PSH-18-0069

*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: September 19, 2018 ) Case No.: PSH-18-0069
)
__________________________________________)
Issued: November 29, 2018
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Administrative Judge Decision
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Brooke A. DuBois, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an 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, 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 security clearance should be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. In January 2018, the Individual filed an incident report informing his employer that he
was arrested for and charged with Driving While Intoxicated (DWI). Ex. 6. This incident prompted
the Local Security Office (LSO) to conduct a personnel security interview (PSI) with the Individual
in February 2018. Ex. 9. Because the PSI did not resolve the security concerns, the LSO requested
a psychological evaluation of the Individual, which a DOE-consultant psychologist (DOE
Psychologist) conducted in May 2018. The DOE Psychologist later submitted a report of his
assessment (Psychological Evaluation). Ex. 7.
The LSO informed the Individual, in a letter dated August 2, 2018 (Notification Letter), that it
possessed reliable information that created substantial doubt regarding his eligibility to continue
holding a security clearance. See 10 C.F.R. § 710.21. In an attachment to the Notification Letter,
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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the LSO explained that the derogatory information raised concerns under Guideline G (Alcohol
Consumption). Ex. 1.
The Individual requested an administrative review hearing pursuant to 10 C.F.R. Part 710. Ex. 2.
The Director of the Office of Hearings and Appeals appointed me as the Administrative Judge in
this matter, and I subsequently convened a hearing pursuant to 10 C.F.R. § 710.25(d), (e) and (g).
At the hearing, the LSO submitted 10 numbered exhibits (Ex. 1-10) and the Individual submitted
11 lettered Exhibits (Ex. A-K). The Individual presented the testimony of five witnesses and
testified on his own behalf, while the LSO presented the testimony of the DOE Psychologist. See
Transcript of Hearing, Case No. PSH-18-0069 (hereinafter cited as “Tr.”).
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.
In the Notification Letter, the LSO cited Guideline G as the basis for suspending the Individual’s
security clearance. 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.” Adjudicative Guidelines at ¶ 21. The LSO asserted
that: (1) the Individual was arrested and charged with DWI and that his blood alcohol content
(BAC) at the time was .294 g/210L; (2) a DOE Psychologist diagnosed the Individual with Alcohol
Abuse Disorder, Moderate, in early remission under the Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition (DSM-5); and (3) the Individual admitted during the PSI that his
wife had expressed concerns in the past about his alcohol consumption. Ex. 1. The Individual’s
alcohol-related incident away from work and the DOE’s Psychologist’s diagnosis justify the LSO’s
invocation of Guideline G. Adjudicative Guideline at ¶ 22(b), (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 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
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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
On January 20, 2018, the Individual was arrested for DWI after consuming about eight 12-ounce
beers over about three-and-a-half hours. Ex. 7 at 3; Ex. 9 at 16-17, 46. A blood test conducted
subsequent to his arrest showed that his BAC was .294 g/210L. Ex. 7 at 3. A couple of days after
the incident, the Individual saw his employer’s psychiatrist who referred him to an independent
psychologist (Individual’s Psychologist). Ex. 9 at 37. In February 2018, the Individual’s
Psychologist recommended that the Individual start an Intensive Outpatient Program (IOP) to
address his alcohol consumption. Id. at 35, 38. The six-week program involved three-hour group
therapy sessions, four times a week. Id. at 39-40.
During the PSI, the Individual described his drinking habits, stating that his alcohol consumption
increased when he was about 30 years old. Ex. 9 at 54. For about the past ten years, the Individual
had consumed alcohol five to six times per week. Id. at 54-55. On two or three weeknights each
week, he would have two to three 12-ounce beers. Id. at 57. On a Friday or Saturday, he would
have six to eight 12 oz. beers over roughly at 10 hour period. Id. at 57, 59-60. The Individual stated
during the PSI that he stopped consuming alcohol altogether immediately after his DWI arrest. Id.
at 44.
After the PSI, the DOE Psychologist evaluated the Individual. Ex. 7. He diagnosed the Individual
with Alcohol Use Disorder, Moderate, in Early Remission. Id. at 5. The DOE Psychologist ordered
two tests to determine the Individual’s recent alcohol use, and the results indicated that the
Individual had not consumed alcohol in the 30 days prior to the testing. Id. at 5-6, 12. The DOE
Psychologist recommended that the Individual abstain from alcohol for a full year, submit to at
least five ethyl glucuronide (EtG) tests,2 submit to at least four phosphatidylethanol (PEth) tests,3
attend his IOP’s follow-up support group once weekly, and attend Alcoholics Anonymous (AA) or
a similar group twice weekly. Ex. 7 at 7.
The Individual submitted into the record five negative PEth test results and four negative EtG test
results (Exs. A-C; Exs. G-H; Ex. K), approximately 36 AA attendance slips (Ex. I), a negative
breathalyzer test result (Ex. J), and certificates of completion from three alcohol education courses
(Exs. D-F).
At the hearing, the Individual’s wife testified that the Individual was scared after his DWI and that
he took the incident very seriously. Tr. at 12-13. She testified that he immediately began abstaining
from alcohol and has not consumed alcohol since his arrest. Id. at 13, 29. She stated that she has
been a strong support for the Individual in his recovery. Id. at 13. She testified that, based on her
2 An EtG test provides information about alcohol consumption over the previous two to four days. Ex. 7 at 5.
3 A PEth test provides information about alcohol consumption over the previous three weeks. Ex. 7 at 5.
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experiences over 17 years of marriage, she believes the Individual when he states his intent to
abstain from alcohol indefinitely. Id. at 26-27.
The Individual’s supervisor testified that, having known the Individual for about a year and a half,
he has no concerns about the Individual’s honesty, reliability, or judgment and he considers the
Individual trustworthy. Tr. at 33. The supervisor testified that he is unaware of any instance in
which the Individual came to work under the influence of alcohol or missed work due to alcohol
consumption. Id. at 36. The Individual’s friend testified that the Individual’s DWI was a “big deal”
for the Individual and his family. Id. at 42. He testified that the Individual took responsibility for
his actions and developed a plan to move forward and work on his issues. Id. at 42-44, 46-47. The
friend had never heard the Individual complain about not being able to consume alcohol. Id. at 44.
He testified that the Individual continues to donate his time at fundraisers where alcohol is served
and does not have any difficulty remaining abstinent at those events. Id. at 44-45. He testified that
the Individual intends to remain abstinent indefinitely. Id. at 46.
The Individual’s AA sponsor testified that the Individual calls regularly and at the exact times when
he says he will, demonstrating accountability and responsibility. Tr. at 56-57. The sponsor testified
that he would not invest in the Individual if he did not believe in his commitment to sobriety and
that he considers himself to be part of the Individual’s support system. Id. at 60. He believed that
the Individual benefits from the various groups he attends and that his participation has been
meaningful. Id. at 67.
The Individual testified that he does not disagree with the DOE Psychologist’s assessment. He does
not deny that he has had problems with alcohol consumption in the past, but he does not consider
himself an alcoholic. Tr. at 72, 102. He testified that soon after his arrest, he felt a kind of relief
because he was finally pushed to get the help he knew he needed. Id. at 79. The Individual testified
that he has not consumed any alcohol since his arrest. Id. at 95. He felt that the positive changes he
has made as a person have already made this experience worthwhile and that, though he loves his
work, if the only thing he lost from his DWI was his job, he would still feel that he “came out
ahead.” Id. at 92-93. The IOP showed him how bad things could get for him and he was grateful to
have stopped consuming alcohol before his situation got worse. Id. at 81. He testified that he intends
to follow all treatment recommendations by medical and mental health professionals. Id. at 85.
The Individual also testified that he regularly attends AA meetings, speaking when he has
something he needs or wants to say, but he focuses more on listening and learning. Id. at 89-91. He
also attends one-on-one counseling sessions. Id. at 85. The Individual testified that he intends to
abstain from alcohol indefinitely and that his life is better without alcohol. Id. at 91-92. When he
was still consuming alcohol, he did not see how he was hurting himself and others and, now that
his eyes are open, he wants to continue improving. Id. at 92. The Individual testified that there is
still alcohol in his house for his family or friends that come over, but that he does not feel tempted
to consume any. Id. at 98-99. He testified that he no longer needs alcohol and that he has “grown
out of it.” Id. at 99. He testified that he has a strong support system available to him at any time of
the day or night to help him avoid a relapse. Id. at 100-101.
The Individual’s Psychologist testified that she first saw him about one week after his arrest. Tr. at
105. She testified that the Individual believes that he was abusing alcohol and feared he could
become an alcoholic in the future if he did not stop consuming alcohol. Id. at 107, 120. In regard
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to the Individual’s refusal to label himself an alcoholic, she opined that “how they label themselves
is not of great consequence,” and that, as long as a person accepts that he has a problem with alcohol
and stops consuming alcohol, the treatment goal is satisfied. Id. at 120-123. She testified that the
Individual is rule-oriented and has been very compliant with treatment and testing
recommendations. Id. at 110, 118-119. While the Individual has often questioned certain ideas
presented to him, the counselor testified that the Individual is not combative, but rather seeks to
fully understand so that he can incorporate the new information into his rule-based personal code
of conduct. Id. at 115. The counselor testified that the Individual is successfully incorporating the
ideas and techniques from his treatment into his life and that she believed the Individual would not
return to consuming alcohol. Id. at 117.
The DOE Psychologist testified that, though the Individual had only been abstinent for 10 months,
he had been very proactive and was committed to abstinence. Tr. at 126. The DOE Psychologist
agreed with the counselor that the label of “alcoholic” was not important in this case as long as the
Individual remains abstinent. Id. at 127-128. He opined that the recommended year of abstinence
is somewhat arbitrary and that the Individual has otherwise demonstrated rehabilitation. Id. He
testified that he does not think the arbitrary timeline should hold the Individual back and that two
more months would not “make that much difference.” Id. at 127-128. He testified that the
Individual had a positive prognosis of remaining abstinent in the coming years. Id. at 128. He
further testified that this was the most promising case that he had ever dealt with. Id. at 130.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented 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 Individual’s security clearance should be restored. I find that restoring the
Individual’s DOE security clearance will not endanger the common defense and security, and 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.
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 his current reliability, trustworthiness, or judgment; (2) the individual
acknowledges his 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).
Although he does not label himself an alcoholic, the Individual clearly acknowledges that he had a
problem with his alcohol consumption. Guideline G at ¶ 23(b). He recognizes the unhealthy effects
of his alcohol use and understands that his continued consumption could result in dangerous
consequences. The Individual has also committed to lifelong abstinence. His credibility is bolstered
by the fact that he stopped consuming alcohol immediately after his arrest, recognizing his issue
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with alcohol long before his Alcohol Use Disorder diagnosis. He has attended multiple alcohol
education classes to learn coping skills and successfully completed an IOP. Guideline G at ¶ 23(c)-
(d). He continues to attend support groups with professionals and peers, as well as individual
therapy. The Individual has built a strong support system that includes a sponsor and family and
friends who understand his alcohol issues. Most importantly, he has made good on his commitment
to abstain from alcohol, demonstrating a clear and established pattern of abstinence over a period
of 10 months. He has never relapsed and has a list of people to call at any hour if he feels at risk.
While expert opinions are not determinative in these cases, they do carry weight. Both experts
agreed that the Individual calling himself an alcoholic is not important but that his continued
sobriety is. Both experts gave the Individual a positive prognosis. The DOE Psychologist testified
that, in his opinion, the Individual is rehabilitated, despite falling short of the clinical 12 month
timeframe. Importantly, personnel security cases do not turn on whether an individual has a clinical
diagnosis, but rather on whether an individual has mitigated the security concerns. The Individual
has worked hard at changing his unhealthy alcohol consumption habits and has convinced two
experts that he will remain abstinent, with one of them adding that this case is the most promising
he has seen. For the foregoing reasons, I find that the Individual has mitigated the Guideline G
security concerns described in the Notification Letter.
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 F 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 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.
Brooke A. DuBois
Administrative Judge
Office of Hearings and Appeals