PSH-19-0029

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disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced
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United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: May 8, 2019 )
_________________________________________ ) Case No.: PSH-19-0029
Issued: August 8, 2019
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXX (hereinafter referred to as “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, Subpart A, entitled “General Criteria and 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) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should be restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In late March of 2018, the Individual self-reported to the local security office (LSO) that
he had been court ordered to attend an outpatient alcohol treatment program. Ex. 5. Following this
report, the LSO conducted a Personnel Security Interview (PSI) with the Individual in July 2018.
Ex. 8. In response to information gathered during the PSI, a DOE consulting psychologist
(Psychologist) evaluated the Individual in September 2018. Ex. 6.
Due to unresolved security concerns related to the Individual’s reported alcohol consumption, the
LSO informed the Individual, in a Notification Letter dated April 1, 2019 (Notification Letter), that
it possessed reliable information that created substantial doubt regarding the individual’s eligibility
to hold a security clearance. In an attachment to the Notification Letter, the LSO explained that the
derogatory information raised security concerns under Guideline G (alcohol consumption) of the
Adjudicative Guidelines. Ex. 1.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
1 Access authorization is defined 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). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted nine numbered exhibits (Exhibits 1-9) into the record and presented the testimony of the
Psychologist. The Individual introduced twelve lettered exhibits (Exhibits A-L) into the record,
and presented the testimony of six witnesses, including himself. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate numeric designation. The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cites Guideline G of the Adjudicative Guidelines. Guideline G relates to
security risks arising from alcohol consumption. 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. In citing Guideline G, the LSO
relied upon the evaluation of its Psychologist, who determined that the Individual met the criteria
for a diagnosis of Moderate Alcohol Use Disorder, in early remission, without adequate evidence
of rehabilitation or reformation, as described in the Diagnostic and Statistical Manual of Mental
Disorders, by the American Psychiatric Association, Fifth Edition, (DSM-5). Ex. 1. As a second
basis for citing Guideline G, the LSO relied upon the Individual’s admissions during the PSI that:
(1) he did not complete the court ordered alcohol rehabilitation program as his medical insurance
would not continue to cover this treatment due to the Individual’s failure to attend Alcoholics
Anonymous (AA); (2) he did not seek AA because he did not believe he was an alcoholic, and “it
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just wasn’t a high priority;” (3) from 2016 to December 2017, he consumed one half to three fourths
of a 750ml bottle of gin twice per week in addition to an entire 750 ml bottle once per month, and
became intoxicated once per week; and (4) from 2000 to 2016, he consumed one to three alcoholic
beverages five nights per week and became intoxicated once per month. Id.
IV. Findings of Fact
The Individual acknowledged the accuracy of the allegations in the Notification Letter and sought
to mitigate any security concerns. Tr. at 102. I have carefully considered the totality of the record
in reaching the findings of fact set forth below.
In March 2018, the Individual self-reported that he was court ordered to attend an outpatient alcohol
treatment program. Ex. 5. Subsequently, the LSO conducted a July 2018 PSI, during which the
Individual described his alcohol consumption, as contained in the summary of security concerns
and detailed above. Ex. 8 at 13-14, 41-42, 45, 49, 50, 69-70.
In late September 2018, the Psychologist conducted an evaluation of the Individual. Ex. 6. In her
report, the Psychologist explained that, from 2016 to approximately December 2017, the Individual
drank heavily to cope with marital stress. Id. at 3. She noted that after the Individual’s wife filed
for divorce, he met with a child mediator (Mediator) in late 2017, who expressed concern regarding
the Individual’s alcohol consumption. Id. at 4. The Mediator determined that the Individual needed
to use a breathalyzer before, during, and after spending time with his children. Id. The
psychological report indicated that, according to the Individual, with the exception of several
erroneous alcohol positive results occurring upon the first use of the machine, the test results never
identified the presence of alcohol. Id.
During his psychological evaluation, the Individual explained that during a child custody hearing
in early 2018, the judge ordered him to undergo an alcohol rehabilitation program, which he began
in March 2018. Id. at 5. The six-week program convened three nights per week for three hours and
required that the Individual abstain from alcohol while undergoing treatment. Id. Following six
weeks of treatment, the Individual’s insurance denied coverage for further treatment because the
Individual failed to attend AA meetings. Id. As such, the Individual was ineligible to participate
the in program’s aftercare sessions. Id. The Psychologist noted that the Individual indicated that he
did not attend AA because he did not believe he was an alcoholic, and he had limited time due to
other obligations. Id. at 6. However, “[w]ithin a few weeks of completing [the] program, [the
Individual] became more curious about AA and made meeting attendance a priority.” Id. The
Individual reported that he had been abstinent from alcohol since late March 2018 and had been
attending AA meetings approximately twice per week and working with a sponsor since
approximately mid-April 2018. Id. at 5-6.
The Psychologist noted that the Individual’s goal was to “maintain abstinence for twelve months
and continue attendance at AA indefinitely.” Id. at 6. However, she added that the Individual also
informed her that he “would like to enjoy a glass of wine [in the future,] but does not want to drink
to excess again.” Id. The Psychologist reported that, according to the Individual, he has never
experienced cravings for alcohol, blackouts, or withdrawal symptoms. Id. A Phosphatidylethanol
(PEth) test, administered as part of the psychological evaluation, returned negative results,
indicating that the Individual had “not been drinking on a regular, heavy basis within a few weeks
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of the test and ha[d] not had binge drinking episodes or moderate drinking within about one week
of the test.” Id. at 11.
Ultimately, the Psychologist concluded that the Individual’s alcohol use “[o]ver the last two
years…meets criteria for a Moderate Alcohol Use Disorder, In Early Remission.” Id. at 8. She
further determined that there was not adequate evidence of rehabilitation or reformation, “given
the stressors of his upcoming divorced and custody proceedings.” Id. at 9. In order to demonstrate
adequate rehabilitation or reformation, the Psychologist concluded that the Individual needed to
“demonstrate five more months of abstinence and attend an aftercare program, as well as continued
AA participation.” Id.
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 has sufficiently mitigated the security concerns noted by the LSO
with regard to Guideline G. I find that restoring the Individual’s 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). Therefore, I have determined that the Individual’s security clearance should be
restored. The specific findings that I make in support of this decision are discussed below.
At the hearing, six witnesses testified on behalf of the individual: his direct supervisor, his mother,
his three colleagues, his AA sponsor, and the individual himself. The Individual’s colleagues
testified that they have weekly contact with the Individual, have never seen him intoxicated, and
expressed no concerns with regard to his alcohol consumption. Tr. at 31, 34, 42, 47, 51. Of the
colleagues who have witnessed him consume alcohol outside of work, they indicated that they had
not observed him consume alcohol over the previous 18 months. Id. at 34, 51, 53. Furthermore, all
of his colleagues stated that the Individual has described his positive progress with, and dedication
to, AA. Id. at 35, 45-46, 52.
The Individual’s mother testified as to the significant changes she perceived in the Individual’s
demeanor since the Individual stopped drinking. Id. at 17-18. She noted that she was “most
definitely” concerned about his alcohol consumption, but since he began abstaining, she “just sees
a completely different person.” Id. at 17, 25. She approximated that he had been abstinent for a
year and explained that he is now happy, healthy, and no longer struggles with anger. Id. at 17-18,
27-28. She described that prior to abstaining from alcohol, the Individual’s house was not “a fun
place to be around[,]” but she stated that “he’s not like that anymore.” Id. at 18. She noted that she
no longer worries about saying or doing something wrong, and his house is “just a nice
atmosphere.” Id. The Mother attested to the Individual’s dedication to AA and his regular
attendance, and she explained that she has seen her son in a social setting with alcohol, and he
continued to abstain. Id. at 16, 20. She further noted that he expressed to her that he does not desire
to consume alcohol again. Id. at 20.
The Individual’s Sponsor testified that he met the Individual approximately one year ago. Id. at 61.
The Sponsor indicated that he sees the Individual two to three times per week at AA meetings, and
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every Friday, they meet for a one-on-one session. Id. at 61-62. The Sponsor stated that the
Individual is active in AA meetings and has “worked through the process of the Twelve Steps” and
is now working on the “traditions.” Id. at 66. He explained that the Individual “has opened himself
up to [the Sponsor] in a very personal way” and uses the Sponsor as a support when he is upset. Id.
at 63, 72. Echoing the Mother’s testimony, the Sponsor explained that upon starting AA, the
Individual was confused and angry, but the confusion has transformed into understanding and the
“anger has subsided incredibly.” Id. The Sponsor described the transformation as “incredible” and
a “gift.” Id.
The Individual also testified on his own behalf. He testified that he has been abstinent from alcohol
since March of 2018. Id. at 82. He admitted at the outset that he believes he had a problem with
alcohol, but now, he has “a tool to deal with it.” Id. at 77. The Individual explained that he
completed the court ordered alcohol rehabilitation program and is attending the aftercare program
once a week. Id. at 95, 103. He indicated that his divorce is not yet finalized, and the court has
ordered him to administer a breathalyzer test prior to and after visiting his children. Id. at 100.With
the exception of several positive tests, prior to his sobriety date and on the day the breathalyzer
machine was initiated, the Individual has never tested positive for alcohol over the course of
approximately fifteen months and 359 tests. Id. at 111; Ex. G.
The Individual noted that each week, along with the aftercare program, he meets with his sponsor
and he tries to attend three to four AA meetings at three distinct locations. Id. at 85, 95. He described
AA’s Twelve Steps as “truly phenomenal.” Id. at 79. He explained that at first, he was skeptical
and apprehensive, but “as [he] sat and listened, [he came] to realize…that [he is] not alone.” Id. at
80. The Individual detailed that after working on the Twelve Steps, he is now working on the
Twelve Traditions and has found that “it’s profound in that it has the potential to impact so many
people in such a deep way.” Id. Along with his sponsor and AA groups, the Individual described
his extensive support system in the form of his mother, father, sister, and longtime friends. Id. at
87.
The Individual admitted that he maintains alcohol in his home as a wine collection and has
purchased alcohol for others; however, he explained that consuming the alcohol is “not even a
thought.” Id. at 83. He reiterated that he has not had any urges or craving for alcohol and stated,
“it’s a nonissue. I mean, yes, there’s alcohol in the house, but it doesn’t even cross my mind.” Id.
at 83-84. However, the Individual did state:
Maybe [someday] when my kids are out of college2 and I’m retired,
I’ll sit on the porch and have a glass of wine. But right now it’s not
even part of my future, it’s not part of my equation. I don’t need it. I
don’t want it.” Id. at 92.
Nonetheless, the Individual clarified that he enjoys AA and intends to attend meetings
“indefinitely.” Id. at 94.
2 Currently, the Individual’s children are just entering their teenage years. Tr. at 105.
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The Psychologist, after observing the hearing and listening to the testimony offered by the
Individual and all other witnesses, indicated that her diagnosis of the individual was unchanged.3
Id. at 115-116. However, she opined that at this time, the Individual has demonstrated adequate
evidence of rehabilitation or reformation. Id. at 119. She elaborated, stating that the Individual
exceeded her recommendation of five months of abstinence in demonstrating over one year of
abstinence. Id.; Ex. 6. The Psychologist noted that the Individual has a low risk of relapse. Tr. at
120. She explained that the Sponsor’s testimony in conjunction with the Individual’s “lack of
cravings…consistent from the time that” she evaluated him in September 2018 contributed to this
conclusion. Id. at 120; Ex. 6. She additionally noted that she was not concerned with the
Individual’s alcohol collection or his purchase of alcohol on behalf of others as the Individual had
not demonstrated cravings or “physiological aspects of dependence,” such as symptoms of
withdrawal or elevated liver enzymes. Tr. at 121.
With regard to the Individual’s comment that he may desire to drink alcohol sometime in the distant
future, the Psychologist indicated that she did not believe that the Individual had a “very clear
dependence on alcohol,…meaning psychological, physiological dependence,” and as such, this
statement did not “provoke a lot of concern that…he was going to relapse.” Id. She noted that in
the Individual’s circumstance, a return to controlled drinking would not, in and of itself, indicate a
relapse. Id. at 123. In his situation, she stated that alcohol use that became problematic would
indicate a relapse. Id.; Ex. 6. The Psychologist ended her testimony explaining that the Individual’s
participation in AA and his implementation of the program in his life, in conjunction with the
Mother’s testimony regarding his increased resiliency and his measured and even-keeled reactions
to stressors, increased her confidence in his ability to maintain recovery. Id. at 124.
A. Guideline G
Diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical
psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder is a condition
that could raise a security concern and may disqualify an individual from holding a security
clearance. Guideline G at ¶ 22(d). If an Individual acknowledges his 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, he may be able to mitigate the security concern. Id. ¶ 23(b). In this case, the
Psychologist diagnosed the Individual with Moderate Alcohol Use Disorder, In Early Remission.
Ex. 6 at 8. Currently, however, the Individual acknowledges that he was using alcohol in excess to
cope with challenges in his personal life; he has completed a six week alcohol rehabilitation
program and is participating in weekly aftercare; he attends multiple AA meetings on a weekly
basis; and he has been abstinent from alcohol for over one year. See Guideline G at ¶ 23(b).
Furthermore, the Psychologist herself recognized that the Individual has exceeded her
recommendations in establishing adequate evidence of rehabilitation or reformation.
3 During the hearing, there was some confusion about the Psychologist’s diagnosis. According to her documentation,
she diagnosed the Individual with “severe alcohol use disorder;” however, the evaluation she submitted to the DOE
reported a diagnosis of “moderate alcohol use disorder.” Tr. at 116-118. The Psychologist stated that “it doesn’t make
a tremendous amount of difference in terms of rehabilitation recommendations.” Id. at 118. She noted that the
rehabilitation recommendations would have been the same for this Individual whether the diagnosis was severe or
moderate. Id. For the purposes of this Decision, I will use the diagnosis contained in Exhibit 6.
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It is clear, based upon the evidence in the record and the testimony presented at the hearing, that
the Individual has made admirable progress towards overcoming the concern regarding his alcohol
consumption. As such, I find that the Individual has adequately established that restoring his
security clearance will not endanger the common defense and security, or that doing so is clearly
consistent with the national interest. Thus, I conclude that the Individual has sufficiently resolved
the security concerns set forth in the Notification Letter with respect to Guideline G.
VI. Conclusion
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 have found that the Individual has brought forth sufficient evidence to resolve the
security concerns associated with Guideline G. Accordingly, I have determined that the
Individual’s access authorization should be restored. The parties may seek review of this Decision
by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals