PSH-20-0038

*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: February 5, 2020 ) Case No.: PSH-20-0038
)
__________________________________________)
Issued: December 30, 2020
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX(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 be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold access
authorization. The United States Office of Personnel Management’s (OPM) Investigation Service
conducted an investigation of the Individual and issued a report of its findings (the OPM Report)
on June 14, 2014. Ex. 10. On November 5, 2018, the Individual self-reported that he was
voluntarily seeking treatment for his alcohol use. Ex. 6. Based on this information, the Local
Security Office (LSO) directed the Individual to complete a Letter of Interrogatory (LOI), which
the Individual signed and submitted on March 6, 2019. Ex. 7. The LSO requested that the
Individual be evaluated by a DOE-contracted psychologist (DOE Psychologist), who subsequently
issued a report of his findings (Report). Ex. 8. After receiving the DOE Psychologist’s Report, the
LSO began the present administrative review proceeding by issuing a Notification Letter to the
Individual, informing him that he was entitled to a hearing before an Administrative Judge in order
to resolve the substantial doubt regarding his eligibility to hold a security clearance. See 10 C.F.R.
§ 710.21.
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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The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the
Individual testified on his own behalf and presented the testimony of six other witnesses, along
with seven exhibits, marked as Exhibits A through G (hereinafter cited as “Ex.”). See Transcript
of Hearing, Case No. PSH-20-0038 (hereinafter cited as “Tr.”). The DOE Counsel presented the
testimony of one witness and submitted ten exhibits marked as Exhibits one through ten.
II. The Notification Letter and the Associated Security Concerns
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to Guideline G of the Adjudicative Guidelines. Ex. 1. Under
Guideline G (Alcohol Consumption), “[e]xcessive 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. Among those
conditions set forth in the Adjudicative Guidelines that could raise a disqualifying security concern
are “alcohol-related incidents away from work, such as driving while under the influence, . . .
regardless of the frequency of the individual's alcohol use[,]” “habitual or binge consumption of
alcohol to the point of impaired judgment[,]” and “[d]iagnosis by a duly qualified medical or
mental health professional . . . of alcohol use disorder.” Id. at ¶¶ 22(a), (c)-(d). With Respect to
Guideline G, the LSO alleged that (1) the DOE Psychologist diagnosed the Individual with Alcohol
Use Disorder (AUD), Moderate; (2) the Individual consumed an average of five to eight beers on
a daily basis from 1993 to 2018; and (3) the Individual has a history of involvement with law
enforcement in the 1990s as a result of alcohol consumption. Ex. 1 at 1. In light of these facts, the
LSO’s invocation of security concerns under Guideline G is justified.
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The Part
710 regulations are drafted so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
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§ 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; namely that, in
1990, he was arrested for destruction of private property while intoxicated, and in 1991, he was
charged with underage possession of alcohol. Ex. 10 at 53–54. In an LOI signed and dated March
6, 2019, the Individual estimated that he would drink approximately four to six alcoholic beverages
per day prior to seeking treatment on November 2, 2018, and the last time he consumed alcohol
was in December 2019. Ex. 7 at 2.
In November 2018, the Individual self-reported that he enrolled in an outpatient treatment
program, as he had been consuming alcohol daily for “most of [his] life.” Ex. 6 at 1. The Individual
stated that he had been honest with all interested parties, including investigators, regarding his
alcohol consumption, and he was seeking treatment with his health in mind. Id. The Individual
first participated in the Chemical Dependency Recovery Program (CDRP), and upon completion,
he began attending a twelve-week Early Recovery Program (ERP) on April 9, 2020. Ex. F at 1.
The Individual’s primary ERP therapist noted his regular attendance and appropriate participation
“marked by a healthy openness and honesty.” Ex. F at 1. Further, the Individual has been attending
individual therapy “weekly or bi-weekly, as the therapist’s schedule would allow, beginning
[March 19, 2020].” Ex. F at 1.
Based on the information gathered, the LSO requested that the Individual undergo a psychological
evaluation. The DOE Psychologist interviewed the Individual and issued the Report on May 24,
2019. During the evaluation, the Individual informed the DOE Psychologist that he began drinking
daily in his twenties, and when he reached middle age, his daily alcohol consumption increased.
Ex. 8 at 4. The Individual sought treatment for his alcohol use after he became aware of the effect
it was having on his health. Id. Accordingly, the Individual sought treatment at an intensive
outpatient program (IOP), where he received alcohol education, group therapy, and care from a
physician. Id. Although the DOE Psychologist recommended participation in the Alcoholics
Anonymous (AA) program, the Individual told the DOE Psychologist that he has not had the time
to attend such meetings, despite his interest. Id. at 5. The Individual also stated that since
November 2018, he had consumed alcohol on only three occasions, and further, the last time he
consumed alcohol was approximately three weeks prior to his evaluation with the DOE
Psychologist. Id. Although his alcohol consumption did not result in any involvement with law
enforcement, save for the encounters in his twenties, the Individual did tell the DOE Psychologist
that “he drove while intoxicated on approximately twenty occasions.” Id.
The DOE Psychologist’s evaluation of the Individual included two laboratory tests, an Ethyl
Glucuronide (EtG) and a Phosphatidylethanol (PEth) test, both of which were positive. Id.2 The
2 The EtG urine test, which detects alcohol up to 80 hours after any alcoholic beverage is consumed, and a
PEth test, which detects alcohol use during the previous 28-day period.
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DOE Psychologist noted that the test results were inconsistent with the Individual’s report that he
had consumed alcohol three weeks prior to the evaluation, finding that the Individual was likely
not only consuming more alcohol than reported, but also more recently than reported. Id. at 6. The
DOE Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate, and stated that
there was no evidence of reformation based on the laboratory findings and the Individual’s
“willing[ness] to hide his drinking.” Id. at 6-7.
The Individual opted to undergo a Substance Abuse Evaluation in January 2020, which was
conducted by an expert of his own choosing (Individual’s Expert). The Individual’s Expert
subsequently issued an October 13, 2020, memorandum (the Memorandum), in which he stated
that he found the Individual to be “forthright and credible[]” and noted that the Individual’s work
performance was unaffected during the period of the Individual’s alcohol use. Ex. A at 1-2. Further
noted in the Memorandum was the Individual’s continued abstinence in the face of a pandemic,
his continued participation in AA meetings, and his consistently negative alcohol tests. Ex. A at 2;
Ex. B at 1-10. An AA attendance log indicates the Individual began attending AA meetings on a
regular basis on March 2, 2020. Ex. C at 1-7.
V. Hearing Testimony
At the hearing, two of the Individual’s professional colleagues testified to the Individual’s
reputation as a reliable, credible, and “well-respected” professional in his field. Tr. at 21, 24-25,
29, 35-36. One witness testified that he does not have any concerns over the possibility that the
Individual may be a security a risk, and both witnesses denied having observed any negative effects
alcohol may have had on the Individual’s work performance. Tr. at 29-31, 33, 37. One witness
stated that he had become privy to information regarding the Individual’s rehabilitation efforts,
which includes attending a program and removing himself from situations where alcohol is
typically consumed. Tr. at 40-41.
Another witness testified that, before the onset of the pandemic, he would hold a monthly game
night, which the Individual regularly attended. Tr. at 49. The witness went on to note that the
Individual had not attended a game night since September 2018, in an effort to avoid environments
in which alcohol is consumed. Tr. at 51. The witness also stated that he visited the Individual’s
home on occasion, and he did not see the Individual consume alcohol on those visits. Tr. at 53.
The Individual’s Expert, who acted as a consultant for the purpose of establishing a basic treatment
plan, testified that he advised the Individual against controlled drinking and implemented a
program using a medical model to address the conditions that trigger the Individual to drink
alcohol. Tr. at 60-61, 62. The Individual’s Expert stated that the Individual has removed himself
from triggering situations, and he is able to confirm the Individual’s continued abstinence through
laboratory testing. Tr. at 61. The Individual’s Expert stated that he communicated regularly with
the Individual, assisted the Individual by addressing treatment for a co-occurring condition, and
advocated that the Individual adopt an exercise program. He noted that the Individual has remained
sober despite the stress of the pandemic. Tr. at 64-66. The Individual’s Expert stated that the
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Individual has remained “compliant with the elements of a recovery program and [is] actually
doing very well.” Tr. at 67. He also testified that the Individual has developed a “sophisticated
recognition of the things that he needs to keep doing[,]” in that the Individual not only has the
specific tools to avoid relapse, but can also reinitiate abstinence in the event of a relapse. Tr. at 72-
73, 78-79. On cross-examination, the Individual’s Expert testified that he believes the Individual
began a true period of abstinence at the beginning of March 2020, and he feels the Individual is
rehabilitated or reformed from his alcohol use disorder. Tr. at 76, 91.
The Individual’s wife testified that the Individual’s health was the primary impetus for his
rehabilitation; he enrolled in the CDRP shortly after receiving the news about his health; and he
initially began the process by reducing his alcohol consumption by half, followed by intermittent
periods of abstinence. Tr. at 96-98. She stated that, to the best of her knowledge, the Individual’s
last drink was “around Christmastime” of 2019. Tr. at 101. The Individual’s wife began abstaining
from alcohol along with the Individual; they have removed alcohol from the home; they both
receive counseling; and they avoid triggering situations. Tr. at 101-04.
The Individual’s AA sponsor testified that he first met the Individual in February 2020, and he
became the Individual’s sponsor at the end of the same month. Tr. at 120. The witness stated that
despite the ongoing pandemic, the Individual has continued to participate in AA meetings and
engages in routine telephone contact. Tr. at 121-22. The Individual’s AA participation has been
marked by proactive participation, an eagerness to progress through the twelve steps of the
program, and an “earnest desire to change his life.” Tr. at 123-24. Further, he has no reason to
believe that the Individual has resumed drinking at any point during the sponsorship and is
confident the Individual’s sobriety will endure. Tr. at 126-31, 133. The witness confirmed that the
Individual has completed the twelve steps and, in his sponsor’s estimation, is ready to serve as a
sponsor to others. Tr. at 131-32, 136.
The Individual testified that he first received his clearance in 2004, and that he has never tested
positive for either alcohol or illicit substances at work. Tr. at 147. The Individual self-reported
when he began treatment for alcohol consumption. Tr. at 147-48. He testified that reading through
the DOE Psychologist’s report “brought [him] to [his] knees,” as he did not believe his alcohol
consumption was problematic. Tr. at 151-52. He sought treatment not only to bring his health
issues under control, but also because he felt that he was setting a poor example for his children.
Id. at 152. He initially tried to reduce his alcohol consumption, but later understood that this
approach was a not a long-term solution; accordingly, he had his last drink on December 22, 2019.
Tr. at 152-53. He stated that after receiving the DOE Psychologist’s report, he sought out the
assistance of an addiction specialist, who not only agreed with the DOE Psychologist’s assessment,
but formulated a recovery plan for the Individual. Tr. at 156-57. These recovery guidelines include
regular therapy and exercise, taking medication as prescribed, avoiding places and situations that
would involve alcohol use, attending a support program like AA, and extending plans for sobriety
to the Individual’s wife. Tr. at 157-58. The Individual initially provided urine samples to test for
alcohol, but he began submitting hair samples after the start of the pandemic, all of which were
negative. Tr. at 159-60. At the time of the hearing, the Individual had been attending ERP, which
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is a group therapy program, once a week. Tr. at 160. However, he intends to move on to another
program scheduled to begin the week after the hearing. Tr. at 160, 173. The Individual began
attending AA meetings in early March 2020 and believes they have been helpful to his sobriety.
Tr. at 162-63. He testified that since the beginning of his sobriety, he has experienced triggers that
would otherwise cause him to drink, but he has successfully employed techniques to cope with
these occurrences. Tr. at 171.
After listening to the entirety of the hearing, the DOE Psychologist testified that, based on the
testimony and the exhibits, he believes there is adequate evidence of rehabilitation or reformation.
Tr. at 180-81. To support this assertion, the DOE Psychologist cited the ongoing laboratory testing,
“behavioral evidence and evidence from differing perspectives such as the medical perspective,”
“along with [the Individual’s] participation in different aspects of alcohol treatment programs.”
Tr. at 181. Despite the fact that the Individual had not yet achieved a full twelve months of sobriety
at the time of the hearing, as was recommended, the DOE Psychologist found that there was
sufficient evidence to support his conclusion because the Individual understands that he has a
problem with alcohol and continues to remain abstinent. Tr. at 181. He concluded his testimony
by stating that he believes the Individual’s risk of relapse is low and that his prognosis is good. Tr.
at 182.
VI. Analysis
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. The Adjudicative Guidelines provide that an individual may
mitigate security concerns under Guideline G if “the individual acknowledges his or her pattern of
maladaptive use, provides evidence of actions taken to overcome this problem, and has
demonstrated a clear and established patters of modified consumption or abstinence in accordance
with treatment recommendations.” Guideline G at ¶ 23(b).
The record provides that the Individual has recognized his maladaptive alcohol use and has taken
commendable steps toward mitigating Guideline G concerns. After confronting the potential
negative health effects that would come with continued alcohol consumption and the unpalatable
truths in the DOE Psychologist’s Report, the Individual voluntarily enrolled in an outpatient
treatment program and sought out the assistance of an expert in the discipline of addiction to
establish a strategy for sobriety, which includes ongoing laboratory testing. Tr. at 96-98, 151-53,
156-57; Ex. A at 2. Importantly, the laboratory testing has provided objective proof of the
Individual’s continued sobriety. Ex. B at 1-10. Witness testimony and the documentary evidence
show that the Individual receives regular therapy; he attends regular AA meetings; and further, he
enjoys strong support from a spouse who has endeavored to remain abstinent from alcohol as well.
Tr. at 101-04, 120-122, 160, 173; Ex. C at 1-7; Ex. F at 1. Understanding the danger that potential
triggers pose, the Individual has kept his distance from circumstances and environments where
alcohol could be present, and by his own credible testimony, has remained abstinent since
December 22, 2019. Tr. at 40-41, 53, 101-41, 152-53. The Individual’s testimony regarding these
encompassing lifestyle changes ring especially true as multiple witnesses have confirmed these
assertions.
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Most compelling, both the Individual’s Expert and the DOE Psychologist testified that they believe
the Individual has been successfully reformed or rehabilitated, a marked shift from the assessments
made in the DOE Psychologist’s Report. Tr. at 91, 180-81 The Individual’s Expert testified to his
confidence that the Individual has the tools to successfully resist the temptation to drink and has
the ability to reassert his abstinence if he ever did consume alcohol. Further, the DOE Psychologist
testified that the probability that the Individual will relapse is low. Tr. at 91, 182.
The Individual’s recognition of his maladaptive alcohol use, the sweeping actions he took to
overcome the issue, and his ongoing abstinence, as well as the expert opinions that the Individual
has been rehabilitated from his AUD diagnosis, have mitigated the security concerns raised in the
Notification Letter pursuant to the Adjudicative Guideline at ¶ 23(b).
VII. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G of the
Adjudicative Guidelines. After considering all of the evidence, both 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, the Individual
has 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 be restored. Either party may seek review of this Decision by an Appeal Panel
under the procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals