PSH-19-0024

*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 22, 2019 ) Case No.: PSH-19-0024
)
_________________________________________ )
Issued: July 12, 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 not be restored.
I. BACKGROUND
On September 16, 2017, police arrested the Individual, a DOE Security Clearance holder, and
charged him with Aggravated Driving While Intoxicated (ADWI). Ex. 7 at 13-17. The LSO
conducted a Personnel Security Interview (PSI) of the Individual on November 30, 2017, during
which the Individual admitted consuming six alcoholic beverages prior to this arrest. Id. The
Individual also acknowledged that he had a history of three prior alcohol-related arrests. Ex. 7 at
13-17, 20-26. Because this derogatory information raised concerns about the Individual’s alcohol
use and psychological state, the LSO asked the Individual to undergo a forensic evaluation by a
DOE Psychiatrist (the Psychiatrist). The Psychiatrist interviewed the Individual on April 13, 2018,
and issued a report on April 30, 2018, diagnosing the Individual with Alcohol Use Disorder, Mild
(AUD). Ex. 4 at 15. The Psychiatrist subsequently amended his report after receiving laboratory
testing results indicating that the Individual had recently engaged in heavy alcohol consumption,
revising the Individual’s diagnosis from AUD Mild to AUD Moderate. Ex. 5 at 3. On the basis of
the Individual’s four alcohol-related arrests and the Psychiatrist’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.
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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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 April 22, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), I took testimony from the Individual and the Psychiatrist. See Transcript of Hearing, Case
No. PSH-19-0024 (hereinafter cited as “Tr.”). The LSO submitted 17 exhibits, marked as Exhibits
1 through 17 (hereinafter cited as “Ex.”). The Individual did not submit any exhibits.
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 diagnosed with AUD, Moderate, and has a history of four alcohol related
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, fighting, . .
disturbing the peace, or other incidents of concern.” (Guideline G at § 22(a)); and (2) “diagnosis
by a duly qualified medical or mental health professional . . . of alcohol use disorder.” (Guideline
G at § 22(d)). These allegations adequately justify the LSO’s invocation of Guideline G.
The LSO also alleges that the Individual’s history of four arrests creates a substantial doubt
concerning his eligibility for a security clearance under Guideline J (Criminal Conduct). Criminal
activity creates doubt about a person’s judgement, reliability, and trustworthiness. By its very
nature, it calls into question a person’s ability or willingness to comply with laws, rules, and
regulations. Adjudicative Guidelines at ¶ 30. The Individual’s history of four arrests justifies the
LSO’s invocation of Guideline J. Adjudicative Guidelines at ¶ 31(b).
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 December 20, 2001, police charged the Individual with Minor in Consumption. Ex. 7 at 26.
During the PSI, the Individual admitted that he had consumed alcohol prior to this incident. Ex. 7
at 26.
On August 31, 2002, police charged the Individual with Malicious Destruction of Property. Ex. 7
at 23-24. During the PSI, he admitted that he had consumed alcohol prior to this arrest. Ex. 7 at
23.
On March 22, 2015, police charged the Individual with Speeding and Driving While Intoxicated
(DWI). Ex. 15 at 1.
On September 16, 2017, police arrested and charged the Individual with Aggregated Driving While
Intoxicated (ADWI). Ex. 8 at 1. At the time of this arrest, the Individual’s Blood Alcohol Level
(BAL) was measured at .18 percent. Ex. 7 at 17.
Because of the security concerns raised by these incidents, the Individual was evaluated by the
Psychiatrist on April 13, 2018, at the LSO’s request.2 Ex. 4 at 1. On April 29, 2018, the Psychiatrist
issued a report in which he concluded that the Individual met the criteria for AUD, Mild, set forth
in the Diagnostic and Statistical Manual of the American Psychiatric Association, Fifth Edition
(DSM-5). The Psychiatrist further opined that the Individual’s prognosis was not favorable and
that he had not shown the he was rehabilitated or reformed from his AUD. Ex. 4 at 15. The
Psychologist recommended that the Individual completely abstain from alcohol for a one-year
period and begin outpatient treatment with an individual substance abuse counselor or treatment
program. Ex. 4 at 15.
On May 5, 2018, the Psychiatrist issued an addendum (the Addendum) to the Report. Ex. 5. In the
Addendum, the Psychiatrist reported that he had received the results of the third PEth test, which
2 During the Clinical Interview, the Individual claimed he had only consumed three alcoholic drinks since his ADWI
arrest on September 16, 2017. Ex. 4 at 9. The Psychiatrist requested that the Individual take two laboratory tests, the
gamma-glutamyl transpeptidase (GGT) and Phosphatidylethanol (PEth) tests, in order to assess his alcohol use. Ex. 4
at 11-12. GGT measures liver functioning for injury from alcohol and other causes of liver injury. Ex. 4 at 17. PEth
is a direct test for alcohol; only alcohol can generate PEth in the blood. Ex. 4 at 12. The results of the GGT tests
revealed damage to the Individual’s liver consistent with heavy alcohol consumption. Ex. 4 at 13. While the first two
Peth tests administered to the Individual were invalidated by laboratory error, a third specimen provided by the
Individual on April 26, 2018, indicated that the Individual had consumed alcohol in at least moderate amounts during
the previous 28 days. Ex. 5 at 2.
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indicated that the Individual had engaged in at least moderate alcohol consumption during the 28
days prior to April 26, 2018, when the specimen had been obtained from the Individual. Ex. 5 at 2.
The Psychiatrist further noted that both the PEth and GGT test results indicated that the Individual
had likely engaged in heavy alcohol consumption during the previous 30 days. This finding was
inconsistent with the Individual’s assertion that he had consumed only three alcoholic beverages
since his September 16, 2017, ADWI arrest. See Ex. 4 at 9. After considering this additional
information, the Psychiatrist amended his diagnosis of the Individual from AUD, Mild to AUD
Moderate. Ex. 5 at 3. The Psychiatrist therefore modified his treatment recommendations, stating:
I recommend complete abstinence from alcohol for a minimum of 12 months from
now, or until 5/19 at least. In addition, I would recommend [that the Individual]
begin an Intensive Outpatient Program (IOP) treatment program so that he may
receive assistance in achieving sobriety. Following the completion of an IOP
program, I would recommend his participation in an ongoing aftercare program for
a minimum of 12 months. As a known support for attaining sobriety, I would
recommend [the Individual] participate in AA [Alcoholics Anonymous] or other
mutual help organizations.
Ex. 5 at 3-4.
At the hearing, the Individual testified that he did not contest the factual accuracy of the information
in the Notification Letter or the Report, but asserted that he has mitigated the security concerns
raised by his AUD and history of four arrests. The Individual cited the passage of time since his
first two arrests as evidence that the concerns arising from his criminal activity have been mitigated
and further contended that his changed lifestyle since the recent birth of one of his children partially
mitigated the security concerns under the Adjudicative Guidelines. Tr. at 14–15, 52–53. The
Individual admitted that he had not abstained from alcohol or participated in an intensive outpatient
treatment program as recommended by the DOE Psychiatrist. Id. at 47–50. However, pursuant to
the plea agreement he entered into in connection with his ADWI, the Individual had an interlock
device placed on his vehicle, underwent an alcohol assessment, and completed an impaired driver
course. Id. at 44–45. The Individual also testified that he had participated in an alcohol intervention
counseling program offered by the U.S. Department of Veterans Affairs (VA) in anticipation that
he would be ordered to do so by the court adjudicating the ADWI. Id. at 18–20, 48. The six-week
VA counseling program included weekly group sessions, three individual meetings with a
psychologist, and random urinalysis tests which the Individual represented had all been negative
for alcohol. Id. at 19, 50. The Individual testified that a VA psychologist had urged him not to
consume alcohol, but had provided him with recommendations for safer drinking practices if he
chose to continue to drink. Id. at 51.
The Individual admitted that he presently consumes alcohol, allegedly in moderation, and had
consumed two beers on the Friday prior to the hearing. Id. at 47–48. The Individual admitted that
he was not sure if it was safe for him to continue to drink alcohol, but testified that he intended to
do so nevertheless in a manner consistent with the VA psychologist’s recommendations for safer
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drinking.3 Id. at 45–47. He testified that did not believe that he currently had a problem with
alcohol. Id.
The Psychiatrist, after observing the Individual’s testimony, testified that his diagnosis of the
Individual was unchanged and that the Individual was not in remission or rehabilitated.4 Id. at 76.
When asked to provide his prognosis for the Individual, the Psychiatrist testified: “Until he ceases
drinking I would not say he has a very good prognosis.” Id. at 80.
V. ANALYSIS
The Adjudicative Guidelines provide four conditions that can mitigate security concerns under
Guideline G, none of which are applicable in this case. Adjudicative Guidelines at ¶ 23(a)–(d). The
first mitigating condition applies when security concerns arising under Guideline G are unlikely to
recur based on the passage of time, the infrequency of the behavior, or the unusual nature of the
circumstances surrounding the conduct. Id. at ¶ 23(a). The Individual’s AUD is clearly in an active
state, since the Individual admits that he continues to use alcohol, albeit in an allegedly moderated
fashion. Since it is clear that the Individual’s efforts to address his AUD have not yet succeeded,
I find that his problematic alcohol use is likely to recur. Accordingly, I find that the first mitigating
condition under Guideline G is inapplicable.
The remaining mitigating conditions under Guideline G apply when an individual modifies his
alcohol consumption and pursues appropriate treatment in accordance with treatment
recommendations. Id. at ¶ 23(b)–(d). While the Individual has attended an alcohol program at his
local VA facility, by his own admission, the Individual continues to consume alcohol and has not
pursued the Psychiatrist’s recommendation to participate in AA or a similar program. The
Psychiatrist testified that the Individual has not demonstrated rehabilitation and that his prognosis
is not good. The Individual has not presented any compelling evidence to the contrary, and I am
convinced that his AUD is currently in an active state, since he continues to use alcohol. Moreover,
I do not find the Individual’s testimony concerning his modified drinking habits to be credible, in
3 The Individual further admitted that he had underreported his drinking on the night before his arrest for ADWI during
the PSI, and opined that he had consumed approximately four shots of whiskey and several beers between 6:00 p.m.
and 3:00 a.m. when his BAC was tested. Id. at 34, 37–39. The Individual did not offer any update to the estimate he
provided to the Psychiatrist of having consumed three drinks between his ADWI arrest and the date of the clinical
interview. Id. at 39–41, 97–98.
4 The Psychiatrist further opined that the Individual was probably still underreporting his drinking, and that there was
no reliable evidence that the Individual had moderated his drinking as he claimed. Id. at 76. The Psychiatrist challenged
the Individual’s assertion that consuming approximately seven drinks over a period of nine hours could have produced
a BAC of .18, and speculated that the Individual was either underreporting how many drinks he had consumed or
became so impaired that he had experienced memory lapses. Id. at 71. Furthermore, the DOE Psychiatrist explained
that it was not possible that three drinks could have produced the Individual’s elevated results on the PEth test and
GGT test, and opined that the Individual was still minimizing his drinking. Id. at 60–70. The Psychiatrist further
explained that, although drinking more than one admits is not a diagnostic criterion under the DSM-V, he had inferred
that the Individual had developed a physiological tolerance for alcohol and was consuming more alcohol than he
intended and therefore that the Individual met more of the diagnostic criteria for alcohol use disorder than he was
willing to admit. Id. at 80–81. The Psychiatrist further testified that the test results showed that the Individual was
engaging in habitual, rather than binge, consumption of alcohol. Id. at 77–78. The Psychiatrist further testified that
any assertions of sobriety or moderated drinking on the part of the Individual would need to be corroborated through
testing due to the Individual’s demonstrated inability to reliably self-report his drinking. Id. at 76.
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light of the Individual’s minimization of his drinking in the recent past. The Individual’s
unwillingness or inability to address his AUD raises significant and continuing concerns about his
judgment, reliability, and trustworthiness. For these reasons, I find that the Individual has not
satisfied any of the mitigating conditions under Guideline G.
There are also four conditions that can mitigate security concerns under Guideline J of the
Adjudicative Guidelines. Two of these conditions, concerning persons pressured or coerced into
committing criminal acts and persons who assert that they did not commit the alleged conduct, are
clearly inapplicable in this case. Id. at ¶ 32(b)–(c). The remaining conditions apply when conduct
is unlikely to recur based on the passage of time, the infrequency of the behavior, or the unusual
nature of the circumstances surrounding the conduct, and when an individual demonstrates
rehabilitation, such as through the passage of time without recurrence of criminal activity,
restitution, compliance with the terms of parole or probation, job training or higher education, a
good employment record, or constructive community involvement. Id. at ¶ 32(a), (d).
In the present case, the Individual has only recently completed the terms of his plea agreement for
his second DWI in the past four years. In light of the recentness and repetition of the Individual’s
criminal conduct, and his failure to take the appropriate actions to treat the root cause of his criminal
behavior, i.e. his alcohol problem, I am not convinced that the Individual’s alcohol-related criminal
conduct is unlikely to recur. Accordingly, I find that none of the mitigating conditions under
Guideline J are applicable.
I have found that no mitigating conditions for the security concerns raised by the Individual’s four
alcohol-related arrests and AUD diagnosis are present in the instant case. Accordingly, I find that
those security concerns as well as the doubts concerning the Individual’s judgment, reliability and
trustworthiness arising from his AUD diagnosis and four alcohol-related arrests have not been
resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G and J.
After considering all of 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
Guidelines G and J. 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.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals