PSH-19-0023

*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: April 19, 2019 ) Case No.: PSH-19-0023
)
__________________________________________)
Issued: July 16, 2019
____________________________
Administrative Judge Decision
____________________________
Brooke A. DuBois, Administrative Judge:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) to
hold an 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, 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 security
clearance should not be granted.
I. BACKGROUND
The Individual is employed in a position that requires him to obtain a security clearance. During
his background investigation, information pertaining to the Individual’s alcohol consumption
prompted the Local Security Office (LSO) to conduct a Personnel Security Interview (PSI) with
the Individual in September 2018. Ex. 9. After the PSI, a DOE-consultant Psychologist (DOE
Psychologist) conducted an evaluation of the Individual, submitting a report in December 2018
(Psychological Evaluation). Ex. 6.
Because the PSI and Psychological Evaluation did not resolve the security concerns raised by the
Individual’s alcohol consumption, the LSO informed the Individual, in a letter dated March 26,
2019 (Notification Letter), that it possessed reliable information that created substantial doubt
regarding his eligibility to hold a security clearance. See 10 C.F.R. § 710.21. In an attachment to
the Notification Letter, the LSO explained that the derogatory information raised concerns under
Guideline G (Alcohol Consumption). Ex. 1.
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.
- 2 -
The Individual requested an administrative review hearing pursuant to 10 C.F.R. Part 710. Ex. 2.
The Director of the Office of Hearings and Appeals appointed me as the Administrative Judge in
this matter, and I subsequently convened a hearing pursuant to 10 C.F.R. § 710.25(d), (e) and (g).
Before the hearing, the LSO submitted ten numbered exhibits (Ex. 1-10) and the Individual
submitted eight lettered exhibits (Ex. A-H). During the hearing, the Individual testified on his own
behalf, while the LSO presented the testimony of the DOE Psychologist. See Transcript of Hearing,
Case No. PSH-19-0023 (hereinafter cited as “Tr.”). After the hearing, the Individual submitted an
additional exhibit (Ex. I).
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,
citing Guideline G of the Adjudicative Guidelines as the basis. Ex. 1. “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
Guideline G at ¶ 21. In invoking Guideline G, the LSO cited the DOE Psychologist’s conclusion
that the Individual meets the Diagnostic and Statistical Manual of Mental Disorders of the
American Psychiatric Association, 5th edition (DSM-5) criteria for Alcohol Use Disorder-Moderate
and five alcohol-related arrests. Ex. 1. Alcohol-related incidents away from work and the diagnosis
by a duly qualified mental health professional both justify the LSO’s invocation of Guideline G.
Guideline G at ¶ (a), (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.
- 3 -
IV. FINDINGS OF FACT
The Individual has a lengthy history with alcohol. He began drinking when he turned 21 in 2005.
Ex. 9 at 39. He described his consumption as “moderate,” drinking a six pack of beer over the
weekend. Id. Later that year, the Individual joined the military at which point his alcohol
consumption “started to increase pretty steadily” once he completed basic training Id. Eventually,
his alcohol consumption increased to a six-pack of beer most days, with the Individual becoming
intoxicated most weekends by consuming approximately eight to twelve beers. Id. at 46-47.
When the Individual left the military in 2009, he spent “the better part of three…four weeks”
consuming alcohol, anywhere from six to ten beers, every day. Id. at 48. During the PSI, the
Individual described several periods in which he would quit drinking for a period of months, then
start drinking again at the levels previously described. Id. at 49-56. The Individual’s abstinence
from alcohol consumption was typically precipitated by an alcohol-related arrest. See id. at 52
(when the Individual stopped drinking after being arrested for an incident with his sister and for
throwing a beer can at a sign in 2011); id. at 54 (when the Individual stopped drinking after being
arrested for Driving Under the Influence (DUI) in 2012); and id. at 56 (when the Individual stopped
drinking after being arrested after his participation in a bar fight in 2014). After his 2012 DUI, the
Individual completed several months of court-required substance abuse counseling. Id. at 69-72.
During the PSI, the Individual stated that, in 2017, he cut back his alcohol consumption to its
current level. Id. at 58. Although he was still consuming alcohol at this time, he had stopped
drinking during the week, drinking between six to eight beers over the course of the weekend. Id.
at 59. The Individual stated that, although he often reported to duty hungover when he was in
military service, only once since then, in 2016, has he had to use sick leave due to being too
hungover to go to work. Id. 61-62.
The Individual stated that his previous attempts to abstain from alcohol resulted from legal issues,
health considerations, and family pressure. His doctor advised him on at least two occasions during
his annual checkup to stop drinking due to possible adverse effects on his liver. Id. at 64-65. His
mother often made comments about his drinking, especially when bailing him out of jail after an
alcohol-related arrest. Id. at 66. During the September 2018 PSI, the Individual recognized that he
had a problem with alcohol and stated that he intended to be abstinent. Id. at 72.
In December 2018, the Individual reported to the DOE Psychologist that he was still consuming
alcohol, describing his alcohol consumption over the past year as three to four beers, sometimes
six on a Friday evening. Ex. 6 at 4. The Individual also expressed an intention to quit consuming
alcohol, just as he did during the PSI. Id. The DOE Psychologist noted that there were discrepancies
between the alcohol history the Individual provided at different points in the security clearance
process and to previous medical providers. Id. As part of the Psychological Evaluation, the
Individual submitted to Ethyl Glucuronide (EtG) test and Phosphatidylethanol (PEth) blood tests.
Id. at 5. The EtG was positive, indicating that the Individual consumed alcohol during the three
days prior, and the PEth test was positive at a level consistent with regular heavy consumption of
- 4 -
alcohol.2 Id. at 14. The DOE Psychologist noted that the laboratory results were inconsistent with
the Individual’s reporting of his current alcohol consumption. Id. at 8.
The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder - Moderate and
recommended that the Individual abstain from alcohol for at least six months and attend alcohol
rehabilitation counseling (either on an individual basis or by attending Alcoholics Anonymous
(AA) meetings). Id. at 10. The DOE Psychologist also recommended random alcohol testing
approximately six times throughout the six-month treatment period. Id. The DOE Psychologist
specifically stated that, given the Individual’s history, she did not recommend that the Individual
address his alcohol use by his own efforts, but rather through formal treatment. Id. at 11.
During the hearing, the Individual testified, describing the five alcohol-related arrests in the
Notification Letter and how much alcohol he had consumed prior to each incident. Tr. at 10-22.
The Individual testified that during the last ten years, he stopped consuming alcohol on at least
three previous occasions, for as long as a year and a half between 2012 and 2014. Tr. at 29-33.
According to the Individual, on at least two occasions, he was arrested after consuming alcohol for
the first or second time after ending his abstinence. Tr. at 29, 33. He described tapering off his
alcohol consumption in June 2017, once he started his current employment. Tr. at 34.
The Individual testified that he last consumed alcohol “the second to last weekend in March.” Tr.
at 23. He also began attending AA three times a week the first week in April, around the time he
received the notification from DOE about his security clearance, and started working with a sponsor
the week before the hearing. Tr. at 24, 41. The Individual testified that he believed he had his
drinking under control and that he hopes to stay sober for the rest of his life. Tr. at 24-25. When
questioned about why this period of sobriety was different that his other attempts, the Individual
stated that he never really committed himself to lifelong abstinence before, and stated that in the
back of his mind, he always thought he could control his consumption if he returned to drinking,
which he now knows is not true. Tr. at 46.
During the hearing, the DOE Psychologist testified that, in her opinion, there was not adequate
evidence of rehabilitation or reformation in the Individual’s case because not enough time has
passed. Tr. at 64. She further testified that she believes the Individual has a moderate risk of relapse.
Tr. at 65. The DOE Psychologist believes that the Individual is on a good path with his abstinence
and treatment, but considering the Individual’s history of relapse, believes there needs to be a
longer period before she can be confident about the sustainability of his sobriety. Tr. at 62-63. The
DOE Psychologist stated that, although she would not change her diagnosis based upon the
evidence presented at the hearing, she would add the specifier to her diagnosis that the Individual
was in early remission. Tr. at 66.
After the hearing, the Individual submitted a June 2019 PEth test, which was negative. Ex. I.
2 Regular heavy consumption is described as about four or more drinks a day several days a week or greater amounts
less frequently. Id.
- 5 -
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s security clearance should not be granted. I cannot find that granting
the Individual a DOE security clearance will not endanger the common defense and security, and
is clearly consistent with the national interest. 10 C.F.R. § 710.27(a).
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when (1) 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; (2) the individual acknowledges his or her pattern of
maladaptive alcohol abuse, 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; (3) the individual is participating in counseling or a treatment
program, has no history of treatment and relapse, and is making satisfactory progress in a treatment
program; or (4) 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. Adjudicative Guidelines at ¶ 23(a)-
(d).
In this case, I cannot find that any of the mitigating factors apply. The Individual has a lengthy
history of alcohol consumption that has on at least five occasions led to his arrest, with the most
recent alcohol-related arrest being in May 2018. Guideline G at ¶ 23(a). Despite this history, the
Individual continued to consume alcohol, except for varying periods of sobriety generally after an
arrest. At the time of the hearing, the Individual had only been abstinent for approximately two-
and-a-half months, which does not demonstrate a clear and established pattern of modified
consumption, especially considering his history of relapse. Guideline G at ¶ 23(b)-(c). At the time
of the hearing, the Individual had not yet achieved the period of abstinence or treatment
recommended by the DOE Psychologist, although his June 2019 PEth test demonstrates that he is
making strides in his sobriety. Guideline G at ¶ 23(d). Based on the record before me, including
the Individual’s history of alcohol consumption, his previous periods of sobriety and relapse, and
the short length of his current period of sobriety, I cannot find that the Individual has successfully
mitigated the Guideline G security concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was sufficient evidence that
raised concerns regarding the Individual’s eligibility for a security clearance under Guideline G of
the Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving
those concerns. Therefore, I cannot conclude that granting a DOE security clearance 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 grant access
- 6 -
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.
Brooke A. DuBois
Administrative Judge
Office of Hearings and Appeals