PSH-18-0078

*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: November 5, 2018 ) Case No.: PSH-18-0078
)
__________________________________________)
Issued: February 20, 2019
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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, “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 be granted.
I. BACKGROUND
The Individual is employed by the DOE in a position that requires him to hold a security clearance.
In November 2016, while in the midst of the administrative review process, the Individual was
arrested for Driving Under the Influence (DUI). Ex. 2 at 1. Following the Individual’s report of
his arrest, he was referred to a DOE consulting psychologist for an evaluation regarding his alcohol
use. Ex. 16 at 2.
The Local Security Office (LSO) began the present administrative review proceeding by issuing a
Notification Letter to the Individual October 1, 2018, informing him that he was entitled to a
hearing before an Administrative Judge in order to resolve the substantial doubt regarding his
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 November 5, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e), and (g), the Individual presented the testimony of eight witnesses and testified on his own
behalf. See Transcript of Hearing, Case No. PSH-18-0078 (hereinafter cited as “Tr.”). The LSO
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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submitted 17 exhibits, marked as Exhibits 1 through 17 (hereinafter cited as “Ex.”). The Individual
submitted 7 exhibits, marked as Exhibits A through G.
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 E and G 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 E relates to conduct involving questionable judgment, lack of candor, or unwillingness
to comply with rules and regulations, which raises questions about an individual’s reliability,
trustworthiness, and ability to protect classified information. Any failure to provide truthful and
candid answers during the security clearance process is of particular concern. See Adjudicative
Guidelines at ¶ 15. With respect to Guideline E, the LSO cited the Individual’s three DUI arrests
in 2004, 2012, and 2016, his failure to inform an Office of Personnel Management (OPM)
investigator that he had a positive urinalysis performed pursuant to an Intensive Outpatient
Treatment Program (IOP) and his statement at the same time that he did not know it was the IOP’s
policy that he be abstinent. Ex. 2 at 6-7. The LSO also cited the fact that the Individual misled the
DOE consulting psychologist about his knowledge of his required abstinence for the treatment
program and the deferred prosecution agreement. Ex. 2 at 6-7.
Guideline G relates to an individual’s alcohol consumption, which can raise questions about an
individual’s reliability and trustworthiness. Guideline G at ¶ 21. In citing Guideline G, the LSO,
in the Notification Letter, cited the DOE consultant psychologist’s July 2017 diagnosis of the
Individual as suffering from Alcohol Use Disorder, Severe. Ex. 2 at 4-5. The Notification Letter
also listed as Guideline G derogatory information the Individual’s three DUI arrests, and his
diagnoses of Alcohol Use Disorder, Severe, made during a DUI assessment at a treatment center
in December 2016, and later at a second treatment center. The LSO also cited the Individual’s
February 2017 diagnosis of Alcohol Use Disorder by the DOE consultant psychologist and his
subsequent treatment at the IOP. Also cited were the Individual’s deferred prosecution for his
November 2016 DUI, and the Individual’s failed urinalysis test for alcohol in March 2017. Ex. 2
at 2-4.
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
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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.
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 does not dispute the facts alleged in the Notification Letter. Tr. at 68. As such, I
adopt the factual allegations in the Notification Letter as my factual findings in this case. In
addition to testifying himself, the Individual presented the testimony of three co-workers, a prior
counselor, his current probation officer, his Alcoholics Anonymous (AA) sponsor, a parishioner at
his church, and his wife. Id. at 2-3. The LSO presented the testimony of the DOE consulting
psychologist. Id. at 3.
The Individual’s co-workers testified that the Individual is trustworthy and an excellent worker.
Tr. at 137, 151, 160. They all confirmed that the Individual is more communicative and has been
open about his alcohol diagnosis since his DUI. Id. at 139, 141, 149, 158. Concluding, two co-
workers stated that the Individual is very conscious of the security concerns involved in their
profession. Id. at 137, 157, 161. The Individual’s fellow parishioner testified that he has known
the Individual for approximately one year, although he has seen him at church for the last two-and-
a-half years. Id. at 125-26. The parishioner indicated that the Individual has been open about his
diagnosis and his AA attendance. Id. at 126. The parishioner asserted that the Individual is
trustworthy and has become more involved and accountable since his DUI. Id. at 127. The
parishioner testified that the Individual is more dedicated to helping his church community and
more communicative since he began attending AA. Id. at 127-29.
The Individual’s counselor testified that he was the Individual’s primary counselor for the IOP. Tr.
at 24. He asserted that the Individual realized that he had a problem with alcohol after he failed a
March 2017 urinalysis and began taking the program seriously, stating “I watched a light come
on.” Id. He continued that the Individual was diligent attending both the one-on-one counseling
sessions and the IOP’s group meetings. Id. The counselor opined that the Individual “found the
peace and serenity of not drinking.” Id. at 59. He agreed with the Alcohol Use Disorder, Severe,
diagnosis, but declared that the Individual was currently in full remission. Id. at 63.
The Individual’s probation officer testified that the Individual’s performance has been outstanding.
Tr. at 71-72. He stated that the Individual has been honest and he considers the Individual to be
trustworthy. Id. at 72. He indicated that the Individual has been very diligent in his AA attendance,
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attending at least twice a week and making up sessions when he is out of town. Id. at 90. He
further testified that it is not unusual for a person in the deferred prosecution program to fail a
urinalysis at the beginning of the program. Id. at 94. The probation officer concluded that the
Individual “did everything he was supposed to do.” Id. at 79.
The Individual’s AA sponsor testified that he has known the Individual about one-and-a-half years
and finds him to be one of the greatest examples of someone who is “working with the program,
effectively, doing what he is supposed to do in AA.” Tr. at 99. He declared that the two men meet
twice a week. Id. at 112. Stating that he wants to “go over and give him a hug” every time he sees
him because of the changes that he has seen in the Individual, the sponsor asserted that the
Individual is compliant and effectively working the program. Id. at 99-100. He continued that
since his failed urinalysis, the Individual has had a cognitive change. Id. at 106. The AA sponsor
concluded that the Individual is trustworthy, honest, and open-minded. Id. at 102-03.
The Individual’s wife testified that she was “sad and disappointed” by the Individual’s failed
urinalysis. Tr. at 165. She claimed that his transformation since then has been incredible and that
he is “a new man.” Id. at 166. She continued that AA is positive for him, and seeing others change
has also been positive for him. Id.
The Individual testified that it is very liberating to share his alcohol problem with others. Tr. at
185-86. Prior to his positive urinalysis, the Individual claimed that he thought he had a problem
with alcohol but did not think he was an “alcoholic.” Id. at 187-88. He stated, “I’m extremely
humble for having the opportunity to . . . be able to demonstrate . . . that I’m on a good and right
path today. I have the gift of desperation that I’ve never had before.” Id. at 189. The Individual
concluded that he never intends to consume alcohol again. Id. at 242. As to the fact that he failed
to tell the OPM investigator about the positive urinalysis, the Individual stated that the OPM
investigator did not ask and he did not think to tell him during the first interview. Id. at 230.
The DOE consulting psychologist concluded the testimony by opining that the Individual is
rehabilitated. Tr. at 252. He asserted that the Individual’s risk of relapse is low. Id. at 254. The
psychologist stated that he was convinced that the Individual has changed, particularly by the
testimony of the sponsor and the parishioner. Id. at 252, 254.
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 at ¶ 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 granting security clearances, I must deny granting if I am not convinced
that the LSO’s security concerns have been mitigated such that granting the Individual’s clearance
is not an unacceptable risk to national security.
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A. Guideline G
Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure
to control impulses, and raises questions about an individual's reliability and trustworthiness.
Adjudicative Guidelines ¶ 21. Guideline G provides that the following conditions may mitigate
security concerns:
(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 (id. at ¶ 23(b));
(c) the individual is participating in counseling or a treatment program, has no
previous history of treatment and relapse, and is making satisfactory progress in a
treatment program (id. at ¶ 23(c));
(d) the individual has successfully completed a treatment program along with any
required aftercare, and has demonstrated a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations (id. at ¶
23(d)).
In the present case, the Individual has been in counseling since late February 2017. He had a
positive urinalysis in March 2017. Nonetheless, I find that several of the Guideline G mitigating
factors are applicable in this case. I find paragraph 23(b) of the Guidelines applicable to the
Individual given the convincing testimony of his witnesses as to his acknowledgment of his
problem with alcohol. He is open about his AA and IOP attendance and has changed greatly since
March 2017.
I also find mitigation under paragraph 23(c) applicable since I find that the Individual is actively
participating in AA and the IOP. His AA sponsor testified that he is actively participating in
meetings and that they meet twice a week to discuss AA principles.
Furthermore, the Individual has completed the IOP and has demonstrated a clear and established
pattern of abstinence since March of 2017 as required by paragraph 23(d) of the Guidelines. In
addition, the DOE consulting psychologist convincingly opined that the Individual has changed
since his initial evaluation in July 2018. He testified that the Individual is rehabilitated and that his
risk of relapse is low, and he stated that we was particularly impressed by the interaction between
the Individual and his sponsor and the testimony of the church parishioner. It is clear to me that
the Individual now acknowledges that he has an issue with alcohol and has fully participated in
both his treatment program and AA. In addition, the Individual has been abstinent and compliant
with his treatment program as well as his deferred prosecution agreement. Therefore, I find that
the Individual has mitigated the Guideline G security concerns.
B. Guideline E
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual's reliability, trustworthiness, and
ability to protect classified or sensitive information. Of special interest is any failure to provide
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truthful and candid answers during national security investigative or adjudicative processes.
Adjudicative Guidelines ¶ 15.
The LSO raised three derogatory pieces of information under Guideline E, including that the
Individual had three DUI arrests, that he failed to inform the OPM investigator at the first interview
that he had a positive urinalysis, and that he misled the DOE consulting psychologist about his
knowledge of his required abstinence for the treatment program and the deferred prosecution
agreement. Ex. 2 at 5-6. All of the individual’s concealments were related to alcohol misuse.
The Individual has acknowledged his Alcohol Use Disorder. The DOE consulting psychologist
testified at the hearing that the Individual’s alcohol misuse could have led to his misrepresentations
to the OPM investigator. Tr. at 256. The Individual’s earlier denials and confusion are an aspect
of the alcohol use disorder for which the individual has received treatment and now evidences
adequate reformation and rehabilitation. Cf. Adjudicative Guidelines at Guideline E ¶ 17(d)
(mitigation possible where an individual has acknowledged the behavior and obtained counseling
to change the behavior or taken positive steps to alleviate factors that caused the untrustworthy or
inappropriate behavior, and such behavior is unlikely to recur).
These factors all support a finding of mitigation of the Guideline E security concerns. See Personnel
Security Hearing, Case No. PSH-17-0045 (2018); Personnel Security Hearing, Case No. PSH-17-
0045 (2017); Personnel Security Hearing, Case No. PSH-17-0028 (2017). I conclude that all of
these issues raised by the LSO are related to the Individual’s alcohol use disorder, from which he
has been rehabilitated according to both his counselor and the DOE consulting psychologist. For
the foregoing reasons, I find that the Individual has resolved the Guideline E 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 E and G of
the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
concerns. Therefore, I conclude that granting 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 grant 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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals