PSH-18-0044

*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 29, 2018 ) Case No.: PSH-18-0044
)
_________________________________________ )
Issued: September 20, 2018
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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 restored.
I. BACKGROUND
The Individual is employed at a DOE facility and possessed a security clearance. During the course
of a regular reinvestigation, the Individual admitted to consuming excessive quantities of alcohol
on a weekly basis. Her alcohol consumption had increased steadily for several years. Because its
concerns were alcohol related, the Local Security Office (LSO) referred the Individual to a DOE
Psychologist (Psychologist) for evaluation. The Psychologist diagnosed the Individual as suffering
from Alcohol Use Disorder, Moderate.
The LSO began the present administrative review proceeding by issuing a Notification Letter to
the Individual informing her that her access authorization had been suspended and that she was
entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
regarding her eligibility to continue holding 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 Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on May 30, 2018. At the hearing I convened on August 23, 2018, I took testimony
from the Individual and five witnesses. See Transcript of Hearing, Case No. PSH-18-0044
(hereinafter cited as “Tr.”). The LSO submitted eleven exhibits, marked as Exhibits 1 through 11
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.
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(hereinafter cited as “Ex.”). The Individual submitted nine exhibits, marked as Exhibits A through
I.
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 her eligibility for a security
clearance. That information pertains to Guideline G (Alcohol Consumption) 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 was cited and charged for an aggravated alcohol offense after
passing out in her parked car in 2007, drank to intoxication two times per month from 2010 to
2016, drank to intoxication once per week from 2016 to 2017, and came in late to work three times
a year in 2016 and 2017 after consuming too much alcohol the night before. Ex. 1 at 1–2. The LSO
also alleges that the Individual’s daughter expressed concern about her alcohol consumption in late
2016 and that a DOE Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate.
Ex. 1 at 1–2. Given this information, the LSO’s security concerns under Guideline G are justified.
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).
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 her eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
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
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In 2007, the Individual was at dinner when a friend suggested she try an orange flavored liqueur.
Ex. 10 at 8; Ex. 5 at 1. The Individual liked the taste and bought a bottle of the liqueur on her way
home. Ex. 10 at 8. While driving home, the Individual received a phone call and pulled over to a
park so she was not talking while driving. Ex. 5 at 1. She opened the bottle of liqueur for just a
taste. Ex. 5 at 1. As the conversation went on, she had another taste, then another. Ex. 5 at 1; Ex.
10 at 12. By this point her judgment was impaired and she decided to continue drinking the liqueur
while her car remained parked with the keys in the ignition. Ex. 10 at 12, 22. Eventually, the
Individual lost consciousness. Ex. 10 at 12. Police found her in her vehicle and had her transported
by ambulance to a hospital. Ex. 5 at 1. Her Blood Alcohol Content at the hospital was .28. Ex. 10
at 20.
When the Individual woke up, she had no memory of the incident. In fact, she did not know the
police had been involved in the incident until about three months later when she received citations
in the mail for Aggravated Driving Under the Influence (DUI) and Driving with an Open Container.
Ex. 5 at 1; Ex. 10 at 23. The Individual complied with all court requirements and recommendations.
Ex. 10 at 24–25. She installed an interlock device on her vehicle and had no issues, except for a
false positive caused by cold medicine. Ex. 10 at 25, 27. Later, when the Individual first applied
for a clearance, she disclosed this incident to investigators. Ex. 10 at 32.
The LSO had concerns about this incident when it did its routine reinvestigation to renew the
Individual’s clearance. Ex. 4. It conducted a PSI of the Individual in December 2017. Ex. 10. The
Individual told the Investigator that the only reason she had consumed so much alcohol on that
night in 2007 was that the liqueur tasted so good. Ex. 10 at 16. She has not consumed that particular
liqueur since then. Ex. 10 at 16. She has had no other alcohol-related interactions with law
enforcement. Ex. 10 at 29.
During the PSI the Individual reported that, from ages 21 to 40, she rarely consumed alcohol. Ex.
10 at 37. Around 2005, the Individual started going out for wine with friends about once every two
weeks. Ex. 10 at 40–41. She had become more appreciative of wine and enjoyed trying different
types and learning about them. Ex. 10 at 41. She would consume about two glasses of wine over
two or three hours. Ex. 10 at 41–42. She drank to intoxication about once monthly. Ex. 10 at 42. It
took about four glasses of wine for her to become intoxicated. Ex. 10 at 42. Between 2005 and
2010, the Individual gradually consumed more alcohol until she was drinking one bottle of wine
over the course of every weekend. Ex. 10 at 47–48.
In early 2016, the Individual developed a food allergy that prevented her from drinking beer or
wine. Ex. 10 at 45, 47. She switched to vodka and began drinking one or two 750 mL bottles every
week. Ex. 10 at 45, 52. She would consume approximately one-third to one-half of a bottle of vodka
two or three times per week and drank to intoxication two or three times per month. Ex. 10 at 53–
55. Her alcohol consumption increased again in 2017; she told the Investigator that it was because
of boredom. Ex. 10 at 55. She was, at that point, consuming about two 750 mL bottles of vodka
every week and drinking to intoxication about once per week. Ex. 10 at 56. A few times per year
she would experience memory loss while consuming alcohol. Ex. 10 at 60.
The Individual also described social situations in which she “got carried away” and consumed more
alcohol than she had originally intended to consume. Ex. 10 at 62–63. This resulted in her driving
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while impaired about five times in 2016. Ex. 10 at 62. She reported being late to work due to
hangovers about three times per year for 2016 and 2017. Ex. 10 at 66–68. In 2017, she went to
work while there was still alcohol in her system from the night before such that she felt like she
was not clearheaded. Ex. 10 at 69–71. About a year before the PSI, the Individual’s adult daughter
told her that she thought the Individual was drinking too much. Ex. 10 at 75–76. After that, the
Individual decided that she would only consume alcohol on the weekends, and generally held to
that standard. Ex. 10 at 77.
The Individual consumed alcohol on only two occasions following the PSI: Christmas of 2017 and
New Year’s Day, January 1, 2018.2 Ex. 2 at 5; Tr. at 64. Because the security concerns were
alcohol-related, the LSO referred the Individual to the Psychologist for an evaluation. The
Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate, and determined that
she had not demonstrated adequate evidence of rehabilitation or reformation. Ex. 7 at 5. The
Psychologist made the following recommendations for rehabilitation:
 The Individual should abstain from alcohol for no fewer than six months;
 The Individual should attend alcohol rehabilitation counseling, either with a therapist or
through attending Alcoholics Anonymous (AA) meetings.
 The Individual should be subject to random alcohol testing no fewer than six times
throughout the six months of treatment.
 The Individual should submit to at least one randomly conducted Phosphatidylethanol
(PEth) test.3
Ex. 7 at 6. The Psychologist also recommended that, if the Individual chose to attempt reformation
instead of rehabilitation, she should remain abstinent from alcohol for at least 18 months,
undergoing random alcohol testing at least monthly. Ex. 7 at 6. As part of the Psychologist’s
evaluation, the Individual submitted to a PEth test. Ex. 7 at 4. The results were consistent with the
Individual’s assertions during the Psychologist’s examination as to the date of her last alcohol
consumption. See Ex. 7.
In early February 2018, about two weeks after meeting with the Psychologist, the Individual met
with the Director of the Employee Assistance Program (EAP). Ex. 2 at 2. She signed an Employee
Recovery/Abstinence Agreement and was referred to a chemical dependency facility for
assessment. Ex. 2 at 2. She underwent assessment at the chemical dependency facility about a
week later. Ex. 2 at 2. In March 2018, the Individual began weekly sessions with a private substance
abuse counselor. Ex. 2 at 2. The Individual received the DOE’s list of security concerns in mid-
April 2018. Ex. 2 at 2.
Between February and May 2018, the Individual underwent several tests to determine whether she
had used alcohol. Ex. 2 at 2. The results were all negative for alcohol use. Ex. 2 at 6–17, 21. As
part of her Employee Recovery/Abstinence Agreement, the Individual is subject to random drug
2 The Psychologist issued a correction to her report, citing December 31, 2017, as the last time the Individual consumed
alcohol. Email from the Psychologist to Saul J. Ramos, Attorney, NNSA (July 2, 2018). See also, infra, n.4 (regarding
the date of the Individual’s last alcohol consumption for purposes of this decision).
3 A PEth test indicates whether an individual has consumed alcohol heavily within the prior several weeks. Ex. 7 at 9
(report of physician interpreting Individual’s PEth test results).
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and alcohol screenings twice monthly through February 2019. Ex. 2 at 2. The Individual entered
into the record a letter from her counselor which states that the Individual has been open with the
counselor, and that she is engaged in the therapeutic process. Ex. 2 at 18. The letter also states that
the Individual is “benefitting from the process of self-reflection and assessment that these events
have invited her into,” and that the Individual has “a very optimistic prognosis.” Ex. 2 at 18. The
Individual entered into the record a letter from the EAP Coordinator which states that she has
remained compliant with her recovery agreement. Ex. 2 at 19.
At the hearing, I took testimony from the Individual, the Psychologist, two of the Individual’s
supervisors, the Individual’s counselor, and the Individual’s sister.
The first supervisor had known the Individual for about nine years. Tr. at 11. Though their
relationship was mostly professional, they had interacted outside the office at the occasional work
gathering. Id. She had no concerns about the Individual professionally and had never seen her under
the influence of any substance. Id. at 11–12. She testified that the Individual had told her about her
recovery efforts and that the Individual had stated that she intended to remain abstinent from
alcohol. Id. at 13. The second supervisor had known the Individual for about two years. Tr. at 37.
He only knew the Individual professionally and testified that he had never seen the Individual under
the influence of any substance. Id. at 38.
The Individual’s counselor testified that the Individual had a good prognosis. Tr. at 19. She testified
to her belief that the Individual did not intend to return to consuming alcohol. Id. At the time of the
hearing, the Individual had a follow-up appointment scheduled for the following month. Id. at 20.
The Individual’s sister testified that she sees the Individual a few times a week and texts her every
day. Tr. at 25. She asserted that the Individual had been abstinent since the beginning of the year.
Id. at 26. She testified that, although the family serves alcohol at its events, the Individual faces no
family pressure to consume alcohol. Id. at 26–27. She testified that she had seen many positive
changes in the Individual since the Individual stopped consuming alcohol, specifically citing
sharper cognition, improved health, and increased happiness. Id. at 29, 31.
The Individual testified that she last consumed alcohol on January 1, 2018.4 Tr. at 64. She received
the Psychologist’s recommendations later that month and immediately began working on
implementing them. Ex. 7. Tr. at 46–47. This included starting counselling, submitting to three
PEth tests, and signing a recovery agreement with her employer that required one year of abstinence
with random drug and alcohol screenings. Tr. at 47–48, 57. Initially, the Individual intended to
remain sober for the year required by her employer’s recovery agreement and then reassess whether
she wanted to resume alcohol consumption. Id. at 48. However, by the hearing date, the Individual
had decided to remain abstinent for the foreseeable future. Id. She testified that alcohol had a larger
impact on her life than she had previously realized. Id. at 50. She cited several benefits of her
abstinence, including more awareness, more mental acuity, more diligence at home and work, and
improvements in her health. Id. at 48–49. She testified that she feels an increased sense of order in
her life. Id. at 49. She testified that she is not missing anything by abstaining, but, rather, she is
gaining quite a bit. Id. at 48. The Individual intends to continue seeing her counselor and noted that
4 The record indicates that the Individual’s last alcohol consumption occurred on New Year’s Eve/New Year’s Day
2018. For purposes of this decision, I accept January 1, 2018, as the date of her last alcohol consumption.
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the scope of her counselling goes beyond alcohol consumption. Id. at 60, 63–64. She entered into
the record a letter from her counselor stating the same. Ex. C at 1.
After listening to all of the prior testimony, the Psychologist testified that the Individual has met
and exceeded the recommendations set out in her report.5 Tr. at 67. She testified that the Individual
had no condition that would impair her judgment or reliability, noting in particular the Individual’s
participation in treatment processes and the fact that the Individual had abstained from alcohol for
eight months (January 1, 2018, through the date of the hearing, August 23, 2018), rather than just
the recommended six months. Id. at 68. She further testified that the Individual has displayed
striking honesty since the beginning of the security review process, and that honesty is critical to
rehabilitation. Id. at 70–71. She gave the Individual a very good prognosis and testified that, in her
opinion, the Individual is rehabilitated. Id. at 70.
V. ANALYSIS
The issue before me is whether the Individual, as she stands at the time of the hearing, has mitigated
the security concerns raised by the Guideline G derogatory information described in the
Notification Letter. Because of the strong presumption against restoring security clearances, I must
deny restoration if I am not convinced that the LSO’s security concerns have been mitigated such
that restoring the Individual’s clearance is not an unacceptable risk to national security and clearly
consistent with the national interest. 10 C.F.R. § 710.27.
In addition to the factors listed in 10 C.F.R. § 710.7(c), Guideline G provides that security concerns
arising from alcohol consumption can be mitigated when (1) the individual’s alcohol use was so
infrequent or so long ago that it is unlikely to recur and does not cast doubt on her current reliability,
trustworthiness, or judgment; (2) the individual acknowledges her pattern of alcohol abuse,
provides evidence of actions taken to overcome this problem, and has demonstrated a clear and
established pattern of modified consumption or abstinence; (3) the individual has no history of
relapse and is making satisfactory progress in treatment or counseling; or (4) the individual has
successfully completed a treatment program and has established a pattern of modified consumption
or abstinence. Adjudicative Guidelines at ¶ 23(a)–(d).
The record indicates that the Individual has acknowledged her pattern of alcohol abuse. She chose
to abstain from alcohol even before she was evaluated by the Psychologist. She sought treatment
within two weeks of receiving the Psychologist’s treatment recommendations. She has presented
evidence of her abstinence through the results of her many drug and alcohol screening tests. She
has also presented convincing evidence that she has engaged with her employer’s Employee
Assistance Program and has sought counseling that addresses not just her alcohol abuse, but its
underlying causes. Even though the Psychologist only recommended six months of abstinence, the
Individual has remained abstinent for eight months and does not plan to resume alcohol
consumption. The Psychologist’s testimony that the Individual is rehabilitated was also very
persuasive and carries evidentiary weight. The Individual’s diligence in implementing the
Psychologist’s recommendations also demonstrates reliability and good judgment.
5 Though the Individual had only been seeing her counselor for five months, instead of the recommended six months,
she had been involved in counseling and treatment processes for several months before that. Tr. at 67.
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For the foregoing reasons, I find that the Individual has mitigated and fully resolved the DOE’s
Guideline G security concerns. She has acknowledged her pattern of alcohol abuse, provided
evidence of the actions she took to recover, and demonstrated a clear and established pattern of
abstinence.
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
Adjudicative Guidelines. I further find that the individual has succeeded in fully resolving those
concerns. Therefore, I conclude that restoring 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 restore the Individual’s access
authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals