PSH-18-0086

*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.
In the Matter of: Personnel Security Hearing )
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Filing Date: December 11, 2018 ) Case No.: PSH-18-0086
)
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Issued: March 4, 2019
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXX (the Individual) to hold an access authorization
under the United States Department of Energy’s (DOE) regulations, set forth at 10 C.F.R. Part
710, “Procedures for Determining Eligibility for Access to Classified Matter and 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)
(Adjudicative Guidelines), I conclude that the Individual’s access authorization should be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. On January 18, 2018, the Individual tested positive for alcohol at work during a random
breath alcohol test (BAT). See DOE Ex. 4. The Individual was placed on work restrictions which,
among other things, prohibited him from consuming alcohol. See DOE Ex. 5 at 16. Several days
later, a psychologist in the occupational medicine department at the Individual’s place of
employment (Employer’s Psychologist) examined the Individual. Id. The Individual reported that
he had consumed approximately four (4) beers and three (3) shots of hard alcohol the night before
his positive BAT, that he had not consumed alcohol prior to that night since 1992, and that he did
not know why he had consumed alcohol that night. Id. at 17.
On February 23, 2018, the Individual participated in a personnel security interview (PSI) with the
local security office (LSO), during which he reported that he drank one (1) to two (2) beers once
or twice per year prior to his positive BAT. DOE Ex. 7 at 29–30. However, during a psychological
evaluation with a DOE-contracted psychologist (DOE Psychologist) on April 9, 2018, the
Individual admitted that he had consumed substantially more alcohol than he said he had during
1 The regulations define access authorization as “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). This
Decision will refer to such authorization as access authorization or security clearance.
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the PSI, and continued to do so even after being placed on the work restrictions following his
positive BAT. DOE Ex. 5 at 3–5. After her evaluation of the Individual, the DOE Psychologist
concluded that the Individual met the diagnostic criteria for Alcohol Use Disorder, Moderate,
under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Id. at 8.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. DOE Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in the case, and I subsequently conducted an administrative hearing
concerning the matter. At the hearing, the LSO introduced eight (8) numbered exhibits (DOE Ex.
1–8) into the record and presented the testimony of the DOE Psychologist. The Individual
introduced unlabeled exhibits, which I organized into three (3) lettered exhibits (Ind. Ex. A–C),
into the record and presented the testimony of six (6) witnesses, including himself.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline E (Personal Conduct) as one basis for denying the Individual a security
clearance. DOE Ex. 1.
Conduct involving questionable judgement, 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. Guideline E at ¶ 15. Of special interest is any
failure to cooperate or provide truthful and candid answers during national security investigative
or adjudicative processes. The Notification Letter asserted that the Individual admitted during the
psychological evaluation that he had lied about his alcohol consumption during the PSI in 2018,
to an OPM investigator in 2015, and on numerous occasions in his annual Human Reliability
Program (HRP) evaluations. DOE Ex. 1. The Individual’s statements deliberately providing false
or misleading information concerning his alcohol consumption to persons involved in making
recommendations relevant to a national security eligibility determination justify the LSO’s
invocation of Guideline E. Guideline E at ¶ 16(b).
The LSO also cited Guideline G (Alcohol Consumption) as a basis for denying the Individual a
security clearance. DOE Ex. 1.
Excessive alcohol consumption often leads to the exercise of questionable judgement or the failure
to control impulses, and can raise questions about an individual’s reliability and trustworthiness.
Guideline G at ¶ 21. The Notification Letter listed as relevant facts: the DOE Psychologist’s
determination that the Individual met the diagnostic criteria for Alcohol Use Disorder, Moderate,
without adequate evidence of rehabilitation or reformation; the Individual’s admission to having
consumed three (3) to four (4) beers and one (1) to two (2) shots daily on weekdays and four (4)
to five (5) beers and six (6) to seven (7) shots daily on weekends from 2008 to 2013; the
Individual’s admission to having consumed two (2) to three (3) shots daily on weekdays and three
(3) to five (5) shots daily on weekends from 2013 to 2018; and, the Individual’s admission to
having consumed three (3) to five (5) shots every other day between January 18, 2018, and March
17, 2018, despite being required to abstain from alcohol during that period. The Individual’s
alcohol-related incidents at work, habitual or binge consumption of alcohol to the point of impaired
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judgement, and diagnosis by the DOE Psychologist as suffering from Alcohol Use Disorder justify
the LSO’s invocation of Guideline G. Guideline G 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 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.
IV. FINDINGS OF FACT
The Individual was arrested and charged with Driving While Intoxicated (DWI) in 1989 and 1992.
See DOE Ex. 5 at 4. The Individual reported to the DOE Psychologist that he abstained from
alcohol from 1992 to 2003, when the Individual’s son was rendered paraplegic following a car
accident which the Individual attributed to his son’s drinking and driving. See id. at 5. According
to the Individual, his drinking increased “little by little” over time until he was consuming as many
as four (4) beers and two (2) shots daily on weekdays and five (5) beers and seven (7) shots daily
on weekends in 2008. See id. The Individual reported that his drinking decreased slightly in 2013
after he was diagnosed with diabetes, at which point he was consuming two (2) to three (3) shots
daily during the week and three (3) to five (5) shots daily on weekends. See id. The Individual
reported to the DOE Psychologist that he consumed alcohol at this level until March 17, 2018, the
date of his last drink of alcohol, and that he did not believe that he became intoxicated when he
engaged in his regular drinking in the past. See id.
The Individual told the DOE Psychologist that he consumed approximately three (3) to four (4)
beers and three (3) to four (4) shots within two (2) hours the night before his positive BAT in
January 2018. See id. The DOE Psychologist estimated that, based on the volume of alcohol the
Individual consumed in two (2) hours, the Individual’s blood alcohol content reached
approximately .18 g/210L. See id. The Individual told the DOE Psychologist that he did not feel
intoxicated and “didn’t think I drank that much.” Id.
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The Individual’s employer placed him on work restrictions and prohibited him from drinking away
from work following his positive BAT. See id. at 16. The Individual was also required to undergo
periodic Ethyl Glucuronide (EtG) testing to verify his abstinence from alcohol. On March 7, 2018,
the Individual tested positive for alcohol. See id. at 19. When confronted with the positive test
result during a progress meeting with the Employer’s Psychologist, the Individual initially denied
drinking alcohol but then admitted to drinking a “couple of shots” while under the work restriction.
Id. The Individual later revealed to the DOE Psychologist that he had significantly understated his
alcohol consumption during this meeting with the Employer’s Psychologist. Supra p. 3.
Besides his misrepresentation in the progress meeting with the Employer’s Psychologist, the
Individual misrepresented the level of his alcohol consumption in security investigative contexts
on numerous occasions over a period of at least seven (7) years. The Individual entered the HRP
in 2011. See id. The Individual reported to the DOE Psychologist that he had misrepresented his
alcohol consumption during annual HRP evaluations since 2011. Id. During an interview with an
OPM investigator in 2015, the Individual told the investigator that he did not consume alcohol
because he did not like it and that he had never been charged with a criminal offense involving
alcohol. DOE Ex. 8 at 55. During a psychological evaluation following his positive BAT, the
Individual told the Employer’s Psychologist that he had been abstinent from alcohol for years prior
to consuming alcohol the night before his positive BAT. DOE Ex. 5 at 17. During the PSI, the
Individual stated that he drank one (1) to two (2) beers once or twice per year prior to his positive
BAT. DOE Ex. 7 at 29–30.
The DOE Psychologist required the Individual to undergo a Phosphatidylethanol (PEth) test and
an EtG test immediately following her evaluation of the Individual. The results of both tests were
negative. DOE Ex. 5 at 13–15. The DOE Psychologist noted in her report that these results
supported the Individual’s claim to have abstained from alcohol between March 17, 2018, and the
date of the psychological evaluation on April 9, 2018. Id. at 6–7.
After completing her evaluation of the Individual, the DOE Psychologist concluded that the
Individual met the diagnostic criteria for Alcohol Use Disorder, Moderate, under the DSM-V. Id.
at 8. In her report, the DOE Psychologist indicated that the Individual met seven (7) of the eleven
(11) diagnostic criteria for Alcohol Use Disorder in the DSM-V. Id. at 7. The DOE Psychologist
recommended that, to demonstrate rehabilitation, the Individual should: (a) participate in group
and individual counseling for three (3) months; (b) participate in an aftercare program for an
additional nine (9) months; (c) abstain from alcohol for the duration of his participation in
treatment; (d) document his attendance at Alcoholics Anonymous (AA) meetings on at least a
weekly basis; (e) obtain an AA sponsor and work the twelve-step AA program; and, (f) undergo
random alcohol testing, including at least four (4) PEth tests, over the twelve-month period of
treatment. Id. at 8. Alternatively, the DOE Psychologist recommended that, to demonstrate
reformation, the Individual should: (a) abstain from alcohol for at least twenty-four (24) months;
and, (b) undergo random alcohol testing, including at least quarterly PEth tests, for twenty-four
(24) months. Id.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the exhibits and the
testimony presented at the hearing. In resolving the question of the Individual’s eligibility for
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access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R.
§ 710.7(c) and the Guidelines. The security concerns at issue center on whether the Individual’s
alcohol consumption and untruthful personal conduct impair his judgement, stability, reliability,
or trustworthiness. After due deliberation, I find that the Individual’s DOE security clearance
should be restored. Specifically, I find that restoring the Individual’s security clearance would not
endanger the common defense and security, and that doing so would be clearly consistent with the
national interest. 10 C.F.R. § 710.27(a). The relevant evidence and my specific findings in support
of this decision are discussed below.
A. Guideline G Considerations
The Individual does not contest the allegations set forth in the Notification Letter. Hearing
Transcript (Tr.) at 66–67. Instead, the Individual asserted during the hearing that he has mitigated
the concerns set forth in the Notification Letter by substantially satisfying the DOE Psychologist’s
treatment recommendations, and thus has demonstrated his rehabilitation. Id. at 67–68.
An Individual may mitigate security concerns under Guideline G if:
(a) so much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the
individual’s current reliability, trustworthiness, or judgment;
(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;
(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; and,
(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.
Guideline G at ¶ 23(a)–(d). For the reasons set forth below, I find that the Individual has satisfied
the mitigating conditions set forth in paragraphs 23(b) and 23(d) of the Adjudicative Guidelines.2
The Individual provided testimony and evidence to show that he had substantially satisfied each
of the DOE Psychologist’s treatment recommendations. The Individual and his wife testified that
the Individual attended weekly AA meetings, sometimes with his wife, and that he intended to
continue to do so for the foreseeable future. Tr. at 13, 20, 76. The Individual further testified that
he had a sponsor with whom he spoke on a weekly basis, that the sponsor was available as a
resource if the Individual had an urge to consume alcohol, and that he was working the twelve (12)
2 I find paragraph 23(a) inapplicable because the Individual consumed alcohol in violation of work restrictions only
ten (10) months prior to the hearing, and the Individual had established a pattern of problematic alcohol consumption
over a period of many years. I find paragraph 23(c) inapplicable because the Individual previously participated in
treatment and relapsed in 2003 after approximately eleven (11) years of abstinence from alcohol.
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steps of AA. Id. at 76, 78–80. The Individual offered a letter from the sponsor, who wrote that the
Individual was an active AA participant who the sponsor believed had remained sober. Ind. Ex. A.
The Individual also testified that he had pursued counseling with a Licensed Professional Clinical
Counselor (Individual’s Counselor), and that his counseling, along with his attendance at AA
meetings, had helped him to recognize that he was an alcoholic who could not manage any level
of alcohol consumption without losing control. Tr. at 69–71. The Individual’s Counselor testified
that the Individual had satisfactorily completed the Individual’s Counselor’s treatment program,
which included twenty (20) weeks of group counseling, an alcohol education course, and monthly
individual counseling. Id. at 32–33. The Individual’s Counselor testified that the Individual had
made notable progress, particularly with respect to acknowledging his alcohol consumption
problem, and that the Individual was now in aftercare. Id. at 33–35. The Individual’s Counselor
opined that the Individual’s prognosis for abstaining from alcohol in the future was very good,
provided that he continued to attend AA meetings. Id. at 35.
An Employee Assistance Program counselor (EAP Counselor) who met with the Individual
beginning in January 2018 also testified on the Individual’s behalf. The EAP Counselor testified
that she provided hybrid services to the Individual, including alcohol education, individual
counseling, and coordinating treatment services with other treatment providers. Id. at 53–54. The
EAP Counselor described a breakthrough that the Individual experienced in his counseling with
her after his positive EtG test in March 2018. Id. at 55–57. According to the EAP Counselor, the
Individual faced the reality that he could not hide or control his drinking, openly disclosed the
extent of his drinking, and accepted that he needed professional help. Id. The EAP Counselor
testified that the Individual had made significant progress, and that she believed that the Individual
was now intrinsically motivated to abstain from alcohol. Id. at 57. The EAP Counselor further
opined that she believed that the Individual’s prognosis to abstain from alcohol in the future was
excellent. Id. at 60–61.
During the hearing, the Individual testified that he last consumed alcohol in March 2018. Id. at 83.
As evidence of his abstinence from alcohol, the Individual offered the results of two (2) PEth tests,
the first conducted in October 2018 and the second in January 2019, each of which was negative.
Ind. Ex. C. The EAP Counselor also testified that the Individual was required to undergo alcohol
testing as part of his work restriction, and that he had not tested positive for alcohol to her
knowledge since March 2018. Tr. at 58–59. The Individual’s Counselor also testified that he had
no reason to question the Individual’s sobriety since the Individual began treatment. Id. at 33.
After observing the entirety of the hearing, and all of the testimony offered therein, the DOE
Psychologist testified that her diagnosis of the Individual was modified to Alcohol Use Disorder,
Moderate, in early sustained remission, and that she believed that the Individual was rehabilitated.
Id. at 105, 107. The DOE Psychologist further testified that she believed that the Individual had
substantially satisfied her treatment recommendations, and that, although the Individual had
abstained from alcohol for ten (10) months instead of the twelve (12) months she had
recommended, she did not believe that an additional two (2) months of abstinence would
significantly change her opinion of the Individual’s condition. Id. at 106–07. The DOE
Psychologist opined that the Individual’s prognosis for abstaining from alcohol in the future was
good to very good. Id. at 110. Although she acknowledged the Individual’s prior relapse into
problematic alcohol consumption after treatment and years of abstinence, the DOE Psychologist
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asserted that she believed that the Individual’s cultivation of new supportive relationships, his
improved relationship with his wife, and the “organic changes” in the Individual’s mindset
differentiated his new commitment to abstinence from alcohol from his prior effort. Id. at 109–10.
Based on the Individual’s abstinence from alcohol, which is supported by laboratory test results
and witness testimony, the testimony of the Individual’s Counselor that the Individual
satisfactorily completed his treatment program, and the opinion of the DOE Psychologist that the
Individual has substantially complied with her treatment recommendations and is rehabilitated, I
find that the Individual satisfies two (2) of the mitigating conditions under Guideline G of the
Adjudicative Guidelines. Guideline G at ¶ 23(b), (d). Accordingly, I conclude that the Individual
has mitigated the security concerns asserted by the LSO under Guideline G of the Adjudicative
Guidelines.
B. Guideline E Considerations
An individual may mitigate security concerns under Guideline E of the Adjudicative Guidelines if
“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 the
untrustworthy . . . behavior, and such behavior is unlikely to occur.” Guideline E at ¶ 17(d). The
Individual asserts that he does not intend to drink alcohol again, and therefore he will never have
occasion to lie about his alcohol consumption in the future. The DOE Psychologist also opined
that the Individual did not clinically present as an untrustworthy person in any aspect except for
his consumption of alcohol. Id. at 108.
The OHA has, in prior cases, evaluated the security concerns associated with a person’s
misrepresentations about alcohol consumption in tandem with the security concerns associated
with the person’s alcohol consumption when “[d]enial and minimization of alcohol use[, which]
is a common symptom of alcohol abuse, [] appears to explain the individual’s behavior.” See
Personnel Security Hearing, PSH-17-0016 at 8 (2017). In this case, the Individual and the EAP
Counselor described the Individual’s denial of his problematic alcohol consumption and the
gradual process by which he came to acknowledge and overcome his problem. Tr. at 55–57, 74.
The DOE Psychologist opined that the Individual’s treatment rehabilitated him from his Alcohol
Use Disorder, and that the Individual was unlikely to be untruthful in the future without the
stressors associated with his alcohol consumption. Id. at 108–09. I find the DOE Psychologist’s
opinion to be persuasive, and accordingly find that the Individual has mitigated the security
concerns asserted by the LSO under Guideline E of the Adjudicative Guidelines.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guidelines E and G of the Adjudicatory 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 brought forth sufficient evidence to resolve the security
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concerns set forth in the Notification Letter. Accordingly, I have determined that the Individual’s
access authorization should be restored. Either party may seek review of this Decision by an
Appeal Panel pursuant to 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals