PSH-20-0024

*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: December 26, 2019 ) Case No.: PSH-20-0024
)
__________________________________________)
Issued: March 5, 2020
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, 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 should not be granted access
authorization.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. The Individual completed an Electronic Questionnaire for Investigations Processing
(e-QIP) on November 22, 2016. Exhibit (Ex.) 11 at 52. The Individual disclosed on the e-QIP that
he had been arrested and charged with Driving While Intoxicated (DWI) in 1981, 2001, and 2004.
Id. at 40–43.2 The local security office (LSO) issued the Individual a letter of interrogatory (LOI)
on February 27, 2019, concerning his alcohol consumption habits and alcohol-related arrests. Ex.
8.
The Individual’s response to the LOI did not resolve the security concerns, and the LSO
recommended that the Individual undergo an evaluation by a DOE-contracted psychiatrist (DOE
Psychiatrist). See Ex. 6 at 1 (recommending referral for an evaluation). Following a clinical
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.
2 The Individual reported on the e-QIP that his third arrest for DWI occurred in 2005, but records obtained by the
Office of Personnel Management (OPM) during its background investigation of the Individual indicated that the arrest
occurred in 2004. Ex. 12 at 134.
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interview of the Individual, the DOE Psychiatrist issued a psychiatric assessment (Report) in which
he opined that the Individual habitually consumed alcohol to the point of impaired judgment, binge
consumed alcohol to the point of impaired judgement, or both. Ex. 9 at 7.
On November 18, 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. In an attachment to the letter (Summary of Security Concerns), the
LSO explained that the derogatory information raised security concerns under Guideline G
(Alcohol Consumption) of the Adjudicative Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. 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 twelve numbered exhibits (Ex. 1–12) into the record. The Individual
did not submit any exhibits.3 The LSO presented the testimony of the DOE Psychiatrist and the
Individual presented the testimony of five witnesses, including his own testimony.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the basis
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
Summary of Security Concerns listed as relevant facts: the DOE Psychiatrist determined that the
Individual habitually consumed and binge consumed alcohol to the point of impaired judgement;
and, the Individual was arrested and charged with DWI in 1981, 2001, and 2004. Ex. 1. The LSO’s
allegations that the Individual engaged in alcohol-related incidents away from work, and habitually
and binge consumed alcohol to the point of impaired judgement, justify the LSO’s invocation of
Guideline G. Adjudicative Guidelines at ¶ 22(a), (c).
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).
3 During a pre-hearing conference call, the Individual expressed the intention to submit letters of support from co-
workers that he had included with his request to the LSO for an administrative review hearing. I explained to him that
the LSO had already submitted the letters as part of DOE Ex. 2, and that it was not necessary for him to submit the
records into evidence again.
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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 submitted the e-QIP on November 22, 2016, and disclosed his three arrests for
DWI in 1981, 2001, and 2004. Ex. 11 at 40–43, 52. In his response to the LOI, the Individual
acknowledged each of the instances in which he was arrested for DWI but asserted that he no
longer “dr[a]nk to the point of such intoxication.” Ex. 8 at 5. According to the Individual in his
response to the LOI, he had consumed an average of one to two 12-ounce or 16-ounce beers on
two or three occasions per week during the prior ten years. Id. at 1.
On April 18, 2019, the Individual met with the DOE Psychiatrist for a clinical interview. Ex. 9
at 1. During the clinical interview, the Individual reported that alcohol had been a problem for him
in the past but was not any longer. Id. at 4. The Individual indicated that he did not crave alcohol,
experience feelings of being unable to stop drinking after he started, or otherwise observe any
negative effects from alcohol in his life. Id.
The Individual told the DOE Psychiatrist that he typically consumed two drinks per sitting twice
per week. Id. at 3. The Individual reported that he last consumed alcohol the night prior to the
clinical evaluation when he had a margarita and a 12-ounce beer with dinner. Id. In order to
objectively assess the Individual’s alcohol consumption, the DOE Psychiatrist recommended that
the Individual provide a blood sample for a phosphatidylethanol (PEth) test to measure the
presence of the PEth biomarker in the Individual’s blood. Id. at 6. The results of the PEth test were
positive at a level of 239 nanograms per milliliter (ng/mL). Id. According to the DOE Psychiatrist,
a PEth level of 239 mg/mL is consistent with consuming an average of approximately sixty grams
of alcohol (about four drinks) daily. Id.
In light of the laboratory evidence that the Individual was consuming significantly greater
quantities of alcohol than he had reported in the clinical interview and in his response to the LOI,
the DOE Psychiatrist concluded that the Individual was habitually consuming alcohol to the point
of impaired judgement, binge drinking, or both. Id. The DOE Psychiatrist recommended that the
Individual demonstrate rehabilitation or reformation by: (1) abstaining from alcohol for at least
one year; (2) undergoing monthly PEth testing to provide evidence of his abstinence from alcohol;
(3) participating in an outpatient counseling program on a weekly basis for at least three months
followed by an aftercare program for at least nine months; and (4) participating in Alcoholics
Anonymous (AA) on an at least weekly basis for one year. Id. at 6–7.
V. HEARING TESTIMONY
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A co-worker of the Individual who sees the Individual frequently at work, and approximately
weekly outside of work, testified that he believes that the Individual is a reliable and consistent
person. Tr. at 33–34. According to the co-worker, the Individual demonstrated his good character
through conscientiousness at work and mentoring of younger employees. Id. at 33–34, 36–37. The
co-worker testified that he had never observed the Individual under the influence of alcohol, and
that the Individual had told him that he had stopped drinking alcohol. Id. at 30, 37.
Two other co-workers of the Individual who saw him regularly at work, but who did not associate
with the Individual outside of work, testified that they believed that the Individual was a
dependable person and good worker. Id. at 10, 13, 42–44. Both of the co-workers indicated that
the Individual had told them that he had stopped consuming alcohol several months prior to the
hearing, and both co-workers denied ever observing the Individual under the influence of alcohol
at work. Id. at 11–12, 43–44. Two other co-workers submitted letters of recommendation in which
they indicated that the Individual was a good worker and reliable person. Ex. 2 at 2–3.
The Individual’s supervisor testified that he last observed the Individual consume alcohol
approximately four months prior to the hearing when he, the Individual, and several of their co-
workers went to a bar after work. Tr. at 20–21. The supervisor recalled that the Individual
consumed three craft beers in approximately ninety minutes and did not appear intoxicated. Id. at
21. The Individual’s supervisor testified that he had never observed the Individual engage in
problematic drinking. Id. at 22.
The Individual testified that he stopped consuming alcohol approximately three months prior to
the hearing because he was concerned about losing his job if he did not obtain a security clearance
and because he wanted to improve his health. Id. at 50–51. The Individual testified that he believed
that he had accurately reported his drinking levels in his response to the LOI and during the clinical
interview with the DOE Psychiatrist, and asserted that he consumed two to three beers after work
two to three days each week until November 2019 when he said that he began abstaining from
alcohol. Id. at 48–50.
The Individual acknowledged that he had not followed the DOE Psychiatrist’s recommendations
with respect to pursuing treatment and attending AA meetings, and asserted that he did not believe
that it was necessary for him to do so if he could abstain from alcohol on his own without help. Id.
at 54–55. The Individual also acknowledged that he had waited for approximately six months after
receiving the DOE Psychiatrist’s Report to begin abstaining from alcohol, and testified that he did
so because the Report did not say that he should begin abstaining immediately. Id. at 59–61. The
Individual asserted that he had disassociated from alcohol-using friends, no longer went to bars or
other alcohol-focused establishments, and intended to abstain from alcohol in the future. Id. at 56–
57, 63.
The DOE Psychiatrist testified last, after observing all of the other testimony offered during the
hearing. The DOE Psychiatrist stated that the Report’s conclusions were based primarily on the
Individual’s elevated PEth test results, which provided strong evidence that the Individual was
drinking significantly more alcohol than he admitted. Id. at 70–71. Since the Individual chose not
to undergo the recommended alcohol testing that could have provided objective evidence of his
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claimed abstinence from alcohol, the DOE Psychiatrist testified that he had no basis to revise his
conclusion that the Individual was a habitual or binge consumer of alcohol to the point of impaired
judgement. Id. at 72–73. Moreover, since the Individual did not participate in the recommended
treatment or provide objective evidence of his abstinence from alcohol, the DOE Psychiatrist
indicated that he could not determine that the Individual had a positive prognosis for avoiding
problematic alcohol consumption in the future. Id. at 73.
VI. ANALYSIS
A. Guideline G
The Individual’s alcohol-related incidents away from work and the LSO’s allegations that he has
engaged in habitual and binge consumption of alcohol to the point of impaired judgement raise
security concerns under Guideline G of the Adjudicative Guidelines. Adjudicative Guidelines at
¶ 22(a), (c). Furthermore, the Individual did not contest any of the facts set forth in the Statement
of Security Concerns or the Report.
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
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). Nonetheless, for the reasons described below, I cannot
find that the Individual has mitigated Guideline G security concerns raised by the derogatory
information listed in the Summary of Security Concerns.
In this case, the first mitigating condition under Guideline G is inapplicable because I cannot
determine with certainty when, or if, the Individual began abstaining from alcohol. In light of the
strong evidence from the DOE Psychiatrist’s PEth test that the Individual underreported his alcohol
consumption in the clinical interview and in response to the LOI, I do not accept the Individual’s
testimony as sufficient evidence of his abstinence from alcohol. Moreover, even if the Individual
abstained from alcohol from November 2019 through the date of the hearing in February 2020,
this three-month period of abstinence is insufficient for me to conclude that so much time has
passed that the Individual is unlikely to engage in problematic alcohol consumption in the future.
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Thus, I find that the Individual has not satisfied the first mitigating condition under Guideline G.
Id. at ¶ 23(a).
The remaining three mitigating conditions under Guideline G are likewise inapplicable in this case.
The Individual has not satisfied the second and fourth mitigating conditions because, without the
alcohol testing recommended by the DOE Psychiatrist, I cannot conclude that the Individual has
established a pattern of abstinence in accordance with treatment recommendations. Id. at
¶ 23(b), (d). The Individual’s decision not to pursue counseling or to attend AA meetings also
renders the third and fourth mitigating conditions inapplicable because he has not participated in
or completed counseling or a treatment program. Id. at ¶ 23(c)–(d).
Consequently, I find that none of the mitigating conditions under Guideline G are applicable to
this matter. Therefore, I conclude that the Individual has not resolved the security concerns asserted
by the LSO under Guideline G.
VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline G 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 should not be granted access authorization. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals