PSH-19-0032

*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: June 20, 2019 ) Case No.: PSH-19-0032
)
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Issued: September 5, 2019
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. On July 9, 2018, the Individual submitted a personnel security information report to the
local security office (LSO) disclosing that he had been arrested for Driving Under the Influence
(DUI) and Open Container. Ex. 8. The LSO subsequently conducted a personnel security interview
(PSI) of the Individual on October 2, 2018. Ex. 11 at i. During the PSI, the Individual reported that
he had consumed nine to ten sixteen-ounce beers and three to four shots of rum prior to his arrest.
Id. at 16–17, 20.
Based on the Individual’s statements during the PSI, the LSO required the Individual to participate
in a psychiatric evaluation. See Ex. 4 at 1. On November 19, 2018, a DOE-contracted psychologist
(DOE Psychologist) conducted a clinical interview of the Individual. Ex. 9 at 2. Following the
clinical interview, the DOE Psychologist issued a psychological assessment (Report) in which she
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.
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.
2
The PSI and Report established substantial security concerns about the Individual. Accordingly,
the LSO informed the Individual, in a notification letter dated March 29, 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.” Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to Part 710
of Title 10 of the Code of Federal Regulations (C.F.R.). 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 twelve (12) numbered exhibits (Ex. 1–12) into the record and presented the testimony
of the DOE Psychologist. The Individual introduced twelve lettered exhibits (Ind. Ex. A–L) 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 G (Alcohol Consumption) as the basis for denying the Individual a
security clearance. 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.
Adjudicative Guidelines at ¶ 21. The Notification Letter listed as relevant facts: the DOE
Psychologist determined that the Individual met the diagnostic criteria for Alcohol Use Disorder,
Moderate under the DSM-V; and the Individual was arrested for DUI and Open Container after
consuming nine to ten sixteen-ounce beers and three to four shots of rum before operating a vehicle.
Ex. 1. The Individual’s alcohol-related incidents away from work and the DOE Psychologist’s
diagnosis of the Individual with Alcohol Use Disorder, Moderate, justify the LSO’s invocation of
Guideline G. Adjudicative Guidelines at ¶ 22(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
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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
On July 6, 2018, law enforcement arrested the Individual and charged him with DUI and Open
Container after he was in a one-car accident while driving home. Ex. 7 at 3; Ex. 8 at 3; Ex. 11 at
10. The Individual reported during the PSI that, on the day of his arrest, he consumed approximately
six sixteen-ounce beers and three to four shots of rum at home between 3:30 and 5:00 p.m. before
driving to his sister’s house. Ex. 11 at 15–17. The Individual reported that he consumed
approximately three or four more sixteen-ounce beers at his sister’s house, and left to drive home
at approximately 7:30 p.m. Id. at 20. On his way home, the Individual lost control of his vehicle
when making a turn and crashed into a ditch. Id. at 11. Law enforcement arrested the Individual
and transported him to a county jail, where the Individual’s blood alcohol content (BAC) was
measured at .174 g/210L. Id. at 25.
The Individual timely reported his arrest on July 9, 2018, and his employer required him to meet
with a psychologist employed at the DOE facility at which the Individual works for a substance
abuse evaluation. Id. at 28–31. The psychologist required the Individual to participate in eight hours
of counseling with a licensed clinical social worker (Individual’s Counselor) for substance abuse
and twelve hours of Alcoholics Anonymous (AA) meetings before returning to work. Id. at 31. On
July 28, 2018, the Individual’s Counselor issued a letter indicating that the Individual had
completed the required sessions, was making satisfactory progress towards the treatment goals
established between the Individual and the Individual’s Counselor, and was discharged from the
Individual’s Counselor’s care. Ex. C at 1.
During the PSI, the Individual provided a history of his drinking prior to his arrest for DUI.
According to the Individual, he rarely became intoxicated until 2016 when he began consuming
between three and twelve beers per sitting on weekends. Ex. 11 at 52. The Individual estimated
that he would not consider himself drunk until he had consumed ten beers, and that he could
“function pretty well on eight or ten beers.” Id. at 41. The Individual reported that he had abstained
from alcohol for over a year in the past, but had resumed drinking because he was having problems
in his marriage and “really didn’t want to think about [it].” Id. at 49–50. The Individual reported
that he had not consumed any alcohol since his arrest for DUI, did not believe that he currently had
a problem with alcohol, and intended to abstain from alcohol in the future. Id. at 57, 62–63.
During the clinical interview with the DOE Psychologist, the Individual admitted that, beginning
in 2016, he consumed alcohol every other day in amounts ranging from two to ten beers and, on
occasion, one to five shots of hard alcohol. Ex. 9 at 3. The Individual’s increased drinking coincided
with his learning that his wife had engaged in extramarital affairs. Id. The Individual represented
that his drinking decreased somewhat in 2017 after he and his wife reconciled, but that he drank to
a “buzz” on a weekly basis and to his definition of “drunk” one to two times per month. Id. The
Individual maintained that he had not consumed any alcohol since his arrest for DUI. Id. The DOE
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Psychologist required the Individual to undergo an Ethyl Glucuronide (EtG) and
Phosphatidylethanol (PEth) test after the clinical interview. Id. at 5. EtG tests measure alcohol
consumed within approximately three days of the test, and PEth tests measure significant quantities
of alcohol consumed up to several weeks prior to the test. Ex. 9 at 12. Both tests were negative,
which corroborated the Individual’s claims of abstaining from alcohol. Id.
In her Report, the DOE Psychologist expressed concern that the Individual did not fully accept that
he had a problem with alcohol or demonstrate insight into the causes and consequences of alcohol
abuse. Id. at 6. The DOE Psychologist noted that the Individual used “air quotes” when identifying
himself as an alcoholic, generalized an alcoholic as one who drinks “all day every day,” and
described his own problems with alcohol as limited to prior episodes of drinking too much and
losing control. Id. The DOE Psychologist also expressed concern that the Individual had been
diagnosed with a medical condition exacerbated by alcohol consumption in 2010, and had been
warned against consuming alcohol to excess by his physician, but had nevertheless consumed
alcohol to excess for several years. Id. at 7.
The DOE Psychologist concluded that the Individual met the diagnostic criteria for Alcohol Use
Disorder, Moderate, under the DSM-V based on consuming alcohol in larger amounts than
intended, recurrent use of alcohol in situations in which doing so was physically hazardous, using
alcohol despite knowing that it was likely to exacerbate a physical problem, and tolerance for
alcohol. Id. The DOE Psychologist recommended that the Individual demonstrate rehabilitation or
reformation by: abstaining from alcohol for at least twelve months; undergoing random
breathalyzer, EtG, and PEth tests over a twelve-month period; and attending AA or a comparable
in-person program on a weekly basis for twelve months. Id. at 8.
At the hearing, the Individual’s wife testified that she had not seen the Individual consume alcohol
since the day of his 2018 DUI. Tr. at 17. The Individual’s wife characterized his drinking prior to
the DUI as “a few alcoholic beverages” while watching football or working in the garage, and that
“sometimes his consumption would just be more than . . . he should have.” Id. at 16. The
Individual’s wife testified that, prior to his DUI, she “did not think he had a drinking problem . . . .”
Id. at 22. She expressed that she sees the Individual on a daily basis, there is no alcohol in the
family home, and she believed that she would know if the Individual resumed drinking. Id. at 17–
18, 25. According to the Individual’s wife, the Individual had realized significant improvements to
his health after he stopped drinking and had expressed to her that he intended to abstain from
alcohol for the long term. Id. at 18, 21.
Four character witnesses – two of the Individual’s coworkers, the Individual’s supervisor, and a
senior manager in the Individual’s chain of command – testified as to the Individual’s honesty,
reliability, trustworthiness, and general upstanding character. Id. at 79–80, 85, 95, 106. None of the
character witnesses had personal knowledge of the Individual’s drinking habits, and several of them
recounted their surprise upon learning that the Individual had been arrested for DUI. Id. at 81, 86–
87, 95, 97, 106.
The Individual testified that he had not consumed alcohol since his arrest for DUI, that his life was
better without alcohol, and that he did not intend to consume alcohol in the future. Id. at 37. The
Individual provided evidence indicating that he was in compliance with the terms of his probation
for the DUI, including paying the associated fine, completing twenty-four hours of community
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service, testing negative on random drug and alcohol tests, and having an interlock device installed
on his vehicle. Id. at 38–39; see also Ex. D; Ex. E; Ex. G; Ex. H. In addition, the Individual
established that he had successfully completed the counseling and AA meetings required by his
employer for him to return to work. Tr. at 35–36; see also Ex. C (reflecting the Individual’s
Counselor’s conclusion that the Individual had satisfactorily completed counseling and was
discharged from his care).
The Individual testified that the primary tools he had learned from attending AA meetings were
prayer, contemplation, and thinking about things before acting. Tr. at 53–54. After completing the
initial AA meetings between July 12 and July 27, 2018, as required for him to return to work, the
Individual did not attend any further AA meetings until July 17, 2019. Ex. F. The Individual
explained that he did not believe that he needed to attend AA to maintain his sobriety, but wanted
to demonstrate that he would do so if necessary to maintain his access authorization. Tr. at 43–44.
The Individual did not pursue a sponsor or work the twelve steps during his time attending AA
meetings. Id. at 53–54.
The Individual testified that he had not followed the DOE Psychologist’s recommendations after
receiving the Report because he “felt like since [he] had been completely sober since [the DUI] . . .
[that he] felt strong enough that [he] didn’t really need that.” Tr. at 59–60. According to the
Individual, he “realized [that he] probably was a mild alcoholic,” but “now [does not] feel like [he]
ha[s] any alcohol problem at all.” Id. at 53, 68.2
The DOE Psychologist testified last, after observing all of the other testimony offered at the
hearing, and opined that the Individual had a moderate to low risk of relapsing into problematic
drinking. Id. at 126. The DOE Psychologist acknowledged that the Individual’s alleged thirteen-
month abstinence from alcohol was sufficient to deem him in remission from Alcohol Use
Disorder. Id. at 138, 155. However, the DOE Psychologist expressed concern that the Individual
had not developed insight into the marital problems that triggered him to drink excessively in the
past or sufficient coping mechanisms, and that, without developing better awareness and a more
effective support system to lean on when he experienced urges to drink, he was at risk of relapsing
into problematic drinking the next time that he experienced problems in his marriage. Id. at 123–
24, 146. The DOE Psychologist gave the Individual a fair prognosis for avoiding a return to
problematic drinking in the future. Id. at 124.
With respect to the Individual’s support system, the DOE Psychologist observed that none of the
Individual’s character witnesses had demonstrated any knowledge of the Individual’s drinking
problems prior to his DUI and that the Individual’s wife had testified that she did not know that the
Individual had a drinking problem. Id. at 118, 146. Since the Individual’s wife, friends, and
colleagues did not exhibit knowledge of the Individual’s drinking problem, the DOE Psychologist
speculated that they were not likely to hold him accountable to sobriety or act as an effective
2 After the Individual testified that he did not feel that he currently had a problem with alcohol, the Individual was
asked by his counsel whether “it’s something that you’re going to have to control and maintain” and that “in reality,
you still have a problem?” Tr. at 70. After this leading questioning from the Individual’s counsel, and again following
a ten-minute break, the Individual expressed that he did believe that he had a problem with alcohol. Id. at 70, 72. I find
the Individual’s initial testimony that he did not believe that he had a problem with alcohol more credible than the
testimony that he offered after leading questions from his counsel and the opportunity to speak with his counsel during
a break in the hearing.
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support system. Id. at 119. The DOE Psychologist indicated that the Individual might have
developed a support system that would hold him accountable and provide him with resources for
when he experiences urges to drink had he participated actively in AA meetings as she
recommended in the Report. Id. at 116–18.
V. ANALYSIS
A. Guideline G Considerations
The Individual asserted that, although he did not comply with all of the DOE Psychologist’s
recommendations, his abstinence from alcohol and changed perspective demonstrate his
rehabilitation. Id. at 161–62. For the reasons set forth below, I find that the Individual has not
sufficiently mitigated the security concerns under Guideline G for me to conclude that he has met
his heavy burden of showing that restoring his 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).
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; or,
(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.
Adjudicative Guidelines at ¶ 23(a)–(d).
The Individual has not satisfied the mitigating conditions under subparagraphs (b), (c), or (d) of
Guideline G of the Adjudicative Guidelines because he is not currently in treatment and failed to
participate in AA or undergo the PEth testing recommended by the DOE Psychologist in the Report.
The DOE Psychologist testified compellingly as to the importance of the Individual establishing a
plan and support system through active participation in AA upon which he can rely when he
experiences urges to drink. The Individual completed only the minimum number of AA meetings
required to return to work over two weeks in 2018, did not work the twelve steps or obtain a
sponsor, and only returned to AA days before the hearing. This pattern of attendance does not
demonstrate a serious, sincere effort to recover on the part of the Individual. Even his return to AA
just before the hearing was, by his own admission, designed to demonstrate that he was willing to
do so, but only if necessary to maintain his clearance. While the Individual indicated that he has an
adequate support system, I concur with the DOE Psychologist that this is not the case. While the
Individual and his wife are working to repair their relationship, the DOE Psychologist persuasively
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opined that the Individual still has work to do in terms of developing insight into the dynamics of
their relationship that triggered him to drink and that the Individual would benefit from an outside
support system to hold him accountable to abstinence in the future. Since the Individual has not
developed such a support system through active AA participation, and his friends and coworkers
did not display a substantive understanding of the extent of his drinking, I find that the Individual
lacks an effective support system at this time.
The Individual also failed to undergo the PEth testing specified in the Report. This omission
implicates all four of the mitigating conditions under Guideline G because, absent this reliable
laboratory evidence, I do not have complete confidence in the Individual’s abstinence. The
Individual’s counsel aptly described him as a “closet drinker,” and the DOE Psychologist expressed
concerns that the Individual was minimizing his alcohol problem out of shame. Tr. at 144–45, 159.
The Individual’s wife and character witnesses failed to recognize his problematic drinking in the
past, and I am not convinced that they would know if the Individual had returned to drinking. I also
do not find the tests that the Individual submitted sufficient evidence to demonstrate his abstinence.
The interlock device on the Individual’s vehicle and the random workplace breath alcohol tests
offered by the Individual only show that he had not consumed alcohol shortly before operating his
vehicle or reporting to work. These tests are not capable of measuring whether the Individual
consumed alcohol alone in the home, as he did on the day of his arrest for DUI, days or weeks
before. PEth tests showing that he had not consumed significant quantities of alcohol in the weeks
prior to the test, or witness testimony from persons familiar with the severity of his drinking
problem, might have established the Individual’s abstinence from alcohol. His self-serving
testimony and limited test results do not.
Lastly, the Individual’s failure to definitively state that he has an alcohol problem, and lack of
insight into the triggers that led him to drink, cause me to conclude that the Individual does not
meet the mitigating conditions set forth in subparagraphs (a) and (b) of Guideline G. The Individual
provided conflicting testimony as to the extent of his alcohol problem, first saying that he did not
believe that he had an alcohol problem and then recanting that statement after prompting by his
counsel. Moreover, the DOE Psychologist convincingly asserted that the Individual’s lack of
insight into the triggers that led him to problematic drinking leave him vulnerable to relapse, as had
happened in the past, when the Individual was sober for one year, but then began drinking again.
For these reasons, I find that the Individual has not acknowledged his pattern of maladaptive
alcohol use and that the probability of his returning to problematic drinking casts doubt on his
reliability, trustworthiness, and judgment.
The Individual’s burden in a Part 710 proceeding is a heavy one, and I must resolve any doubts in
the interests of preserving security. Department of Navy v. Egan, 484 U.S. at 531. The Individual’s
failure to follow the DOE Psychologist’s recommendations, the DOE Psychologist’s testimony as
to the Individual’s prognosis and likelihood of relapse, and the lack of definitive evidence in
support of the Individual’s claimed abstinence leave me with too many doubts to conclude that the
Individual meets any of the applicable mitigating conditions. Therefore, I find that the Individual
has not mitigated the security concerns asserted under Guideline G of the Adjudicative Guidelines.
VI. CONCLUSION
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In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guideline 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 not brought forth sufficient evidence to resolve the
security concerns set forth in the Notification Letter. Accordingly, I have determined that the
Individual’s access authorization should not be restored. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals