PSH-19-0009

*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: January 31, 2019 ) Case No.: PSH-19-0009
)
_________________________________________ )
Issued: April 26, 2019
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Administrative Judge Decision
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Steven L. Fine, 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 For the reasons set forth below, I conclude that the Individual’s
security clearance should be not be restored.
I. BACKGROUND
On February 26, 2018, the Individual, a DOE Security Clearance holder, submitted an Incident
Report to the Local Security Office (LSO) indicating that he had been arrested and charged with
Driving Under the Influence (DUI) on February 24, 2018. The LSO conducted a Personnel
Security Interview (PSI) of the Individual on May 16, 2018, during which the Individual admitted
a pattern of excessive alcohol use, and a prior arrest for DUI on February 27, 2011. He further
admitted that he had consumed a large quantity of alcohol prior to the February 24, 2018, incident.
Because this derogatory information raised concerns about the Individual’s alcohol use and
psychological state, the LSO asked the Individual to undergo a forensic psychological evaluation
by a DOE Psychologist (the Psychologist). The Psychologist conducted an evaluation of the
Individual on July 18, 2018, and on July 25, 2018, he issued a report concluding that the Individual
“binge consume[s] alcohol to the point of intoxication.” Ex. 8 at 6. On the basis of the Individual’s
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.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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two DUI arrests, as well as the Psychologist’s opinion, the LSO began the present administrative
review proceeding by issuing a Notification Letter to the Individual informing him that he was
entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
regarding his eligibility for 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 February 1, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), I took testimony from the Individual, his friend, his co-worker, his mother-in-law, his
brother-in-law, and the Psychologist. See Transcript of Hearing, Case No. PSH-19-0009
(hereinafter cited as “Tr.”). The LSO submitted 12 exhibits, marked as Exhibits 1 through 12
(hereinafter cited as “Ex.”). The Individual submitted four exhibits, marked as Exhibits A though
D.
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 Guideline 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). Specifically, the LSO alleges that the
Individual has been found to “binge consume alcohol to the point of intoxication.” The LSO further
alleges that the Individual has a history of two DUI arrests. This information adequately justifies
the LSO’s invocation of Guideline G and raises significant security concerns. The Adjudicative
Guidelines state: “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.” Guideline G at ¶ 21. Among those conditions set forth in the Guidelines that
could raise a disqualifying security concern are (1) “alcohol-related incidents away from work,
such as driving while under the influence . . . regardless of the frequency of the individual's alcohol
use or whether the individual has been diagnosed with alcohol use disorder” (Guideline G at
§ 22(a)); and (2) “habitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder” (Guideline G at
§ 22(c)). These allegations adequately justify the LSO’s invocation of Guideline G.
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).
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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
On February 27, 2011, police arrested and charged the Individual with DUI. At the time of this
arrest, the Individual’s Blood Alcohol Level (BAL) was measured as .08 and .079. Ex. 11 at 80.
Seven years later, on February 24, 2018, police again arrested and charged the Individual with DUI.
At the time of this arrest, his BAL was measured as .14 and .13. Ex. 10 at 36-37. The Individual
admitted consuming approximately ten beers and six mixed drinks in the eight-and-a-half-hour
period before this arrest. Ex. 10 at 27. The Individual claimed that he did not feel intoxicated at
the time of this DUI. Ex. 10 at 31-32.
Because of the security concerns raised by these incidents, the Individual was evaluated by the
Psychologist at the LSO’s request. On July 25, 2018, the Psychologist issued a report in which he
concluded that the Individual “does binge consume alcohol to the point of impaired judgment.”
Ex. 8 at 6-7. The Psychologist opined that the pattern of alcohol consumption reported by the
Individual indicates that he is becoming intoxicated approximately once a month. Ex. 8 at 5. The
Psychologist also reported that the Individual’s stated future intention is to continue consuming
alcohol at his “usual” level. Ex. 8 at 5. Even though the Psychologist found that the Individual did
not have an emotional, mental, or personality condition or conditions that can impair his judgment,
stability, reliability or trustworthiness, or meet the criteria set forth in the Diagnostic and Statistical
Manual of the American Psychiatric Association, Fifth Edition (DSM-5) for Alcohol Use Disorder,
he recommended that the Individual undergo an Intensive Outpatient Program (IOP) with an
aftercare component, and participate in a 12-step program such as Alcoholics Anonymous (AA).
Ex. 8 at 7. The Psychologist further opined that the Individual must demonstrate that he can remain
abstinent for a minimum of nine months. Ex. 8 at 7.
On November 16, 2018, the Individual was evaluated by an Addiction Medicine facility. Ex. 2 at
3. On that date, the evaluator issued a report in which he concluded: “After completing a thorough
assessment no CD (Chemical Dependency) diagnosis has been met so you were not recommended
to participate in the CD treatment program. You have however agreed to meet individually for at
least the next 2-4 weeks for AOD (Alcohol or Drug) education [and you have] agreed to submit to
random UDS (urine drug screens). . . .” Ex. 2 at 3.
V. ANALYSIS
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At the hearing, the Individual testified that he does not believe he has, or has had, a problem with
alcohol. Tr. at 62. The Individual testified that he has not consumed alcohol since November 6,
2018, about four and a half months prior to the hearing. Tr. at 72. He testified that he did not feel
inebriated or intoxicated at the time of his 2011 DUI arrest. Tr. at 65. He similarly testified that
he did not feel intoxicated or inebriated at the time of his 2018 DUI arrest, despite having consumed
sixteen alcoholic beverages over an eight-hour period. Tr. at 67. Instead, he reported experiencing
a “slight buzz,” and believing that he was able to safely operate a motor vehicle. Tr. at 67-68.
The Individual described a number of actions that he has taken to address the LSO’s concerns about
his alcohol consumption. He signed a Recovery/Abstinence contract with his employer on
November 8, 2018, and has honored it. Tr. at 72-73; Ex. 2. The Individual testified that he has not
had to struggle to abstain from alcohol use. Tr. at 81. The Individual testified that he had been
evaluated by a mental health professional at the Addiction Medicine facility and that the mental
health professional concluded that he did not have an alcohol problem. Tr. at 74, 94. Nevertheless,
the Individual attended an alcohol education class on a daily basis for one month, and two AA
meetings every week for four weeks as well. Tr. at 73, 76-77; Ex. A. The Individual testified that
he does not have an alcohol problem, but recognizes that alcohol has caused problems in his life.
Tr. at 75. However, the Individual further testified that he now realizes that he cannot accurately
judge the amount of intoxication he is experiencing. Tr. at 69, 96.
The Psychologist, observed the testimony of the other witnesses before he testified. He then
testified that he originally concluded that the Individual had consumed excessive amounts of
alcohol on a regular basis. Tr. at 106-7. However after hearing the Individual’s testimony, he was
convinced that the Individual was now adequately rehabilitated, and that the Individual’s prognosis
is “good.” Tr. at 109, 111. The Psychologist noted that the Individual had been abstaining from
alcohol use for four months,2 and had previously been tapering his alcohol use. Tr. at 109. The
Psychologist opined that the Individual did not need any further treatment. Tr. at 109-110. The
Psychologist further testified that he believes that the Individual no longer habitually or binge
consuming alcohol to the point of impaired judgment. Tr. at 111. The Psychologist testified that
he believes that the Individual now realizes that he cannot trust himself to accurately assess his
level of impairment resulting from his alcohol intake. Tr. at 112-113.
The Individual has presented evidence that he has taken actions to address the LSO’s concerns
about his alcohol use; including attending an IOP, attending AA meetings, obtaining an evaluation
for alcohol problems, and abstaining from alcohol use for at least four and a half months. Most
importantly, the Individual has shown that he recognizes that he cannot trust himself to accurately
assess his level of impairment resulting from his alcohol intake. These factors convinced the
Psychologist that the Individual has been rehabilitated from his habitual or binge consumption of
alcohol to the point of impaired judgment, despite the fact that he had originally recommended that
the Individual abstain from alcohol use for at least nine months, and attend an IOP.
In the present case, the Psychologist specifically found that the Individual does not meet the criteria
for any diagnosis recognized by the mental health professions.3 I find that opinion persuasive,
given the Psychologist’s education, training, and experience in the area of mental health.
2 The Individual testified that he last used alcohol on November 6, 2018, and the hearing occurred on March 26,
2019, a period which exceeds four and a half months.
3 A conclusion shared by other mental health professionals who evaluated the Individual as well. Tr. at 74, 94; Ex. C.
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The Psychologist, after eliciting information from the Individual indicating that he was consuming
alcohol to the point of intoxication on a monthly basis, further opined in his report that the
Individual engaged in habitual or binge consumption of alcohol to the point of impaired judgment.
I find that opinion persuasive as well. However, after observing the hearing testimony of the
Individual and his witnesses, the Psychologist opined that the Individual had been “rehabilitated”
from his habitual or binge consumption. I was not similarly persuaded.
Under 10 C.F.R. § 710.27 it is ultimately the responsibility of the Administrative Judge to render
a favorable or unfavorable determination in proceedings under § 710.26, which mandates that I
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.
Guideline G, Section 23, sets forth four conditions that “could mitigate security concerns” raised
under Guideline G. I find that none of these conditions are sufficiently present in the instant case
to mitigate the security concerns raised by the LSO under Guideline G regarding the Individual’s
habitual or binge consumption of alcohol on a monthly basis, and his two DUIs.
Section 23(a) provides that security concerns raised under Guideline G can be mitigated if: “so
much time has passed or the behavior is 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.” I remain concerned that the Individual might return to
his pattern of excessive alcohol consumption, and that the Individual’s attitude during his hearing
testimony showed that his judgment continues to be impaired. While the Individual testified that
“[a]lcohol has caused problems in my life, and I have caused problems to myself in my life with
alcohol,” the Individual also repeatedly denied ever having a problem with alcohol, despite his
history of two DUIs. Tr. at 62, 69, 75.
While the Individual is correct that he does not have an alcohol use disorder, he has continued to
exhibit little insight into how his use of alcohol has contributed to his current and past legal issues,
or the danger that his inability to regulate his alcohol consumption placed upon him, his passengers,
and other innocent bystanders when he, on at least two occasions, operated a motor vehicle while
intoxicated. For example, during the hearing, the Individual continued to maintain that he was not
intoxicated or inebriated at the time of those arrests, despite the evidence to the contrary showing
that his BAL was at least .079, in 2011, and at least .139 in 2018. Tr. at 65, 67-68. While the
Individual recognized that he is not a good judge of how intoxicated he is, he subsequently
maintained that he can trust himself to know whether or not he can safely operate a motor vehicle.
Tr. at 69, 94, 96. Even though the Individual attended an alcohol education class, he reported that
he learned nothing about his relationship with alcohol from the class, other than that he does not
have a problem with alcohol. Tr. at 75. The Individual further indicated that he plans to resume
using alcohol once his abstinence agreement with his employer expires, although he plans to avoid
his past consumption pattern. Tr. at 86-87. However, he did not explain how he expects to avoid
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returning to his past consumption pattern, other than indicating that he was considering the
purchase of a breathalyzer device. Tr. at 96.
Section 23(b) provides that security concerns raised under Guideline G can be mitigated if: “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.” The Individual has
not clearly acknowledged his pattern of maladaptive alcohol use. Instead, he claims that he was
not actually impaired at the time of his two DUI’s. Nor has the Individual acknowledged that his
pattern of drinking to intoxication on a monthly basis was problematic. Nevertheless, the
Individual did attend an alcohol education class and a number of AA meetings, and has abstained
from alcohol use for over four months. However, as discussed above, the Individual has apparently
learned little from those classes. Moreover, the four-and-a-half months of abstinence achieved by
the Individual has not been sufficient to demonstrate a clear and established pattern of modified
consumption or abstinence, since the Individual has not articulated any intent or actions that he
plans to take in order to avoid returning to his past alcohol consumption patterns once he begins
using alcohol again.
Section 23(c) provides that security concerns raised under Guideline G can be mitigated if: “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.” The Individual
is currently not participating in counseling or a treatment program. While the Individual has
attended an alcohol education class, that is not the same as a treatment program. See e.g. Ex. 2
(stating that the Individual does not have a sufficiently serious alcohol problem to merit enrolling
him in an alcohol treatment program, but recommending that the Individual attend an alcohol
education program, instead).
Section 23(d) provides that security concerns raised under Guideline G can be mitigated if: “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.” As discussed above, the Individual has not
completed a treatment program, and has not established pattern of modified consumption or
abstinence.
Accordingly, I find that the security concerns arising under Guideline G from the Individual’s
habitual or binge consumption of alcohol to the point of impaired judgment, and two DUIs, have
not been resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that the Individual has not sufficiently mitigated the security concerns raised under Guideline G.
Accordingly, the Individual has not demonstrated that restoring his security clearance would not
endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should not be restored. The parties may seek review
of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
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Steven L. Fine
Administrative Judge
Office of Hearings and Appeals