PSH-19-0047

*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 27, 2019 ) Case No.: PSH-19-0047
)
__________________________________________)
Issued: November 25, 2019
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Administrative Judge Decision
____________________________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 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
On August 23, 2018, the Individual was arrested and charged with “operating a vehicle under the
influence of intoxicating liquor or drugs, aggravated” (A-DUI). Exhibit (Ex.) 11. At the time of
this arrest, the Individual had an extensive history of arrests, including five other alcohol-related
arrests. See Ex. 4 (summarizing the Individual’s arrest record).
After receiving the Individual’s report of the August 23, 2018, arrest, the Local Security Office
(LSO) requested that the Individual undergo an evaluation by a DOE-contracted psychologist
(DOE Psychologist). On March 29, 2019, the DOE Psychologist conducted a clinical interview of
the Individual. Following the clinical interview, the DOE Psychologist issued a psychological
assessment (Report) in which she concluded that the Individual met the diagnostic criteria for
Unspecified Alcohol-Related Disorder under the Diagnostic and Statistical Manual of Mental
Disorders – Fifth Edition (DSM-V), and that the Individual suffered from a personality condition
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.
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characterized by providing false information and failing to take responsibility for his actions.2 Ex.
18 at 8–9.
The Individual’s history of criminal activity and the Report raised substantial security concerns
about the Individual. Accordingly, the LSO informed the Individual, in a notification letter dated
June 19, 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,” “Guideline I, Psychological Conditions,” and
“Guideline J, Criminal Conduct.” Ex. 1.
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 27, 2019. At the hearing that I convened pursuant to 10 C.F.R. § 710.25(d),
(e), and (g), I took testimony from the Individual, his daughter, a licensed substance abuse
counselor (Counselor), his Counselor’s supervisor (Treatment Supervisor), his girlfriend, a
psychologist employed at the site at which the Individual is employed (Site Psychologist), and the
DOE Psychologist. See Transcript of Hearing, Case No. PSH-19-0047 (hereinafter cited as “Tr.”).
The LSO submitted 27 exhibits, marked as Exhibits 1 through 27. The Individual submitted 12
exhibits marked as Exhibits A through L.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as one of the bases 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 cited the DOE Psychologist’s
determinations that the Individual was a binge consumer of alcohol to the point of impaired
judgement and met the diagnostic criteria for Unspecified Alcohol-Related Disorder (UARD)
under the DSM-V; it also cited the Individual’s history of six alcohol-related arrests. Ex. 1 at 1–2.
The Individual’s six alcohol-related arrests, binge consumption of alcohol to the point of impaired
judgement, and diagnosis of UARD justify the LSO’s invocation of Guideline G. Adjudicative
Guidelines at ¶ 22(a), (c)–(d).
The LSO cited Guideline I (Psychological Conditions) as the second basis for denying the
Individual a security clearance. Ex. 1 at 2.
Certain emotional, mental, and personality conditions can impair judgement, reliability, or
trustworthiness. Adjudicative Guidelines at ¶ 27. A formal diagnosis of a disorder is not required
for there to be a concern under Guideline I. Id. The Notification Letter cited the DOE Psychologist’s
opinion that the Individual’s pattern of providing false information and failing to take responsibility
2 The DOE Psychologist further opined that the Individual “has binge consumed alcohol to the point of impaired
judgment.” Ex. 18 at 8.
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for his actions constituted a personality condition that undermined his judgement, reliability, and
trustworthiness. Ex. 1 at 2. An opinion by a duly qualified mental health professional that an
individual has a condition that may impair judgement, stability, reliability, or trustworthiness
justifies the LSO’s invocation of Guideline I in the Notification Letter. Adjudicative Guidelines at
¶ 28(a).
The LSO also cited Guideline J (Criminal Conduct) in denying the Individual a security clearance.
Ex. 1.
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 Notification Letter listed 15 instances in which
the Individual was charged or cited for engaging in unlawful conduct, including the Individual’s
six arrests for alcohol-related offenses.3 Ex. 1 at 3–4. The Individual’s extensive history of arrests
justifies the LSO’s invocation of Guideline J. Adjudicative Guidelines at ¶ 31(a)–(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).
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. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
IV. FINDINGS OF FACT
The Individual has maintained a DOE security clearance since 1993, despite having an extensive
criminal history, beginning on July 28, 1987, when he was arrested for Failure to Show Financial
Responsibility. Ex. 20 at 10–13, 30.
3 Three of these 15 arrests (the June 27, 2006, citation for Failure to Yield the Right of Way; the November 29, 1989,
citation for Speeding; and the April 4, 1987, citation for Careless Driving) were minor traffic offenses that did not
merit inclusion in the Statement of Charges.
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Prior to seeking a DOE security clearance in 1993, the Individual had been charged or cited with
careless driving on two occasions, minor in possession, driving without a valid driver’s license,
and commercial burglary. See Ex. 1 at 3–4. In July 1993, less than a month before a personnel
security interview (PSI) to discuss his criminal conduct, the Individual was cited for open container.
See Ex. 26 at 95–97.
In 2004, the Individual’s wife obtained a temporary order of protection against the Individual. Ex.
15. During a PSI to address the derogatory information, the Individual indicated that his wife had
called him an alcoholic and alleged that his behavior while drinking was part of her basis for
seeking the order of protection. Ex. 25 at 14, 20. The Individual reported that he did not believe
that he had a problem with alcohol, and that his disputes with his wife were not related to his
consumption of alcohol. Id. at 66–68.
In July 2005, the Individual was charged with A-DUI. See Ex. 1 at 3. In 2006, he was cited for
failure to yield right of way, speeding, and driving on a suspended or revoked driver’s license,
following a vehicle accident. Id. During a PSI in February 2007, the Individual reported that he
had not consumed any alcohol since his arrest for A-DUI. Ex. 24 at 21. The Individual described
how he had met with a counselor on a weekly basis from August 2005 to September 2006 to address
his alcohol-related issues. Id. at 47–54. The Individual expressed that he did not believe that he had
a problem with alcohol, but that he had stopped consuming it because of how it had interfered with
his life, and that it was not worth it to return to drinking. Id. at 52–54.
During a follow-up PSI in November 2007, the LSO questioned the Individual concerning the lack
of records in its possession related to the Individual’s 2005 A-DUI. The Individual asserted that
he had reported his 2005 A-DUI to DOE but had filled out the form incorrectly. Ex. 23 at 59, 70–
71. According to the Individual, he knew he could not conceal an arrest of which there was an
official record and “it would be ludicrous to try to hide this.” Id. at 71, 75. The Individual also
described how, on the night of his arrest for A-DUI, he had consumed more beers than he had
intended at the urging of friends, and chose to drive home. Id. at 77–79, 83. The Individual reported
that he had abstained from alcohol since the night of his A-DUI because his “clearance is a lot more
important than a beer.” Id. at 108–09.
The Individual resumed drinking in 2008 or 2009 when he sometimes consumed one or two beers
with co-workers on Thursdays or Fridays after work. Ex. 22 at 24. The Individual reported that he
went through a bout of unemployment, during which he increased his drinking to three or four
beers per sitting. Id. at 26. By 2015, the Individual reported that he typically consumed one to two
beers when drinking with co-workers after work, and three to four beers per sitting when at home
and on special occasions. Id. at 27–28.
In October 2015, the Individual was arrested and charged with A-DUI for the second time after he
failed a field sobriety test. Ex. 13 at 6. The Individual’s breath alcohol concentration (BrAC) was
measured at .114. Id. at 7. During a PSI to address his second A-DUI, the Individual claimed that
he consumed two 12-ounce beers and one shot of tequila at a restaurant between 90 minutes to two
hours prior to driving. Ex. 22 at 10–12. When asked about his future intentions as to drinking and
driving during this PSI, the Individual replied “[p]eriod, none.” Id. at 22. The Individual opined
that he did not have a problem with alcohol, and that he knew he did not because he could be around
alcohol without overindulging. Id. at 42–43.
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In August 2018, the Individual was arrested and charged with his third A-DUI, after a police officer
observed the Individual asleep in the driver’s seat of a parked car. Ex. 11 at 7. The Individual failed
a field sobriety test and refused to submit to alcohol testing. Id. at 7–8. The arresting officer
indicated in his report that the Individual showed significant signs of impairment, including
bloodshot eyes, slurred speech, and swaying when he attempted to stand in one place, but noted
that the Individual claimed to have consumed only one or two beers. Id. at 7. In a personnel security
information report that the Individual submitted to DOE concerning his arrest, the Individual
reported that he had consumed four miniature bottles of bourbon at a liquor store, and that a friend
had driven the Individual in his truck to the parking lot where the Individual’s daughter was to pick
him up. Id. at 3. The Individual’s driver’s license was suspended. In December 2018, the Individual
was pulled over for failing to obey a traffic signal, and was cited for driving while his license was
suspended. Ex. 6.
On March 29, 2019, the DOE Psychologist conducted a Clinical Interview of the Individual. The
DOE Psychologist reported that, during the Clinical Interview, the Individual admitted to
consuming six miniature bottles of bourbon and then driving his vehicle to the parking lot. Ex. 18
at 3. The DOE Psychologist noted that this admission was inconsistent with his previous statements
to the LSO and to the court adjudicating his most recent A-DUI.4 Id. at 8. During his clinical
interview, the Individual indicated that he had abstained from alcohol since his 2018 arrest, and
that he had no plans to return to drinking in the future. Id. The Individual denied that he had a
problem with alcohol, and expressed that he had no intention to seek treatment related to his alcohol
use since completing court-ordered counseling. Id. at 7.
The DOE Psychologist ordered two alcohol tests for the Individual: a Phosphatidylethanol (PEth)
test and an Ethyl Glucuronide (EtG) test, both of which were negative. Id. at 6. According to the
medical doctor who provided the test results to the DOE Psychologist, the EtG test results showed
that the Individual had not consumed alcohol in the three days prior to meeting with the DOE
Psychologist, and the PEth test results provided evidence that the Individual had not been drinking
on a regular, heavy basis for several weeks prior to the test. Id.
On April 11, 2019, the Psychologist issued the Report. Based on the Individual’s lack of
recognition of his problems with alcohol, his dependence on external controls to regulate his
drinking, and his repeated relapses after abstaining from alcohol, the DOE Psychologist determined
that the Individual met the diagnostic criteria for UARD under the DSM-V. Id. at 7–8. The DOE
Psychologist also concluded that the Individual was a binge consumer of alcohol to the point of
impaired judgement based upon his account of consuming excessive quantities of alcohol on two
occasions in 2018 and her belief that he had done so on other occasions based upon the unreliability
of the Individual’s accounts of his drinking. Id. Finally, the DOE Psychologist concluded that the
Individual’s “pattern of providing false information and his failure to take responsibility for the
consequences of his actions form a personality condition which can impair judgement, reliability,
and trustworthiness.” Id. at 9. The DOE Psychologist recommended that the Individual address his
UARD by: (1) abstaining from alcohol for at least twelve months; (2) participating in alcohol
4 During the clinical interview, the Individual reported that he had entered into a plea agreement concerning his most
recent arrest for A-DUI, and that the agreement reduced the charge to Reckless Driving. Id. at 3.
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rehabilitation counseling with a therapist specializing in substance abuse counseling or attend
Alcoholics Anonymous (AA) meetings on a weekly basis.5 Id. at 8–9.
The Hearing
The Individual’s daughter, who resides with the Individual, testified that she had not observed the
Individual consume alcohol in approximately two years. Tr. at 12–13. The Individual’s daughter
reported that both she and the Individual’s son keep alcohol in the family home. Id. at 12. The
Individual’s daughter recounted that, on the night of the Individual’s 2018 arrest for A-DUI, the
Individual had called her to ask her to pick him up because he had consumed too much alcohol to
safely drive. Id. at 13–14. The Individual’s daughter arrived at the parking lot after the police, and
did not interact with the Individual prior to his arrest. Id. at 14–15. The Individual’s daughter
speculated that the Individual had driven approximately three blocks from the liquor store to the
parking lot before calling her. Id. at 15–16. The Individual’s daughter said that the Individual was
participating in AA and that he had told her that he did not intend to consume alcohol ever again.
Id. at 22–23.
The Individual’s Counselor testified that the Individual voluntarily sought treatment in a four-and-
one-half week intensive outpatient treatment (IOT) program offered at the facility which employs
the Individual’s Counselor. Id. at 30, 39. The treatment facility at which the Individual’s Counselor
is employed conducted an initial assessment of the Individual when he sought treatment, and
diagnosed the Individual with Alcohol Use Disorder, Moderate, under the DSM-V. Id. at 35.
The Individual’s Counselor met with the Individual 12 times for individual counseling, and
indicated that the Individual also participated in group counseling with another counselor. Id. at 36.
The Individual’s Counselor testified that the Individual reported consuming six shots of bourbon
within 90 minutes on the night of his 2018 arrest for A-DUI. Id. at 33. The Individual successfully
completed the IOT in March 2019, and the Individual’s Counselor reported that the Individual
expressed the intention not to consume alcohol again in the future. Id. at 36–39. The Individual’s
Counselor expressed significant confidence that the Individual would abstain from alcohol over the
next five years, but expressed some reservations that the Individual would continue to abstain after
retiring and leaving the structure of his work environment. Id. at 40.
The Individual’s girlfriend testified that she and the Individual live in different states, and that they
only see each other approximately once per month. Id. at 52. She further reported that, in the
approximately three years that she had known him, she had never observed him consume alcohol.
Id. at 53–54. She also testified that the Individual had not talked to her about his alcohol treatment
or his future intentions with regard to alcohol. Id. at 57.
The Treatment Supervisor testified that she oversees the facility that provided the IOT in which the
Individual participated. Id. at 68. She recounted that she interacted with the Individual on a few
occasions during group therapy, but that she generally did not have direct contact with patients
because of her supervisory responsibilities. Id. at 68–69. The Treatment Supervisor recalled that
the Individual was compliant throughout the course of treatment, never tested positive for alcohol
5 The DOE Psychologist further opined that the Individual should undergo random alcohol testing, including PEth
testing, in order to establish an objective basis for showing that he had abstained from further alcohol use. Ex. 18 at
8-9.
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on random Breathalyzer tests, actively participated in AA, and had manifested the intention to
abstain from alcohol following completion of the IOT. Id. at 69–71.
The Site Psychologist testified that she had met with the Individual for an evaluation in September
2018 and a follow-up meeting in February 2019. Id. at 88. The Site Psychologist reported that the
Individual had told her during an evaluation that, on the night of his 2018 arrest for A-DUI, he had
consumed alcohol at a liquor store and was driving away when he realized that he was not fit to
drive and pulled into a parking lot. Id. at 81. The Site Psychologist reported that the Individual had
undergone periodic random alcohol tests from September 2018 to February 2019, and had tested
negative on each occasion. Id. at 83–84. The Site Psychologist indicated that the Individual was a
high-risk drinker based on his history of binge-consuming alcohol after periods of sobriety. Id. at
86–87. While acknowledging the Individual’s pattern of alcohol-related arrests, the Site
Psychologist speculated that “something had shifted” in the Individual after the 2018 arrest and
noted that he had received more intensive treatment than after his previous arrests. Id. at 87–88.
The Individual acknowledged that he had engaged in a significant amount of criminal conduct, but
asserted that he did not represent a security threat to DOE because he had always maintained work-
related information as confidential and had never engaged in misconduct at work during his long
career. Id. at 98–99. The Individual also asserted that most of his unlawful conduct was related to
alcohol, and that he was unlikely to engage in such conduct in the future because he intended to
abstain from alcohol. Id. at 99–100.
According to the Individual, on the night of his 2018 A-DUI, he and some colleagues decided to
have drinks and socialize. Id. at 102. When the Individual and a friend got in the Individual’s
vehicle to go home, the Individual perceived that he was not in a fit state to drive and decided to
drive the vehicle outside of city lines and call his daughter to pick him up. Id. at 103. The Individual
asserted that he had never denied driving the vehicle to a parking lot and that he did not remember
writing the incident report which stated that “I did not drive my vehicle.” Id. at 106–07; see also
Ex. 11 (The incident report in which the Individual wrote: “When we left [the liquor store] a friend
drove me in my truck to a parking lot near the airport, where my daughter was going to pick me
up. I did not drive my vehicle.”).
The Individual also described his participation in the IOT. According to the Individual, each week
included alcohol testing, one hour of AA, one hour of individual counseling, and two-and-one-half
hours of group sessions. Tr. at 109. The Individual reported that AA meetings were “eye opening”
as to the consequences of alcohol abuse. Id. at 111. The Individual reported that he currently attends
approximately two AA meetings each month and that a friend of his had agreed to act as his AA
sponsor. Id. at 112, 14. The Individual reported that he is currently working on Step 3 of the AA
Twelve Step Program, and admitted that “the hardest step is admitting that you’re an alcoholic.”
Id. at 114. The Individual reported that he did not “feel like [] an alcoholic, but alcohol got [him]
where [he is] at” and that he recognizes that alcohol has caused problems in his life. Id. at 113.
The Individual testified that he did not intend to consume alcohol in the future. Id. at 110. The
Individual further claimed that he had demonstrated the ability to refuse alcohol when socializing
with friends and co-workers since his 2018 arrest for A-DUI, and opined that he could continue to
reject alcohol when offered it in the future. Id. at 110–11.
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After observing the testimony of each of the other witnesses. The DOE Psychologist testified that
the treatment program in which the Individual had participated was not as intensive in terms of the
number of hours of treatment per week or duration of treatment as she had anticipated when
recommending treatment in her Report. Id. at 135. She also opined that it was unusual for a patient
to use a friend as an AA sponsor because a person with whom a patient has a personal relationship
is less well suited to holding them accountable to sobriety than an independent sponsor. Id. at 137.
The DOE Psychologist opined that the Individual was at moderate risk of relapsing to problematic
drinking based upon his prior behavior. Id. at 140–41, 143. The DOE Psychologist noted that the
Individual had previously abstained from alcohol while being monitored, only to return to drinking
after he convinced DOE that he had resolved his alcohol problems and the monitoring was
removed. Id. The DOE Psychologist also noted that, in light of the Individual’s prior behavior and
the presence of alcohol in his home, she was not confident that he had abstained from alcohol and
noted that the Individual had not provided objective evidence of his abstinence from alcohol. Id.
at 143. The DOE Psychologist also observed that the Individual had not followed her treatment
recommendation to pursue aftercare. Id. The DOE Psychologist indicated that, based on the
information before her, the UAUD diagnosis is appropriate and that the Individual’s prognosis for
avoiding a relapse to problematic drinking is only “fair.” Id. at 151, 154.
With respect to her findings concerning the Individual’s psychological state, the DOE Psychologist
testified that her conclusions were based upon the Individual’s misrepresentations concerning the
extent of his drinking prior to his divorce from his wife, his inconsistent accounts of whether or not
he had driven his vehicle after drinking on the night of his 2018 A-DUI, his denial that he has a
problem with alcohol, and his attribution of consuming more alcohol than he intended to pressure
from friends and co-workers. Id. at 146–47. The DOE Psychologist admitted that the Individual’s
misrepresentations did not form the basis for a diagnosis under the DSM-V, and that her finding
that they constituted a mental condition was intended to alert the DOE of her concerns about the
Individual’s lack of candor. Id. at 148, 150. She further testified that she felt that the constraints
of the scope of her evaluation required her to provide these opinions in response to DOE’s questions
concerning whether the Individual demonstrated an emotional, personality, or behavioral condition.
Id. at 148, 150.
V. ANALYSIS
Guideline G Concerns
The Individual’s six alcohol-related arrests, binge consumption of alcohol to the point of impaired
judgement, and his diagnosis of Alcohol-Related Disorder by the DOE Psychologist all raise
security concerns under Guideline G of the Adjudicative Guidelines. The Adjudicative Guidelines
provide that 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
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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).
None of the mitigating conditions under Guideline G are applicable in this case. The A-DUI that
precipitated this hearing is the third occasion on which the Individual’s arrest for A-DUI has called
into question his eligibility for a security clearance. The Individual abstained from alcohol
following each of his prior arrests for A-DUI and promised the DOE that he would not drink and
drive in the future, and then, on three previous occasions, eventually returned to misusing alcohol.
The Individual’s recurring alcohol-related misconduct, even after periods of abstinence from
alcohol and promises to change his behavior, calls into serious question his reliability,
trustworthiness, and judgement, and leads me to conclude that the Individual’s alcohol-related
misconduct will recur in the future if his security clearance is restored. Therefore, the Individual
does not meet the first mitigating condition under Guideline G. Id. at ¶ 23(a).
The third mitigating condition is inapplicable because the Individual is not currently in treatment,
and has previously relapsed after counseling for alcohol abuse. Id. at ¶ 23(c). The second and fourth
mitigating conditions are also inapplicable. Both the second and fourth mitigating conditions
require that an individual demonstrate “a clear and established pattern of modified consumption or
abstinence.” Id. at ¶ 23(b), (d). The Individual did not undergo the laboratory testing recommended
by the DOE Psychologist after her clinical interview of the Individual in March 2019 that might
have objectively supported his claims of abstinence. Nor has the Individual provided the testimony
of witnesses with knowledge of his drinking habits prior to his 2018 arrest for A-DUI who might
have corroborated his claims to have modified his behavior with regard to consuming alcohol. The
Individual’s daughter testified that she had not observed the Individual consume alcohol in several
years, despite the Individual telling the DOE Psychologist in the clinical interview that he
consumed alcohol three times weekly prior to his 2018 arrest for A-DUI, and the Individual’s
girlfriend does not see him sufficiently frequently to meaningfully testify as to his day-to-day
habits. I find the Individual’s testimony insufficient in of itself to establish his abstinence from
alcohol, particularly in light of his prior misrepresentations concerning his drinking. Therefore, I
find that the second and fourth mitigating conditions under Guideline G are not applicable in this
case. Id. at ¶ 23(b), (d). Most importantly, even if the Individual has been abstaining from alcohol
use since August 23, 2018, as he has claimed, his history of three previous relapses has convinced
me that he is an unacceptable risk.
In addition, the Individual has not participated in the aftercare recommended by the DOE
Psychologist, and the DOE Psychologist expressed a concern that the IOT in which the Individual
participated was not sufficiently rigorous to provide him with optimal treatment. For these reasons,
I conclude that the Individual has not “successfully completed a treatment program along with any
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required aftercare,” and find further support for my conclusion that the fourth mitigating condition
is inapplicable. Id. at ¶ 23(d).
Guideline I Concerns
In her Report, the DOE Psychologist opined that the Individual’s pattern of providing false
information and failure to take responsibility for the consequences of his actions constituted a
personality condition. During the hearing, the DOE Psychologist provided examples of the
Individual’s lack of candor in which the Individual had misrepresented his drinking and the
circumstances of his prior arrests to her and to other persons in the security investigative process.
The DOE Psychologist also testified that she felt constrained by the manner in which questions
concerning the Individual’s judgement, reliability, and trustworthiness were put to her by the LSO,
and that she felt that the only way she could draw attention to the Individual’s lack of candor was
as an emotional, personality, or behavioral condition.
A “formal diagnosis of a disorder is not required for there to be a concern under [Guideline I].”
Adjudicative Guidelines at ¶ 27. However, deceitfulness, chronic lying, and other behaviors that
cast doubt on an individual’s judgement, stability, reliability, and trustworthiness only raise a
security concern under Guideline I if they are “not covered under any other guideline . . . .” Id. at
¶ 28(a). In this case, the derogatory information relied upon by the LSO gives rise to a security
concern under Guideline E. Id. at ¶ 16(b) (describing security concerns related to “providing false
or misleading information; or concealing or omitting information concerning relevant facts to a[] .
. . security official [or] competent medical or mental health professional involved in making a
recommendation relevant to a national security eligibility determination . . . .”). OHA has
previously rejected security concerns asserted under Guideline I which are covered under another
guideline. See Matter of Personnel Security Hearing, OHA Case No. PSH-12-0063 at 4 (2012)
(resolving security concerns asserted under Guideline I because the concerns were covered under
Guideline G). I reach the same conclusion in this case, and find that the LSO improperly asserted
Guideline I.
Guideline J Concerns
The Individual’s lengthy history of arrests and citations for unlawful conduct raise significant
security concerns under Guideline J of the Adjudicative Guidelines. An individual may mitigate
security concerns under Guideline J if:
(a) so much time has elapsed since the criminal behavior happened, or it happened under such
unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those pressures are no
longer present in the person’s life;
(c) no reliable evidence to support that the individual committed the offense; and
(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of
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time without recurrence of criminal activity, restitution, compliance with the terms of parole
or probation, job training or higher education, good employment record, or constructive
community involvement.
Adjudicative Guidelines at ¶ 32(a)–(d).
The first and fourth mitigating conditions consider the individualized circumstances of each person
to assess the likelihood that prior criminal conduct in which an individual engaged will recur. A
common consideration in both mitigating conditions is the passage of time. In assessing whether
sufficient time has passed to conclude that an individual is unlikely to engage in criminal conduct
in the future, OHA has previously considered, among other things, how many allegations of
criminal conduct are raised against an individual, whether criminal conduct is isolated to a
particular period of an individual’s life or is recurring, and the extent to which the individual
displayed a pattern of repeating particular types of criminal conduct. Compare Matter of Personnel
Security Hearing, OHA Case No. PSH-19-0030 at 9 (2019) (finding that the passage of two years
without engaging in criminal conduct was insufficient to mitigate security concerns under
Guideline J because the individual demonstrated a pattern throughout his adult life of engaging in
similar criminal conduct even after periods of years without committing an offense), with Matter
of Personnel Security Hearing, OHA Case No. PSH-19-0007 at 6 (2019) (finding that an
individual’s drug-related offenses occurred exclusively in his youth, that the individual’s recent
traffic violations were not related to the drug offenses and did not represent a pattern of criminal
conduct, and that the passage of approximately twenty years was sufficient to mitigate the security
concerns raised by the drug-related offenses).
In this case, the LSO identified 15 instances in which the Individual was arrested or cited for
unlawful conduct. These offenses were not restricted to any particular period in the Individual’s
life, and in some cases the Individual refrained from engaging in unlawful conduct for years at a
time only to reoffend. The Individual has displayed a pattern of alcohol-related offenses, even after
completing counseling and promising to reform his behavior, which leads me to conclude that the
passage of approximately one year since the Individual’s third arrest for A-DUI is insufficient for
me to conclude that the Individual is unlikely to engage in unlawful conduct in the future.
The Individual does not assert that he was coerced into committing unlawful conduct and there is
reliable evidence in the record that the Individual committed the unlawful conduct asserted by the
LSO. Thus, the second and third mitigating conditions are clearly inapplicable to this case.
Therefore, I conclude that the Individual has not satisfied any of the mitigating conditions under
Guideline J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guidelines G and J of the Adjudicative 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
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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.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals