PSH-19-0034

*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 28, 2019 ) Case No.: PSH-19-0034
)
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Issued: September 17, 2019
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) to
hold an access authorization1 under the 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.” 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 granted.
I. Background
The Individual is employed by a DOE Contractor in a position that requires a security clearance.
In June 2017, the Individual completed a Questionnaire for National Security Positions (QNSP).
Ex. 7. In the course of an investigation into the Individual, the Local Security Office (LSO) learned
derogatory information about the Individual’s alcohol use. Ex. 1. As a result, a DOE consulting
psychologist (the Psychologist) evaluated the Individual in February 2019. Ex. 5.
Due to unresolved security concerns related to the Individual’s alcohol consumption, the LSO
informed the Individual, in a Notification Letter dated May 17, 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.
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.
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
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 eight numbered exhibits (Exhibits 1-8) into the record and presented the testimony of
the Psychologist. The Individual introduced five lettered exhibits (Exhibits A-E) into the record,
and presented the testimony of seven witnesses, including himself. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate alphabetic or 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 the Psychologist, who determined that the Individual habitually or
binge consumes alcohol to the point of impaired judgment without adequate evidence of
rehabilitation. Ex. 1. As a second basis for citing Guideline G, the LSO relied upon a January 2014
arrest and charge of Driving Under the Influence (DUI) and a March 2012 arrest and charge of
shoplifting. Id. The LSO additionally relied upon the Individual’s admissions in a March 2018
Enhanced Subject Interview (ESI) that he: (1) consumes four to five miniatures of hard alcohol and
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one six-pack of beer every Friday and Saturday evening, to the point of intoxication, (2) was
intoxicated prior to the January 2014 DUI arrest, and (3) was intoxicated prior to the March 2012
shoplifting arrest. Id.
IV. Findings of Fact
The Individual did not dispute any of the allegations contained within the Notification Letter and
sought to mitigate any security concerns. Tr. at 64-65. I have carefully considered the totality of
the record in reaching the findings of fact set forth below.
Following unresolved security concerns related to the Individual’s alcohol consumption, the
Psychologist evaluated the Individual in February 2019. Ex. 5. In his report, the Psychologist noted
that the Individual “drinks in order to relax and does not see a problem with his drinking.” Id. at 4.
He also noted that when the Individual consumes alcohol, he “drinks to intoxication.” Id. However,
per the Individual’s report, he began abstaining from alcohol “about a month ago.” Id. As part of
the evaluation, the Psychologist requested that the Individual undergo a Phosphatidylethanol (PEth)
test, which revealed a “positive” result. Id. at 10. A psychiatrist’s interpretation of this test revealed
that the positive result indicated that the Individual had consumed alcohol “within the last several
weeks,” and if the Individual’s claim of abstinence from alcohol for a one month period was
accurate, the Individual would have been engaging in “very heavy alcohol consumption” prior to
that time. Id.
The Psychologist considered the Individual’s reports that prior to becoming abstinent from alcohol,
he would consume “four to five ‘miniatures’ and a six pack of beer per evening every Friday and
Saturday night.” Id. at 5. He determined that the Individual’s circumstances were not consistent
with a Diagnostic and Statistical Manual – Fifth Edition (DSM-5) diagnosis, but did indicate that
the Individual “ha[d] been a weekend binge drinker for several years.” Id. at 4, 6. The Psychologist
concluded that the Individual did not demonstrate adequate evidence of rehabilitation, and opined
that the Individual should: (1) become permanently abstinent from alcohol, (2) provide evidence
of his abstinence by having negative laboratory tests over the next nine months, and (3) fully
participate in an intensive outpatient program (IOP). Id. at 6. Lastly, the Psychologist recommended
that the Individual participate in Alcoholics Anonymous (AA) at least four times a week for a
minimum of nine months. 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 not sufficiently mitigated the security concerns noted by the
LSO with regard to Guideline G. I cannot find that granting 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 not be granted. The specific findings that I make in support of this decision are
discussed below.
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At the hearing, the Individual presented the testimony of his IOP counselor (the Counselor), a
member of his AA group (the AA Member), his supervisor (the Supervisor), his team lead (the
Team Lead), his former supervisor (the Former Supervisor), and his older brother (the Brother).
The Counselor testified that he had known the Individual for less than one month, having met him
during intake at the IOP. Tr. at 12-13. He stated that the Individual’s IOP consists of a recovery
relapse prevention group, a substance use education group, and individual therapy. Id. at 13. The
Counselor noted that the Individual had not yet attended an individual counseling session, but had
attended three weeks of group sessions. Id. As a result of the intake psychological assessment, the
Counselor stated that he diagnosed the Individual with a moderate alcohol use disorder. Id. at 15,
19. Although he has not attended an education or recovery session with the Individual, he testified
that the Individual was “doing very well,” and if he continued as he had been, he would have a very
positive prognosis. Id. at 17-18. However, the Counselor clarified that as of the hearing date, the
Individual was still in the early stages of recovery. Id. at 18.
The AA Member testified that he met the Individual approximately two months prior to the hearing
at an AA meeting. Id. at 24. He noted that he was not the Individual’s sponsor, but he thought he
would be at some point. Id. He stated that he did not see the Individual outside of AA meetings,
but he had spoken with him on the phone about “AA issues” on a few occasions. Id. The AA
Member testified that the Individual participated in meetings, attended approximately two meetings
per week, and estimated that the Individual had been abstaining from alcohol for about three
months. Id. at 25, 27.
The Individual’s Supervisor testified that the Individual began reporting to him in the spring of
2017. Id. at 29. He stated that he knew the Individual primarily in a professional capacity; however,
the two have attended work-related social events two or three times. Id. at 30. The Supervisor stated
that he had never seen the Individual consume alcohol and noted that the Individual does not display
signs that he is struggling outside of work. Id. at 30, 33. The Supervisor testified to the Individual’s
impressive attendance record and stated that the Individual “shows no sign of needing to take off
Mondays to recover from the weekend.” Id. at 33. He further indicated that the Individual was very
honest in disclosing the DOE concerns with regard to his alcohol consumption. Id. at 34.
The Individual’s Team Lead and the Team Lead’s spouse, who was the Individual’s Former
Supervisor, testified that they had known the Individual since 2017, primarily in a professional
capacity, although the Individual had attended work-related social events at their house. Id. at 39,
45. Both indicated that they had never seen the Individual consume alcohol or suffer any alcohol
related effects, such as a hangover. Id. at 39-40, 45, 47.
The Individual’s Brother testified that he sees the Individual all day on the weekends and every
evening during the week for family dinner, with the exception of the nights that the Individual
attends AA. Id. at 53. The Brother stated that the Individual does not keep alcohol in his home and
that no one consumes alcohol at their daily family dinners. Id. at 54-55. He noted that he last saw
the Individual consume alcohol about five months prior. Id. at 55. The Brother indicated that he
has noticed positive changes in the Individual, and he and his family are very supportive of the
Individual’s sobriety. Id. at 56-57. The Brother also felt that the Individual will be able to maintain
his abstinence. Id. at 57.
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The Individual then testified on his own behalf. The Individual explained that prior to abstaining
from alcohol, he would typically consume it on evenings when he did not need to report to work
the following day. Id. at 65. He stated that the amount of this alcohol consumption varied depending
on what he was doing; he never consumed alcohol to become purposely “drunk,” but solely to
unwind; and he did not see his alcohol consumption “as a problem” until he sought profession help.
Id. at 65, 67 The Individual explained that he “tried typically not to drink in front of [his] mother
or father.” Id. at 66. He reported that he would consume alcohol “behind their back, where they
physically couldn’t see [him] doing it” because his parents are abstinent, and they do not allow
alcohol in their house. Id. at 66, 80. The Individual testified that now that he has become abstinent
from alcohol, his parents are “very happy,” encouraging, proud, and supportive. Id. at 67.
The Individual described his abstinence from alcohol, stating that he last consumed alcohol on May
8, 2019 and that he intends to continue attending the IOP and the AA meetings. Id. at 68-69. The
Individual’s AA attendance log indicated that the Individual had been attending AA meetings,
approximately weekly, since June 15, 2019. Ex. E. The Individual explained that he did not feel
that sobriety is “that hard.” Id. at 69. He described the process as, “go to meetings, don’t
drink,…read” the 12- Step book. Id. The Individual testified that he is “going to try [his] hardest to
not ever drink again.” Id. at 71. He felt that he was meeting all of the requirements of the DOE
Psychologist and submitted into evidence the results of a PEth test, which indicated a “negative”
result. Id. at 71-72; Ex. B.
The Psychologist testified, opining that although the Individual does not qualify for a DSM-V
diagnosis, he does “have a problem with alcohol” and he does “drink enough to impair his
judgment.”2 Tr. at 91, 93. The Psychologist noted that the Individual was in an “early place” of
abstinence form alcohol. Id. at 94. He testified that “[i]f a person can maintain abstinence over a
good period of time, that’s our best…indication of whether a person is really reforming.” Id. The
Psychologist stated that the Individual has not shown “a lot of time in AA,” has not yet begun IOP
counseling with the Counselor, and ultimately has not shown adequate evidence of rehabilitation
at this time. Id. at 94-95, 98.
A. Guideline G
Habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether
the individual is diagnosed with an alcohol use disorder, can raise a security concern and potentially
disqualify an individual from holding a security clearance. Guideline G at ¶ 22(c). If an 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 recommendation, an individual may be able to mitigate any security concerns, Id. ¶
23(d).
In this situation, it is clear that the Individual has undertaken considerable effort to mitigate the
security concern related to his alcohol consumption. He has been consistently engaging in AA
meetings, has enrolled in an IOP, and has made a commitment to himself and his family to abstain
from consuming alcohol. At this time, however, the Individual’s abstinence and path to recovery
2 The Psychologist based this conclusion on the Individual’s report that he consumes “four or five minis plus up to a
six-pack or so of beer” in one evening. Tr. at 93.
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is quite recent and does not demonstrate a clear and established pattern of abstinence. The
Individual has been abstinent from alcohol for approximately three months; he has been attending
AA meetings for approximately two months, has yet to retain a sponsor or begin fully working
through the 12 Steps; and his IOP counseling has not yet begun. Therefore, although I commend
the Individual on his efforts, I cannot find that he has fully mitigated the security concerns with
regard 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 not brought forth sufficient evidence to resolve
the security concern associated with Guideline G. Therefore, I cannot conclude that granting DOE
access authorization 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 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.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals
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