PSH-18-0008

*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 19, 2018 ) Case No.: PSH-18-0008
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_________________________________________ )
Issued: April 25, 2018
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 “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 have
determined that the individual’s access authorization should not be restored.
I. Background
The individual is employed by a DOE Contractor and has held a security clearance for several
years. In June 2016, the individual timely self-reported that he had been arrested for driving while
intoxicated (DWI). In July 2016, the Local Security Office (LSO) conducted a personnel security
interview (PSI) with the individual. Because DWI is an alcohol-related crime, the LSO referred
the individual for an evaluation by a DOE-consultant psychologist who determined that the
individual met the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th
Edition TR (DSM-IV-TR), criteria for Alcohol Abuse, and the Diagnostic and Statistical Manual
of the American Psychiatric Association, 5th Edition (DSM-5), criteria for Alcohol Use Disorder,
Mild.
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 December 2017, the LSO sent a letter (Notification Letter) to the individual advising him that
it had reliable information that created a substantial doubt regarding his eligibility to continue
holding a security clearance. In the attachment to the Notification Letter, the LSO explained that
the derogatory information fell within the purview of Guidelines G (Alcohol Consumption) and J
(Criminal Conduct) of the Adjudicative Guidelines.
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations to request an administrative review hearing, and on January 19, 2018, I was appointed
the Administrative Judge in the case. At the hearing, the individual presented the testimony of four
witnesses—his alcohol counselor, his girlfriend, his supervisor, and a close friend—and testified
on his own behalf. The LSO presented the testimony of the DOE psychologist who had evaluated
the individual. In addition to the testimonial evidence, the LSO tendered 11 numbered exhibits
into the record (Exhibits 1-11). The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric designation. The hearing transcript will be cited as “Tr.” followed by the
relevant page number.
II. Regulatory Standard
A. Individual’s Burden
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
standard in this proceeding places the burden on the individual because it is designed to protect
national security interests. This is not an easy burden for the individual to sustain. 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
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). An individual is thus afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role 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). I am instructed
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by the regulations to resolve any doubt as to a person’s access authorization eligibility in favor of
the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited two bases for administrative review of the individual’s request
for access authorization, Guidelines G and J. With respect to Guideline G, it is well established
that that 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. Adjudicative Guidelines, Guideline G at ¶ 21. As its basis for invoking Guideline
G, the Notification Letter cited to: the DOE psychologist’s conclusions that the individual meets
the DSM-IV-TR’s criteria for Alcohol Abuse; uncontested evidence of three alcohol-related
incidents away from work in 1990, 2007, and 2016; the individual’s own statements about his
impaired ability to make a good decision due to alcohol consumption; and the individual’s
interrogatory responses indicating that, as of June 30, 2017, he continued to consume alcohol and
had not sought treatment for his alcohol use. Ex. 2 at 1.
The security concern expressed in Guideline J relates to criminal activity, which, by its very nature,
creates doubt about a person’s judgment, reliability, and trustworthiness and calls into question a
person’s ability or willingness to comply with laws, rules, and regulations. Adjudicative
Guidelines, Guideline J at ¶ 30. As evidence of its concern under this Guideline, the LSO
enumerated three incidents of criminal activity dating from 1990 to 2016. Ex. 2 at 2.
These allegations adequately support the invocation of Guidelines G and J, and they raise serious
security concerns.
IV. Findings of Fact
On May 27, 2016, the individual was at his home with his girlfriend. Tr. at 110; Ex. 7 at 3. Between
5:00 and 7:00 p.m., he consumed about three glasses of wine. Tr. at 108–10; Ex. 7 at 5. Around
7:00 p.m., a friend called, inviting the individual and his girlfriend out for dinner. Tr. at 110; Ex.
7 at 5. He accepted and drove to the restaurant, about 15 to 20 minutes away. Ex. 7 at 5–6. There,
the individual consumed two beers with food. Tr. at 112. He and his girlfriend left to return home
at about 11:00 p.m. Id. Before leaving, they discussed whether it was safe for either of them to
drive. Tr. at 115–16. They decided that the individual should drive. Id.
On the way home, the individual was stopped at a checkpoint. Ex. 7 at 20. An officer administered
several field sobriety tests, which the individual failed. Tr. at 65. The individual also failed a
breathalyzer test. Id. He was then arrested and charged with misdemeanor Driving While
Intoxicated (DWI). Ex. 7 at 20. The individual received another breathalyzer test at the police
station at about 12:40 a.m. Ex. 9. His Blood-Alcohol Concentration (BAC) was recorded at 0.22.2
2 The arrest report states that the individual claimed that he had not been drinking. Ex. 9.
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Id. Despite his high BAC, the individual was only moderately impaired.3 Tr. at 59–60. The
individual, represented by counsel in the matter, pleaded guilty to misdemeanor DWI and timely
completed all the requirements of his sentence. Tr. at 105.
In June 2016, the individual reported his arrest to his employer. Ex. 8. In July 2016, the LSO
conducted a PSI with the individual. Ex. 7. During that interview, the individual reported two prior
alcohol-related interactions with law enforcement. The first was in 1990 when the individual was
25 years old. Ex. 7 at 10–11. The individual was pulled over for speeding. When the officer asked
if he had been drinking, the individual admitted that he had. Because he was only a short distance
from his destination, the officer allowed the individual to continue on with just a warning to stay
off the road for the rest of the night. Id. The second incident was in 2007. The individual had been
at a wedding reception and was intoxicated. Ex. 7 at 17–19. He approached a mounted police
officer and interfered with the police horse, causing a disturbance. Id. Officers wrestled the
individual to the ground, arrested him, and charged him with disorderly conduct. Id. These charges
were later dropped due to lack of evidence and the individual’s lack of a prior criminal record. Ex.
7 at 23.
During the PSI, the individual disclosed his then-current drinking habits and his efforts to complete
the requirements of his legal obligations from the DWI sentencing. Around the time of his arrest,
the individual would have two to four drinks on a weekend day, either Friday or Saturday, but
never Sunday. Ex. 7 at 20; see also Ex. 6 at 4–5. He would not drink during the week, except when
watching sports. In those circumstances, the individual would have one to two drinks. Ex. 7 at 20;
see also Ex. 6 at 5. After his arrest, the individual underwent a clinical evaluation for alcohol abuse
because his attorney advised that having the evaluation completed by his hearing might hasten the
proceedings. The evaluation indicated that the individual did not suffer from alcohol abuse and
that the DWI was an isolated incident. Ex. 6 at App. B; Tr. at 102–03. During the evaluation, the
clinician did not question the individual’s high BAC and did not know about his previous alcohol-
related incidents. Tr. at 120–121, 146.
At the end of the PSI, the LSO informed the individual that he would need to undergo a
psychological evaluation with a DOE psychologist to determine whether he had a “problem with
alcohol.” Ex. 7 at 28. The individual declined a copy of the psychologist’s report, believing that
he would receive the results of his evaluation regardless of whether he received the report. Id. at
26. The DOE psychologist issued his evaluative report in November 2017. Ex. 6. The individual
did not receive a copy of the report until February 7, 2018. Tr. at 106.
At his evaluation, the individual reported to the DOE psychologist that after his arrest he rarely
drank alcohol but that he may have had one or two beers at a party or while camping. Ex. 6 at 5.
However, at the individual’s hearing, his alcohol counselor and his girlfriend testified that until
February 2018, the individual’s typical drinking habits were to consume two to five drinks on a
3 The individual questioned the accuracy of his recorded BAC results at his hearing. He asked a witness, his girlfriend,
to testify about whether she thought the test result matched his behavior. Tr. at 60–62. She testified that she did not
and that she was concerned with the test’s accuracy and the possibility that the individual may have health conditions
that could cause an elevated BAC without the accompanying intoxication. Id. After this testimony, the individual
indicated that the test may have been inaccurate, but acknowledged that he had driven while intoxicated, regardless
of any potential test inaccuracy. Tr. at 68.
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weekend day, either Friday or Saturday, and no alcohol during the week. Tr. at 16, 53–54. The
individual did not contest any witness’s testimony regarding his drinking habits between his arrest
and February 2018.
The DOE psychologist testified that he has likely driven while intoxicated on more occasions than
the two identified during the PSI. Tr. at 140. After his arrest, the individual would arrange in
advance to spend the night when drinking at another person’s home or while camping so that he
could be certain that he would not drink and drive. Id. at 116.
Shortly after Christmas 2017, the individual received the Notification Letter dated December 21,
2017. Id. at 130. The Notification Letter included the DOE psychologist’s diagnosis of alcohol
abuse. Ex. 3; Ex. 6. Surprised, the individual immediately sought help through his employer’s
Employee Assistance Program (EAP). Tr. at 56, 105. He was matched with an alcohol and
substance abuse counselor and attended his first appointment on January 30, 2017. Id. at 13, 105–
06. The counselor helped the individual “explore his drinking,” which involved taking special
notice of where, how much, and how often he was consuming alcohol. Id. at 15. She explained to
him that his efforts to avoid another DWI by arranging in advance to sleep where he would be
drinking demonstrated that he planned his social activities in a way that enabled him to drink to
excess. Id. at 15–16. By his fourth session with the counselor, the individual had chosen to abstain
from all alcohol. Id. at 106. His last drink was in February 2018. Id. at 122. The individual
continued seeing the counselor at his own expense after using all the EAP sessions. Id. at 56. He
began attending three AA meetings per week and got a sponsor in March 2018. Id. at 107, 132.
At the hearing, multiple witnesses testified that the individual was embarrassed and devastated by
his actions. Tr. at 83, 93, 145. The DOE psychologist testified that he became visibly emotional
and upset when discussing the potential for harm to others that his actions created. Ex. 6 at 5.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the individual 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 restored at this time. 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.
A. Guideline G
The LSO’s Guideline G security concerns revolve around the individual’s long-time use of alcohol
that has led to frequent intoxication over the years. Certainly, when an individual is intoxicated,
his good judgment is challenged, and his reliability and trustworthiness become questionable.
Security concerns under Guideline G can be mitigated by a number of factors, such as participation
in or successful completion of a treatment program, a “clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations,” or the concerning
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behavior being so infrequent that it is unlikely to reoccur. Adjudicative Guidelines, Guideline G
at ¶ 23(a)–(d).
The individual reported a significant change in his alcohol consumption habits to the DOE
psychologist, but his witnesses’ testimony at his hearing, his own testimony at his hearing, and his
self-reporting to his alcohol counselor indicate that, prior to February 2018, he consumed a greater
quantity of alcohol than he told the psychologist, and on a more frequent basis. The individual did
not significantly decrease his drinking after his arrest. From the July 2016 PSI to the time just
before he began abstinence, the only decrease in alcohol consumption he reported was eliminating
an occasional weeknight drink while watching sports. Compare Ex. 7 at 20 with Tr. at 16, 53–54.
The individual’s solution to prevent risky alcohol use did not address the LSO’s Guideline G
security concerns. His own expert witness testified that, by making advance arrangements to sleep
where he would be consuming alcohol, the individual was making a plan to abuse alcohol. Id. at
16.
The individual had, by the hearing date, abstained from alcohol entirely for several weeks and was
regularly attending AA meetings during that time. However, the individual did not seek treatment
until over a year after the May 2016 arrest, doing so only after receiving the Notification Letter.
The individual stated that he did not know he had an alcohol abuse problem until receiving the
Notification Letter containing the DOE psychologist’s diagnosis. Tr. at 106. In discussing the
delay in receiving the report, the individual stated that he wished he’d “had the opportunity to have
started [his] treatment earlier.” Id. at 152. He referred to learning about his diagnosis as an “oh,
my God” moment. Id. at 150. Although he might not have been ready or able to recognize them as
such, his numerous alcohol-related encounters with law enforcement demonstrate that his alcohol
use had been problematic long before he received the psychologist’s report:
 The individual chose to drive while intoxicated in May 2016. He repeatedly characterized
this choice as “a mistake” and “poor judgment.” Tr. at 64, 117.
 He had prior alcohol-related interactions with law enforcement, one of which resulted in
his arrest.
 This was the individual’s second alcohol-related interaction with law enforcement
involving drunk driving.
 The infraction, a DWI, was serious enough that the individual had to report it to his
employer and undergo a Personnel Security Interview.
 The individual was alarmed by the high BAC result on his police report.
Despite these indicators that his alcohol consumption may have been problematic, the individual
did not seek sustained medical or mental health treatment for his alcohol issues until seeing the
DOE psychologist’s diagnosis. He did not choose abstinence until two weeks after his first
appointment with his alcohol abuse counselor, over six weeks after learning of the DOE
psychologist’s diagnosis.
The DOE psychologist expressed his opinion, with which I agree, that the individual is taking
serious steps in the right direction to treat his alcohol abuse. While these steps are enough to
mitigate the DOE psychologist’s medical and mental health concerns, they are not enough to
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resolve his Guideline G security concerns. The individual’s efforts since receiving the DOE
psychologist’s report are encouraging and commendable. However, such a short period of
treatment—seven weeks of counseling and five weeks of abstinence as of the date of the hearing—
cannot overcome the individual’s decades-long pattern of risky alcohol-related behavior. In short,
the individual’s efforts do not demonstrate the clear and established pattern of modified
consumption or abstinence envisioned by the Guidelines. See Adjudicative Guidelines,
Guideline G at ¶ 23(b). Uncertainty remains as to the individual’s future alcohol use and I must
resolve any doubt in favor of national security. Therefore, I find that the individual has not resolved
the LSO’s concerns under Guideline G at this time.
C. Guideline J
Criminal activity raises security concerns under Guideline J. An individual who is unable or
unwilling to comply with laws, rules, and regulations presents a risk when handling classified
information, which requires strict adherence to its own set of laws, rules, and regulations.
Mitigating factors for Guideline J include the passage of so much time since the criminal activity
that further criminal behavior is unlikely, and evidence of successful rehabilitation. Adjudicative
Guidelines, Guideline J at ¶ 32(a), (d).
The individual’s criminal history shows a series of three incidents, each more serious than the last,
and each occurring under similar circumstances. The individual’s criminal activity seems
inextricably tied to his alcohol use. The 2016 arrest was not his first incident of driving while
intoxicated, and the DOE psychologist testified that he has likely driven while intoxicated on other
occasions. When his judgment is impaired by alcohol, the individual is less willing to adhere to
the law, as demonstrated by his decisions to drive when intoxicated and to engage in unruly
conduct.
Several witnesses testified regarding the individual’s remorse for his irresponsible behavior in
2016 and to his general good character. Nevertheless, the individual has only recently foresworn
the circumstances under which he engaged in criminal activity, and, while his rehabilitation is off
to a strong start, it is simply too soon to declare it “successful.” Until the individual has resolved
the LSO’s concerns regarding his alcohol consumption, I am not confident that he will not engage,
intentionally or not, in alcohol-related criminal activity in the future. Accordingly, I find that the
individual has not resolved the LSO’s concerns under Guideline J at this time.
VI. Conclusion
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the individual’s eligibility for a security clearance under Guidelines G and J of
the Part 710 regulations. I further find that the individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that restoring the individual’s DOE access authorization to
the individual “will not endanger the common defense and security and is clearly consistent with
the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore an
access authorization to the individual at this time.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals