PSH-19-0044

*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: August 5, 2019 ) Case No.: PSH-19-0044
)
__________________________________________)
Issued: October 31, 2019
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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 granted.
I. BACKGROUND
The Individual is employed by a DOE contractor and held a security clearance. His employer
requested that the Individual be granted a higher “Q” level security clearance. During the
investigation regarding the application to upgrade the Individual’s clearance, derogatory
information was uncovered as to the Individual’s fitness to hold a clearance of any level. The
Individual underwent a Personnel Security Interview, after which he was referred to a DOE-
consultant psychiatrist (the Psychiatrist) for evaluation. Ex. 5; Ex. 7. The Psychiatrist opined that
the Individual habitually consumed alcohol to impairment without adequate evidence of
rehabilitation or reformation. Ex. 5 at 6–7.
The Local Security Office (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 to hold a
security clearance. See 10 C.F.R. § 710.21. 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 August 6, 2019. At the hearing
I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual presented the testimony
of four witnesses. The LSO presented the testimony of the DOE psychologist who had evaluated
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.
the Individual. See Transcript of Hearing, Case No. PSH-19-0044 (hereinafter cited as “Tr.”). The
LSO submitted eight exhibits, marked as Exhibits 1 through 8 (hereinafter cited as “Ex.”). The
Individual submitted four exhibits, marked as Exhibits A through D.
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).
These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human
behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative
process. The Administrative Judge’s overarching adjudicative goal is to issue a fair, impartial and
commonsense decision. The entire process is a conscientious scrutiny of a number of variables
known as the “whole person concept.” Adjudicative Guidelines ¶ 2(a). The Administrative Judge
must consider all available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision. The protection of the national security is the paramount
consideration.
Guideline G (Alcohol Consumption) states: “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 Guidelines at ¶ 21. The conditions
set forth in the Guidelines that could raise a disqualifying security concern are alcohol-related
incidents, at or away from work, regardless of the frequency of the individual's alcohol use or
whether the individual has been diagnosed with alcohol use disorder; habitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the individual is
diagnosed with alcohol use disorder; Alcohol Use Disorder diagnosis by a duly qualified medical
or mental health professional; failure to follow treatment advice after diagnosis; alcohol
consumption that is not in accordance with treatment recommendations after a diagnosis of alcohol
use disorder; and failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence. Id. at ¶ 22.
The LSO alleges that the Individual admitted to drinking four-and-a-half ounces of vodka nightly
since October 2017, admitted to drinking to intoxication two to three times per month since 2013;
admitted that in 2007 he violated his probation on multiple occasions by drinking alcohol; and
admitted to being written up for violating a school policy prohibiting underage drinking in 2006.
Ex, 1 at 1. The LSO further alleges that, in September 2018, a DOE-consultant psychiatrist
concluded that the Individual habitually consumed alcohol to the point of impaired judgment,
without adequate evidence of rehabilitation or reformation. Id. Accordingly, the LSO’s security
concerns under Guideline G are justified.
III. REGULATORY STANDARDS
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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.
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
At the hearing on October 2, 2019, the Individual presented the testimony of a friend, his manager,
a current coworker, and a former coworker. The friend had known the Individual for over 25 years
and they saw each other socially about once a month, and communicated via text message weekly.
Tr. at 10–11. The friend testified that the Individual occasionally consumed alcohol at evening
events. Id. at 12. He considered the Individual to be reliable and trustworthy, and to have excellent
judgment. Id. at 16. He never considered the Individual’s drinking to be problematic. Id. at 16–17.
He believed the Individual had been abstaining from alcohol since September 9, 2019. 2 Id. at 23.
The former coworker testified that he had known the Individual for five or six years. Tr. at 33. They
stopped working together two or three years ago, but they still communicate occasionally via text
message and attend social events from time to time. Id. at 33–34. The former coworker had never
seen the Individual drink alcohol—even at events where alcohol was served—and had no
information on the Individual’s alcohol consumption habits. Id. at 35. The former coworker stated
unequivocally that he found the Individual to be reliable and trustworthy. Id. at 36.
The manager had known the Individual for about three years. Tr. at 45. The manager had no
knowledge of whether the Individual consumed alcohol outside of work. Id. at 47. He found the
2 Earlier, the friend testified that he last saw the Individual consume alcohol in August 2019. Tr. at 12. The difference
in these dates is not material to my decision in this matter.
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Individual to be trustworthy and very reliable. Id. He testified that the Individual handles himself
well under stress. Id.
The current coworker met the Individual in college and stated that they were roommates for part of
that time. Tr. at 53. He testified that they currently shared an office and saw each other daily at
work and about three times per month socially. Id. at 54. He had seen the Individual consume
alcohol sparingly in recent years. Id. at 56. The last time the current coworker had seen the
Individual become intoxicated was the summer of 2018. Id. He testified that the Individual is
trustworthy and reliable. Id. at 57–58. He further testified that the Individual had been moderating
his alcohol intake in recent months, stopping after two drinks even if others decided to keep
drinking. Id. at 58–59.
The Individual did not dispute any of the allegations in the Notification Letter or any of the facts
in the Psychiatrist’s Report. Tr. at 64–65. He testified that he had not been honest during his PSI
and psychiatric evaluation. Id. at 65. While he was truthful about social consumption during the
psychiatric evaluation, he had omitted describing his alcohol consumption while alone. Id. at 66.
He also omitted his solitary consumption of alcohol during his PSI, even though he had signed a
statement attesting to the truthfulness of his statements. Id. at 78. The Individual testified that he
began drinking alone—about 3.5 ounces of vodka per night—after going through a difficult
breakup. Id. at 67–68. Because he had submitted to a PEth blood test3 as part of the psychiatric
evaluation, he researched what the PEth test would reveal about his past alcohol consumption. As
a result, he notified the Psychiatrist of his omissions concerning his alcohol consumption. Id. at
65–66; see Ex. 5 at 4. Had he not researched the PEth test, he likely would not have disclosed his
full alcohol consumption to the Psychiatrist.4 Id. at 71. The Individual testified that, after the
psychiatric evaluation, his home consumption tapered off to about two or three drinks per night on
weekends. Id. at 74–75. His social drinking and weekend drinking continued until August 2019.
Id. at 76–77. He testified that he modified his drinking because he knew he might have to take a
PEth test at any time. Id. at 77.
The Individual testified that he was ashamed and embarrassed by his home alcohol consumption.
Tr. at 87. He stated that he had since learned mechanisms, such as restrictive dieting, meal
preparation, and exercising, to cope with the breakup that triggered his home alcohol consumption.
Id. at 82, 90.
The Individual received the Psychiatrist’s report in June 2019 and, having determined that success
in Personnel Security cases is often influenced by adherence to Psychologists’ or Psychiatrists’
recommendations, he began seeing a counselor shortly after that. Tr. at 79, 83–84.His last drink
was August 23, 2019, and he had attended a single meeting of Alcoholics Anonymous (AA). Id. at
73. On September 3, 2019, he started attending a support group for addiction recovery on a weekly
basis. Id. at 82. The Individual did not plan to resume drinking after remaining abstinent for the
nine months recommended by the Psychiatrist. Id. at 90. He testified that, since receiving the
3 A PEth test is a blood test for phosphatidylethanol (PEth), a biological marker of alcohol use. The PEth test indicated
that the Individual had engaged in past moderate to heavy alcohol consumption. Ex.5 at 5.
4 The Individual also testified that while on a pretrial diversion program regarding an arrest for theft which prohibited
his consumption of alcohol, he had been caught at a bar by the Assistant District Attorney who was supervising his
pretrial diversion program. Tr. at 88-89; Ex. 7 at 35-36.
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Psychiatrist’s report, he had been a nervous wreck, wondering if he was doing enough to receive a
favorable outcome from the hearing. Id.
The Psychiatrist testified that his opinion, set forth in his report, has not changed. Tr. at 103–04.
He did not believe that the Individual was rehabilitated, as of the hearing date. Id. at 105. He was
particularly concerned that the Individual continued drinking after having to admit his dishonesty
to the Psychiatrist and after receiving the Psychiatrist’s report recommending abstinence. Id. at
104. He testified that the Individual would have a fair prognosis, provided that he follows the
treatment program he is currently on (individual counseling, the support group, and abstinence).
Id. at 105. However, the Individual had not yet come close to completing the recommended nine
months of treatment. Id. at 102.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government reposes a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all of the evidence, both favorable
and unfavorable, in a common sense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against restoring security clearances, I must deny the granting of a security clearance
if I am not convinced that the LSO’s security concerns have been mitigated such that granting the
Individual a security clearance is not an unacceptable risk to national security.
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when (1) the individual’s alcohol use was so infrequent or so long ago that it is unlikely to recur
and does not cast doubt on his current reliability, trustworthiness, or judgment; (2) the individual
acknowledges his pattern of alcohol abuse, provides evidence of actions taken to overcome this
problem, and has demonstrated a clear and established pattern of modified consumption or
abstinence; (3) the individual has no history of relapse and is making satisfactory progress in
treatment or counseling; or (4) the individual has successfully completed a treatment program and
has established pattern of modified consumption or abstinence. Adjudicative Guidelines at ¶ 23.
The Individual has made progress toward recovery. However, his progress is not sufficient to
mitigate the Guideline G security concerns. His alcohol use is recent enough that I cannot consider
relapse to be an unlikely prospect, and his lack of candor regarding his alcohol use still casts a pall
over his current reliability, trustworthiness, and judgment. Similarly, 40 days of sobriety is an
insufficient amount of time to demonstrate an established pattern of abstinence. Finally, the
Individual’s progress with his treatment and counseling is mixed. He continued to consume alcohol
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for over a month after beginning counseling, despite the Psychologist’s recommendation of
abstinence, and he began attending the support group only a month before the hearing. His
treatment and counseling progress are too new for me to find it satisfactory to resolve the Guideline
G security concerns.
For the foregoing reasons, I find that the Individual has not mitigated the security concerns raised
under Guideline G.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was 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 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 the Individual an
access authorization 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.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals
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