PSH-18-0072

*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: October 2, 2018 ) Case No.: PSH-18-0072
)
__________________________________________)
Issued: January 3, 2019
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Administrative Judge Decision
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Brooke A. DuBois, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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 not be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. In November 2017, the Individual notified his employer that he voluntarily entered an
inpatient treatment program for alcohol abuse. Ex. 6. This information prompted the Local Security
Office (LSO) to conduct a personnel security interview (PSI) with the Individual in March 2018.
Ex. 9. Because the PSI failed to resolve the security concerns, the LSO requested a psychological
evaluation of the Individual by a DOE-consultant psychologist (DOE Psychologist). The DOE
Psychologist later submitted a report of his May 2018 assessment (Psychological Evaluation) of
the individual. Ex. 7.
The LSO informed the Individual, in a letter dated August 17, 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 ten numbered exhibits (Ex. 1-10) and the Individual submitted
three lettered exhibits (Ex. A-C). The Individual presented the testimony of one witness and
testified on his own behalf, while the LSO presented the testimony of the DOE Psychologist. See
Transcript of Hearing, Case No. PSH-18-0072 (hereinafter cited as “Tr.”).
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that DOE possessed
information that 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, among other things, that the DOE Psychologist
concluded that the Individual meets the criteria for a diagnosis of Alcohol Use Disorder, Severe
not in Remission, without adequate evidence of rehabilitation or reformation under the Diagnostic
and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) and that, despite a
recommendation after treatment that he abstain from alcohol and his own concerns about his
drinking habits, the Individual continues to consume alcohol. Ex. 1. The DOE Psychologist’s
diagnosis of the Individual as suffering from Alcohol Use Disorder, the Individual’s failure to
follow treatment advice after his inpatient treatment program, and the Individual’s continued
alcohol consumption after his diagnosis justifies the LSO’s invocation of Guideline G security
concerns. Adjudicative Guidelines at ¶ 22(d)-(f).
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
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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.
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
The Individual began consuming alcohol at age 20, drinking approximately six to eight beers a
night on the weekends. Ex. 9 at 75. For about seven years during his 30s, he did not drink at all. Id.
at 65. When he began drinking again in the early 1990s, he would consume about six to twelve
beers a week, drinking at most four beers in one sitting. Id. After a 1997 arrest for Driving While
Under the Influence (DWI), the Individual completed alcohol counseling in connection with the
disposition of the case. Id. at 69-70. DOE conducted PSIs with the Individual on three occasions
during his employment regarding issues relating to his alcohol use. Id. at 62-63.
During his March 2018 PSI, the Individual indicated that he had previously been a beer drinker,
but in the six to eight months prior to entering treatment, the Individual “discovered” vodka and
was drinking approximately a pint of vodka about three or four nights a week. Ex. 9 at 17-18. The
Individual stated that vodka became a crutch for him to the point where he needed it to relax and
go to sleep, although he did not always drink the entire pint on every occasion. Id. at 17, 34. The
Individual also recognized that changes in his personal life, like his father death and a brain seizure
resulting in a change of duties at work, contributed to his increased alcohol consumption. Id. at 31-
32.
During the PSI, the Individual stated that he would often quit drinking for a week or ten days at a
time when he felt like his drinking was affecting his health, however, once the Individual decided
he was better, he would return to drinking. Id. at 20. After unsuccessful attempts of quitting on his
own and his wife expressing concern, the Individual entered an inpatient treatment center in
November 2017, staying for five days. Id. at 16, 20; see also Ex. 6
The Individual left his inpatient treatment program a day early. Ex. 7 at 5. The treatment facility
recommended that the Individual abstain from alcohol and gave him medications to support his
sobriety, however, the Individual stopped taking those medications shortly after leaving. Ex. 9 at
40-43, 56-57. The treatment facility also recommend that the Individual attend Alcoholics
Anonymous (AA) or seek counseling, but during the PSI, the Individual stated he did not do either
because he does not “like to hear other people talk about their problems,” and preferred to “take
care of [his alcohol issues] on his own.” Id. at 45.
After treatment, the Individual indicated that he abstained from alcohol for about a month, but then
returned to drinking beer. Id. at 48. By March 2018, he was drinking approximately a six pack of
beer in a week, and on two or three occasions, he drank vodka, but said that he no longer drank to
excess. Id. Later in the PSI, however, the Individual admitted that since exiting treatment, he has
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reached the point of intoxication on probably two or three occasions. Id. at 53. Although the
Individual admitted to having concerns about his continued alcohol consumption, he stated that
that he did not believe his current pattern of consumption was excessive. Id. at 59. He did not see
anything wrong with having a beer or two when he got home from work because he likes the taste
of beer, but stated he had no future intention of consuming vodka. Id. at 59-60.
In May 2018, the DOE Psychologist evaluated the Individual, diagnosing him with Alcohol Use
Disorder, severe not in remission. Ex. 7 at 8. As part of this Psychological Evaluation, the
Individual submitted to an ethyl glucuronice (EtG) test2 and a phosphatidylethanol (PEth) test3.
Both tests were positive, detecting recent alcohol consumption. Id. at 6. The DOE Psychologist
opined that the Individual should abstain permanently from alcohol but recommended that the
Individual demonstrate that he could remain abstinent for at least twelve months by submitting to
PEth tests every three or four months, submitting to EtG tests randomly at least once every four
weeks, or random breath tests every couple of weeks. Id. He also recommended that the Individual
participate in an intensive outpatient program (IOP) and participate in an AA-type program at least
three nights a week. Id.
During the hearing, the Individual’s Employee Assistance Program (EAP) counselor testified. Tr.
at 11-28. She testified that she first met the Individual in September 2018 and has met with him on
six occasions. Tr. at 12. She agreed with the Psychological Evaluation and the recommendation
that the Individual fully abstain from alcohol and indicated that she was attempting to help him
enter an IOP. Id. at 13-15. The counselor described her sessions with the Individual as “emotional
support” in which she makes referrals and suggestions to support his goals, further stating that it is
not “treatment.” Tr. at 15-16. The counselor testified that during her sessions with the Individual,
she has found him to be honest and open and believes he is slowly heading in the right direction
with his recovery despite a recent relapse. Id. at 14, 23.
The Individual testified that he does not dispute the diagnosis and recommendations of the DOE
Psychologist. Tr. at 29. The Individual further testified that, although he is not completely
rehabilitated, he believes his November 2017 treatment was effective because he now has more
awareness about his issues with alcohol and has changed his behavior. Tr. at 32. Since leaving
treatment, the Individual stated that he has attended at least 29 AA meetings, six EAP sessions, and
an initial intake session at an IOP but indicated that logistics would make it difficult for him to
complete that program. Tr. at 35; see also Exs. A-B. The Individual acknowledged that there was
a gap in his AA attendance from May to September 2018, stating that he returned to AA after taking
a “moral inventory” and recommitting himself to his recovery. Tr. at 37, 45.
The Individual admitted during the hearing to having consumed alcohol the week prior. Tr. at 37-
38. When questioned about the circumstances that led to him drinking, the Individual stated that
“alcohol was available” and he decided “what’s it going to hurt.” Tr. at 43. Similarly, when
explaining the circumstances behind his previous relapses in September and October 2018, the
Individual stated that after a week or two of sobriety, he believed it would be okay to have a couple
of beers. Tr. at 38. Before his most recent relapse, the Individual had been sober for approximately
a month. Tr. at 42.
2 An EtG test provides information about alcohol consumption over the previous two to four days. Ex. 7 at 6.
3 A PEth test provides information about alcohol consumption over the previous three weeks. Ex. 7 at 6.
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The DOE Psychologist testified last, stating that he heard nothing during the hearing to change his
opinion from the one outlined in the Psychological Evaluation. Tr. at 48. Because of the
Individual’s many relapses, the DOE Psychologist further testified that he believes the only way
for the Individual to adequately demonstrate his abstinence would be a series of PEth tests every
two months as opposed to the opinion of a treating professional. Tr. at 49-50.
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 not be restored. I cannot 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).
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).
Nothing in the record indicates that the Individual’s alcohol use is so infrequent or long ago that it
is unlikely to recur. Guideline G at ¶ 23(a). The Individual has previously had to address concerns
about his alcohol consumption with DOE in 1996, 1997, and 2002. Additionally, the Individual’s
alcohol use is still ongoing, despite his many assertions of his intention to abstain. The Individual
has also not successfully completed a treatment program with the required aftercare. Guideline G
at ¶ 23(d). Even when he proactively sought treatment in November 2017, the Individual left the
six-day treatment program a day early and did not follow any of the treatment facility’s
recommendations after he left. The Individual has only partially participated in an IOP intake
session and, during the hearing, acknowledged that his commuting schedule would make it difficult
for him to actually complete this particular program.
Although the Individual acknowledges that he has issues with alcohol, he has provided minimal
evidence of actions he has taken to overcome his alcohol problem. Guideline G at ¶ 23(b).
Moreover, the Individual is not currently participating in counseling, nor is he making progress in
a treatment program. Guideline G at ¶ 23(c). In the year since he initially sought treatment, the
Individual could only provide evidence of 29 AA meetings and six EAP sessions. His AA
attendance was significantly less than the three times a week as recommended by the DOE
Psychologist in May 2018 and his EAP sessions were not the type of counseling envisioned by the
DOE Psychologist. Furthermore, the Individual has demonstrated a pattern of poor judgment in
deciding that, after short periods of sobriety, he could return to consuming alcohol, often
rationalizing to himself that having one or two beers would not hurt. Since leaving inpatient
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treatment in November 2017, the Individual has relapsed at least five times, with several periods
during which the Individual did not even attempt to abstain from alcohol. The Individual admitted
to drinking four days before his March 2018 PSI, the night before his May 2018 Psychological
Evaluation, and the week before the November 2018 hearing, demonstrating that he does not yet
have control of his alcohol issues. See Ex 9 at 46-47; Ex 7 at 5-6, Tr. at 37-38. Based on the
foregoing, I cannot find that the Individual has mitigated the security concerns raised under
Guideline G.
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 Adjudicative 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 not 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 not be restored. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Brooke A. DuBois
Administrative Judge
Office of Hearings and Appeals