the DSM-5. Tr. at 77.
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The DOE Psychologist testified about his initial examination findings and reaffirmed his diagnosis
of the individual as suffering from Alcohol Use Disorder, Mild, under the DSM-5. Tr. at 129. He
found that the individual met two of the criteria for the diagnosis – that the individual had been
arrested for DUI and that he had admitted that he had consumed more alcohol than he had intended
on several occasions, resulting in memory blackouts and being hospitalized for alcohol
intoxication. Tr. 128-29.
After listening to all of the testimony offered at the hearing, the DOE Psychologist opined that the
individual was doing a “good job” at maintaining his sobriety and was making significant progress
for making a future without alcohol. Tr. at 123-24. He also found it significant that the individual
was able to maintain his sobriety during the 2017 year-end holiday season. Tr. at 124. After
listening to the Counselor’s testimony regarding the individual’s treatment program, the DOE
Psychologist found that the individual had put a great deal of effort into the program and that
overall he had no concerns about the adequacy of the treatment program. Tr. at 131. The DOE
Psychologist found that the individual’s prognosis was “pretty good.” Tr. at 134. However,
because of the relative shortness of the individual’s period of abstinence, approximately seven
months, the DOE Psychologist found that the individual had “some risk” of relapse. Tr. at 136.
The DOE Psychologist stated his belief that successful completion of a year of abstinence would
reduce this risk. Tr. at 131.
In reviewing the evidence presented, I find that the individual has successfully completed the
educational and group segment of his treatment program and is now subject to the program’s
testing requirements for the next six months. Both the Counselor and the DOE Psychologist agree
with this assessment.
While the individual presented testimonial evidence from the Friend, the Friend’s Spouse, and
Friend 2 regarding his character, it appears that they were not fully aware of the extent of the
individual’s alcohol consumption. All three testified that they had not seen the individual consume
alcohol since his DUI arrest in April 2017; however, the individual has acknowledged that he
became intoxicated in June 2017, and that he consumed alcohol again in August 2017.
There is convincing evidence in the record confirming the individual’s current period of
abstinence. The only real issue centers whether the length of the individual’s current period of
abstinence is sufficient to ensure that the potential risk of relapse is sufficiently low enough to
merit the restoring of the individual’s security clearance.
Despite the relatively favorable prognostic assessment given by the Counselor, I give greater
weight to the DOE Psychologist’s opinion that the individual has not demonstrated a sufficient
period of abstinence by which he may be considered rehabilitated. The individual, at of the date of
the hearing, has completed slightly more than one-half of the recommended period of abstinence
of one year.
The record reflects (as noted previously) that the individual has been arrested for DUI, and has
suffered from memory blackouts and being hospitalized for alcohol intoxication. Despite this, it
is clear from the record that the individual is somewhat ambivalent about acceptance of the fact
that he has an alcohol problem. As noted, when pressed on examination on this issue, the
individual testified that he has an alcohol problem but, stated that, because he does not intend to
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consume alcohol in the future, he does not have an “active” alcohol problem. This ambivalence
gives me somewhat less assurance about the possibility of the individual relapsing into alcohol
misuse.
The mitigating factor outlined in Guideline G, ¶ 23 (c), is arguably applicable in this case. It states
that security concerns may be mitigated if “the individual is participating in counseling or a
treatment program, has no previous history of treatment and relapse, and is making satisfactory
progress in a treatment program.” Nonetheless, I find that this mitigating factor does not outweigh
the clinical assessment of the DOE psychologist, who explicitly stated that the individual has not
demonstrated a sufficient period of abstinence by which he may be considered rehabilitated.
While the individual has made significant progress in addressing his alcohol misuse problem, I
find that he has not presented sufficient evidence to totally resolve the Guideline G security
concerns raised in the Notification Letter.
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 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 find
that the individual has not brought forth sufficient evidence to resolve the security concerns
associated with those guidelines. I therefore cannot find that restoring the individual’s DOE access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. See 10 C.F.R. § 710.27(d). Accordingly, I have determined that the DOE should
not restore the individual’s DOE access authorization.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals