PSH-20-0005

*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: October 23, 2019 ) Case No.: PSH-20-0005
)
__________________________________________)
Issued: January 16, 2020
__________________________
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 that requires him to hold a security
clearance. During processing of his application, derogatory information was discovered regarding
the Individual’s alcohol consumption and criminal history. The Individual was referred to a DOE-
Contractor Psychiatrist (the Psychiatrist) for evaluation.
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 October 23, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), the Individual presented the testimony of three witnesses. The LSO presented the
testimony of the DOE Psychiatrist who had evaluated the Individual. See Transcript of Hearing,
Case No. PSH-20-0005 (hereinafter cited as “Tr.”). The LSO submitted 11 exhibits, marked as
Exhibits 1 through 11 (hereinafter cited as “Ex.”). The Individual submitted seven exhibits, marked
as Exhibits A through G.
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.
2
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 Guidelines G and J 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. Adjudicative Guidelines at ¶ 22.
Guideline J (Criminal Conduct) provides that “[c]riminal activity creates doubt about a person's
judgment, 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
conditions that could raise a security concern and may be disqualifying include a pattern of minor
offenses, any one of which on its own would be unlikely to affect a national security eligibility
decision, but which in combination cast doubt on the individual's judgment, reliability, or
trustworthiness; evidence of criminal conduct, regardless of whether the individual was formally
charged, prosecuted, or convicted; an individual is currently on parole or probation; an individual’s
parole or probation was violated or revoked; an individual’s failure to complete a court-mandated
rehabilitation program; and discharge or dismissal from the Armed Forces for reasons less than
“Honorable.” Adjudicative Guidelines at ¶ 31.
The LSO alleges that, in April 2019, the Individual was diagnosed by a DOE Psychiatrist with
Alcohol Use Disorder-Moderate, in early remission. It further alleges that the Individual was
subject to the following arrests for various offenses:
3
1. December 2015, Driving Under the Influence (DUI) of Alcohol and Implied Consent.
2. June 1986, February 2004 and January 2007, Public Intoxication.
3. August 2002, DUI by Allowance.
4. September 1985, March 1996 and May 2000, DUI.
5. January 1990, Leaving the Scene of an Accident and Public Intoxication.
6. April 1985, [Possession of] Alcohol in a State Park, Contributing to the Delinquency of a
Minor, Concealing an Illegal Weapon, and Public Intoxication.
7. December 2016, Driving on a Suspended License.
8. September 1999, Possession of Marijuana, Expired Registration, and Possession of Drug
Paraphernalia.
Accordingly, given the Individual’s history of alcohol-related arrests, the LSO’s security concerns
under Guideline G and J 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
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 friend, his co-worker, and his wife.
The Individual’s friend testified that he had known the Individual for nearly 40 years. Tr. at 11.
They communicate monthly. Id. They see each other when he is passing through the Individual’s
4
city for travel. Id. He did not know about the Individual’s alcohol consumption habits. The
Individual’s friend believed that the Individual was honest. Id. at 11–12. He testified that the
Individual was not drinking as of May 2019 when he was invited to an event. Id. at 14. He further
testified that the Individual had joined Alcoholics Anonymous (AA) and had discussed it briefly
with him in the weeks prior to the hearing. Id. at 14–15.
The co-worker testified that the Individual had told him that he was having trouble with his security
clearance process because he has a common name and other people’s crimes were showing up on
his record. Id. at 18. He had daily contact with the Individual, but did not see the Individual socially.
Id. at 19. The co-worker had no knowledge of the Individual’s alcohol use. Id. at 19–20.
Nonetheless, he believed the Individual to be honest and trustworthy. Id. at 20.
The Individual’s wife testified that the Individual had told her that the security concerns dealt with
his alcohol use. Tr. at 25. They had been together for almost 30 years. Id. at 25. She did not have
significant concerns about the Individual’s alcohol consumption because she felt he controlled
himself when drinking. Id. at 26. She testified that because his DUIs were not caused by serious
crashes, but rather by minor offenses, she considered them to be less serious than other types of
DUIs. Id. She also testified that prior to May 2019, the Individual would consume up to four beers
two to three times during the week at home and would also consume six to eight beers socially on
the weekends. Id. at 28. The Individual’s wife testified that the Individual last consumed alcohol
in May 2019 and started AA three times per week about a month later. Id. at 29–30. She does not
drink alcohol around the Individual and they do not have alcohol in their home. Id. at 33–34. She
does not believe the Individual has ever hidden his alcohol use from her. Id. at 34. Though she had
not been concerned about the Individual’s drinking over the years, she expressed happiness that the
Individual no longer consumed alcohol. Id. at 34–35. The Individual’s wife also testified that the
Individual did attempt to quit drinking in April 2019, but after his evaluation with the Psychiatrist,
he was so stressed out that he began drinking again. Id. at 41–42. She testified that she believed he
quit for good in May after receiving the Psychiatrist’s report. Id. at 42. She also believed that the
Individual intended to remain abstinent permanently. Id.
The Individual testified that his license has never been suspended and submitted evidence showing
that the December 2016 charge was against a different individual with a similar name. Tr. at 51,
Ex. A. He did not contest any other security concern. Tr. at 52. The Individual testified that he had
never been convicted of a DUI, though he admits to driving under the influence. Id. at 51–52, 55–
57, 93–94.
The Individual testified that before his evaluation with the Psychiatrist, he would drink about three
to four beers per night most nights of the week. Tr. at 58. He might drink a six pack during a football
game. Id. The Individual testified that he stopped drinking on April 15, 2019, not in May 2019. Id.
at 60. He testified that, in April 2019, the Psychiatrist advised him to seek support beyond his
family and to start attending Alcoholics Anonymous. Id. at 65. He drank alcohol again on July 4,
2019, and again shortly afterward on a trip to Las Vegas. Id. at 60–61. At the time, he was frustrated
that the Administrative Review process was taking so long and, believing it could be months before
he heard anything about his security clearance, he decided to consume alcohol just on his vacation.
Id. at 83. He continued to consume alcohol about once per week until October, though he did not
believe he had consumed alcohol during August. Id. at 60–62. The Individual testified that he began
attending AA in early October and had his last drink about two days prior to that. Id. at 62, 64. He
5
enjoyed going to AA and found it very helpful. Id. at 65. He testified that he did not go sooner
because he thought he could quit drinking on his own. Id. at 65. Even though he was still consuming
alcohol about once per week, he did not seek out any treatment to assist in abstaining. Id. at 66. As
of his hearing date, the Individual did not have an AA sponsor, nor had he started working the 12-
Steps of the AA program. Id. at 67–69. He testified that he was learning about the steps, but was
unable to identify the first step. Id. at 69–70. The Individual asserted that the 12-steps are not
discussed at his AA meetings. Id. at 70–71.
The Individual acknowledged that he had a problem with alcohol. Tr. at 71. He could not identify
any triggers that caused him to consume alcohol between May and October, stating that it was “just
habit.” Id. He had learned that he should call a sponsor or another support person when he was
feeling like drinking. Id. at 71. However, he had no sponsor and had not used the list of support
names and numbers that he received at AA. Id. at 71. He testified that he believes that he needs
more of a support group for his sobriety. Id. at 86. The Individual did not have a plan to go through
the holidays without drinking. Id. at 79. He testified that, even though he had consumed alcohol
from July to October, his once weekly drinking was much better than his daily drinking that he had
been doing before April. Id. at 79–80.
The Psychiatrist recommended absolute sobriety to the Individual at the April evaluation. Tr. at 99.
He also told the Individual at that time that he should not attempt to make this change on his own
and that his spouse’s support was not enough accountability. Id. at 100. Specifically, the
Psychiatrist was worried about the wife’s lack of concern over the Individual’s drinking. Id. at 106.
He testified that he was not surprised to hear that the Individual relapsed after trying to abstain on
his own, stating that it is a classic pattern. Id. at 102. The Psychiatrist testified that research
indicates that drinking less is not an effective treatment for Alcohol Use Disorders because
consumption tends to increase over time back to unhealthy levels. Id. at 102–03. He testified that
abstinence is the only sure treatment. Id. at 103.
The Psychiatrist believed that the Individual’s judgment regarding alcohol was no longer clear
because the Individual had escaped punishment for many alcohol-related crimes over the decades
and likely could not grasp the seriousness of his current situation. Tr. at 104. He did not hear the
Individual testify about wanting sobriety and clarity in his life. Id. at 107. He was concerned about
the Individual’s sobriety such that he would not prescribe certain medications to the Individual that
could result in serious complications if combined with alcohol. Id. at 107–08.
The Psychiatrist testified that the Individual is not rehabilitated or reformed. Tr. at 108–09. He gave
the Individual a fair to guarded prognosis, indicating that he had a high risk of relapse. Id. at 109,
112. One factor in his prognosis is the ease with which the Individual relapsed. Id. That relapse
also caused the Psychiatrist to testify that a more structured program, such as an intensive outpatient
program, would be advisable at this point in the Individual’s recovery. Id. at 110. For rehabilitation,
the Psychiatrist would recommend 12 months of abstinence and treatment for the Individual. Id. at
109–11, 114.
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
6
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 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.
Guideline J provides that security concerns arising from criminal conduct can be mitigated when
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; the individual was pressured or coerced into committing the act
and those pressures are not prescribed, the pressures are no longer a part of the individual’s life,
and the abuse has since ended; there is no reliable evidence to support that the individual committed
the offense; and there is evidence of successful rehabilitation; including, but not limited to, the
passage of 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.
The Individual’s alcohol use is recent and most recently occurred as relapses after two periods of
abstinence, each of which lasted a few weeks. Though he acknowledges his alcohol issues, the
Individual has not established a pattern of abstinence because he has not abstained longer than
about three months at a time since being told that he should stop drinking completely over eight
months ago. Furthermore, the Individual has not taken several important steps toward recovery,
such as getting an AA sponsor, identifying relapse triggers, or making a plan to get through special
occasions during which he used to drink. The Psychiatrist did not believe that the Individual was
rehabilitated or reformed, and gave him only a fair to guarded prognosis. Indeed, the Individual has
not completed a treatment program and has not started working on the 12-Steps of AA. At this
time, the Individual is still early in his recovery and has not begun working on the underlying causes
7
and triggers of his alcohol use disorder. Accordingly, I cannot find that he has mitigated the
Guideline G security concerns.
The Individual’s criminal conduct (the Guideline J concerns) is inextricably intertwined with his
alcohol use. Until the concerns surrounding his alcohol use are resolved, I cannot find that his
criminal conduct is not unlikely to recur. His alcohol use casts doubt on his judgment,
trustworthiness, and reliability because, until he has established a pattern of abstinence, the
possibility remains that he will break the law while under the influence of alcohol. Accordingly, I
cannot find that he has mitigated the Guideline J 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 Guidelines G and J 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