PSH-20-0032

*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: January 27, 2020 ) Case No.: PSH-20-0032
)
__________________________________________)
Issued: July 8, 2020
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Administrative Judge Decision
_____________________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Criteria and Procedures for
Determining Eligibility for Access to Classified Matter of Special Nuclear Material.1 As discussed
below, after carefully considering the record before me in light of the relevant regulations and the
National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I
conclude that the Individual’s access authorization should not be restored.
I. BACKGROUND
On July 3, 2018, the Individual was arrested for Driving Under the Influence (DUI). Ex. 5 at 1.
As a result, the Local Security Office (LSO) asked the Individual to complete a set of
interrogatories. Ex. 6. After receiving the Individual’s responses to these interrogatories, the LSO
requested that the Individual be evaluated by a DOE-contracted psychologist (the Psychologist),
who obtained additional information from the Individual about his alcohol consumption. Ex. 8.
After receiving the Psychologist’s Report, the LSO determined that unresolved derogatory
information remained in the Record which raised significant security concerns about the
Individual. Accordingly, the LSO began the present administrative review proceeding on
December 17, 2019, by issuing a Notification Letter informing the Individual that the LSO
possessed reliable information that created substantial doubt regarding his eligibility to hold a
security clearance. The Notification Letter further informed the Individual that he was entitled to
a hearing before an Administrative Judge in order to resolve these substantial doubts. See
10 C.F.R. § 710.21.
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access to authorization or security clearance
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The Individual requested a hearing and the LSO forwarded his request to the Office of Hearings
and Appeals (OHA), and the Director of OHA appointed me as the Administrative Judge. . At the
hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), I took testimony from the
Individual, and the Psychologist. See Transcript of Hearing, Case No. PSH-20-0032 (hereinafter
cited as “Tr.”). The DOE Counsel submitted twelve exhibits, marked as Exhibits 1 through 12.
(hereinafter cited as “Ex.”). The Individual submitted three exhibits, marked as Exhibits A though
C.
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 raised security concerns under 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).
Under Guideline G (Alcohol Consumption), the LSO cites the Individual’s July 2018, DUI arrest
and the Psychologist’s report as the basis for its conclusion that the Individual was habitually binge
consuming alcohol to the point that it could impair his judgement. This report adequately justifies
the LSO’s invocation of Guideline G. The Adjudicative Guidelines state: “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." Guideline G at §21.
Among those conditions set forth in the Guidelines that could raise a disqualifying security
concern, under Guideline G, are “alcohol-related incidents away from work, such as driving while
under the influence, . . . regardless of the frequency of the individual's alcohol use or whether the
individual has been diagnosed with alcohol use disorder,” and “habitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with
alcohol use disorder.” Guideline G at §§ 22(a) and (c).
III. REGULATORY STANDARDS
A DOE administrative review process under Part 710 requires me, as Administrative Judge, to
issue a Decision that reflects my comprehensive, common-sense judgement, made after
consideration of all of the relevant evidence, favorable or 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
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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
personal 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 of this case.
IV. FINDINGS OF FACT
The Individual was charged with a DUI on July 3, 2018. Ex. 5 at 1. A breathalyzer test administered
to the Individual at the time of his arrest, on July 2, 2020, indicated that his BAC was .24. Ex. 4
at 1.
Interrogatories
On December 17, 2018, the Individual signed and submitted a set of interrogatories related to his
alcohol use and the July 2, 2018, arrest. Ex. 6. The Individual stated that on the night of his arrest,
he consumed approximately twelve to fifteen beers in the span of three to four hours, and had a
Blood Alcohol Level of .24 percent. Ex. 6 at 3. The Individual admitted that he was aware of his
intoxication when he made the decision to drive. Ex. 6 at 3.
The Individual further reported that he continued to use alcohol, consuming four to eight twelve-
ounce beers on a typical Friday or Saturday night. Ex. 6 at 4. The Individual stated that it takes
approximately four to six beers before he begins feeling intoxicated and other than the 2018 DUI,
he has not had any encounters with law enforcement due to alcohol consumption. Ex. 6 at 5. He
also reported that he had completed seven of the ten court-ordered Alcohol Safety Action Program
(ASAP) classes. Ex. 6 at 6.
Psychological Evaluation
Based on the information gathered during the investigation, the LSO requested the Individual
undergo a psychological evaluation. The Psychologist interviewed the Individual on September 5,
2019, and issued a report of his findings on September 21, 2019,2 in which, he opined that the
Individual “habitually (frequently) binges on alcohol to the extent that it could cause impairment
in his judgment.” Ex. 8 at 8-9. Noting that the Individual continued to engage in binge drinking
and excessive alcohol use, the Psychologist concluded that the Individual was not rehabilitated or
reformed. Ex. 8 at 9. The Psychologist recommended that the Individual abstain from alcohol for
one year, attend Alcoholic Anonymous (AA) meetings for one year, attend an intensive outpatient
2 The Psychologist’s evaluation of the Individual included two laboratory tests, an Ethyl Glucuronide (EtG) urine test,
which detects alcohol up to 80 hours after any alcoholic beverage is consumed, and a Phosphatidylethanol (PEth) test,
which detects alcohol use during the previous 28 day period. Ex. 8 at 6. The EtG and PEth tests were positive. Ex. 8
at 6.
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program (IOP), and receive services from the Employee Assistance Program (EAP) in order to
achieve reformation or rehabilitation. Ex. 8 at 9.
Individual’s Exhibits
A letter dated August 29, 2019, provides that the Individual completed the ASAP program and
that he “did not incur any traffic convictions while under supervision [by the ASAP] office.” Ex.
A at 1. An unofficial driving record indicates the Individual’s driving privileges were restored on
October 15, 2018. Ex. B at 1.
The Hearing
The Individual’s Testimony
The Individual acknowledged that he had consumed approximately fifteen beers and a malt liquor
beverage prior to his July 2, 2018, DUI arrest. Tr. at 27. As a result of his DUI arrest, the court
ordered the Individual to attend the ASAP. Tr. at 16. The ASAP required that the Individual
attend 10 two-and-a-half hour classes over a ten-week period. Tr. at 16-17. A breathalyzer was
administered at the start of every class. Tr. at 16-17. None of the breathalyzer tests administered
to the Individual by the ASAP detected alcohol use. Tr. at 35. The court further ordered the
installation of an interlock system in the Individual’s vehicle. Tr. at 17. The Individual’s interlock
device never detected alcohol on his breath. Tr. at 17-18. The Individual testified that while he
did not consume alcohol prior to driving while the interlock system was installed in his vehicle, he
continued to consume alcohol during this period. Tr. at 29-30. The Individual admitted that he
resumed consuming alcohol after completing the ASAP,3 but is now “much less of a drinker,”
limiting his consumption to “a few beers with friends.” Tr. at 18-19. The Individual testified that,
prior to his arrest, he did not realize he was engaging in binge drinking. Tr. at 20-21. He stated “I
have changed considerably how much I drink.” Tr. at 21. He no longer consumes enough alcohol
to become intoxicated. Tr. at 22, 36. The Individual testified that he believes he now has control
over his alcohol use, noting that he had been able to abstain from alcohol use for a six month
period.4 Tr. at 23-24. The Individual admitted that he has not attended any additional counseling,
AA meetings, or any other support group meetings. Tr. at 32-33. Although he claimed he had
“looked for local AA meetings.” Tr. at 33. He further admitted that he has not attended any
outpatient treatment, or sought assistance from his EAP. Tr. at 34. Other than breathalyzer tests,
the Individual had not taken any tests meant to detect alcohol in his system since the EtG and PEth
tests were performed. Tr. at 35. The Individual has, however, changed his peer group and expressed
a willingness to discontinue alcohol use. Tr. at 36-37, 39-40, 41.
The Psychologist’s Testimony
3 On cross-examination, the Individual admitted that he had consumed approximately six beers on December 15, 2018,
while he was attending the ASAP. Tr. at 29-30.
4 The Individual subsequently testified that “I went sober for a good amount of time, but I can't tell you an exact time
limit -- time.” Tr. at 28.
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The Psychologist testified that he did not assign a formal diagnosis of alcohol use disorder (AUD)
to the Individual, but that after he received the Individual’s test results and obtained the
Individual’s alcohol use history, he concluded that the Individual engages in binge drinking, and
habitually exceeds the government standards for heavy drinking. Tr. at 53-59. The Psychologist
further opined that when someone’s alcohol use results in legal issues, then he “would ideally want
to see a really stringent response” in terms of treatment. Tr. at 60, 72. Accordingly, he
recommended the Individual abstain from all alcohol use for twelve months, participate in a group
like AA, participate in an IOP, and become involved with his EAP, in order to be regularly tested.
Tr. at 61-62. The Psychologist testified that “based on what I am hearing today, it sounds like
there is genuine improvement in terms of reducing consumption. So I feel fairly optimistic about
that.” Tr. at 75. However, he further testified “I would be much more optimistic if there had been
some sort of intervention or a period of abstinence.” Tr. at 75.
V. ANALYSIS
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline G if:
(a) So much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the
individual’s current reliability, trustworthiness, or judgment;
(b) The individual acknowledges his or her pattern of maladaptive alcohol use, provides
evidence of actions taken to overcome this problem, and has demonstrated a clear and
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.
Guideline G at § 23(a)-(d).
The Individual has begun to take the appropriate actions to mitigate security concerns related to
his alcohol consumption. He has successfully completed the ASAP, and testified that he has
disassociated himself from his former drinking buddies. However, the Individual continues to
consume alcohol, contrary to the recommendation of the Psychologist in September 2019. While
the Individual testified to having reduced his alcohol consumption, the only evidence in the record
supporting this assertion is his own testimony.5 Furthermore, contrary to the recommendations
5 The Individual’s testimony that he has disassociated himself from his former friends with whom he would consume
alcohol also remains uncorroborated in the Record.
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made by the Psychologist, the Individual has not sought any treatment, he is not attending AA or
similar meetings, and he is not utilizing his EAP. Accordingly, he does not have any system of
external accountability in place. The Individual also testified that he continued to use alcohol while
the interlock device was on his car and admitted that he had not made any attempts to search for
an AA or similar program. These facts strongly suggest that the Individual has poor or
questionable judgement when it comes to his alcohol consumption. Despite the fact he may have
reduced his alcohol use, he is still consuming alcohol. Therefore, I cannot find that Guideline
§ 23(a) provides sufficient mitigation to resolve the security concerns raised under Guideline G in
this case.
The Individual acknowledged his pattern of maladaptive alcohol use during his testimony, and he
testified to having reduced the amount of alcohol he currently consumes. However, the Individual
has not yet shown that his pattern of modified alcohol consumption is “established,” since he
modified his consumption less than one year ago and has not provided any test results, or any other
evidence that can corroborate this claim. Accordingly, I find that Guideline § 23(b) is not
applicable as a mitigating factor regarding the Guideline G security concerns raised in this case.
As the Individual is not participating in counseling or a treatment program, Guideline § 23(c) is
not applicable. Further, Guideline § 23(d) is not applicable as the Individual has not participated
in a treatment program6 and shown a pattern of modified alcohol consumption in accordance with
treatment recommendations.
VI. CONCLUSION
6
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G. After
considering all of the evidence, both favorable and unfavorable, in a common sense manner, I find
that the Individual has not mitigated the security concerns raised under Guideline G. Accordingly,
the Individual has not demonstrated that restoring his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual’s security clearance should not be restored. The parties may seek review of this
Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
6 The ASAP does not qualify as a treatment program. Tr. at 63.