PSH-18-0034

*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: April 13, 2018 ) Case No.: PSH-18-0034
)
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Issued: July 16, 2018
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as the
“Individual”) to hold an access authorization under the United States 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.”1 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) (the
“Adjudicative Guidelines”), I conclude that the Individual’s security clearance should not be
granted.
I. BACKGROUND
The individual is employed by a DOE Contractor and applied for a security clearance. When
completing a Questionnaire for National Security Positions (QNSP) in January 2016, the individual
certified that, in 2008, he had been arrested for Minor in Consumption. An Office of Personnel
Management (OPM) investigator spoke with the individual in July 2017 regarding his alcohol
consumption and alcohol-related arrest. In November 2017, the Local Security Office (LSO)
conducted a Personnel Security Interview (PSI) with the individual. Because the LSO’s security
concerns were alcohol-related, the LSO had the individual evaluated by a DOE consultant
psychologist (“Psychologist”), who determined that the individual was a binge consumer of alcohol
and habitually consumed alcohol to the point of impaired judgment.
On February 5, 2018, 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 for access
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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authorization. In the attachment to the Notification Letter, the LSO explained that the derogatory
information fell within the purview of Guideline G 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 I was appointed the Administrative
Judge in the case. At the hearing, the individual presented the testimony of three witnesses—two
colleagues, one of whom is also his girlfriend’s father, and his manager—and testified on his own
behalf. The DOE presented the testimony of the Psychologist who had evaluated the individual. In
addition to the testimonial evidence, the Individual tendered two exhibits into the record (Exs. A-
B) and the DOE tendered ten exhibits into the record (Exs. 1-10). The hearing transcript will be
cited as “Tr.” followed by the relevant page number.
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 Adjudicative Guidelines.
The DOE alleges that a Psychologist concluded that the Individual is a habitual or binge consumer
of alcohol to the point of impaired judgment on a regular basis of approximately twice monthly.
The DOE also alleges that the Individual was charged with being a Minor in Consumption (MIC)
in 2008 and that he admitted to drinking four to five beers once or twice a week since December
2011. Adjudicative Guideline G states that “[e]xcessive 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 at ¶ 21. Among those
conditions set forth in the Guidelines that could raise a disqualifying security concern are “alcohol-
related incidents away from work such as . . . disturbing the peace, or other incidents of concern,
regardless of the frequency of the individual’s alcohol use or whether the individual has been
diagnosed with alcohol use disorder.” Id. at ¶ 22(a). Adjudicative Guideline G further provides
that a disqualifying security concern may be raised by “habitual or binge consumption of alcohol
to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol
use disorder.” Id. at ¶ 22(c).
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).
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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
The Individual is an applicant for a DOE security clearance. When filling out his QNSP, the
Individual reported that in 2008 he was cited for MIC after a college party. Ex. 8 at 32. At his
November 2017 PSI, he told the Investigator that he was stopped by the college’s police department
while walking home with a friend. Ex. 9 at 10–11. He stated that he had consumed six or seven
sixteen-ounce cups of beer over the course of two or three hours. Id. at 11–12. The Individual
participated in a diversion program that lasted three months. Id. at 18–20. His university also
required him to participate in a counseling program. Id. at 20–21. The Individual complied with all
of the requirements imposed on him by the court and the university. Id. at 18–22. The counselor
recommended that the Individual abstain from alcohol until he reached the legal drinking age, but
he only abstained for two months after the incident. Id. at 29. He has not had any other involvement
with counseling or treatment for alcohol or substance abuse. Id. at 27.
The Individual reported his current alcohol consumption to be four to five beers within three to
four hours once or twice per week, although he becomes intoxicated once or twice per month by
drinking eight or nine beers over the course of three to four hours. Id. at 50–51. He has been
consuming alcohol in these amounts since December 2011. Id. The Individual told the Investigator
that he intended to keep his alcohol consumption the same because it was not detrimental to his
health and he was not driving while impaired in any way. Id. at 54. The Investigator stated that he
had been told that the Individual consumed fifteen to thirty beers every weekend. Id. at 56. The
Individual responded that he did not drink that much and only occasionally would reach close to
twenty beers over the course of a weekend. Id. He then reported drinking three to ten beers every
weekend since September 2016. Id. at 56–57. He stated that he only drinks alone when watching
sports, which happens about once per week. Id. at 59–60.
Because its concerns were alcohol-related, the LSO referred the Individual to a Psychologist for
evaluation. Ex. 6. At his evaluation, the Individual stated that his alcohol consumption has
decreased since August 2016 and that he now only has one or two beers on each weekend night.
Ex. 6 at 6. He again expressed that he did not feel the need to change his level of alcohol
consumption. Id. at 6–7. He stated that he does not drink as a response to stress and does not drink
for the purpose of getting drunk. Id. at 7. The Psychologist did not diagnose the Individual with
Alcohol Use Disorder, but concluded that he is viewed as a habitual or binge consumer of alcohol
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to the point of impaired judgment on a regular basis of approximately twice monthly.2 Id. at 7. The
Psychologist did not find adequate evidence of rehabilitation and reported that rehabilitation would
entail the Individual’s participation in outpatient alcohol treatment group therapy sessions for a
minimum of twelve weeks. Id. at. 8. The Psychologist reported that the Individual had a positive
prognosis, at that time. Id. at 8.
At the hearing, each of the Individual’s witnesses testified that he is trustworthy. Tr. at 89, 117,
141–42. His girlfriend’s father testified that, when the Individual asked him about how to proceed
with the Psychologist’s recommendations, he told the Individual to do what the Psychologist
wanted him to do. Id. at 100. He had not heard the Individual talk about giving up alcohol forever,
but testified that he believed the Individual would “go down the path of responsible drinking.” Id.
at 101. The Individual’s colleague also did not testify that the Individual intended to abstain in the
future. Id. at 124. The colleague testified that the Individual had not consumed alcohol for about
fourteen weeks. Id. at 115. The Individual’s manager testified that the Individual was abstaining
from alcohol “at this point,” because of the personnel security proceeding. Id. at 141. He testified
to a belief that the Individual would either abstain or “drink more reasonably” in the future, but
admitted that he had not specifically discussed the future plans for alcohol consumption with the
Individual. Id. at 151.
The Individual testified that he had abstained from alcohol since March 2018. Id. at 63. He first
saw the Psychologist’s report and recommendation on February 28, 2018. Id. at 29. His last
hangover was at least fourteen weeks before the hearing date. Id. at 48. He did not seek the
Psychologist-recommended treatment until late May 2018, and enrolled in individual therapy,
rather than the recommended group therapy. Id. at 26, 28, 63. The Individual testified that he had
not understood until the hearing that the recommendation of outpatient group therapy meant that
he needed to attend outpatient therapy in a group, instead of individually. Id. at 64. In the week
prior to his hearing, the Individual attended an evaluation and his first therapy session. Id. at 53–
54. The Individual testified that he intends to complete a total of fifteen sessions, one of which was
the evaluation. Id. at 32, 53, 77. However, the Individual had not set up any appointments past the
third session and had not signed a commitment to fifteen sessions or paid for sessions in advance.
Id. at 55, 58. The Individual chose his treatment provider based on the office’s proximity to his
home and work. Id. at 80. He testified that, though no coping skills have been introduced in his
therapy, it is only reasonable to assume that they will be part of his treatment. Id. at 73, 78.
The Individual testified that after his MIC charge, his counselor told him to abstain from alcohol
until he reached the legal drinking age. Id. at 44–45. Rather than follow that treatment
recommendation, he chose to resume his alcohol consumption before his mandated treatment had
ended. Id. at 45. The Psychologist asked the Individual if he intended to take action to follow the
group therapy recommendation. Id. at 64. The Individual responded, “At this time, I’m going down
the outpatient therapy path that I am right now [sic]. I don’t think I’ll change that.” Id. at 65. After
hearing from the Psychologist about group therapy, the Individual later testified that he was willing
2 The Psychologist defined habitual consumption of alcohol to the point of impaired judgment as “use of alcohol more
than once a month to [blood alcohol content] levels near or at that of legal intoxication.” Ex. 6 at 4. The Psychologist
defined binge consumption of alcohol as “a pattern of drinking to levels of intoxication by drinking heavy amounts of
alcohol in a short time period with the intention of becoming intoxicated or drinking to high levels of intoxication less
than once a month, but at least several times a year, that results in impaired judgment.” Id. at 5.
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to complete group therapy if necessary, though he did not understand the difference between the
benefits of group and individual therapy. Id. at 76.
The Psychologist testified that he had no evidence that the Individual continues to binge drink
alcohol. Id. at 187. However, the Psychologist testified that the Individual needed to learn coping
skills that would help him deal with situations in which he will have choices about alcohol. Id. at
161. The Psychologist testified that he had specifically recommended group therapy instead of
individual therapy because it has a different dynamic and increased accountability. Id. at 159. He
testified that it was concerning that the Individual “stated that he did not understand the
recommendations until today,” and that when asked if he would adhere to the original
recommendation of group therapy, the Individual originally stated that he would not. Id. at 166–
67. Based on the Individual’s lack of understanding of—and lack of compliance with—the
recommendations, the Psychologist revised his recommendation to one year of abstinence, id. at
161, or twelve weeks of group therapy followed by a re-evaluation. Id. at 166. The Psychologist
also found it concerning that the Individual had not told his witnesses that he intended to abstain
from alcohol in the future, whether for the next twelve weeks, the next year, or the rest of his life.
Id. at 160. He testified that the Individual’s prognosis, as of the hearing, was “somewhat guarded.”
Id. at 172. The Psychologist further testified that, in addition to issues he had previously brought
up, the reason for the reduced prognosis was the way the Individual had handled the
recommendations, including that the Individual did not actively seek to clarify what they were; that
he did not start treatment until just before the hearing; that he did not provide his therapist with the
Psychologist’s report; and that he did not provide a report from the therapist at the hearing. Id. at
167-68, 191. The Psychologist testified that, had the Individual immediately followed the
recommendations, it would have demonstrated a level of commitment to recovery that may have
warranted a better opinion. Id. at 191.
The Individual, by his attorney, submitted a written closing argument (“Closing Argument”) after
the hearing. In this argument, the Individual asserted that, because the Psychologist had no evidence
that the Individual was still binge drinking, DOE had no basis for invoking Guideline G. Closing
Argument at 1. He asserted that his MIC charge was so long ago as to be unlikely to recur. Id. at 2.
He also asserted that his fourteen weeks of sobriety proved that he was no longer drinking
concerning amounts of alcohol and, thus, the underlying security concerns were mitigated. Id. at
2–3. The Individual then proceeded to argue that DOE had attempted to make the proceeding about
whether the Individual had immediately performed the Psychologist’s recommendations, stating
that “[t]he Adjudicative Guidelines do not envision a federal agency controlling an individual’s
course of treatment through the agency’s contractors.” Id. at 3-4. The Individual then asserted that
the relevant evidence presented consisted of: (1) the Psychologist’s opinion that the Individual is
not a binge drinker;3 (2) the Psychologist’s observation that the Individual has been sober since
3 The Psychologist did not offer this opinion. The transcript states:
BY MR. THOMPSON:
Q. [Psychologist’s name] -- is your -- has your determination with respect to [the Individual] -- aside
from the recommendation, has your determination that he drinks habitually and -- or binge drinks
to a level of bingeing changed?
A. It has not changed.
Q. Okay.
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March 2, 2018; (3) the passage of ten years since the Individual’s only legal or law enforcement
incident related to alcohol; (4) the Individual’s acknowledgement of a past pattern of maladaptive
alcohol use (a “problem” as he called it in hindsight), and his demonstrated and established fourteen
weeks of abstinence; and (5) the Individual’s participation in a counseling and treatment program.
Id. at 4.
V. ANALYSIS
The issue before me is whether the Individual, as he stands at the time of his hearing, presents an
unacceptable risk to national security and the common defense. I must consider all of the evidence,
both favorable and unfavorable, in a common sense manner. Because of the strong presumption
against granting security clearances, I must deny access authorization if I am not convinced that
the DOE’s security concerns have been mitigated such that granting the Individual’s clearance is
not an unacceptable risk to national security.
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when: (a) “so much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current
reliability, trustworthiness, or judgment;” (b) “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;” and (c) “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.”4 Adjudicative Guidelines at ¶ 23(a)–(c).
A. The Individual’s Alcohol Consumption Habits
In the list of Security Concerns, the DOE cited the Individual’s MIC charge. A disqualifying
security concern may be raised by “alcohol-related incidents away from work such as . . . disturbing
the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use
or whether the individual has been diagnosed with alcohol use disorder.” Id. at ¶ 22(a). In this case,
the Individual received a MIC charge in 2008.
Furthermore, a disqualifying security concern may be raised by “habitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with
alcohol use disorder.” Id. at ¶ 22(c). In this case, the Individual’s history of alcohol use and the
Psychologist’s opinion demonstrate that the Individual has engaged in habitual or binge
consumption of alcohol to the point of impaired judgment.
A. Well, sorry, Judge. So I do believe that he has not -- when he tells me that he has not consumed
alcohol since 3/2, I have no reason to not believe that. So I don’t want – I’m not saying that he
continues to binge drink alcohol. I don’t have any evidence of that.
Tr. at 187.
4 The Guidelines also state that Guideline G concerns may be mitigated if the individual has successfully completed a
treatment program and has established pattern of modified consumption or abstinence. Adjudicative Guidelines at
¶ 23(d). However, that is not relevant here because the Individual had only just begun his treatment program as of the
hearing date.
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1. Mitigating Factors A and B
As to the MIC charge, the Individual is no longer a minor and cannot repeat this conduct. He has
also avoided criminal alcohol charges since 2008. Standing alone, it is unlikely that this behavior
will recur, and the concern would probably be mitigated under paragraph 23(a) of the Adjudicative
Guidelines. However, the DOE also cited the Individual’s more recent alcohol consumption habits
as presenting a security concern. Abstinence from alcohol can be challenging, and the Individual
is to be commended for the time that he has abstained. That said, fourteen weeks is a relatively
short period of time to have abstained. The Individual could not state when he last binge drank,
simply asserting that he had abstained for fourteen weeks prior to his hearing, but as of his PSI, he
was consuming alcohol in concerning quantities on multiple occasions every week. Because there
is no evidence to show that this behavior did not continue right up until the Individual abstained
from alcohol, and because he last consumed alcohol fairly recently, I conclude that the behavior is
not in the distant past, was not infrequent, and did not occur under unusual circumstances.
The Individual has chosen to address the concern almost entirely through abstinence from alcohol.
While his efforts are laudable, they fall short. When individuals choose to demonstrate
rehabilitation through abstinence, as opposed to other measures like therapy or 12-Step meetings,
a full year of abstinence is typically required for a clear and established demonstration. See In the
Matter of: Personnel Security Hearing, Case No. PSH-17-0041 (a period of modified consumption
or abstinence was recommended to show rehabilitation from binge drinking); In the Matter of:
Personnel Security Hearing, Case No. PSH-18-0018 (one year of abstinence offered as an
alternative to a shorter period of abstinence with group treatment). Similarly, in this case, the
Psychologist testified that he would recommend a year of abstinence before altering his opinion. I
therefore conclude that the Individual has not demonstrated a clear and established pattern of
modified consumption or abstinence in accordance with treatment recommendations.
Accordingly, the Individual has not met the mitigating factors listed in paragraphs 23(a) and (b) of
the Adjudicative Guidelines.
2. Mitigating Factor C
While the record does not contain information that the Individual has a history of relapse, the
Individual has not, in the opinion of the expert witness (the Psychologist), made satisfactory
progress in his treatment program. I note that the Individual offered no testimony, written or oral,
from his current therapist, who may well have been qualified as an expert witness. As it stands, I
am left to weigh the testimony of an expert witness against that of lay witnesses and the Individual.
In this instance, the Psychologist’s testimony that the Individual has not begun the recommended
treatment or learned the skills or strategies to deal with alcohol was grounded in his observations
of the Individual and the Psychologist’s expertise. Furthermore, the Psychologist offered strong
reasons for changing his prognosis and recommendations. The new recommendations were
generally in line with what individuals with Guideline G habitual or binge drinking concerns
receive. See In the Matter of: Personnel Security Hearing, Case No. PSH-18-0002; In the Matter
of: Personnel Security Hearing, Case No. PSH-16-0078.
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Accordingly, I accept the Psychologist’s opinion that the Individual has not made satisfactory
progress in treatment and find that he has not met the mitigating factor listed in paragraph 23(c) of
the Adjudicative Guidelines.
B. Closing Argument Assertions
1. The Evidentiary Basis for Guideline G Concerns
In his Closing Argument, The Individual argued that his current alcohol use could not present a
concern under Guideline G because the evidence demonstrated, and the Psychologist conceded,
that the Individual has not consumed alcohol for fourteen weeks. However, that argument
misunderstands the nature of Guideline G security concerns. The Individual’s alcohol use leading
up to the Psychologist’s report presented the concern. Once the concern is properly invoked, the
individual has the burden to bring forth evidence to mitigate the concern. Not only does the record
in this case contain the Psychologist’s opinion that the Individual habitually or binge consumed
alcohol to the point of impaired judgment, but the Psychologist testified that, notwithstanding the
Individual’s recent abstinence, the Psychologist’s opinion remained unchanged at the date of the
hearing. As referenced above, the Psychologist supplied various reasons for why the period of
abstinence, standing alone, was insufficient to confidently alter his opinion of the Individual’s
relationship with alcohol.
2. The Focus on Immediate Completion of the Psychologist’s Recommendations
Finally, while the Individual correctly asserts in his Closing Argument that the Psychologist’s
recommendations were not requirements, he incorrectly asserts that DOE improperly focused on
whether he strictly adhered to the letter of those recommendations.
The Psychologist was the only expert who assessed whether the Individual’s alcohol consumption
was still a concern, and the Psychologist had clearly laid out what he believed was necessary for
the Individual’s rehabilitation. That said, the recommended outpatient group therapy is not the only
way for the Individual to mitigate the DOE’s Guideline G security concerns. However, the
treatment options the Individual chose—abstinence and, eventually, individual therapy—did not,
in fourteen weeks, achieve the expected therapeutic effects of twelve weeks of outpatient group
therapy. At the hearing, the Individual’s counsel pursued lines of questioning designed to show that
fourteen weeks of abstinence, a therapeutic evaluation, and one session of individual therapy had
produced sufficient progress. However, the Psychologist testified as to why that was not the case
after evaluating the Individual’s treatment plan on its merits as presented at the hearing, and I
concur in the Psychologist’s opinion.
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 Guideline G of the
Part 710 regulations. I further find that the Individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that granting access authorization to the Individual “will
not endanger the common defense and security and is clearly consistent with the national interest.”
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10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not grant an access authorization to
the Individual at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals