PSH-19-0049

*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: September 3, 2019 ) Case No.: PSH-19-0049
)
__________________________________________)
Issued: December 18, 2019
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Administrative Judge Decision
__________________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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 in a position requiring that he hold a security
clearance. During the security clearance investigation, derogatory information was uncovered
regarding the Individual’s alcohol use. After evaluating the Individual, a DOE-consultant
Psychologist (the Psychologist) diagnosed him with Alcohol Use Disorder-Severe. 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 September 3, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), the Individual presented the testimony of five witnesses. The LSO presented the
testimony of the DOE psychologist who had evaluated the Individual. See Transcript of Hearing,
Case No. PSH-19-0049 (hereinafter cited as “Tr.”). The LSO submitted 11 exhibits, marked as
Exhibits 1 through 11 (hereinafter cited as “Ex.”). The Individual submitted eight exhibits, marked
as Exhibits A through H.
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.
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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 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, in March 2019, a DOE-consultant Psychologist diagnosed the Individual
with Alcohol Use Disorder-Severe. Ex. 1 at 1. The LSO further alleges that the Individual reported
consuming a pint of vodka daily in 2015; reported consuming 10-20 shots of whiskey daily in 2016;
prematurely discontinued alcohol treatment in 2016; and was arrested and charged with Driving
under the Influence (DUI) in 2005 and again in 2014. Id. Accordingly, the LSO’s security concerns
under Guideline G are justified.
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
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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, the Individual presented the testimony of his wife, his officemate, his coworker, his
friend, and his mother.
The Individual’s wife had known him for about 18 months. Tr. at 13. She was not a drinker and
testified that the Individual would have one or two drinks on occasion early in their relationship.
Id. at 14. The last time she knew of that the Individual was intoxicated occurred in late February
2019 during a trip with friends.2 Id. She testified that they both intended to abstain from alcohol
indefinitely. Id. at 17. She further testified that during recent celebrations, the Individual had not
consumed alcohol. Id. at 22. The Individual’s wife had attended his therapy and an Alcoholics
Anonymous (AA) meeting with the Individual. Id. at 23. She did not know if he was working the
12 Steps, stating that this would be between him and his sponsor. Id. at 20.
The Individual’s officemate had known him for over two years and rarely saw him outside of work.
Tr. at 27. He was not aware of what specific recovery activities the Individual was pursuing. Id. He
had never seen the Individual drink alcohol and was under the impression that he did not drink. Id.
at 28. The officemate believed the Individual to be trustworthy, reliable, and a rule-follower. Id. at
28–30. He testified that the Individual now has a support structure and career to look forward to,
which was a change from his circumstances while he was drinking heavily. Id. at 30.
The Individual’s coworker had known him for nearly three years. Tr. at 33. She and the Individual
work together often and talk daily. Id. They had no contact outside of work. Id. at 34. She knew
him to follow rules and protect the site’s security in doing so. Id. at 35–37. She had not observed
any “bad behavior” by the Individual and had never seen him intoxicated or hung over at work. Id.
at 39.
2 Though the spouse testified about a March trip, the exact dates of the trip were later determined to fall at the end of
February 2019. Tr. at 86–87, 124.
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The Individual’s friend, who was also a coworker, had known the Individual for about two years.
Tr. at 42. They had met socially about four times and also communicated via text message often
during the day. Id. She had never seen him drink alcohol or had the impression that he was drinking
during a text conversation. Id. at 43. She believed the Individual to be honest, trustworthy, reliable,
professional, and courteous. Id. at 45–48.
The Individual’s mother communicates with him once or twice per week and visits him about twice
per year. Tr. at 51. She had last seen him consume alcohol in 2016, though she was aware he had
consumed alcohol since. Id. at 56–57. She believed that the Individual had suicidal ideations in the
past that prompted him to drink. Id. at 57. She testified that his outlook on life has changed and that
the Individual’s intent was to remain abstinent indefinitely. Id. at 58. The Individual’s mother
testified that his entire life was built around continued success and part of that is having a strong
support system. Id. at 62. For example, she testified that, during a recent flare up of the Individual’s
chronic health condition, the Individual turned to appropriate medicine and hospitalization, rather
than alcohol. Id. at 62–63. She stated that his biggest support is his wife, and that they reassure
each other. She also mentioned the Individual’s therapy attendance. Id. at 64.
The Individual was unable to consistently recall his substance abuse history throughout the hearing.
When asked about whether he had been honest with his Florida rehabilitation program, he testified
that he had been, though this testimony conflicted with his medical charts from the rehabilitation
facility. Id. at 80; Ex. 8 at 2. Similarly, he could not consistently recall his last use of marijuana,
stating that he had last used it more than four years prior until confronted with evidence of
marijuana use in May 2016. Tr. at 82–83. The Individual testified that he was aware in the past that
alcohol could exacerbate his chronic condition and that he was not honest with doctors at that time
about how much he was consuming. Id. at 72–73. He further testified that his non-compliance with
rehabilitation programs was due to the extreme pain caused by his condition. Id. at 75.
The Individual testified that he no longer had an alcohol problem. Tr. at 90–91. He testified that he
had only consumed alcohol a couple of times since finishing his Florida rehabilitation program. Id.
at 83–84. He testified that, after his Florida rehabilitation, he would drink three to four times per
year and only once per year to intoxication. Id. at 102. He denied ever telling the Psychologist that
he would drink to intoxication every few months. Id. at 87. He testified that the Psychologist had
asked if he had had four beers and he said yes, even though he had only had one or two beers. Id.
at 85. However, he testified that he had also consumed several shots of liquor with the beers, which
he had not disclosed to the Psychologist. Id. at 86. He admitted that he was not completely truthful
with the Psychologist regarding how much and how often he consumed alcohol. Id. at 87. The
Individual testified that he had not consumed any alcohol since February 27, 2019, and that it was
“bad luck” that he had been at the bar on the February trip before seeing the Psychologist. Id. at
89, 124.
The Individual testified that he saw his counselor weekly and that they typically talk only about his
past alcohol use. Tr. at 91–94, 99. He was not currently concerned about depression because he did
not feel depressed and had a much better life than he used to. Id. at 94. He testified that he went to
AA most weeks. Id. at 94–95. However, he rarely goes to the same meeting twice and does not
have a sponsor. Id. at 97–99.
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The Individual stated that he thought the Psychologist’s report was cruel. Tr. at 100. He believed
that he had dealt with his problem and did not have an alcohol problem anymore. Id. at 91. He
testified that he had consumed about 10 drinks in a sitting in February and that this drinking was
social, acceptable, and far better than what he used to do. Id. at 89, 101–02 (“[I]t was nothing like
before. It was a social thing. It was a drink after work.”). He later testified that this February
drinking was one of the worst mistakes of his life and that he had no good reason to consume
alcohol on that occasion. Id. at 120. However, he testified that he drank on multiple nights during
the February trip, even though he knew at that time that DOE was concerned about his alcohol use.
Id. at 88, 120.
The Individual testified that he did not undergo PEth testing every six weeks, as recommended by
the Psychologist, because no one gave him instructions on how to do it. Tr. at 117–18. He testified
that he did not receive an email telling him how to schedule the tests and his doctor had never heard
of a PEth test. Id. at 118–19. He testified that he did the best he could. Id. at 120.
In his report, received by the Individual in July 2019 (Tr. at 105), the Psychologist made several
treatment recommendations, stating:
Given the three intensive inpatient treatment experiences, it is difficult to know
what would likely be an effective recommendation. Further educational programs
on the effects of alcohol and more weeks of group and individual counseling would
likely just re-plow already plowed ground. His [chronic condition] pain which is
exacerbated by drinking would have seemed to have been a strong motivator for
him to become abstinent but it was evidentially not strong enough. Being kicked
out of his home and made “homeless”3 was not a sustaining motivation.
Consequently, it is doubtful if yet another intensive substance use treatment will be
more effective that the last three. The fact that his last treatment made more of an
impact on him than the other two, the fact that he apparently has reduced his
consumption from 2016 levels and the fact that he now has a wife and a career
provides some hope that he may be able to abstain from drinking. His abstention
should be permanent as his controlled drinking has not worked. Given his repeated
lack of candor about his consumption of alcohol and marijuana, my
recommendation is that [the Individual] provide laboratory proof that he is not
drinking. Due to that lack of candor and his lack of success in abstaining, significant
proof of his abstinence will be needed. A PEth test conducted about once every six-
weeks or more frequently for nine months would constitute such proof. A period
less than nine months will not suffice and neither would breath tests or the short
detection duration of an EtG supply the required confidence. It is suspected that he
remains depressed and so medication and verbal therapy might also be helpful.
Ex. 5 at 9–10. The Psychologist testified at the hearing that his diagnosis of the Individual as having
Alcohol Use Disorder-Severe was based on the Individual’s continued use of alcohol, despite his
chronic condition being worsened by it; the Individual’s lack of candor regarding the amount he
consumed recently; and the Individual’s continued use of alcohol despite recommendations to
3 Documents from one of the Individual’s rehabilitation programs, as well as his mother’s testimony, indicate that the
Individual’s mother terminated his residency at her home on more than one occasion. Tr. at 54; Ex. 9 at 1.
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remain abstinent due to his health conditions. Tr. at 131–32. He testified that, while weekly EtG
urine tests were helpful, they could only detect alcohol for three days, so the Individual’s testing
could only prove 15 days of sobriety. Id. at 136. He believed the Individual had likely been
abstaining since July 2019. Id. at 141. He testified that people suffering from Alcohol Use Disorders
can be productive at work and attentive family members. Id. at 138.
The Psychologist gave the Individual a 70 to 75 percent prognosis for never drinking again. Tr. at
139. He opined that the Individual was reformed, in that he was not drinking. Id. at 149. He testified
that the Individual should never drink again as alcohol exacerbates his chronic medical condition.
Id. at 139. The Individual’s medications will eventually lose efficacy and the Psychologist was
concerned that the pain of the chronic condition remains a looming threat to the Individual’s
abstinence. Id. at 140. Furthermore, the Psychologist was concerned that the Individual had never
been able to fully abstain from alcohol, even with the motivation of his chronic condition and
deteriorating family conditions. Id. at 141–42. He further testified that those who have consumed
alcohol to the extent the Individual has will always have a higher chance of relapse than those who
have not consumed alcohol in such a way. Id. at 151.
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 places 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 granting or restoring security clearances, I must deny a security clearance if I
am not convinced that the LSO’s security concerns have been mitigated such that granting the
Individual’s 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.
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The Individual’s alcohol use is so recent that it continues to cast doubt on his current reliability,
trustworthiness, and judgment, especially considering that he drank 10 drinks in one night in
February, despite knowing DOE was concerned about his alcohol consumption. He described his
February drinking as “one of the dumbest things I’ve ever done.” Tr. at 120. And yet, he did it two
nights in a row. His February drinking—paired with his statements about the acceptability of social
drinking and “a drink after work,” as well as the Psychologist’s recommendation that controlled
drinking does not work for the Individual—indicate that he has not demonstrated a clear and
established pattern of abstinence.
The Individual also denies that he has an alcohol problem and was not entirely forthright about his
recent alcohol consumption, splitting hairs between four beers versus two beers with five shots and
claiming to have been improperly influenced by the Psychologist. The Individual has a long history
of relapse and has not completed a treatment program since his most recent sobriety date.
Furthermore, the Individual failed to complete the recommended nine months of PEth testing and,
as a result, it is difficult to discern whether he has remained abstinent. His EtG testing is insufficient
evidence of abstinence, particularly in light of the Psychologist’s statement that such testing would
be insufficient to demonstrate abstinence in the Individual’s case.
For the foregoing reasons, I cannot find that the Individual has resolved the Guideline G security
concerns.
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 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.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals