PSH-20-0036

*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 30, 2020 ) Case No.: PSH-20-0036
)
__________________________________________)
Issued: December 23, 2020
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 be granted
access authorization.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. On December 3, 2018, the Individual submitted a Personnel Security Information
Report to the local security office (LSO) disclosing that he had been arrested and charged with
Driving Under the Influence (DUI). Exhibit (Ex.) 8. On December 7, 2018, during an interview
with an Office of Personnel Management (OPM) investigator, the Individual explained that he was
arrested for DUI after he fell asleep while driving home from a bar and crashed his vehicle. Ex. 12
at 88.
The LSO recommended that the Individual undergo an evaluation by a DOE-contracted
psychologist (DOE Psychologist). See Ex. 5 at 1 (recommending referral for an evaluation).
During a clinical interview with the DOE Psychologist, the Individual indicated that his blood
alcohol content (BAC) was measured at .24g/210L following his arrest for DUI. Ex. 9 at 3. The
Individual reported that, prior to his arrest for DUI, he usually consumed four to five beers per
sitting, several times weekly. Id. at 5. The DOE Psychologist subsequently issued a psychological
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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assessment (Report) in which he opined that the Individual binge consumed alcohol to the point
of impaired judgement and met the diagnostic criteria for Alcohol Use Disorder (AUD) under the
Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5). Id. at 7–8.
On December 6, 2019, the LSO issued the Individual a letter indicating 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
submitted twelve lettered exhibits (Ex. A–L) into the record. 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 G (Alcohol Consumption) of the Adjudicative Guidelines as the basis
for denying the Individual’s security clearance. Ex. 1. 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
Summary of Security Concerns listed as relevant facts: the DOE Psychologist determined that the
Individual met the diagnostic criteria for AUD under the DSM-5; the Individual was arrested and
charged with DUI, and his BAC was measured at .24g/210L; the Individual was previously
arrested and charged with Public Intoxication; the Individual consumed alcohol to intoxication
after his arrest for DUI; and the Individual admitted to consuming four to five drinks multiple
times per week. Ex. 1. The LSO’s allegations that the Individual engaged in alcohol-related
incidents away from work, binge consumed alcohol to the point of impaired judgement, and was
diagnosed with AUD by a duly qualified medical or mental health professional justify the LSO’s
invocation of Guideline G. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
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
On September 6, 2018, the Individual submitted an electronic Questionnaire for Investigations
Processing (e-QIP) applying for a security clearance. Ex. 11 at 65. The Individual disclosed on the
e-QIP that he was found guilty of misdemeanor Public Intoxication in 2006. Ex. 11 at 55–56. The
Individual, who, at the time, was serving in the U.S. Navy, was ordered to attend a substance abuse
rehabilitation program, which he completed in July 2006. Id. at 58–59.
On December 3, 2018, while his eligibility for a security clearance was under evaluation, the
Individual submitted a Personnel Security Information Report to the LSO, disclosing that he had
been arrested and charged with DUI. Ex. 8. On December 7, 2018, the Individual met with an
OPM investigator for an interview. Ex. 12 at 81. The Individual disclosed that, on the night of his
arrest, he had consumed alcohol at a bar with a friend and attempted to drive home. Id. at 88. The
Individual admitted that he fell asleep while driving and hit a barrier. Id. Law enforcement officers
arrived while the Individual was inspecting the damage to his vehicle and arrested him after he
failed a field sobriety test. Id. The Individual indicated that, prior to his arrest, he typically
consumed four to five drinks per sitting, two to three times weekly, and would become intoxicated
approximately once per week. Id. at 88–89. The Individual reported that he believed that his
alcohol consumption was problematic, and he had discontinued drinking alcohol since his arrest.
Id. at 89.
On April 24, 2019, the Individual met with the DOE Psychologist for a clinical interview (clinical
interview). Ex. 9 at 3. The Individual reported that, on the night of his arrest for DUI, he consumed
eight 12-ounce beers, which were each approximately 9% alcohol by volume and that his BAC
was measured at .24g/210L after his arrest. Id. at 3. The DOE Psychologist estimated, based on
the Individual’s sex, age, height, and weight, that his BAC was as high as .28g/210L that evening.
Id. The Individual reported that he abstained from alcohol for several weeks after his arrest, but
returned to consuming alcohol twice weekly. Id. at 4. In late March or early April of 2019, the
Individual’s case was transferred to Veterans’ Court with the stipulation that he abstain from
alcohol consumption and complete weekly urinalysis testing for twelve to eighteen months. Id.
The Individual reported that he had abstained from alcohol for the approximately three to four
weeks that had elapsed between the court order and the clinical interview. Id.
The Individual reported that he met with a clinical psychologist (Individual’s Psychologist) on a
weekly basis for approximately two months prior to the clinical interview. Id. at 6–7. The
Individual indicated that he committed to addressing his “binge drinking” with the Individual’s
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Psychologist through individual therapy. Id. The DOE Psychologist contacted the Individual’s
Psychologist, who confirmed the Individual’s participation in therapy and indicated that she had
diagnosed him with AUD, Mild, under the DSM-5. Id. at 7. The Individual’s Psychologist
expressed to the DOE Psychologist that she believed that the Individual had a good prognosis. Id.
At the request of the DOE Psychologist, the Individual underwent two laboratory tests, an Ethyl
Glucuronide (EtG) test and a Phosphatidylethanol (PEth) test, immediately following the clinical
interview. Id. at 5. The results of both tests were negative for traces of alcohol. Id. According to
the Medical Doctor, who provided the results of the tests to the DOE Psychologist, the tests
provided strong evidence that the Individual had not consumed alcohol in the three days prior to
the clinical interview or on a regular, heavy basis for several weeks prior to the clinical interview.
Id. at 5–6.
Following receipt of the results of the laboratory tests, the DOE Psychologist issued his Report, in
which he concluded that the Individual met the diagnostic criteria for AUD under the DSM-5 and
binge consumed alcohol to the point of impaired judgment. Id. The DOE Psychologist observed
that the Individual was in early remission, and he recommended that the Individual demonstrate
rehabilitation or reformation by abstaining from alcohol for at least nine months, undergoing
laboratory tests to confirm his abstinence. Id. at 8. The DOE Psychologist noted that he would
have more confidence in the Individual’s recovery if the Individual also participated in an intensive
outpatient program (IOP) for alcohol use or participated in Alcoholics Anonymous, or a
comparable twelve-step program, three times weekly for twelve months. Id.
From April 2019 to March 2020, the Individual underwent weekly EtG tests to confirm his
abstinence from alcohol, each of which was negative. Ex. C; Ex. L. The Individual also submitted
the results from an EtG test dated October 20, 2020, which was negative. Ex. L at 52. The
Individual complied with the treatment program he was ordered to attend by the Veterans’ Court,
and as of February 2020, the clinical psychologist directing the Individual’s treatment indicated
that he demonstrated self-awareness and the ability to apply coping skills. Ex. E. On October 29,
2020, the Individual met with a Licensed Clinical Social Worker for a forensic evaluation. Ex. K.
The Licensed Clinical Social Worker endorsed the DOE Psychologist’s diagnosis, but opined that
the Individual was in full remission and had no need for further treatment. Id.
V. HEARING TESTIMONY
The Individual’s roommate, who had been the Individual’s friend since childhood, testified that he
believed that the Individual was a trustworthy person with good judgment. Tr. at 9–10. The
roommate noted that he had not observed the Individual consume alcohol since March 2019. Id.
at 10. He further stated that the Individual told him that he “likes the path that he’s on” and that he
observed that the Individual’s movements and thinking were “smoother” in the mornings since he
stopped consuming alcohol. Id. at 14, 16.
The Individual testified that he had not consumed alcohol since Saint Patrick’s Day of 2019, and
that he believed that he was in control of his desire to consume alcohol. Id. at 29. The Individual
attributed his lapse in judgment, when he was arrested for DUI, to stressors related to moving,
starting a job, and breaking up with his girlfriend. Id. at 30–31. The Individual testified that he had
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learned that his desire to consume alcohol was associated with experiencing stress, and that
recognizing this fact helped him to focus on appropriate coping mechanisms to handle stress,
including playing sports and pursuing higher education. Id. at 32, 38; see also Ex. G (reflecting
the Individual’s participation in coursework in pursuit of a Master’s Degree).
The Individual acknowledged that he required “a little bit of external efforts” to stop consuming
alcohol after his arrest for DUI, and that the court order spurred him to cease drinking. Tr. at 56.
The Individual reported that he had not experienced difficulties maintaining his abstinence since
the court order and attributed his success to wanting to avoid future legal issues related to his
alcohol consumption. Id. at 57. The Individual reported that he graduated from the court-ordered
treatment program in February 2020, and had not pursued further treatment because he had control
over his alcohol consumption and no longer felt that treatment was necessary. Id. at 63–64. The
Individual indicated that he did not have plans to return to consuming alcohol, but that if he did
consume alcohol in the future he would not do so to excess. Id. at 58.
The DOE Psychologist testified last, after observing the testimony of the other witnesses. The
DOE Psychologist opined that the Individual’s treatment was adequate to address his AUD, and
that he believed that the Individual had demonstrated rehabilitation. Id. at 84. The DOE
Psychologist testified that the social controls of the Veterans’ Court and adjudicative process for
his security clearance helped the Individual modify his behavior. Id. at 84–85. He noted that even
though the Individual had not fully complied with his treatment recommendations, he felt that the
Individual’s treatment had achieved the same result and that the laboratory tests satisfactorily
confirmed the Individual’s abstinence from alcohol. Id. at 84–85, 87. The DOE Psychologist
further opined that he believed that the Individual’s prognosis to avoid problematic alcohol
consumption in the future was “very good.” Id. at 86.2
VI. ANALYSIS
A. Guideline G
The Individual’s alcohol-related arrest, the DOE Psychologist’s diagnosis of the Individual with
AUD, and the Individual’s binge consumption of alcohol to the point of impaired judgment raise
security concerns under Guideline G of the Adjudicative Guidelines. Adjudicative Guidelines at
¶ 22(a), (c)–(d). 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;
2 The DOE Psychologist noted that the Individual’s prognosis would degrade significantly if the Individual returned
to social drinking and cautioned the Individual against doing so. Tr. at 86.
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(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).
The Individual has acknowledged his maladaptive alcohol use consistently from his interview with
the OPM investigator, in December 2018, up to and through the hearing. The Individual also
participated in individualized treatment with the Individual’s Psychologist and the court-ordered
substance abuse treatment program. Moreover, the Individual testified that he abstained from
alcohol for approximately eighteen months and provided EtG test results supporting his claimed
abstinence from alcohol. The DOE Psychologist endorsed the Individual’s treatment regimen,
opined that the Individual had demonstrated rehabilitation, and indicated that the Individual’s
prognosis to avoid relapsing into problematic alcohol consumption was very good. For these
reasons, I find that the Individual has met the second and fourth mitigating conditions under
Guideline G. Id. at ¶ (b), (d).
The Individual has established a significant period of abstinence from alcohol and received
positive prognoses from the DOE Psychologist and his own clinicians. Accordingly, I find that the
Individual has 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 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 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