PSH-18-0007

*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 16, 2018 )
_________________________________________ ) Case No.: PSH-18-0007
Issued: May 3, 2018
_______________
Administrative Judge Decision
_______________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance should be denied.
I. BACKGROUND
On December 19, 2012, the Individual’s employer performed a random alcohol screening on him,
which indicated that the Individual’s blood alcohol concentration (BAC) was .012. Ex. 7 at 1; Ex.
8 at 3. A psychologist employed by the Individual’s employer (the Staff Psychologist), noting that
the screening tests were conducted three hours and 45 minutes after the Individual’s shift began,
calculated that the Individual’s BAC would have been .063 at the start of his shift. Ex. 1; Ex. 6.
The Individual was subsequently terminated by his employer, however, the Individual successfully
contested this termination in an arbitration proceeding. In 2014, he returned to work at the DOE
contractor. In early 2017, the Individual applied for access authorization. Because of the security
concerns raised by the Individual’s alcohol-related termination, the Local Security Office (LSO)
conducted a Personnel Security Interview (PSI) of the Individual on June 21, 2017, and had the
Individual evaluated by a DOE psychologist (the DOE Psychologist) on August 14, 2017. The
DOE Psychologist found that the Individual has an Unspecified Alcohol-Related Disorder. Ex. 8
1
Under the regulations, “access authorization” means 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 also be referred to in this Decision as a security clearance.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
- 2 -
at 1, 10. Accordingly, the LSO began the present administrative review proceeding by issuing a
Notification Letter to the Individual, informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility for a security
clearance. See 10 C.F.R. § 710.21. The Individual requested a hearing and the LSO forwarded the
Individual’s request to the OHA. The Director of OHA appointed me as the Administrative Judge
in this matter on January 16, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), I took testimony from the Individual, his union president (who was once the Individual’s
colleague), and the DOE Psychologist. See Transcript of Hearing, Case No. PSH-18-0007
(hereinafter cited as “Tr.”). The LSO submitted 11 exhibits, marked as Exhibits 1 through 11
(hereinafter cited as “Ex.”). The Individual submitted 4 exhibits, marked as Exhibits A though D.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline G of 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). The LSO alleges that the Individual
has been diagnosed by the DOE Psychologist with an Unspecified Alcohol Disorder; had been
consuming four to six beers in a three to four hour period 15 times a month, and had reported to
work with a BAC of .063 percent on December 19, 2012. This information adequately justifies the
LSO’s invocation of Guideline G and raises significant security concerns. The Adjudicative
Guidelines state: “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. Among those conditions set forth in the Guidelines that
could raise a disqualifying security concern are “alcohol-related incidents at work, such as
reporting for work or duty in an intoxicated or impaired condition . . . regardless of whether the
individual has been diagnosed with alcohol use disorder.” Guideline G at ¶ 22(b). Guideline G
further provides that a “diagnosis by a duly qualified medical or mental health professional . . . of
[an] alcohol use disorder” “could raise a security concern and may be disqualifying.” Guideline G
at ¶ 22(d).
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires 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).
- 3 -
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring 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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
An Incident Report prepared by the Staff Psychologist indicates that, on December 19, 2012, the
Individual underwent a breath alcohol test which indicated that the Individual’s BAC was .012
percent. Ex. 7 at 1. However, the Staff Psychologist estimated that, because the test was
administered three hours and 45 minutes after the Individual’s shift began, the Individual’s BAC
at the time he started his shift was .063 percent. Ex. 7 at 1. The Staff Psychologist believed that
the Individual was likely to have consumed 14 or more beers the evening before he tested positive
at work. Ex. 7 at 1. The Staff Psychologist further reported that the Individual informed him that
he typically consumed six to eight beers, sometimes consuming as much as ten beers at a time. Ex.
7 at 1. The Staff Psychologist further opined that the Individual met the Center for Disease
Control’s criteria for binge drinking, and that the Individual “very likely has a diagnosable Alcohol
Use Disorder.” Ex. 7 at 1. The Staff Psychologist referred the Individual for evaluation by a local
treatment facility and to an Employee Concerns Program (EAP) substance abuse specialist, and
informed the LSO of his concerns. Ex. 7 at 1.
The DOE contractor subsequently terminated the Individual’s employment on February 5, 2013.
Ex. 10 at 31. However, the Individual successfully challenged this termination in an arbitration
proceeding and was reinstated in September 2014. Ex. 10 at 30–31.
In early 2017, the Individual applied for a security clearance. Ex. 5. Because of his prior alcohol-
related incident at work, the LSO conducted a PSI of the Individual on June 21, 2017, during which
the Individual admitted that he was still consuming alcohol in the same manner that resulted in the
2012 work incident. Ex. 10 at 37. The Individual stated that he had not realized that he was
continuing those alcohol habits until he said it out loud at the PSI. Ex. 10 at 37.
The LSO requested that the Individual be evaluated by the DOE Psychologist, who examined the
Individual and issued a report on August 22, 2017. Ex. 8 at 2-3. In the report, the DOE
Psychologist diagnosed the Individual with an “Unspecified Alcohol Use Disorder,” meaning that
clinical concerns existed, but they did not rise to the level where the DOE Psychologist could
definitively diagnose the Individual with an Alcohol Use Disorder under the DSM 5. Tr. at 57; Ex.
8 at 10. The DOE Psychologist opined that the Individual should abstain from using alcohol for at
least six months and that he should share the DOE Psychologist’s report with his personal physician
and adhere to any medical advice provided by his physician. Ex. 8 at 10.
- 4 -
The Individual acknowledges that he has an alcohol problem. Tr. at 19, 36. However, he has
abstained from alcohol use since January 3, 2018. Tr. at 23. The Individual was motivated to stop
drinking because of his diabetes and other health conditions. Tr. at 41, 53-54. The Individual
testified that he intends to permanently abstain from alcohol use, and understands that he cannot
use alcohol safely. Tr. at 31, 37-38, 50-51. In January 2018, he enrolled in a two month intensive
outpatient program (IOP). Tr. at 24–26. However, three weeks before the Individual was to finish
the IOP, his wife was admitted to the hospital and diagnosed with lung cancer. Tr. at 24–25. The
Individual left the IOP at that time to attend to his wife’s health issues. Tr. at 24-25. As an
alternative to the IOP, the Individual requested that his doctor prescribe him Antabuse, a medication
that causes its users to become violently ill if they consume alcohol. Tr. at 28–30.
The Individual also began attending Alcoholics Anonymous (AA) meetings in January 2018.2 Tr.
at 26. The Individual testified that the support of fellow AA members has helped him cope with
his wife’s illness and helped him to refrain from further alcohol use. Tr. at 26, 49. The Individual
testified that he was continuing to attend AA meetings, had obtained an AA sponsor, has started
working the AA’s Twelve-Step Program, and was no longer taking Antabuse. Tr. at 27–28, 35-37.
The Individual testified that he talks to his sponsor daily. Tr. at 49. The Individual testified that
he likes attending AA meetings and plans to keep attending AA “for a long time.” Tr. at 36. The
Individual has also met with an EAP counselor on four occasions. Tr. at 28. The Individual
testified that he sees his primary care physician about once per month and that the doctor has
prescribed him several medications to help with his anxiety, sleep, and back pain. Tr. at 31–31,
43–46.
At the hearing, the DOE Psychologist observed the testimony of both of the other witnesses before
he testified. The DOE Psychologist testified that he diagnosed the Individual with “an unspecified
alcohol disorder” because, while he found “some clinical concerns,” they did not rise to the level
where he could definitively diagnose the Individual with Alcohol Use Disorder. Tr. at 57. The
DOE Psychologist testified that his concerns were based upon the Individual’s ongoing history of
significant alcohol consumption, work-related alcohol issues, and health concerns related to his
alcohol use. Tr. at 57. The DOE Psychologist noted that the Individual has only been abstaining
from alcohol use for three months. Tr. at 62. However, the DOE Psychologist further opined that
the Individual “is showing an admirable commitment to abstinence, and he has a reasonable
recovery plan, his involvement with AA speaks well.” Tr. At 62. He also noted that the Individual
is motivated by his concerns about his wife’s health, his own health, and his children’s future. Tr.
at 62. The DOE Psychologist found that these factors “speak very positively” about the
Individual’s recovery progress, and stated that he was “impressed with the progress he’s making.”
Tr. at 62. He further opined that these factors, and the fact that the Individual has the appropriate
coping resources in place, substantially mitigate the risk that the Individual might relapse. Tr. at
63-64. The DOE Psychologist stated that the Individual had met the minimum requirements to be
considered in recovery. Tr. at 64–65. Though the Individual had not been abstinent for the
recommended six months, he had remained abstinent through a stressful situation and had built a
support system to help him remain abstinent in the future. Tr. at 66–70. The DOE Psychologist
testified that he believed the Individual would likely remain abstinent. Tr. at 70. However, the
DOE Psychologist acknowledged that the Individual’s period of abstinence was “short” and that
2 The Individual has submitted records documenting his attendance at 18 AA meetings between January 6, 2018, and
March 22, 2018. Ex. C.
- 5 -
the Individual “hasn’t had a long time in recovery.” Tr. at 62, 64. He further testified that
“Statistically speaking, the more time in recovery, the more solid the recovery.” Tr. at 62.
V. ANALYSIS
The question before me under Guideline G is whether the Individual’s recovery has progressed far
enough to sufficiently mitigate the security risks raised by his Unspecified Alcohol Disorder.
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when “the individual acknowledges 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.”
Guideline G at ¶ 23(b). In the present case, the record shows that the Individual has acknowledged
his alcohol problem, attended the IOP, became an active AA participant, and discontinued alcohol
consumption. These actions, along with his three months of abstinence, are all factors that provide
partial mitigation of the security issues raised by the Individual’s alcohol consumption. The
relatively mild nature of the Individual’s diagnosis, and the fact that he has met most of the
treatment recommendations of the DOE Psychologist (by attending the IOP and becoming actively
involved in AA), provide some compensation for the fact that the Individual has only established
a period of three months of sobriety (instead of the six-month period initially recommended by the
DOE Psychologist). The Individual is obviously strongly motivated to maintain his recovery by
his and his wife’s health concerns, and as noted by the DOE Psychologist, the Individual’s ability
to remain abstinent through the stresses imposed by his wife’s illness, as well as his own health
concerns, are positive factors which increase the likelihood that the Individual will be able to
maintain his sobriety going forward.
However, despite the individual’s clear commitment and progress, I find that the security concerns
have not been fully resolved. The individual has a longstanding alcohol problem, dating back to at
least 2012. The record reflects that the Individual was terminated in February 2013, based on the
results of a random alcohol screening. The Individual was eventually reinstated; however, despite
nearly losing his livelihood, his drinking continued unabated. In June of 2017, the Individual
applied for a security clearance, and acknowledged during the PSI that he was still consuming
alcohol in the same manner that resulted in his 2012 termination, perhaps as often as 15 times a
month. The individual testified that he had not realized that he was continuing those habits until
he stated it out loud at the PSI, yet he continued to drink, at some level, until on or around January
3, 2018.
Finally, the record shows that, at the time of the hearing, the Individual had only completed
approximately three months of abstinence from alcohol. I find that a three-month period is
insufficient to demonstrate a clear and established pattern of abstinence, in light of the other factors
cited herein.
Accordingly, I find that the Individual has not resolved the security concerns raised under Guideline
G by his Unspecified Alcohol Disorder diagnosis.
- 6 -
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that Individual has not sufficiently mitigated all of the security concerns raised under Guideline G.
Accordingly, the Individual has not demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should not be granted. The Individual may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals