PSH-18-0062

*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: August 7, 2018 ) Case No.: PSH-18-0062
)
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Issued: November 21, 2018
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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 not be restored.
I. BACKGROUND
The DOE employs the Individual in a position that requires him to hold a security clearance. In January
2018, the Individual reported that he was arrested and charged with, among other things, Driving While
Intoxicated (DWI). The Local Security Office (LSO) conducted a Personnel Security Interview (PSI) of
the Individual, and based upon information provided by the Individual during the PSI, the LSO referred
the Individual for a psychological assessment. A DOE-contractor psychologist (“Psychologist”)
subsequently conducted an evaluation of the Individual in April 2018.
The Individual’s conduct and the Psychologist’s evaluation raised unresolved security concerns.
Therefore, in a Notification Letter dated July 16, 2018 (“Notification Letter”), the LSO informed the
Individual that it possessed reliable information that created substantial doubt regarding the Individual’s
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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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.”
The Individual exercised his right to request an administrative review hearing pursuant to 10 C.F.R. Part
710. 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 DOE
Counsel introduced thirteen numbered exhibits (Exs. 1–13) into the record and presented the testimony of
the Psychologist. The Individual introduced two exhibits (Exs. A and B) into the record in addition to his
own testimony. The hearing transcript will be cited as “Tr.” followed by the relevant page number.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G as the basis for suspending the Individual’s security clearance. 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 ¶ 27. The Summary of Security Concerns contained in the Notification Letter
asserted the following: (1) the Psychologist concluded the Individual is “habitually (frequently) drinking
alcohol to a level of intoxication that impairs his judgement, reliability, and trustworthiness” without
adequate evidence of rehabilitation; (2) the Individual was arrested and charged with DWI and related
charges in January 2018 after he failed a test of breath for the presence of alcohol, admitted to consuming
one alcoholic beverage, and admitted that he had an open bottle of whiskey on the floorboard of his
vehicle; and (3) the Individual admitted to consuming alcohol every night of the week. Ex. 1 at 1.
III. REGULATORY STANDARDS
The regulations require 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).
An individual must come forward at the hearing with evidence to convince the DOE that granting or
restoring the individual’s 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.
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IV. FINDINGS OF FACT
In January 2018, the Individual was arrested and charged with DWI after he failed a breathalyzer test with
a Blood Alcohol Content (BAC) reading of .11. Ex. 11 at 8, 10. That night, the Individual went to a pool
hall and remained there for about two and a half hours. Id. at 8. After leaving the pool hall, the Individual
was stopped by a law enforcement officer after making a left turn from the right lane into a bar parking
lot. Ex. 8 at 4. During the traffic stop, the Individual admitted that he had consumed alcohol. Id. The
officer also discovered a bottle of whiskey with a broken seal on the vehicle’s floorboard. Id. The
Individual was eventually transported to a police station where he submitted to a chemical test of breath.
Id. at 3.
During the PSI, the Individual stated that he only consumed one mixed drink of whiskey and coke at the
pool hall before he started driving. Ex. 11 at 9. He also stated that the bartender later told him that the
whiskey and coke contained a “double” serving of alcohol. Ex. 9 at 3. The Individual stated that he did
not feel intoxicated that night. Ex. 11 at 48. As for the bottle of whiskey in the vehicle, the Individual
explained that it had been given to him as a gift the day before, and he had consumed a “shot” when he
received it. Id. at 19. He stated that he consumed his only alcoholic drink on the night of his DWI at the
pool hall at about 7:15 p.m. Ex. 9 at 3. The police record demonstrates that he was stopped in his vehicle
at about 8:34 p.m. Ex. 8 at 4.
The record contains differing accounts provided by the Individual as to the amount of alcohol he regularly
consumes. At the time of the PSI, he stated that over the last thirty years he had consumed one to two
whiskey and coke drinks each night of the week. Ex. 11 at 37. He later changed his reported consumption
to one to two drinks on a weekend night, but not every weekend, for a total of about four or five drinks a
month. Id. 41-42. He also stated that he had stopped drinking since his DWI, that he did not believe he
had a drinking problem, and he intended to continue drinking. Id. at 47, 55-56. During the Psychologist’s
evaluation, which occurred a couple of months after the PSI, the Individual stated that he had been
consuming alcohol every night of the week—including the weekend. Ex. 9 at 6. The Psychologist
administered a Phosphatidylethanol (PEth) test and an ethyl glucuronide (EtG) test, and the results coupled
with the Individual’s reported consumption indicated to the Psychologist that the Individual had been
drinking heavily and frequently during the period leading up to the Psychologist’s evaluation. Id. at 5-6.
As for the night of the DWI, the Psychologist opined that the Individual “had to have consumed much
more alcohol than he is reporting in order to have registered a .11 g/210L an hour after he left the bar.”
Id. at 4.
After completing the evaluation, the Psychologist concluded that the Individual habitually consumes
alcohol to the point of intoxication that impairs his judgment, reliability, and trustworthiness without
adequate evidence of rehabilitation. Id. at 8. The Psychologist concluded that the Individual could
demonstrate reformation by permanently abstaining from consuming alcohol, as demonstrated by twelve
months of abstinence with accompanying laboratory test results evincing the same, or rehabilitation by
participating in an intensive outpatient substance abuse program, aftercare meetings, and a group program
such as Alcoholics Anonymous multiple times a week for at least nine months. Id.
At the start of his hearing testimony, the Individual stated that he did not, and has never had, a problem
with alcohol. Tr. at 10. However, he later stated that while he has never been in trouble as a result of his
alcohol use, in retrospect, he recognized the frequency of his alcohol use as a problem. Id. at 69.
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The Individual did not dispute that his BAC was .11 on the night of his DWI, but he maintained that he
had only consumed one alcoholic drink at the pool hall that evening. Id. 11-12, 44. He also stated that,
while he did not notice that his drink was stronger than normal, perhaps due to simultaneously consuming
french fries, he later learned from the bartender that his drink contained about ten to twelve ounces of
whiskey. Id. at 13-14, 43, 48-49.
The Individual also attempted to clarify his previous statements regarding his consumption of alcohol. He
stated that he was unable to recall his exact drinking pattern from 2007 to present and described it as
random. Id. 19-23. However, he also stated that if he had a drink, it was probably two drinks at night
spread out over three to four hours. Id. at 20. Then he said that if he had to describe his pattern of drinking,
it would “probably be . . . a drink probably every other night” of the week Id. at 20-21. He then stated that
on nights when he would drink, he would consume approximately two to three self-made whiskey and
cokes that each contained “two fingers” worth of whiskey. Id. at 24. He also referred to drinking as a habit,
such as his pattern of drinking after mowing the yard. Id. at 23, 75. A habit which he continued, even after
getting rid of the whiskey in his home, by drinking a beer or two instead—despite not typically liking to
drink or finish beer. Id. at 75. He furthermore testified that he has never felt intoxicated after consuming
alcohol, including on the night of his DWI. Id. at 44-45, 72.
Finally, the Individual testified regarding his alcohol consumption after his DWI and after his evaluation
with the Psychologist. He adamantly stated that he only consumed a total of four beers, divided evenly
between two separate occasions, in the several months leading up to his evaluation with the Psychologist.
Id. at 65, 99-100. The latter of those occasions occurred about two days before he took the PEth and EtG
tests. Id. at 65. He also stated that he had not consumed any alcoholic beverages from April 2018 to the
date of the hearing. Id. at 65. At the time of the hearing, he had not participated in any treatment or
counseling related to his alcohol use aside from obtaining an assessment from a Veteran Affairs (VA)
substance abuse counselor who evaluated him and who declined to diagnose him with a condition under
the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.2 Id. at 39; Ex. B.
After evaluating the testimony presented during the hearing, the Psychologist rendered his opinion that
the Individual had not demonstrated rehabilitation or reformation regarding his problematic alcohol use.
See Tr. at 98. The Psychologist also offered the opinion that the fact that the Individual did not feel
intoxicated on the night of the DWI demonstrates that the Individual developed a tolerance by frequently
drinking “a great deal” of alcohol. Id. at 88. Furthermore, the Psychologist stated that the combined PEth
and EtG results contradict the Individual’s testimony that he had only consumed four beers over the three
months prior to his meeting with the Psychologist. Id. at 101.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in this
case and the testimony of the Individual and Psychologist at the hearing. In resolving the question of the
Individual’s eligibility for access authorization, I have been guided by the applicable factors prescribed in
10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have determined that the
2 The Individual was required to complete an alcohol assessment as a condition that resulted from his DWI criminal hearing.
Tr. at 62-63. The VA counselor did not review the Psychologist’s report. Tr. at 102.
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Individual’s access authorization should not be restored at this time. I cannot find that granting the
individual a security clearance will not endanger the common defense and security, and that it is clearly
consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support
of this Decision are discussed below.
A. Guideline G Concerns
Guideline G 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.” Adjudicative Guidelines at ¶ 22(c). Guideline G further provides
that a security concern may be raised by “alcohol-related incidents away from work, such as driving while
under the influence . . . , 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). The record provides evidence to
support the LSO’s concern that the Individual has consumed alcohol habitually to the point of impairment
and that the Individual was charged with DWI and possession of an open alcoholic container in his vehicle.
The information contained in the Notification Letter therefore justified the LSO’s invocation of Guideline
G.
Guideline G also provides that security concerns arising from alcohol consumption can be mitigated if (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;” or (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 . . . .”3 Id. at ¶ 23(a)–(b). In this case, the Individual has not presented sufficient evidence
to mitigate the LSO’s Guideline G concerns.
First, while the Individual received his DWI almost a year ago, the Individual’s PEth and EtG results
indicate that he was continuing to consume alcohol as recently as April 2018. The Individual admitted as
much, even if he disputes the quantity and frequency of consumption the Psychologist derived from those
results. Given the Individual’s significant history of alcohol consumption since 2007, his alleged period
of abstinence, standing alone, does not establish a sufficient passage of time to mitigate the concern.
Furthermore, the Individual admitted that he drank too frequently in the past, which he viewed as a
problem, and he did not present any evidence to demonstrate that the circumstances surrounding his
alcohol use or his DWI were unusual. Instead, he testified to the opposite: over the years he regularly
consumed alcohol in the form of a particular alcoholic beverage and sometimes out of habit, such as after
completing yard work. Further still, the only evidence to indicate the Individual is not currently consuming
alcohol at a concerning level is his own testimony, which I am unable to rely upon given the numerous
conflicting and unreliable statements the Individual provided regarding his alcohol use. As a result, I find
that the Individual has not mitigated the Guideline G concerns due to the passage of time, the frequency
of his behavior, or the circumstances surrounding his behavior.
Second, while the record may support a finding that the Individual acknowledges that he has a problem
with consuming alcohol too frequently, it does not support a finding that he has therefore mitigated the
3 The remaining mitigating conditions listed under Guideline G are patently inapplicable.
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Guideline G concerns. As stated above, I do not find his testimony regarding his modified alcohol
consumption reliable. In addition, the Individual did not follow any of the treatment or counseling
recommendations contained in the Psychologist’s report. Consequently, I do not find the Individual has
presented evidence that he has taken action to overcome the problem. Furthermore, even accepting the
Individual’s testimony regarding his recent abstinence as evidence he has taken action to overcome the
problem, he began abstaining approximately six months prior to the hearing, which is significantly less
than the twelve months recommended by the Psychologist. And the Individual did not engage in any
treatment or counseling recommended by the Psychologist or any other qualified professional. Thus, I do
not find that the Individual has demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations. For the reasons stated above, I do not find that
the Individual has mitigated the security concerns presented by the LSO under Guideline G.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of the
LSO that raised security concerns under Guideline G. As stated above, it is the Individual’s burden to
come forward with evidence to convince me that restoring his access authorization “will not endanger the
common defense and security and will be clearly consistent with the national interest.” 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 not brought forth sufficient evidence to resolve the security concerns set forth in the
Notification Letter. I therefore cannot find that that restoring his access authorization would not endanger
the common defense and security of the nation and would be clearly consistent with the national interest.
Accordingly, I have determined that the Individual’s access authorization should not be restored.
Either party may seek review of this Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Officer of Hearings and Appeals