PSH-18-0075

*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 22, 2018 ) Case No.: PSH-18-0075
)
__________________________________________)
Issued: January 17, 2019
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 not be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires her to hold a security
clearance. In August 2017, the Individual took a sedative, for which she had a valid prescription,
before consuming alcohol. Ex. 12 at 3–4. The Individual attempted to drive to a friend’s home, but
was pulled over and arrested for DUI. Id. at 4. The Individual has no memory of getting in her car
and very little memory of her arrest. Id. at 4. The Local Security Office (LSO) conducted a
Personnel Security Interview of the Individual in November 2017, after which it referred the
Individual to a DOE Contractor Psychologist (Psychologist) for evaluation. The Psychologist
diagnosed the Individual with Unspecified Alcohol-Related Disorder based upon her hazardous
alcohol use and its effects on her life. Ex. 15 at 12. The Psychologist recommended that the
Individual abstain from alcohol for a minimum of 12 months, continue her alcohol treatment
program, and engage in psychological counseling for at least six months. Id. at 15. The Psychologist
also opined that the Individual’s diagnosis of Unspecified Alcohol-Related Disorder, by its very
nature, compromised the Individual’s ability to think clearly, assess potential consequences, and
make choices based on those assessments. Id. Accordingly, she opined, the Individual had an illness
or mental condition that caused or could cause a significant defect in judgment or reliability. Id.
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 began the present administrative review proceeding by issuing a Notification Letter to
the Individual informing her 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 October 22, 2018. At the hearing I convened
pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the individual presented the testimony of four
witnesses. The LSO presented the testimony of the DOE psychologist who had evaluated the
individual. See Transcript of Hearing, Case No. PSH-18-0075 (hereinafter cited as “Tr.”). The
LSO submitted 17 exhibits, marked as Exhibits 1 through 17 (hereinafter cited as “Ex.”). The
Individual submitted five exhibits, marked as Exhibits A through E.
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 Guidelines G, I, and J 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).
Guideline G (Alcohol Consumption) states: “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 conditions
set forth in the Guidelines that could raise a disqualifying security concern are alcohol-related
incidents, at or away from work, regardless of the frequency of the individual's alcohol use or
whether the individual has been diagnosed with alcohol use disorder; habitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the individual is
diagnosed with alcohol use disorder; Alcohol Use Disorder diagnosis by a duly qualified medical
or mental health professional; failure to follow treatment advice after diagnosis; alcohol
consumption that is not in accordance with treatment recommendations after a diagnosis of alcohol
use disorder; and failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence. Adjudicative Guidelines at ¶ 22. The LSO alleges that the Individual had
been arrested for Driving Under the Influence (DUI) in 2009 and 2017; had been diagnosed with
Unspecified Alcohol-Related Disorder in 2016 and 2018; was still consuming alcohol after her
most recent DUI arrest; and had abused alcohol by consuming it with another sedating substance
in a way that created grave risk and consequences. Accordingly, the LSO’s security concerns under
Guideline G are justified.
Guideline I (Psychological Conditions) provides that “[c]ertain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 28.
The conditions that could raise a security concern and may be disqualifying include behavior that
casts doubt on an individual's judgment, stability, reliability, or trustworthiness, not covered under
any other guideline, that may indicate an emotional, mental, or personality condition; an opinion
by a duly qualified mental health professional that the individual has a condition that may impair
judgment, stability, reliability, or trustworthiness; voluntary or involuntary inpatient
hospitalization; failure to follow a prescribed treatment plan related to a diagnosed
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psychological/psychiatric condition that may impair judgment, stability, reliability, or
trustworthiness; and pathological gambling. Adjudicative Guidelines at ¶ 28. The LSO alleges that
the Individual had been diagnosed with Unspecified Alcohol-Related Disorder and that the
evaluating psychologist opined that the Individual had an illness or mental condition which may
cause a significant defect in judgment or reliability. Accordingly, the LSO’s security concerns
under Guideline I are justified.
Guideline J (Criminal Conduct) provides that “[c]riminal activity creates doubt about a person's
judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability
or willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at ¶ 30. The
conditions that could raise a security concern and may be disqualifying include, among others, a
pattern of minor offenses, any one of which on its own would be unlikely to affect a national
security eligibility decision, but which in combination cast doubt on the individual's judgment,
reliability, or trustworthiness; evidence of criminal conduct, regardless of whether the individual
was formally charged, prosecuted, or convicted; and an individual’s failure to complete a court-
mandated rehabilitation program. Adjudicative Guidelines at ¶ 31. The LSO alleges that the
Individual was arrested for—and plead guilty to—DUI, Possession of Marijuana, and Possession
of Paraphernalia in 2009; was charged with Criminal Mischief-2nd Degree and Disorderly Conduct
in 1998 for keying her boss’s car; and was arrested for DUI in 2017. Accordingly, the LSO’s
security concerns under Guideline J 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.
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IV. FINDINGS OF FACT
At the hearing, the Individual presented the testimony of four witnesses: two colleagues with whom
the Individual is also close friends and two supervisors. Colleague #1 had known the Individual for
about four years and considered her one of her best friends. Tr. at 9–11. She worked under the
Individual for about four or five months and, during that time, the colleague never saw any
indication that the Individual was suffering from alcohol abuse. Id. at 10–11. Colleague #1 has
spent significant social time with the Individual outside work as well, and never noticed any issues
with the Individual’s alcohol use. Id. at 11–12. She had never seen the Individual intoxicated. Id.
at 17. Colleague #1 was very involved with the Individual’s legal proceedings and acted as a
support for the Individual. Id. at 12–13. She testified that the Individual attends weekly alcohol
classes and monthly individual counseling sessions. Id. She also testified that at their weekly
dinners that she and the Individual no longer drink alcohol, as opposed to each having a single
drink with dinner before the Individual’s recent DUI. Id. Colleague #1 considers herself part of
the Individual’s support system and testified that the Individual has strong support from family and
friends. Id. at 13–15. She finds the Individual very trustworthy and believes the Individual has
excellent judgment. Id.
The second colleague had also known the Individual for nearly four years. Tr. at 19. They worked
closely together several years ago and the colleague never observed the Individual coming in late
or experiencing the effects of alcohol abuse. Id. at 19–20. She too considers the Individual to be
one of her best friends. Id. at 20. Colleague #2 and the Individual spend considerable social time
together. Id. at 21–22. She testified that she had not seen the Individual consume alcohol in the last
14 or 15 months and that, prior to that time, the Individual consumed minimal alcohol. Id. at 22.
She also testified that the Individual attends weekly alcohol classes and monthly individual
counseling sessions. Id. at 23–24. Colleague #2 testified that the Individual has as strong support
system through family, friends, and colleagues. Id. at 24. She described the Individual as reliable,
dependable, and trustworthy. Id. at 24–25.
The first supervisor had been the Individual’s manager for about a year and half, during which time
they interacted daily. Tr. at 28–29. The supervisor had never seen the Individual suffering from the
effects of alcohol abuse. Id. at 29. He had never seen the Individual have an alcoholic beverage and
he had never had to discipline the Individual for any alcohol-related event. Id. He testified that the
Individual goes to weekly alcohol classes. Id. at 30–31. He further testified that the Individual is
one of the best administrators he’s had in his forty year career. Id. at 31. He has never had a question
about her judgment. Id.
The second supervisor had been the Individual’s manager for about a year. Tr. at 35–36. The
supervisor had never seen the Individual under the influence of alcohol and had never seen the
Individual make a poor choice due to alcohol. Id. at 36. He had never had to discipline the
Individual for any alcohol-related event. Id. at 37. He testified that the Individual goes to weekly
alcohol classes. The second supervisor further testified that he never has issues with the
Individual’s work performance. Id. He described the Individual as trustworthy. Id. at 38.
The Individual testified that she is not a frequent drinker, that she does not drink to excess, and that
her 2017 DUI was the result of an interaction between her medication and one alcoholic beverage.
Tr. at 44–48. She has no memory of finishing the drink or anything that happened after that. The
Individual further testified that she did not intend to drive that day and would not have consumed
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alcohol if she had planned to drive. Id. She expressed disbelief that she has a pattern of alcohol
abuse, despite her two DUIs, when viewing her entire adult life. Id. The Individual testified that
her alcohol use around 2009 was, at some level, related to the difficulties in her life at that time. Id.
at 49.
The Individual’s alcohol classes are court-mandated and she does not attend Alcoholics
Anonymous (AA) or another kind of support group. Tr. at 49–50. She attends individual therapy
sessions roughly every 45 days. The Individual stated that she did not receive any recommendations
from the Psychologist during their meeting and that she wished she had known about the
recommendations so she could have started documenting abstinence. Id. at 50–51. She also
expressed that some of the testing recommendations are not financially feasible for her. Id. at 65.
The Individual testified that the amount of alcohol she had described consuming during a previous
meeting with the Psychologist was twice as much as she was consuming when she met with the
Psychologist in 2016. Id. at 51. She noted that the Psychologist had deemed the previous amount
of consumption to be healthy and questioned how half that amount could be abusive. Id. The
Individual described having a strong support system of family and friends. Id. at 52–53. She last
consumed alcohol at a celebratory dinner with family on the weekend before her hearing, despite
having received and read the Psychologist’s report by that time. Id. at 54. She does not have alcohol
cravings. Id. The Individual consumes alcohol once or twice per month and has no more than two
drinks per sitting. Id. at 45, 57. She does not have “intentions” about her alcohol consumption
because alcohol is not something she thinks about daily. Id. at 54. The Individual was not opposed
to the idea of further alcohol education because “it can’t hurt” to have that kind of programming.
Id. at 55. She described herself as reliable and trustworthy. Id. at 58. She also admitted that she has
made mistakes but stated that she has learned from them and intends to never repeat them again.
Id. Finally, the Individual testified that she has excellent judgment and that she is constantly striving
to be a better person. Id. at 59.
The Psychologist had evaluated the Individual in 2016 and 2018. Tr. at 68. In 2016, the
Psychologist evaluated the Individual relating to alcohol and financial difficulties. Id. She
diagnosed the Individual with Unspecified Alcohol-Related Disorder, in sustained remission, at
that time. Id. at 69. By the time of the 2018 evaluation, the most significant change was the addition
of a second legal issue as a result of alcohol use. Id. at 71. This constituted a re-emergence of the
Unspecified Alcohol-Related Disorder. Id. at 72. The Psychologist testified that unintentional
hazardous behavior is no less dangerous than intentional hazardous behavior. Id. at 73. She testified
that she would not change the 2018 diagnosis based on the testimony at the hearing. Id. at 73–74.
The Psychologist further testified that an alcohol-related diagnosis does not require an excessive
amount of alcohol consumption. Id. at 74–75. Rather, the diagnosis is based more on continued use
of alcohol despite harmful or negative effects of alcohol consumption. Id. at75. The Psychologist
testified that, based on the Individual’s testimony at the hearing, the Individual is still exhibiting
that specific characteristic. Id.
The Psychologist testified that the Individual is not yet rehabilitated. Id. at 96. She stated that the
Individual has demonstrated many strengths, such as reliability and excellent judgment in the
workplace. Id. at 77. However, there remain risks, such as a lack of 12 Step or other support
program attendance, lack of insight by the Individual about her problems with alcohol, and the
presence of a co-morbid anxiety disorder. Id. at 78–84. She testified that the Individual’s anxiety
disorder does not itself pose a risk to judgment and reliability. Id. at 84. However, when combined
with the Unspecified Alcohol-Related Disorder, the Individual’s anxiety does create risk that the
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Individual will again engage in risky alcohol consumption. Id. Furthermore, the Individual had only
had seven months of alcohol treatment and no treatment for the anxiety disorder. Id. at 86. The
Psychologist testified that the Individual will have an excellent prognosis if she follows the
treatment recommendations. Id. at 98.
V. ANALYSIS
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a common sense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. 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.
A. Guideline G
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when (a) 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; (b) 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; (c) the individual has no history of relapse and is making satisfactory progress in
treatment or counseling; or (d) the individual has successfully completed a treatment program and
has established pattern of modified consumption or abstinence. Adjudicative Guidelines at ¶ 23.
Though the Individual’s alcohol-related incidents occurred years apart, the surrounding
circumstances follow a pattern. During periods of elevated anxiety, the Individual has a higher
likelihood of dangerous alcohol-related behavior. The most recent incident was not very long ago
and the behavior continues to cast doubt on the Individual’s judgment, trustworthiness and
reliability. Furthermore, the Individual does not acknowledge her maladaptive alcohol use. While
she insists that she does not have any issues with alcohol, she chose, with her security clearance at
risk, to consume alcohol after receiving the Psychologist’s recommendation of abstinence. The
Individual’s continued use of alcohol in the face of severe negative consequences demonstrates
that her issues with alcohol are not yet resolved. The Individual has not yet completed her treatment
and, while she is making progress, her history of relapse makes successful completion necessary
for mitigation.
Finally, the Individual has substantially complied with the requirements of her criminal sentence,
but she has not complied with the Psychologist’s recommendations. Though she did not receive
them until a few weeks before her hearing, she could have begun implementing the
recommendations immediately upon receipt. Instead, she chose to consume alcohol in the days
directly preceding her hearing. The Psychologist opined that she is not rehabilitated. This opinion
is not dispositive in these cases. However, in light of the Psychologist’s relatively long history with
the Individual, I afford her opinion significant weight.
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For the foregoing reasons, I cannot find that the Individual has mitigated the Guideline G concerns.
B. Guidelines I and J
Guideline I provides that security concerns arising from psychological conditions can be mitigated
when (a) the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan; (b) the individual has
voluntarily entered and is currently receiving counseling or treatment program, if the condition is
amenable to treatment, and the individual currently has a favorable prognosis by a duly qualified
mental health professional; (c) a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government has recently opined that an individual's
previous condition is under control or in remission, and has a low probability of recurrence or
exacerbation; (d) the past psychological/psychiatric condition was temporary, the situation has
been resolved, and the individual no longer shows indications of emotional instability; and (e) there
is no indication of a current problem. Adjudicative Guidelines at ¶29.
Guideline J provides that security concerns arising from criminal conduct can be mitigated when
(a) 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; (b) the individual was pressured or coerced into
committing the act and those pressures are not prescribed, the pressures are no longer a part of the
individual’s life, and the abuse has since ended; (c) there is no reliable evidence to support that the
individual committed the offense; and (d) there is evidence of successful rehabilitation; including,
but not limited to, the passage of time without recurrence of criminal activity, restitution,
compliance with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement. Adjudicative Guidelines at ¶ 32.
The DOE’s psychological and criminal conduct concerns about the Individual are inextricably
connected to her alcohol use. The concerning psychological condition is her alcohol-related
diagnosis and her criminal conduct only occurs in conjunction with alcohol consumption. Until she
resolves the DOE’s concerns about her alcohol use, I cannot be certain that she will not consume
alcohol before driving, nor can I be certain that her Unspecified Alcohol-Related Disorder is under
control. Accordingly, I cannot find that the Individual has mitigated the Guideline I or J security
concerns.
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 Guidelines G, I, and J
of the Adjudicative Guidelines. I further find that the individual has not succeeded in fully resolving
those concerns. Therefore, I cannot 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 not restore access
authorization to the individual at this time.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals