PSH-18-0045

*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 30, 2018 ) Case No.: PSH-18-0045
)
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Issued: August 14, 2018
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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)
(Adjudicative Guidelines), I conclude that the Individual’s access authorization should be restored.
I. BACKGROUND
On August 20, 2017, the Individual was arrested for Reckless Driving and Driving While Under
the Influence of Intoxicants (DUI). Ex. 11. The Individual reported this arrest to the local security
office (LSO). The LSO conducted a Personnel Security Interview (PSI) of the Individual on
November 15–16, 2017. Ex. 13 at i. Because the PSI did not resolve the security concerns raised
by the Individual’s DUI arrest, the LSO requested that the Individual undergo a forensic
psychological evaluation by a DOE psychologist (The DOE Psychologist), who examined the
Individual on January 11, 2018. Ex. 5 at 1.
After the PSI and DOE Psychologist’s evaluation, substantial security concerns about the
Individual remained unresolved. Accordingly, the LSO informed the Individual, in a Notification
Letter dated April 19, 2018 (Notification Letter), that it possessed reliable information that created
substantial doubt regarding the Individual’s eligibility to hold a security clearance. In an
attachment to the Notification Letter, the LSO explained that the derogatory information raised
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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security concerns under “Guideline G, Alcohol Consumption” and “Guideline J, Criminal
Conduct.” DOE Ex. 1.
The Individual requested 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 14 numbered exhibits (DOE Ex. 1–14) into the record
and presented the testimony of the DOE Psychologist. The Individual introduced 16 lettered
exhibits (Individual Ex. A–P) into the record and presented the testimony of 9 witnesses, including
himself. I received a transcript of the proceedings (Tr.) on August 9, 2018.
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 Guidelines G, and J of the Adjudicative Guidelines.
Under Guideline G: Alcohol Consumption, the LSO alleges that the Individual has been diagnosed
by the Psychologist with Substance Use Disorder - Alcohol, mild, under the Diagnostic and
Statistical Manual of Mental Disorders, Fifth (DSM-5), without adequate evidence of
rehabilitation or reformation. The LSO further alleged that the Individual had a history of alcohol-
related arrests in June 1996 (for Minor in Possession (MIP)) and August 2017 (for DUI). In
addition, the Individual admits that he: illegally hired a prostitute while under the influence of
alcohol in December 2015; has a history of excessive alcohol consumption; and operated a motor
vehicle while under the influence of alcohol on a monthly basis from 2015 to 2017. This
information adequately justifies the LSO’s invocation of Guideline G and raises significant
security concerns. The Adjudicative Guidelines state: “Excessive alcohol consumption often leads
to the exercise of questionable judgment or the failure to control impulses, and can raise questions
about an individual's reliability and trustworthiness.” Guideline G at ¶ 21. Among those
conditions set forth in the Guidelines that could raise a disqualifying security concern are “alcohol-
related incidents away from work, such as driving while under the influence . . . 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.” Guideline G at ¶ 22(a). Guideline G further
provides that a “diagnosis by a duly qualified medical or mental health professional . . . of [an]
alcohol use disorder” “could raise a security concern and may be disqualifying.” Guideline G at
¶ 22(d). These allegations adequately justify the LSO’s invocation of Guideline G.
Under Guideline J: Criminal Conduct, the LSO cited the Individual’s alcohol-related arrests for
DUI and MIP; the Individual’s admission that he hired a prostitute in 2015 while under the
influence of alcohol; and the Individual’s admission that he operated a motor vehicle while under
the influence of alcohol on a monthly basis from 2015 to 2017. The LSO also cited the Individual’s
admission that he had engaged in extensive illegal drug use during the period beginning in 1996
and continuing through 2014. Criminal activity creates doubt about a person’s judgment,
reliability, and trustworthiness and calls into question a person’s ability or willingness to comply
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with laws, rules, and regulations. Guideline J at ¶ 30. These allegations of criminal activity
adequately justify the LSO’s invocation of Guideline J.
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 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
The Individual does not contest the LSO’s assertions in the Notification Letter. Ex. 2. The
Individual admitted to unlawfully using drugs on numerous occasions, most recently in 2014. See
DOE Ex. 1 at 3.2 The Individual was arrested for two (2) alcohol-related events cited in the
Notification Letter: MIP in 19963 and DWI in 2017. See id. at 2. The Individual also admits to
having exchanged money for sexual intercourse in 2015 while under the influence of alcohol. See
id.
The Individual began drinking alcohol regularly and experimenting with illegal drugs while in
high school. DOE Ex. 13 at 112. From 2015 to the time of his arrest for DWI, the Individual drank
to intoxication approximately once per week. Id. at 136, 138. The Individual represents that he has
not consumed alcohol since his arrest for DWI. Id. at 95; Tr. at 118–19. The Individual stated
during the PSI that he intends to drink in moderation in the future. DOE Ex. 13 at 100–01.
2 The Individual disclosed his use of marijuana on his most recent electronic questionnaire for investigations
processing (e-QIP) in January 2017. DOE Ex. 12 at 36. The e-QIP requires applicants to list any illegal drugs they
have used in the seven (7) years prior to completing the e-QIP. Id. The LSO does not allege that the Individual used
any illegal drugs other than marijuana between January 2010 and January 2017. See DOE Ex. 1 at 3.
3 The Individual disclosed the MIP arrest on his January 2017 e-QIP. DOE Ex. 12 at 35.
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After pleading guilty to DUI, the Individual began participating in a court-ordered deferment
program. See Ex. 5 at 4. This deferment program includes a twelve-session alcohol education
course. See id. The Individual also began undergoing individual counseling with a counselor in
November 2017. Ex. 13 at 63–65.
The DOE Psychologist conducted a psychological evaluation of the Individual on January 11,
2018. Ex. 5 at 1. The DOE Psychologist issued a report on January 20, 2018, in which he
concluded that the Individual met the criteria, set forth in the DSM-5, for Alcohol Use Disorder,
Mild, in Early Remission, without adequate evidence of rehabilitation or reformation. Id. at 7. The
DOE Psychologist also concluded that the Individual was a habitual and binge consumer to the
point of impaired judgement because the Individual previously drank to intoxication at least once
per week and, on the night of his arrest for DUI, believed that it was safe for him to operate a motor
vehicle despite having a blood alcohol level approximately two times the legal limit. Id. The DOE
Psychologist recommended that the Individual abstain from alcohol for at least one year, complete
the alcohol education program in which he is already participating, and continue therapy with a
counselor at least twice monthly until August 2018. Id. at 8.
During the hearing, the Individual described how he began drinking heavily in 2015 after a breakup
with his previous girlfriend. Tr. at 122–23. This breakup occurred shortly after the Individual
moved to a sparsely populated area, and the Individual partially attributed his drinking to isolation
and seasonal depression. Id. at 145, 148. Although the Individual’s drinking decreased somewhat
between the initial period after his breakup and the 2017 DUI, the Individual testified that “[he]
never really got mentally better . . . .” Id. at 123. The Individual testified that the DUI forced him
to go to counseling and obtain the treatment he needed to overcome his problem. Id.
After the DUI, the Individual reported pursuing a number of avenues for treatment. The Individual
participated in a court-ordered victim impact panel, completed a twelve-week court-ordered
substance abuse education course, and participated in private individual counseling with a
counselor (Individual’s Counselor). Id. at 126–30; see also Ex. B. The Individual also reported
attending Alcoholics Anonymous (AA) meetings several times each month, and offered copies of
his sobriety chips into the record. Tr. at 137, 140; Ex. P.
The Individual testified that, as a result of his sobriety, he was experiencing improved mental
clarity and health. Tr. at 142. The Individual described how he had entered into a relationship with
a new girlfriend, started a new job, and made new friends by participating in AA and a local food
co-op, all of which he believes will provide him with alternatives to drinking to control his seasonal
depression. Id. at 143–45, 150–51. The Individual indicated that he was unsure as to whether he
might try to return to drinking in the future, but harbored reservations that doing so might result in
addiction and cost him his sobriety. Id. at 142–43.
The Individual offered corroborating testimony from a number of sources regarding the changes
he made to his life. A friend with whom the Individual lived after breaking up with his girlfriend
in 2015 testified that the Individual was frequently visibly inebriated in the evenings when they
lived together, but that he had not seen the Individual consume alcohol since the DUI and had
observed positive changes in the Individual’s physical health and demeanor since he stopped
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drinking. Id. at 75–76, 79. The Individual’s father testified as to the Individual’s sobriety, stating
that he had not seen the Individual drink since the DUI and has observed the Individual abstain
from alcohol and marijuana in social settings where others were consuming them. Id. at 26–27, 29.
A colleague and friend of the Individual testified as to the Individual’s remorse after reporting the
DUI at work and the Individual’s positive attitude towards abstaining from alcohol since that time.
Id. at 57, 59. The Individual’s current girlfriend, who has been dating the Individual since March
2018, testified that she has never seen the Individual consume alcohol and that she has seen him
refuse alcohol in social settings on numerous occasions. Id. at 107–09.4
The Individual’s Counselor testified at the hearing as to the Individual’s participation in individual
sessions with the Individual’s Counselor and in group sessions overseen by the Individual’s
Counselor as a clinical supervisor. Id. at 176–78. The Individual’s Counselor described skills the
Individual developed through counseling to cope with depression as an alternative to alcohol. Id.
at 184–85. According to the Individual’s Counselor, the Individual does not require further
treatment and his prognosis is positive. Id. at 178.
The Individual offered the testimony of a psychologist (Individual’s Psychologist) who the
Individual contracted to evaluate him prior to the hearing. Prior to the hearing, the Individual’s
psychologist conducted a psychological evaluation of the Individual during which she
administered a Substance Abuse Subtle Screening Inventory - Third Edition (SASSI-3) test and a
Personality Assessment Inventory (PAI) test. Individual Ex. I at 3. Based on the Individual’s
responses on the SASSI-3, which indicated that he had a low probability of having a substance
dependence disorder, the Individual’s completion of court-ordered treatment and counseling with
the Individual’s counselor, and the results of the interview, the Individual’s Psychologist
determined that the Individual had a good prognosis for avoiding problems with alcohol in the
future. Individual Ex. I at 4–5. During the hearing, the Individual’s Psychologist testified that she
did not disagree with the DOE Psychologist’s diagnosis of the Individual. Tr. at 208. Based upon
her evaluation of the Individual, she indicated that she believed that the Individual’s drinking
problem started as an effort to cope with clinical depression he suffered in 2015 and 2016, and that
the Individual’s treatment regimen and improved network of supportive persons provided him with
the resources to manage this problem. Id. at 201–03.
The DOE Psychologist observed the testimony of the other witnesses before he testified. The DOE
psychologist opined that, although he had originally recommended that the Individual demonstrate
twelve months of sobriety before deeming the Individual rehabilitated, the Individual’s eleven
months of sobriety was adequate for him to determine that the Individual was rehabilitated in light
of the information presented at the hearing. Id. at 223–24. The DOE Psychologist noted that,
although the Individual’s prognosis was good, it would be hard to predict the Individual’s ability
to return to responsible drinking and cautioned the Individual against returning to drinking too
quickly. Id. at 226–27.
V. ANALYSIS
4 The Individual’s current girlfriend is pursuing a master’s degree in counseling. Id. at 106.
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A. Guideline G Considerations
The Individual acknowledges that his excessive alcohol consumption has clearly led him to
exercise poor judgement and fail to control his impulses in the past, and that he has been properly
diagnosed with Alcohol Use Disorder, Mild, in Early Remission. Ex. 2; Tr. at 14, 188, 199.
However, the Individual asserts that he has mitigated the security concerns by complying with
treatment recommendations, obtaining counseling, abstaining from alcohol use, taking positive
actions to address his underlying depression, and building a positive social support network.
A person 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). I find that the Individual has mitigated the security concerns raised under Guideline G by
acknowledging his alcohol disorder, obtaining counseling, attending AA meetings, and
establishing social networks to help him cope with depression through means other than alcohol.
Supra pp. 4–5. Most importantly, the Individual has established 11 months of abstinence from
alcohol. Id. The DOE Psychologist deemed this period of abstinence adequate to conclude that the
Individual was rehabilitated. See supra p. 5. Accordingly, the Individual has satisfied all of the
elements of this mitigating criterion.
An individual may also mitigate security concerns under Guideline G if he or she “has successfully
completed inpatient or outpatient counseling or rehabilitation along with any required aftercare,
has demonstrated a clear and established pattern of modified consumption or abstinence in
accordance with treatment recommendations, such as participation in meetings of Alcoholics
Anonymous or a similar organization and has received a favorable prognosis by a duly qualified
medical professional or a licensed clinical social worker who is a staff member of a recognized
alcohol treatment program.” Guideline G at ¶ 23(d). The Individual has satisfactorily completed
counseling. Tr. at 178. Although the Individual’s eleven-month abstinence from alcohol is one-
month less than that originally recommended by the DOE Psychologist in his January 2018 report,
the DOE Psychologist testified during the hearing as to the adequacy of that period of abstinence
in light of testimony he witnessed at the hearing. Id. at 223. Moreover, the Individual’s Counselor,
the Individual’s Psychologist, and the DOE Psychologist all testified at the hearing as to the
favorable prognosis for the Individual. Tr. at 178, 215, 227. Accordingly, the Individual has
satisfied all of the elements of this mitigating criterion.
For the reasons set forth above, I find that the security concerns set forth in the Notification Letter
arising under Guideline G have been resolved.
B. Guideline J Considerations
The Individual does not contest any of the facts set forth in the Notification Letter concerning his
prior criminal conduct. DOE Ex. 2; Tr. at 14. However, the Individual asserts that his drug use was
so long ago, and that his other criminal conduct was sufficiently connected with excessive alcohol
use from which he has been rehabilitated, that he has mitigated the security concerns associated
with his prior criminal conduct.
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The Adjudicative Guidelines provide that an individual may mitigate security concerns related to
criminal conduct if “so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment.” Guideline J at ¶ 32(a). The
Individual’s arrest for MIP occurred over twenty (20) years ago. DOE Ex. 1 at 2. The Individual’s
last illegal drug use occurred in 2013 or 2014, when he used marijuana while attending graduate
school. Tr. at 162. See id.; see also DOE Ex. 1 at 3. Therefore, based on the significant passage of
time since the Individual’s arrest for MIP and consumption of illegal drugs, this mitigating factor
is applicable to the Individual’s MIP and consumption of illegal drugs.
I further find that the other instances of criminal conduct cited in the Notification Letter are
mitigated due to the circumstances under which the Individual engaged in the illegal conduct.
Each of these other instances of the Individual’s illegal conduct have a common denominator: they
involved alcohol. The Individual’s willingness to hire a prostitute occurred when he was
intoxicated. DOE Ex. 1 at 2; see also Tr. at 172. Likewise, the Individual’s DUI arrest and other
instances where he operated a motor vehicle while intoxicated were the direct result of his Alcohol
Use Disorder. As the Individual has demonstrated his rehabilitation from the Alcohol Use Disorder
diagnosed by the DOE Psychologist, and his prognosis is favorable, I conclude that the Individual
is unlikely to engage in alcohol-related criminal conduct in the future.
An individual may also mitigate security concerns under Guideline J if “there is evidence of
successful rehabilitation; including but not limited to the passage of time without recurrence of
criminal activity, remorse or restitution, job training or higher education, good employment record,
or constructive community involvement.” Guideline J at ¶ 32(d). In this case, the Individual
completed a court-ordered diversion program after his DUI conviction. Individual Ex. C. This
program required the Individual to participate on a victim impact panel and to undergo a substance
abuse education program. See supra p. 4. The Individual expressed remorse for his DUI during the
hearing. See Tr. at 127. Accordingly, I find this mitigating factor applicable in this case.
For the abovementioned reasons, I find that the security concerns set forth in the Notification Letter
arising under Guideline J have been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G and J.
After considering all of the evidence, both favorable and unfavorable, in a common sense manner,
I find that the Individual has sufficiently mitigated the security concerns raised under Guidelines
G, and J. Accordingly, the Individual has demonstrated that restoring his security clearance would
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not endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should be restored. Either party may seek review of
this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals