PSH-18-0002

*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: January 3, 2018 ) Case No.: PSH-18-0002
)
_________________________________________ )
Issued: March 27, 2018
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXX XXXX XXXXX (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, 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.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a security
clearance. As a result of a background investigation, the local security office (LSO) called the
individual to a Personnel Security Interview (PSI) in March 2017. Ex. 8. In response to information
gathered from the PSI, a DOE consulting psychologist evaluated the individual. Ex. 6.
As the psychologist’s evaluation raised unresolved security concerns, the LSO informed the
individual, in a Notification Letter dated November 21, 2017 (Notification Letter), that it possessed
reliable information that created substantial doubt regarding her eligibility to hold a security
clearance. In an attachment to the Notification Letter, the LSO explained that the derogatory
information raised security concerns under “Guideline G: Alcohol Consumption,” Ex. 1.
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
Upon her receipt of the Notification Letter, the individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. 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 LSO
introduced nine numbered exhibits (Exhibits 1-9) into the record and presented the testimony of
the DOE psychologist. The individual introduced six lettered exhibits (Exhibits A-F) into the
record and presented the testimony of three witnesses, including herself. 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 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
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 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). 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 access authorization. The information in
the letter specifically cites Guideline G of the Adjudicative Guidelines. 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. Guideline G at ¶ 21. In citing Guideline G, the LSO
stated that it relied upon the July 2017 written evaluation by the DOE psychologist, which
concluded that the individual met the Diagnostic and Statistical Manual, Fifth Edition (DSM-V)
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 that site.
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criteria for a diagnosis of Alcohol Use Disorder and/or does habitually or binge consume alcohol
to the point of impaired judgment. Ex. 1. The LSO additionally relied upon the individual’s
admissions, during the March PSI, that: (1) from December 2015 until March 28, 2016, she
consumed a fifth of alcohol, Jack Daniels, every two days (2) in November 2015, she consumed a
fifth of alcohol, Jack Daniels, once a week; and (3) from approximately 2008 to November 2015,
she became intoxicated every one to two months after drinking nine to fourteen drinks. Id.
In light of the information available to the LSO, the LSO properly invoked Guideline G.
IV. Findings of Fact
The individual did not dispute the facts alleged in the Notification Letter. Ex. 2. The individual
does, however, assert that she has completed an Intensive Outpatient Treatment program (IOP),
and that she has been engaging in the Employee Assistance Program (EAP) at her worksite,
participating in Alcoholics Anonymous (AA), and practicing abstinence from alcohol. Id. I have
carefully considered the totality of the record in reaching the findings of fact set forth below.
The LSO interviewed the individual in a March 2017 PSI. During the PSI, the individual explained
her alcohol use. Ex. 4. She indicated that she first began consuming alcohol at the age of 14 or 15,
as a freshman in high school. Id. The individual explained that she often found herself in social
settings where she was offered alcohol and recalled that she only consumed a couple of drinks at
a time during that time period. Id. Sometime between her sophomore and junior year in high
school, the individual started consuming alcohol more regularly. Id. She indicated that she began
to drink on the weekends with friends at social gatherings. Id. According to the individual, she
would consume anywhere from nine to fourteen drinks, which were usually shots, once a month
or once every two months. Id. She admitted to drinking to intoxication on every occasion. Id.
The individual’s alcohol consumption increased around November 2015 when she began
consuming a fifth of alcohol (Jack Daniels) once a week. Id. In late November, the individual’s
alcohol consumption increased again to a fifth of alcohol every two days, and she continued this
consumption through March 28, 2016. Id. She indicated that she was at a low point in her life at
that time due to issues at work and in her personal relationship. These issues also caused problems
with her family and friends. Id.
The individual stated that she abstained from alcohol from March 2016 through September 2016
after realizing that she needed to make changes in her life. Id. In April 2016, the individual sought
outpatient counseling to address her alcohol issues, and to learn how to cope with her life issues.
Id. According to the individual, although she was not given a diagnosis, her counselor at the time
recommended that she abstain from alcohol until she felt comfortable in her life. Id. The
individual stated that her counselor agreed that she could eventually consume alcohol again as
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long as she learned how to cope with different stressors. Id. Consequently, she began consuming
alcohol again in September 2016, starting slowly and only consuming about one or two beers at a
time. Id. The individual ended her counseling sessions in October 2016 after her counselor told
her that she did not need to be seen anymore. Id. The individual admitted that her alcohol
consumption gradually began to escalate again. Id.
In July 2017, the individual underwent an evaluation performed by the DOE psychologist. Ex. 6.
The DOE psychologist concluded that the individual has an alcohol use disorder and/or habitually
or binge consumes alcohol to the point of impaired judgment. Id. at 7. She also concluded that
the individual’s laboratory results indicate that she is engaging in moderate to heavy alcohol
consumption, either by binging or regularly consuming alcohol over long periods. Id. The DOE
psychologist further concluded that the individual’s continued consumption of alcohol can cause
impaired judgement, and that there is no evidence of rehabilitation or reformation. 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) 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, the individual testified that the last time she consumed alcohol was on November
23, 2017, stating that she remembers this date because it was Thanksgiving. Tr. at 64. She recalled
that she had one or two beers that night and acknowledged that she had received paperwork
regarding her clearance, including the DOE psychologist’s report, on this date, so she knew “it
was time for [her] to get sober.” Id. The individual testified that she called to enter a treatment
program two days after receiving the DOE psychologist’s report. Id. at 66. However, she was
unable to get an appointment until the following week. Id. at 67. She testified that she entered an
IOP on December 4, 2017 and attended three days a week. Id. In addition, she met with her
therapist once a week for a one-hour individual session. Id. The individual stated that she learned
a great deal during her sessions, including coping mechanisms, mindfulness techniques and how
to handle triggers. Id. at 68 and 70. She testified that she completed the 10-week IOP, adhering
to the zero alcohol and drug compliance requirement, as well as random urinalysis testing. Id. at
69.
The individual further testified that she has been actively attending AA since December 4, 2017.
Id. at 73. She stated that she attended two to three AA meetings for ten weeks, while in the IOP,
and currently attends meetings once a week. Id. She further stated that she is working on Step 3
of the 12-Step program, and has learned that alcohol can never be a part of her life again. Id. at
74. The individual also testified that she now participates in an aftercare treatment program, meets
with a therapist in her employer’s EAP program and has a good support system which includes
her AA sponsor and group members, her therapist and her family and friends. Id. at 71, 72. The
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individual readily acknowledged that she has participated in counseling in the past, but believes
her current treatment and counseling has focused more on her alcoholism rather than outside issues
in her life at the time. Id. at 76. She explained that she is now feels like she is in a “real” recovery
process because of the work she has put into staying sober. Id. at 77. When asked why she resumed
alcohol after ending her previous counseling sessions, the individual testified that she was in denial
about being an alcoholic, and believes that her relapse helped her to realize that she has an issue
with alcohol. Id. at 78, 79. The individual testified that she does not have cravings for alcohol
and knows how to remove herself from social situations where alcohol is available. Id. at 81.
Finally, the individual testified that her future intention is to continue to abstain from alcohol. Id.
at 84.
When the individual’s father testified on her behalf, he stated that, in the past, he knew that the
individual struggled with alcohol, and was often in an angry, agitated state when she was younger.
Id.at 40. He believes that the individual is now a different person who “has come to grips” with
her alcohol problem and understands that alcohol can no longer be part of her life. Id. at 42. The
individual’s father further testified that he believes that the individual will remain sober and has a
good support system in place to help her with her sobriety. Id. at 46, 47. He testified that the
individual is a trustworthy and reliable person. Id. at 61. Additionally, the individual’s friend
(who has known the individual for about five years) testified that the individual’s alcohol
consumption has changed in the past four months. Id. at 23. She stated that the individual does
not consume alcohol anymore and has a “clearer head.” Id. The individual’s friend believes that
the individual has a good support system of family and friends, and that her intention is to remain
sober in the future. Id. at 29, 31.
After listening to the hearing testimony, the DOE psychologist acknowledged the positive nature
of the individual’s 102-day sobriety, but stated that it is “still early in what we know is a long-term
process.” Id. at 98. However, she stated that she was very impressed with the individual’s
participation in treatment and her commitment to the recovery process. Id. She noted that she
often listens to the way “people tell their stories, especially about problems or difficulties, and
certainly substance abuse is one of them, the way it’s presented makes a difference.” Id. at 99.
The DOE psychologist testified that she found the individual’s statements and answers to questions
about her alcohol recovery to be “riveting,” and stated that it speaks to the individual’s honesty
and sincerity. Id. She also stated that she was impressed with the individual’s “internalization of
the motivations for sobriety,” which she noted some people do not have this early in the process.
Id.
The DOE psychologist further testified that her only remaining question is time, noting that she
had stated in her report that the individual should achieve one year of therapy and abstinence for
rehabilitation. Id. She explained that the reason she suggested one year of rehabilitation was that,
for a period of four or five months, the individual was drinking excessively on a daily basis, and
exhibited tolerance and withdrawal. Id. at 101. However, she testified that although the individual
would be considered in early remission because it has been less than 12 months, she believes the
individual’s risk for relapse would be lower than what she would generally opine at this juncture
in the individual’s sobriety. Id. at 103. She further opined that, in light of the individual’s progress,
the individual has an excellent prognosis. Id. The DOE psychologist reiterated that the individual
has internalized her motives for sobriety and understands the seriousness and danger that alcohol
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poses. Id. When asked whether the she still recommended one year of sobriety for the individual,
the DOE psychologist stated that she would revise that recommendation. Id. at 106. She testified
that, in light of the individual’s progress, the individual’s four months of sobriety would be
adequate for her to be considered a moderate risk, but that six months of sobriety would be
considered a low risk. Id. Finally, she testified that she no longer believes the individual has an
impairment in her judgement and reliability. Id.
Guideline G
Habitual or binge consumption of alcohol to the point of impaired judgement, regardless of
whether the individual is diagnosed with alcohol use disorder, can raise a security concern and
may disqualify an individual from holding a security clearance. See Guideline G at ¶ 22(c).
Furthermore, a diagnosis by a duly qualified mental health professional of alcohol use disorder can
serve as a disqualifying condition. Id. at ¶ 22(d). Furthermore, there are a number of conditions
that could mitigate the security concerns under this Guideline, including (in relevant part): 1) the
individual acknowledged his or her pattern of maladaptive alcohol use, provides evidence of
actions taken to overcome this problem, and has demonstrated a clear and established pattern of
modified consumption or abstinence in accordance with treatment recommendations; and 2) the
individual has successfully completed a treatment program along with any required aftercare, and
has demonstrated a clear and established pattern of modified consumption or abstinence in
accordance with treatment recommendations. Id. at 23 (b) and (d).
Here, the individual has readily acknowledged her alcohol problem, has successfully completed a
10-week IOP, and had attended AA meetings for approximately four months, at the time of the
hearing. The individual also testified that she attends aftercare meetings and meets with a therapist
through her employer’s EAP program. Although the DOE psychologist opined that the
individual’s prognosis is excellent and that she was impressed with the individual’s commitment
to the recovery process, the individual is still very early in the recovery process, achieving just
four months of sobriety as of the date of the hearing. As noted by the DOE psychologist, after
revising her recommendation for the individual, she still believes the individual would not be
considered a low risk for relapse until she achieved at least six months of sobriety. While the
individual has made great progress in her rehabilitation efforts to date, I do not believe she has
demonstrated a clear and established pattern of abstinence with only four months of sobriety, as of
the time of the hearing.
For these reasons, I conclude that the security concerns under Guideline G have not yet been
sufficiently resolved.
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 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
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authorization should not be granted. The parties may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals
Date: March 27, 2018