PSH-18-0043

*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: May 11, 2018 ) Case No.: PSH-18-0043
)
__________________________________________)
Issued: August 17, 2018
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. The United States Office of Personnel Management (OPM) Federal Investigative
Services conducted a background investigation on the Individual which revealed that the
Individual had previously failed to report that he had received alcohol-related treatment from April
2013 to June 2013. See DOE Ex. 5 at 2. Consequently, the local security office (LSO) conducted
a Personnel Security Interview (PSI) of the Individual on November 16, 2017. DOE Ex. 8 at i.
Based upon information provided by the Individual in the PSI, the LSO recommended that the
Individual undergo a psychological evaluation. DOE Ex. 4 at 1. A DOE-contractor psychologist
(DOE Psychologist) conducted an evaluation of the Individual in early January 2018
(Psychological Evaluation). DOE Ex. 6 at 2.
Because neither the PSI nor the Psychological Evaluation resolved the security concerns raised by
the Individual’s alcohol-related treatment, the LSO informed the Individual, in a Notification
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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Letter dated April 12, 2018 (Notification Letter), that it possessed reliable information that created
substantial doubt regarding his 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” of the Adjudicative Guidelines. DOE Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. DOE Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in the case, and I subsequently conducted an administrative hearing
in the matter. At the hearing, the LSO introduced nine (9) numbered exhibits (DOE Ex. 1–9) into
the record and presented the testimony of the DOE Psychologist. The Individual introduced three
(3) lettered exhibits (Individual Ex. A–C) into the record and presented the testimony of eight (8)
witnesses, including himself. I received a transcript of the proceedings (Tr.) on August 9, 2018.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as the basis for denying the Individual a
security clearance. DOE Ex. 1.
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. The Notification Letter asserted that: the DOE Psychologist diagnosed the
Individual with Alcohol-Related Disorder, not yet in Sustained Remission, without adequate
evidence of rehabilitation or reformation;2 the DOE Psychologist concluded that an alcohol use
disorder that is not yet rehabilitated can place judgement at risk; the Individual admitted to
regularly drinking to intoxication from 2008 to 2013; the Individual admitted to concealing his
alcohol consumption from his wife from 2010 to 2013; the Individual’s family does not offer him
alcohol because of his demeanor when he is drunk; and, the Individual consumed two (2) beers
per month, and an occasional beer with clients, even though it caused his wife displeasure and he
acknowledged that drinking has adverse effects on his health. DOE Ex. 1. The DOE Psychologist’s
diagnosis of the Individual with an alcohol-related disorder and the Individual’s consumption of
alcohol to the point of impaired judgment justify the LSO’s invocation of Guideline G in the
Notification Letter. 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
2 The Notification Letter misstated the DOE Psychologist’s diagnosis, which was Alcohol Use Disorder, not yet in
Sustained Remission.
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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
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.
IV. FINDINGS OF FACT AND HEARING TESTIMONY
During the PSI, the Individual recounted drinking relatively little alcohol, and very rarely drinking
to intoxication, from his youth in the 1980s until 2008, when his wife was diagnosed with a serious
medical condition. Id. at 24–63. The Individual began drinking to intoxication most Saturday
nights from the summer of 2008 until December of 2008. Id. at 65. The Individual ascribed this
change in his drinking habits to stress related to his wife’s condition and the Individual’s employer
laying him off from work. Id. at 63–64.
In early 2009, the Individual began to consume a standard bottle of wine in a single sitting at least
once per week. Id. at 73–75. In 2010, the Individual began consuming a box of wine, equal in size
to five (5) standard bottles, nearly every week. Id. at 80–82. The Individual admitted during the
PSI that he was unable to control the amount of wine he consumed from 2010 to 2013, and was
unable to quit drinking despite his desire to do so. Id. at 89. The Individual also admitted to hiding
his drinking from his wife during this period. Id. at 127.
The Individual participated in an Intensive Outpatient Program (IOP) from April 2013 to June
2013. DOE Ex. 8 at 9. The Individual checked himself into the IOP due to his wife’s displeasure
with his drinking habits. Id. at 13. Although the IOP records indicated that the Individual received
treatment for alcohol dependence, the Individual said during the PSI that he could not recall having
received such a diagnosis. Id. at 23. After the Individual completed the IOP, he attended Alcoholics
Anonymous (AA) meetings, with declining frequency, until approximately 2015. Id. at 19–20. The
Individual stopped attending AA meetings because he perceived the individuals who attended the
meetings as physically dependent upon alcohol, which he did not believe to be the case for himself.
Id. at 20, 118. There is no indication in the record that he drank to excess at any point after late
2016. See DOE Ex. 6 at 5.
The Individual suffers from gout which he manages with medication. DOE Ex. 8 at 18. Consuming
alcohol aggravates his symptoms, and causes him to experience pain. Id. The Individual stated
during the PSI that his wife does not like it when he drinks. Id. at 100. However, the Individual
stated that he still drank on occasion with business clients because it is important in cultivating
relationships and because admitting to clients that he was an alcoholic would harm him
professionally. Id. at 97–100. Further, he stated that he believed that he could control his drinking.
Id.
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The Individual admitted during the PSI that his demeanor becomes unpleasant when he drinks to
intoxication. DOE Ex. 8 at 69–70, 77, 88, 117. According to the Individual, his family no longer
offers him alcohol at family gatherings because of his unpleasant behavior when he consumes
alcohol to excess. Id. at 117.
The DOE Psychologist conducted a psychological evaluation of the Individual in early January
2018. DOE Ex. 6 at 2. The DOE Psychologist concluded that, under the Diagnostic and Statistical
Manual of Mental Disorders, Fifth (DSM-5), the Individual met the criteria for Alcohol Use
Disorder, not yet in Sustained Remission, without adequate evidence of rehabilitation or
reformation. Id. at 13–14. The DOE Psychologist opined that this disorder “can place judgment at
risk [because] [t]he disorder carries the risk of intoxication, which by its very nature compromises
one’s ability to think clearly, assess potential consequences[,] and make choices based on those
assessments.” Id. The DOE Psychologist recommended that the Individual: (a) abstain from
alcohol for at least twelve (12) months, documented by random blood alcohol content screenings;
(b) attend weekly counseling for at least six (6) months, and as directed by his provider for at least
another six (6) months thereafter; (c) document his participation in at least weekly AA meetings
for six (6) months, and biweekly for at least six (6) months thereafter; and, (d) pursue other
wellness measures, examples of which the DOE Psychologist provided in her report. Id. at 14.
At the hearing, the Individual testified that 2013 was the peak of his alcohol consumption, at which
time he consumed as much as two (2) bottles of wine in a day on some occasions. Tr. at 124.
According to the Individual, his drinking decreased progressively after he participated in the IOP.
Id. at 130–31. By July 2017, the Individual reported that he had reduced his drinking to one (1) to
three (3) beers on one (1) occasion per month at a monthly business function. Id. at 133. At the
time of the hearing, the Individual reported that he last consumed alcohol on February 6, 2018. Id.
at 136. In support of this assertion, the Individual offered the results of a laboratory test of his hair
for ethyl glucuronide which was negative for ethyl glucuronide, a metabolite of alcohol. Individual
Ex. C.
The Individual also testified that he began to attend AA meetings in February 2018, the day after
his security clearance was suspended. Tr. at 136. The Individual offered into evidence sign-in
forms from AA meetings he attended from February to July 2018, to demonstrate his participation.
Individual Ex. A. A friend of the Individual testified at the hearing about his discussions with the
Individual concerning the Individual’s attendance at AA meetings, that the Individual had an AA
sponsor, and that the Individual told him that the AA meetings helped the Individual maintain
sobriety. Id. at 63–64.
The Individual’s AA sponsor testified at the hearing, and confirmed the Individual’s attendance at
weekly AA meetings. Id. at 79–80. The AA sponsor began sponsoring the Individual in March
2018. Id. at 68. According to the AA sponsor, the Individual is working on the twelve (12) steps
of AA, and is currently on the fourth step. Id. at 70. The AA sponsor further testified that he had
no reason to believe that the Individual had consumed alcohol during the term of his sponsorship
of the Individual. Id. at 77.
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The Individual also testified at the hearing as to other actions he had taken to improve his
wellbeing. According to the Individual, he joined a men’s group at his church in the summer of
2017, which provides him with a network of supportive men. Id. at 139. Another member of the
men’s group testified at the hearing and confirmed the Individual’s active participation in the group
over the past year. Id. at 26. The Individual also described how his relationship with his wife
improved dramatically over the past year, and how his wife was supporting him in his sobriety. Id.
at 131–32, 135, 139. The Individual contrasted his wife’s current support to that in 2013, when she
was not supportive of his participation in AA. Id. at 127.
The Individual’s wife confirmed the Individual’s account of their vastly improved relationship and
said that she has complete trust that he will abstain from drinking. Id. at 105. The Individual’s wife
recounted how the Individual started drinking heavily at home, by himself, approximately seven
(7) or eight (8) years ago. Id. at 96. The Individual’s wife reported that the Individual hid his
drinking from her, and that she did not know exactly how much he was drinking in the past. Id. at
97. After the Individual attended the IOP, his wife perceived a gradual decline in his drinking over
the years. Id. at 99–100. The Individual’s wife testified that the Individual had not consumed
alcohol in her presence in the last year, and that she believed he fully stopped drinking in early
February 2018. Id. at 106–07.
The Individual also reported that he attends weekly counseling for his Alcohol Use Disorder with
a psychologist (Individual’s Psychologist). Id. at 138. The Individual’s Psychologist testified that
the Individual first met with him for treatment in early May 2018, and that he and the Individual
meet weekly for counseling sessions. Id. at 168. The Individual’s Psychologist testified that he did
not disagree with the DOE Psychologist’s report. Id. at 169. The Individual’s Psychologist testified
that the Individual’s wife and AA sponsor were supportive, and would help the Individual to
sustain his abstinence from alcohol. Id. at 174. The Individual’s Psychologist also testified that he
believed that the Individual was appropriately managing his Alcohol Use Disorder, and that the
Individual’s Alcohol Use Disorder was not currently impairing his judgement or reliability. Id. at
176. Provided that the Individual continues to attend AA meetings and counseling, the Individual’s
Psychologist reported believing the Individual’s prognosis to be excellent. Id. at 178.
The Individual also described why he believed that he would abstain from alcohol in the future
despite continuing to drink after attending the IOP. According to the Individual, he did not think
that he was a “true alcoholic” because his drinking was not as severe as other participants in the
IOP, and he believed that he could manage his drinking. Id. at 127, 140, 144. The Individual
testified that he now believes that he is an alcoholic, that he does not intend to ever drink alcohol
again, and that his wife, AA sponsor, psychologist, and personal faith will support him in his
decision. Id. at 140–45.
The DOE Psychologist, after observing the hearing and all testimony offered therein, testified that
her opinion was that the Individual was rehabilitated from his Alcohol Use Disorder. Id. at 189.
The DOE Psychologist noted her previous determination that the Individual was not rehabilitated
after the Psychological Evaluation; however, she stated that that determination was based not on
excessive alcohol consumption by the Individual, but rather on the facts that the Individual was
still drinking despite it causing him physical pain due to his gout and personal strife due to the
dissatisfaction of his family. Id. at 190–92. The DOE Psychologist cited the Individual’s improved
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self-awareness, his initiative in pursuing treatment, and his support system as factors likely to help
him avoid consuming alcohol in the future. Id. at 196–98. Although the Individual had not, as of
the date of the hearing, achieved the twelve (12) months of abstinence from alcohol recommended
by the DOE Psychologist, the DOE Psychologist testified that she evaluated the Individual’s
abstinence in the context of his progressively declining drinking from 2013 to the present. Id. at
203–04. In light of the new information provided at the hearing, the DOE Psychologist opined that
the Individual’s prognosis was very good. Id. at 208–09.
V. ANALYSIS
Guideline G Considerations
The Individual does not contest the accuracy of the information set forth in the Notification Letter.
Id. at 151. Neither the Individual nor the Individual’s Psychologist contest the DOE Psychologist’s
January 2018 diagnosis of the Individual. Id. at 145, 169. The DOE Psychologist acknowledged
the Individual’s efforts to comply with her treatment recommendations. Id. at 200–02. However,
the Individual has not yet demonstrated the twelve (12) months of abstinence recommended by the
DOE Psychologist in her report. Id. at 152. In spite of that fact, the Individual maintains that he
has mitigated the security concerns asserted by the LSO.
An individual may mitigate security concerns under Guideline G if he or she “acknowledges his
or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this
problem, and has established a pattern of abstinence [] or responsible use [].” Guideline G at ¶
23(b). The Individual acknowledged his alcoholism during the hearing, and the DOE Psychologist
commended the Individual for his improved self-awareness. Supra p. 5. The Individual has
followed the treatment recommendations of the DOE Psychologist to overcome his problem,
including attending counseling with the Individual’s Psychologist, actively participating in weekly
AA meetings, and improving his overall emotional wellness by reinvigorating his relationship with
his wife, securing an AA sponsor, and participating in a men’s group he finds supportive. Supra
pp. 4–5.
Although the Individual has not yet satisfied the twelve (12) months of abstinence from alcohol
originally recommended by the DOE Psychologist, the DOE Psychologist opined at the hearing
that the Individual’s period of abstinence, combined with his progressively declining drinking
since 2013, was adequate for her to deem the Individual rehabilitated in light of the other evidence
of the Individual’s rehabilitation. Tr. at 203–08. I find particularly compelling the DOE
Psychologist’s testimony wherein she stated, “I credit him for the progress that he made in those
years leading up to 2018 when I evaluated him, and that is probably the major reason that I think
duration is addressed in this case adequately.” Id. at 205. Additionally, some of the factors she
relied upon in making her treatment recommendations in the Psychological Evaluation, such as
the dissatisfaction of the Individual’s family with his drinking and his drinking despite
experiencing physical pain, are no longer extant.
Further, the record shows reduced consumption of alcohol beginning in 2013, followed by a period
of abstinence. This progressive improvement over a period of years, which the DOE Psychologist
acknowledged as uncommon, establishes a pattern of abstinence and responsible use, as envisioned
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by the Guidelines, and convinces me that the Individual is unlikely to return to problem drinking.
Accordingly, I find the mitigating factor set forth at paragraph 23(b) of Guideline G applicable in
this case.
In light of the Individual’s mitigation of the security concerns stemming from his alcohol
consumption, and the DOE Psychologist’s testimony as to the Individual’s “very good” prognosis,
I conclude that the Individual has resolved the security concerns set forth in the Notification Letter.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline G of the Adjudicatory Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I find that the Individual has brought forth sufficient evidence to resolve the security
concerns set forth in the Notification Letter. Accordingly, I have determined that the Individual’s
access authorization should be restored. Either party may seek review of this Decision by an
Appeal Panel pursuant to 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals