PSH-18-0083

*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 30, 2018 ) Case No.: PSH-18-0083
)
__________________________________________)
Issued: March 15, 2019
_______________
Administrative Judge Decision
_______________
James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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 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) (the “Adjudicative Guidelines”), I conclude that the Individual’s security
clearance should not be restored.
I. BACKGROUND
The Individual is employed by the DOE in a position that requires him to hold a security clearance.
In late 2017, the Individual was arrested and charged with Driving While Intoxicated. Ex. 1 at 2.
He timely reported the incident and the Local Security Office (LSO) conducted a Personnel
Security Interview (PSI) of the Individual on February 21, 2018. During the PSI, the Individual
revealed information that cast further doubt on his fitness to hold a security clearance. The LSO
referred the Individual to a DOE Psychiatrist (the Psychiatrist) for evaluation.
On August 6, 2018, the LSO sent a letter (“Notification Letter”) to the Individual advising him
that it had reliable information that created a substantial doubt regarding his eligibility for access
authorization. See 10 C.F.R. § 710.21. In the attachment to the Notification Letter, the LSO
1 Under the regulations, “[a]ccess 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.
explained that the derogatory information fell within the purview of Guidelines E and G of the
Adjudicative Guidelines.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. The Director of OHA appointed me as the
Administrative Judge in this matter. At the hearing, the Individual presented the testimony of three
witnesses and testified on his own behalf. The LSO submitted 11 exhibits (Exs. 1–11). The
Individual submitted 15 exhibits (Exs. A–O). The hearing transcript will be cited as “Tr.” followed
by the relevant page number.
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 Adjudicative Guidelines.
The LSO alleges that the Individual was untruthful when he stated during a psychiatric evaluation
in April 2018 that he had been abstinent from alcohol for nearly two months. Laboratory testing
conducted the same day indicated that the Individual had consumed alcohol heavily within the
preceding four weeks and had consumed alcohol in some quantity within the preceding four days.
Ex. 1 at 1. 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 Guideline E ¶ 15.
The LSO alleges that the Individual was diagnosed with Alcohol Use Disorder-Moderate by a
DOE Psychiatrist. Ex. 1 at 1. The LSO further alleges that the Individual was arrested and charged
with Driving While Intoxicated (DWI) in October 2017, with two open containers of alcohol in
his vehicle and a breath alcohol content (BAC) of .27 at the time of his arrest. Id. at 2. The LSO
also alleges that the Individual continued consuming alcohol after a March 2015 recommendation
from his physician to abstain from alcohol for health reasons. Id. 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.
- 2 -
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
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
In 2015, the Individual’s physician advised him to curtail his drinking to help lower his liver
enzymes. Ex. 9 at 86. However, the Individual continued consuming alcohol and by late 2016 he
was consuming between two and four alcoholic beverages on four nights every week. Ex. 7 at 3.
In late 2017, the Individual planned to attend a homecoming event at his alma mater. Ex. 9 at 7.
Between 1:00 PM and 3:30 PM, while packing for his trip, the Individual consumed four glasses
of vodka and ginger ale, each containing about two ounces of vodka. Id. at 13–14. Around 9:30
PM, the Individual pulled over to the shoulder of the road to attend to a personal matter. Id. at 8–
10. A state trooper pulled up behind him and stated that he had received a report of someone
driving erratically; he asked the Individual if he had been drinking and the Individual responded
that he had. Id. at 9, 28. The officer performed a field sobriety test on the Individual, then arrested
him for DWI. Id. at 9–10. Upon searching the vehicle, the officer found a bottle of vodka and a
bottle of cranberry juice with vodka in it. Id. at 10, 20. The Individual had consumed about one
third of the cranberry juice and vodka during his drive. Id. at 21. After his arrest, the Individual
was taken to a detention center, where a Breathalyzer test registered his BAC at .27. Id. at 35–36.
The Individual voluntarily entered an outpatient treatment program on February 19, 2018. Ex. 7 at
4. He also began attending Alcoholics Anonymous (AA) meetings. Id.
- 3 -
The Individual was evaluated by the Psychiatrist in early April 2018. Ex. 7. After evaluating the
Individual, the Psychiatrist diagnosed him as suffering from Alcohol Use Disorder-Moderate,
citing the Individual’s continued alcohol consumption despite a persistent desire to cut back on or
abstain from alcohol; the Individual’s continued alcohol consumption despite concerns expressed
to him by his doctor and spouse; the Individual’s continued alcohol consumption after his alcohol
use interfered with his work; and the Individual’s continued alcohol consumption despite
knowledge of having a health problem affected by alcohol consumption. Id. at 6. The Psychiatrist
found no evidence of rehabilitation or reformation. Id. at 8. He recommended that the Individual
demonstrate maintenance of sobriety for six to twelve months; attend a self-help recovery program
(such as AA) at least twice per week during that time and obtain a sponsor; and attend individual
counseling sessions to cope with issues that have contributed to his drinking in the past. Id.
The Psychiatrist ordered blood tests to determine the Individual’s recent alcohol consumption, to
which the Individual submitted on April 10, 2018. Ex. 7 at 11. The Individual stated in his PSI and
subsequent psychological evaluation that he had abstained from alcohol since mid-February 2018.
Ex. 7 at 4; Ex. 9 at 73. However, the results of the blood and urine tests showed heavy alcohol
consumption in the four weeks preceding testing and some amount of alcohol consumption in the
four days preceding the testing. Ex. 7 at 2.
Before the hearing, the Individual entered into the record evidence of his frequent AA attendance.
Ex. H; Ex. O. The Individual also entered test results from a blood test taken on January 10, 2019,
which showed that the Individual had not consumed alcohol in the preceding four days. Ex. G.
However, the Individual submitted two blood test results from samples taken on January 26, 2019
and February 1, 2019, indicating that he had consumed alcohol within the preceding 30 days. Ex.
M; Ex. N. This alcohol consumption coincided with the holiday period occurring directly after the
unexpected death of the Individual’s youngest child. Ex. E. The Individual entered counseling to
cope with his grief. Ex. F.
At the hearing, the Individual presented the testimony of his best friend, his AA sponsor, and the
clinical director of his outpatient treatment program. The Individual’s best friend testified that he
had not seen the Individual consume alcohol since his DWI, though he had knowledge of a recent
relapse around Christmas of 2018. Tr. at 17, 32. He testified that he understands that the Individual
intends to abstain from alcohol indefinitely. Id. at 33.
The Individual’s sponsor had known the Individual since November or October of 2018. Tr. at 42–
43. He testified that he had seen the Individual at AA nearly every single day since then. Id. at 43.
He became the Individual’s sponsor shortly after they met. Id. at 44.He provides the Individual
with moral support and helps familiarize him with AA; they talk almost every day. Id. at 44–45.
The sponsor testified that the Individual is very engaged in meetings and has volunteered to
participate in service activities. Id. at 47. He described the Individual as honest, responsible, and
trustworthy. Id. at 49–50.
The Individual took responsibility for his lack of candor with the Psychiatrist, stating that he had
not been truthful and that he wanted “to go on the record at this time to apologize to the agency
and to [the DOE Psychiatrist].” Tr. at 75. He testified that when asked about abstinence, he
described the period during which he had moderated his drinking, rather than abstained. Id. at 76.
- 4 -
He testified that he began alcohol treatment in February 2018, which entailed a series of weekly
group therapy meetings, AA meetings, and alcohol education. Id. at 73–74. However, he did not
begin abstaining from alcohol until several months into his treatment program, testifying that he
began abstaining in June 2018. Id. at 93. From February to June, he drank in moderation while
reporting to the treatment program that he was abstaining. Id. at 141–42. Once he started
abstaining, the Individual admitted to the treatment program that he had been consuming alcohol.
Id. at 142.
In November 2018, abstinence became a condition of the Individual’s probation pursuant to a
guilty plea for the October 2017 DWI. Tr. at 177. He remained abstinent until Thanksgiving,
testifying that he consumed alcohol while feeling overwhelming grief following his youngest
child’s death in November 2018. Id. at 105–07. He returned to abstinence, but again relapsed on
Christmas. Id. at 107. His last drink was on December 29, 2018, and he called his outpatient
treatment facility for assistance the next day. Id. The Individual contacted a grief counselor, who
was still treating him at the time of his hearing. Id. at 107–09. The Individual testified that he
intended to remain abstinent indefinitely. Id. at 155.
The clinical director supervised the Individual’s counselor. Tr. at 199. She testified that the
Individual completed the treatment program in October 2018, with about four-and-a-half months
of abstinence. Id. at 201. She testified that the Individual is attending weekly aftercare sessions in
the wake of his relapse. Id. at 202. The clinical director opined that the Individual now recognizes
his pattern of destructive alcohol consumption. Id. at 203. She also opined that the loss of his son
was what made the Individual realize how dependent he was on alcohol and that before that
tragedy, the Individual believed he would be able to return to moderate alcohol consumption. Id.
at 205–06. The clinical director opined that the Individual had “turned a huge corner” in his
recovery and was doing everything that he should in order to heal. Id. at 216. She testified that the
Individual’s Alcohol Use-Disorder is not currently in remission because he has not been abstinent
for three months. Id. at 217. She also testified that lack of candor is a common symptom of Alcohol
Use Disorder and that the Individual can become more honest through recovery work. Id. at 220–
21. She expressed concern at giving the Individual a good prognosis so early into his recovery. Id.
at 227.
The Psychiatrist testified that the Individual’s positive blood tests in January indicate that he was
drinking heavily during his relapse, very likely at levels higher than he reported. Tr. at 238–40.
The Psychiatrist opined that loss of a child would be extremely trying for anyone and found it
encouraging that the Individual had returned to sobriety in the face of such a great loss. Id. at 241–
43. However, his prognosis was guarded, with potential for a good prognosis if the Individual
continued his recovery program and could get past milestones, such as holidays or his child’s
birthday, without relapse. Id. at 243. He opined that future relapse by the Individual was “not an
unlikely event.” Id. at 245. The Psychiatrist testified that, in order to consider the Individual
rehabilitated, he would need to see at least six months of abstinence, starting from the date of the
last blood test, February 1, 2019. Id. at 249.
V. ANALYSIS
- 5 -
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 (Alcohol Consumption)
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 pattern of modified consumption or abstinence. Adjudicative Guidelines at ¶ 23.
The Individual has experienced great tragedy and the work he has done since his relapse is all the
more difficult—and admirable—because of it. However, such tragedy is ongoing and I cannot be
certain that he will not relapse again. As the Psychologist pointed out, holidays and birthdays will
be challenging. Without remaining abstinent through at least a few of these challenging moments,
the Individual cannot demonstrate a clear or established pattern of abstinence. Just over a month
into his recovery, as he was at the time of the hearing, the Individual has demonstrated a
willingness to work toward change, but I cannot find that he has mitigated the DOE’s concerns
under Guideline G.
B. Guideline E (Personal Conduct)
Guideline E provides that the following conditions (in relevant part) may mitigate Personal
Conduct security concerns: (1) the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts; (2) the offense is
so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment; and (3) the individual has acknowledged the
behavior and obtained counseling to change the behavior or taken other positive steps to alleviate
the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur. Adjudicative Guidelines at ¶ 17.
The Individual’s lack of candor is inextricably tied to his alcohol consumption. Until he is
rehabilitated with regard to alcohol, his honesty and trustworthiness will be questionable to some
degree. Accordingly, until the Individual has mitigated the DOE’s Guideline G concerns, I cannot
find that he has mitigated the DOE’s Guideline E concerns.
- 6 -
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 not succeeded in fully
resolving these 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.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals
- 7 -