PSH-20-0008

*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: November 6, 2019 ) Case No.: PSH-20-0008
)
__________________________________________)
Issued: January 16, 2020
____________________________
Administrative Judge Decision
____________________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX (the Individual) to hold an access authorization
under the United States Department of Energy’s (DOE) regulations, set forth at 10 C.F.R. Part
710, “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
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. The Individual completed a Questionnaire for National Security Positions (QNSP) on
February 23, 2017, in connection with seeking access authorization. Exhibit (Ex.) 4 at 34. The
Individual disclosed on the QNSP that he had been arrested and charged with Driving Under the
Influence (DUI) and reckless driving in 2013, but that he had not been charged with any other
alcohol-related offenses. Id. at 34–36. However, the local security office (LSO) subsequently
determined that the Individual had failed to disclose four other alcohol-related offenses on the
QNSP. See Ex. 26 at 1.
Upon discovery of the Individual’s alcohol-related offenses, the LSO conducted a personnel
security interview (PSI) of the Individual on July 25, 2018. Ex. 15 at i. The PSI did not resolve the
security concerns raised by these arrests, and the LSO subsequently recommended that the
Individual undergo an evaluation by a DOE-contracted psychologist (DOE Psychologist).
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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Following a clinical interview of the Individual, the DOE Psychologist issued a psychological
assessment (Report) in which she concluded that the Individual was a habitual consumer of alcohol
to the point of impaired judgement and that he met the diagnostic criteria for Alcohol Use Disorder
(AUD), Moderate, under the Diagnostic and Statistical Manual of Mental Disorders – Fifth
Edition (DSM-5). Ex. 21 at 8.
On September 19, 2019, the LSO issued the Individual a letter in which it indicated that it
possessed reliable information that created substantial doubt regarding the Individual’s eligibility
to hold a security clearance. Ex. 2. In an attachment to the letter (Summary of Security Concerns),
the LSO explained that the derogatory information raised security concerns under Guideline E
(Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct) of
the Adjudicative Guidelines. Ex. 3.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. Ex. 1. The Director of the Office of Hearings and Appeals (OHA) appointed me
as the Administrative Judge in this matter, and I subsequently conducted an administrative hearing.
The LSO submitted thirty numbered exhibits (Ex. 1–30) into the record.2 The Individual submitted
fourteen exhibits (Ex. A–J).3 The LSO presented the testimony of the DOE Psychologist and the
Individual presented the testimony of two witnesses, including his own testimony.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the first basis
for denying the Individual a security clearance. Ex. 3 at 1–3. Conduct involving questionable
judgement, lack of candor, or unwillingness to comply with rules and regulations can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified or
sensitive information. Adjudicative Guidelines at ¶ 15. Of special interest is any failure to
cooperate or provide truthful and candid answers during national security investigative or
adjudicative processes. Id. The Summary of Security Concerns listed as relevant facts: the
Individual failed to fully disclose his history of arrests and charges for alcohol-related offenses on
QNSPs that he submitted in 1997, 2007, 2011 and 2017; the Individual provided inconsistent
explanations for the discrepancy on his 2017 QNSP during a PSI conducted in 2018; and, the
Individual was advised during a PSI in 1997 that he was required to disclose all alcohol-related
2 The Individual’s counsel indicated during a pre-hearing telephone conference that he intended to object to the
admission of Exhibits 15 and 19 into the record. During the hearing, the Individual’s counsel explained that he objected
to the admission of Exhibit 15, a transcript of an interview between the Individual and a security specialist employed
by the LSO, on the bases that the interview was conducted in an inquisitorial manner, statements by the security
specialist made the transcript more of an adverse statement than an interview, and the security specialist had not been
offered as a witness and was not available for cross examination. Hearing Transcript at 9–11. I overruled this objection
and admitted Exhibit 15 on the grounds that the transcript was a literal representation of the interview, the Individual’s
counsel had not asserted that the transcript was inaccurate or inauthentic, and that the Individual could testify as to the
conditions of the interview so as to allow me to assign it the proper evidentiary weight. The Individual’s counsel did
not explain his objection to the admission of Exhibit 19, an excerpt from a report prepared by an Office of Personnel
Management investigator concerning a background investigation into the Individual, and therefore I overruled his
objection and admitted Exhibit 19.
3 The Individual labeled related exhibits with a letter followed by sequential numbers. For example, affidavits
submitted by character witnesses for the Individual are labeled as Exhibit H1, Exhibit H2, and so on.
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offenses during security investigative processes. Ex. 3 at 1–3. The LSO’s allegations that the
Individual omitted relevant facts from a personnel security questionnaire and provided misleading
information to a personnel security investigator justify the LSO’s invocation of Guideline E.
Adjudicative Guidelines at ¶ 16(a)–(b).
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the second
basis for denying the Individual a security clearance. Ex. 3 at 3–6. 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 Summary of Security Concerns listed as relevant facts: the Individual was arrested and
charged with DUI in 1996, 1997, 2001, and 2013, and cited for possessing an open container of
alcohol while operating an automobile in 2000; the Individual consumed alcohol to intoxication
on a monthly basis from 2008 to 2012; the Individual reported consuming alcohol to intoxication
as recently as August 2019; the Individual returned to consuming alcohol after reporting in a 1997
PSI that he intended to stop drinking; and, the DOE Psychologist’s determination that the
Individual habitually consumed alcohol to the point of impaired judgement and met the diagnostic
criteria for AUD, Moderate, under the DSM-5. Ex. 3 at 3–6. The LSO’s allegations that the
Individual engaged in alcohol-related incidents away from work, habitually consumed alcohol to
the point of impaired judgement, and was diagnosed with AUD, Moderate, by the DOE
Psychologist justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at ¶ 22(a), (c)–
(d).
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the third basis
for denying the Individual a security clearance. Ex. 3 at 6–8. Criminal activity creates doubt about
a person’s judgement, reliability, and trustworthiness. Adjudicative Guidelines at ¶ 30. By its very
nature, it calls into question a person’s ability or willingness to comply with laws, rules, and
regulations. Id. The Summary of Security Concerns listed as relevant facts: the Individual admitted
to having been arrested for DUI on four occasions; the Individual’s citation for an open container
offense; and, eleven instances in which the Individual was cited for traffic offenses between 1999
and 2014. Ex. 3 at 6–8. The Individual’s pattern of minor offenses and the Individual’s admission
that he was arrested for DUI on four occasions justify 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).
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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.
IV. FINDINGS OF FACT
The Individual does not challenge the basic facts listed in the notification letter, but does challenge
the DOE Psychologist’s diagnosis. In addition, the Individual attempted to explain the
circumstances surrounding his DUIs and the other various criminal charges, all of which are traffic
related.
The Individual was arrested for DUI in 1996, 1997, 2001, and 2013. He does not dispute these
charges. In addition to the DUI charges, the Individual was charged with “open container” in
2000. As to the other criminal charges, the 1996 charge was reduced to careless and reckless
driving, the 1997 charge was reduced to inattentive driving, the 2001 charge was reduced to
disturbing the peace, and the 2013 charge was reduced to reckless driving. Ex. 14 at 14–15, 24;
Ex. 17; Ex. 18. The Individual variously asserted that because the charges were reduced or because
they were over five years old, he did not believe he needed to inform DOE on his QNSP. Ex. 14
at 16–17; Ex. 17; Tr. at 92.
Hence, on his 2017 QNSP, the Individual failed to disclose that his 1996, 1997, and 2001 DUIs
and his 2000 open container charges. Ex. 26 at 1. In response to questions during a July 2018 PSI,
the Individual claimed that he did not know why he had omitted the other DUIs from the 2017
QNSP. Ex. 15 at 29. This omission followed similar omissions on the Individual’s previous
QNSPs in 1997, 2007, and 2011, even though he had been advised in 1997 that he needed to report
all alcohol-related offenses. Ex. 14 at 17, 29.
With respect to his drinking, at the time of the 2018 PSI, the Individual reported that he had
consumed an average of one to three beers once per month since 2013 and expressed the intention
to keep his drinking at this limited level. Ex. 15 at 90, 110–11. However, at the hearing, he argued
that his statements during the 2018 PSI were not reliable because he was nervous and felt that the
interviewer “was trying to force [him] into answering something that would kind of set [him] up
for failure.” Tr. at 35–37. The Individual expressed his perception that the interviewer was agitated
prior to the interview and had already made up his mind that the Individual should not hold a
clearance. Id. at 34, 38. According to the Individual, he did not believe that he was intoxicated
during a 2018 camping trip that he described during 2018 PSI because he consumed six beers on
one day over a period of many hours. Id. at 39, 46.
The Individual continued at the hearing that he had not consumed alcohol since September 2019.
Tr. at 30. The Individual indicated that he had found it easy to refrain from consuming alcohol
because he consumed alcohol infrequently prior to September 2019. Id. at 30–31. The Individual
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acknowledged that he had habitually consumed alcohol to excess in the past, but asserted that
aging, the resolution of personal problems in his life, and his need to care for his ill father left him
too tired for drinking and that he did not intend to resume drinking. Id. at 71–72. The Individual
admitted that he had previously returned to drinking after expressing the intention not to do so, but
asserted that this time was different because in the past he was “out looking for a good time” but
was now too “old [and] tired” for drinking. Id.
As to the criminal charges raised by the LSO which include the alcohol-related offenses addressed
above, the Individual was also charged with eleven traffic offenses between 1999 and 2014. These
offenses included failure to provide proof of insurance on five occasions, failure to use safety
restraints on one occasion, and speeding on six occasions. There was no testimony regarding the
speeding or failure to use safety restraints charges, all of which occurred prior to 2014, except that
the Individual claimed he could not recall the circumstances under which he committed the traffic
offenses. Tr. at 73–74. Regarding the failure to provide proof of insurance, the Individual testified
that he always had insurance and “when they give you the citation for no proof of insurance, you
just take a copy of your proof of insurance down to the courthouse and they waive the fee.” Id. at
74. The Individual denied that he was willfully disobeying the rules he deemed mundane, but said
that “mistakes are made . . . and it was a real easy, really easy fix.” Id. at 128–29.
Following the PSI, the Individual met with the DOE Psychologist in January, 2019, for a clinical
interview. Ex. 21 at 2. During his interview with the DOE Psychologist, the Individual indicated
that he consumed an average of four to six beers in a month. Id. at 6. In addition to the interview,
the Individual underwent Ethyl Glucuronide (EtG) and Phosphatidylethanol (PEth) tests. A
medical doctor, who reviewed the results of the tests, provided a letter to the DOE Psychologist
indicating that both tests were negative, claiming that these negative test results were strong
evidence that the Individual had not consumed alcohol for at least three days prior to the clinical
interview and had not consumed alcohol on a regular, heavy basis for at least several weeks prior
to the clinical interview. Id. at 13.
After the evaluation and despite the results of the EtG and PEth tests, the DOE Psychologist
concluded that the Individual met the diagnostic criteria for AUD, Moderate, under the DSM-5.
Id. at 7. According to the DOE Psychologist, the Individual had demonstrated a persistent desire
or unsuccessful effort to cut down or control alcohol use based on his previous, unfulfilled
promises to stop drinking. Id. at 6, 9. The DOE Psychologist’s Report noted that the Individual did
not believe that he was an alcoholic, but reported having experienced withdrawal symptoms when
he stopped drinking in the past and had used alcohol to relieve boredom in the twelve months prior
to the interview. Id. at 6. The DOE Psychologist also found that the Individual demonstrated
continued alcohol use despite having persistent or recurrent social or interpersonal problems
caused or exacerbated by alcohol, recurrent alcohol use in situations in which it is physically
hazardous, and tolerance for alcohol as demonstrated by markedly diminished effect with
continued use. Id. at 6, 9. The DOE Psychologist recommended that the Individual demonstrate
rehabilitation or reformation by participating in an outpatient program specifically intended for
alcohol treatment and a twelve-step or similar recovery program. Id. at 7.
At the hearing, the DOE Psychologist confirmed her diagnosis. Tr. at 148. She testified that his
prognosis was very poor if he did not pursue alcohol-related treatment as she had recommended.
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Id. at 163. The DOE Psychologist concluded that the Individual was not in remission because he
met numerous diagnostic criteria for AUD during the prior twelve months: (1) Alcohol is often
taken in larger amounts or over a longer period than was intended as demonstrated by the
Individual’s decision to continue drinking until at least September 2019 even after expressing the
intention to stop drinking during the 2018 PSI; (2) a persistent, unsuccessful desire to cut down or
control alcohol use; (3) continuing to use alcohol despite having persistent or recurrent social or
interpersonal problems caused by alcohol use; (4) recurrent use of alcohol in situations in which
doing so was physically hazardous; (5) tolerance demonstrated by diminishing effects with
continued use of alcohol; and (6) symptoms of withdrawal. Id. at 176–79, 184, 187–89, 193–96,
219.
On October 15, 2019, the Individual met with a psychologist (Individual’s Psychologist) who he
contracted to evaluate him in advance of the hearing. Ex. C1. The Individual reported to the
Individual’s Psychologist that he was an infrequent consumer of alcohol, but that he might
consume up to eight beers over eight hours while camping. Id. at 6. The Individual did not report
experiencing any adverse consequences from consuming alcohol, or consuming alcohol under any
circumstances that corresponded to the diagnostic criteria for AUD under the DSM-5. Id. During
the evaluation, the Individual’s Psychologist administered the Minnesota Multiphasic Personality
Inventory, Second Revision, Restructured Format (MMPI-2-RF) to the Individual. Id. The
Individual’s results on the MMPI-2-RF indicated an over reporting of symptoms. Id. at 7. Although
the Individual’s Psychologist’s report stated that these findings may indicate that a “test taker . . .
was inclined to . . . emphasize or exaggerate psychological problems . . .” the Individual’s
Psychologist concluded that the Individual “completed the test honestly and accurately.” Id. The
Individual’s Psychologist opined that, although the Individual had met a sufficient number of
diagnostic criteria within a prior twelve-month period to support diagnosing him with AUD,
Moderate, the Individual did not meet any of the DSM-5 diagnostic criteria in the twelve months
prior to his evaluation of the Individual and therefore was in sustained remission. Id. at 7. The
Individual’s Psychologist further noted that abstinence from alcohol was not necessary for a person
to be in sustained remission, and opined that the Individual did not demonstrate any current
problems with respect to alcohol. Id. at 8.
The Individual’s Psychologist testified that he remained convinced that the Individual’s AUD was
in sustained remission because the Individual had not met any of the diagnostic criteria for AUD
under the DSM-5 in the preceding twelve months. Id. at 227. He opined that the DOE Psychologist
misapplied the diagnostic criterion concerning taking alcohol over a longer period than was
intended, which the Individual’s Psychologist explained concerned individual episodes of drinking
lasting hours longer than intended rather than a person intending to stop drinking but continuing
to do so for months thereafter. Id. at 180, 225. The Individual’s Psychologist expressed that the
Individual displayed no physical evidence of tolerance or withdrawal and had not complained of
problems as a result of alcohol implicating the diagnostic criteria under the DSM-5. Id. at 224, 227.
He concluded that the Individual had engaged in episodic binge drinking in the past, but that he
believed that the Individual had an extremely low risk of relapse because he was not chemically
dependent on alcohol. Id. at 234–36, 245.
V. ANALYSIS
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A. Guideline E
The Individual’s failure to fully disclose his history of alcohol-related offenses on QNSPs, and his
inconsistent explanations for failing to fully disclose this information, raise security concerns
under Guideline E. Adjudicative Guidelines at ¶ 16(a)–(b). Two mitigating conditions under
Guideline E are potentially applicable in this case. First, an individual may mitigate security
concerns under Guideline E if the “individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts.” Id. at ¶ 17(a). In
addition, an individual might mitigate security concerns under Guideline E if “the offense is so
minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recut and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgement.” Id. at ¶ 17(c).
In this case, the Individual’s disclosures of his record of being arrested and charged with DUI were
neither prompt nor made in good faith. The Individual was specifically instructed during the 1997
PSI that he was required to disclose alcohol-related arrests and charges, regardless of the final
disposition of the matter, but persisted in failing to appropriately disclose his alcohol-related
arrests and citations. Moreover, even after being confronted with the facts in the 2001 LOI, the
2018 PSI, and the hearing itself, the Individual persisted in claiming that he did not believe that he
was required to disclose his alcohol-related arrests and charges and that he found the questions on
the QNSPs confusing.
The Individual’s repeated failure to fully disclose his alcohol-related arrests and charges,
representations that he was not required to disclose the incidents even in the face of direct
instruction to the contrary, and his illogical pattern of disclosing one alcohol-related offense for
which the charge had been reduced on QNSPs but omitting all other offenses call into question the
Individual’s reliability and trustworthiness. The Individual’s pattern of failing to make full
disclosures of his alcohol-related offenses and justifying those omissions time and again with the
same excuses causes me to conclude that neither of the aforementioned mitigating conditions is
applicable and that the obstinacy or deceptiveness underlying the Individual’s omissions is likely
to recur. Therefore, I conclude that the Individual has not resolved the security concerns asserted
by the LSO under Guideline E.
B. Guideline G
The Individual’s alcohol-related incidents away from work, habitual consumption of alcohol to the
point of impaired judgement, and diagnosis of AUD all raise security concerns under Guideline G
of the Adjudicative Guidelines. Adjudicative Guidelines at ¶ 22(a), (c)–(d). 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.
Id. at ¶ 23(a)–(d).
1. Concerns Related to the Diagnosis of AUD
I find that the security concerns related to the Individual’s diagnosis of AUD, Moderate, are
resolved under the first mitigating condition because I am persuaded by the opinion of the
Individual’s Psychologist that the Individual has been in sustained remission for such an extended
period of time that the diagnosis, in of itself, is no longer a cause for concern. Id. at ¶ 23(a). The
DSM-5 clearly provides that a person is in full remission from AUD if “none of the criteria for
[AUD] have been met at any time during a period of 12 months of longer.” DSM-5 at 491. I find
the DOE Psychologist’s opinion that the Individual has unsuccessfully attempted to reduce or
eliminate his drinking in the past year unpersuasive. The Individual indicated during the 2018 PSI
that he was comfortable with his reported level of drinking and that he did not intend to stop
drinking entirely. The laboratory testing provided to the DOE Psychologist supported the
Individual’s claims of drinking little to no alcohol on a regular basis, and I find the DOE
Psychologist’s speculation that the Individual was regularly consuming significant quantities of
alcohol despite a desire to reduce his drinking inadequately founded.
Likewise, I find the DOE Psychologist’s speculation that the Individual experienced social or
interpersonal impairment as a result of his drinking, used alcohol in physically hazardous
situations, or experienced withdrawal within the twelve months prior to meeting with her
inadequately founded to justify her conclusions. The DOE Psychologist’s Report notes that the
Individual had an all-terrain vehicle accident after drinking in approximately 2014 and reported
experiencing withdrawal symptoms at some point in the past when he stopped drinking, but her
Report does not clearly indicate that she focused her analysis on whether the Individual met the
DSM-5 diagnostic criteria for AUD within the twelve months prior to the evaluation. Ex. 21 at 6.
The Individual’s Psychologist’s report, however, clearly indicates that he specifically queried the
Individual as to his symptoms and behaviors in the twelve months prior to the evaluation and
determined that the Individual did not meet any of the diagnostic criteria within that period. Ex.
C1 at 6. I find the Individual’s Psychologist’s opinion that the Individual has been in sustained
remission for an extended period of time more persuasive than the DOE Psychologist’s opinion,
and therefore find that the Individual has resolved the security concerns related to his diagnosis
with AUD.
2. Concerns Related to Habitually Consuming Alcohol to the Point of Impaired
Judgement
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I also find that the Individual’s prior practice of habitually consuming alcohol to the point of
impaired judgement is mitigated by the passage of time and the infrequency of the behavior. Id. at
¶ 23(a). While the Individual may have previously consumed alcohol to intoxication on a habitual
basis, the evidence strongly suggests that the Individual has infrequently consumed alcohol to the
point of intoxication. The Individual reported during the 2018 PSI that he consumed alcohol to
intoxication approximately once every six months. The results of the laboratory testing requested
by the DOE Psychologist strongly suggest that the Individual was not consuming significant
quantities of alcohol in January 2019, and the Individual represented during the hearing that he
subsequently discontinued using alcohol altogether. While OHA has never endorsed the idea that
there is a safe harbor number of instances in which a clearance holder can become intoxicated in
one year, our prior cases have generally held that an individual become intoxicated at least once
per month to conclude that he or she consumes alcohol habitually to the point of intoxication. See
Matter of Personnel Security Hearing, OHA Case No. PSH-19-0018 at 7 (2019) (summarizing
OHA case law and medical research in support of the conclusion that consuming alcohol to the
point of intoxication on a monthly basis represents a security concern under Guideline G).4 I am
convinced that the Individual has not experienced episodes of intoxication with sufficient
frequency to constitute habitual intoxication for many years, and therefore find that the Individual
has mitigated this security concern.
3. Concerns Related to Alcohol-Related Incidents Away from Work
Although the Individual has convinced me that he does not habitually consume alcohol to the point
of impaired judgement, the Individual’s alcohol-related incidents reflect a pattern on his part of
seldom engaging in drinking binges during which he exercises extremely poor judgement and
reliability which present serious security concerns. The Individual went to great pains during the
hearing to make clear that he has gone years at a time without becoming intoxicated, and that each
of his DUIs occurred on the few occasions in which he engaged in heavy drinking following years
of abstinence or controlled drinking. For example, twelve years passed without a documented
alcohol-related incident after the Individual’s arrest for DUI in 2001, during which time the
Individual asserted that he was seldom if ever intoxicated, only for the Individual to engage in an
episode of binge drinking in 2013 which resulted in his fourth DUI arrest after his BAC was
measured at .16. The Individual has recognized since the 1997 PSI that, on those occasions when
he binge consumes alcohol, he loses control and “always seem[s] to get in trouble” even after years
of responsible behavior. In light of the Individual’s inability to control himself during his rare
binge episodes, I am not convinced that the mere passage of time is sufficient to mitigate the
security concerns raised by the Individual’s numerous alcohol-related offenses. Thus, the first
mitigating condition is not applicable. Adjudicative Guidelines at ¶ 23(a).
The remaining mitigating conditions are not applicable because the Individual does not
acknowledge that he has a problem with alcohol, has not pursued counseling or followed treatment
recommendations that would help him gain insight into why he loses control after years of
responsible behavior, and has not yet established a sufficient period of abstinence from alcohol in
light of his lengthy history of relapsing into alcohol-related misconduct for me to conclude that he
will not commit further alcohol-related offenses in the future. Id. at ¶ 23(b)–(d). Until the
4 Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/oha.
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Individual takes appropriate steps to address the causes for his episodic lapses in judgement, I find
that he represents an unacceptable security risk.
For the reasons set forth above, I find that none of the mitigating conditions under Guideline G
resolve the security concerns related to the Individual’s alcohol-related incidents away from work.
Therefore, I conclude that the Individual has not fully resolved the security concerns asserted by
the LSO under Guideline G.
C. Guideline J
The Individual’s alcohol-related offenses and voluminous citations for traffic offenses raise
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 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).
In this case, I find that the passage of time, a factor common to the first and fourth mitigating
conditions, is not sufficient to mitigate the security concerns presented by the Individual’s
offenses. As discussed above, the Individual has gone for years at a time without committing an
alcohol-related offense, only to reoffend after years of responsible behavior. In light of this pattern,
I am not convinced that the Individual can be trusted to refrain from engaging in unlawful conduct
until he addresses the reasons for his periodic lapses in judgement.
Furthermore, the circumstances of the Individual’s traffic citations represent precisely the security
concerns described under the Adjudicative Guidelines as “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.” Adjudicative
Guidelines at ¶ 31(a). The Individual described during the hearing how he persisted in not carrying
proof of insurance, despite being cited for this omission on five separate occasions, because it was
an “easy fix” to go to the courthouse and produce insurance. This pattern of disregard for rules the
Individual apparently regards as petty and easily circumvented calls into question his willingness
or ability to comply with laws, rules, and regulations.
As the Individual’s conduct is not mitigated by the first or fourth mitigating conditions under
Guideline J, and the second and third mitigating conditions are clearly inapplicable in this case, I
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find that the Individual has not resolved the security concerns asserted by the LSO under Guideline
J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines E, 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 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 Summary of Security Concerns. Accordingly, I have determined that the
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.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals