PSH-20-0056

*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: May 4, 2020 ) Case No.: PSH-20-0056
)
__________________________________________)
Issued: August 26, 2020
_____________________
Administrative Judge Decision
______________________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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 granted.
I. Background
The Individual, an applicant for a DOE Security Clearance, began this process by completing,
signing, and submitting a Questionnaire for National Security Positions (QNSP) to a Local
Security Office (LSO) on December 31, 2018. Ex. 9. The Office of Personnel Management’s
(OPM) Investigation Service conducted an investigation of the Individual, and issued a report of
its findings on February 22, 2019. Ex. 10. At the LSO’s request, a DOE consulting psychologist
(the Psychologist) evaluated the Individual on April 25, 2019, and issued a report of her findings
on May 6, 2019. Ex. 11. After these procedures were concluded, 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
proceedings on February 19, 2020, 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
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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entitled to a hearing before an Administrative Judge in order to resolve these substantial doubts.
See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded his request to the Office of Hearings
and Appeals (OHA). 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, the Psychologist, the Individual’s present supervisor (the Supervisor) and the
Individual’s former supervisor (the Former Supervisor). See Transcript of Hearing, Case No. PSH-
20-0032 (hereinafter cited as “Tr.”). The DOE Counsel submitted eleven exhibits, marked as
Exhibits 1 through 11. (hereinafter cited as “Ex.”). The Individual submitted three exhibits, marked
as Exhibits A through C.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As indicated above, the Notification Letter informed the Individual that information in possession
of the DOE created a substantial doubt concerning his eligibility for security clearance. That
information pertains to Guidelines G, I, and J 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 history of six alcohol-
related arrests.2 Ex. 1 at 1-5. These allegations adequately justify 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 are “alcohol-related
incidents away from work. . . regardless of the frequency of the individual's alcohol use.” Guideline
G at § 22(a).
Under Guideline I (Psychological Conditions), the LSO alleges that the Psychologist determined
the Individual habitually consumed alcohol to excess in the past and met the criteria for
Unspecified Alcohol-related Disorder (UARD) in 2014. Ex. 1 at 5. The Psychologist further
opined that the Individual was neither rehabilitated nor reformed from his UARD, and that the
Individual has an illness or mental condition that may cause a significant defect in judgement or
reliability. Ex. 1 at 5. These allegations adequately justify the LSO’s invocation of Guideline I.
The Adjudicative Guidelines state: “[c]ertain emotional, mental, or personality conditions can
impair judgement, reliability, or trustworthiness.” Guideline I at § 27. Among those conditions set
forth in the Guidelines that could raise a disqualifying security concern is “[a]n opinion by a duly
qualified mental health professional that the individual has a condition that may impair judgement,
stability, reliability or trustworthiness,” and “[f]ailure to follow a prescribed treatment plan related
to a diagnosed psychological/psychiatric condition[.]” Guideline I at §§ 28(b) and (d).
2 The SSC cites the Psychologist’s finding that Individual met the DSM-5’s criteria for Unspecified Alcohol-related
Disorder as derogatory information concerning the Individual. However, the SCC did not cite this finding under
Guideline G, but rather cited this finding under Guideline I (Psychological Conditions) only.
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Under Guideline J (Criminal Conduct), the LSO cites the Individual’s history of six alcohol-related
arrests in addition to the Individual’s 2004 arrest for Patronizing Prostitution. Ex. 1 at 6. These
allegations adequately justify the LSO’s invocation of Guideline J. “Criminal activity creates doubt
about a person’s judgement, reliability, and trustworthiness. By its very nature, it calls into
question a person’s ability or willingness to comply with laws, rules and regulations.” Guideline J
at § 30. Among those conditions set forth in the Guidelines that could raise a disqualifying security
concern is “[e]vidence…of criminal conduct, regardless of whether the individual was formally
charged, prosecuted, or convicted.” Guideline J at § 31(b).
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
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.
IV. FINDINGS OF FACT
The Individual has a history of six alcohol-related arrests during the period starting in 2004 and
ending in 2014. In addition the Individual was also arrested for Patronizing Prostitution on May
21, 2004.
Because of the Individual’s history of six alcohol-related arrests, the LSO requested that he
undergo a psychological evaluation. The Psychologist evaluated the Individual on May 6, 2019.
Ex. 11. After evaluating the Individual, the Psychologist issued a report of her findings on May 6,
2019, in which she concluded that the Individual “has in the past used alcohol habitually to excess”
and met the criteria for unspecified alcohol-related disorder as described in the Diagnostic and
Statistical Manual of Mental Disorder (DSM-5) in 2014. Ex. 11 at 11, 13-14. Noting that the
Individual “continues to consume [alcohol in] amounts that approach and occasionally exceed
guidelines for moderate consumption,” she further concluded that the Individual had not yet
achieved rehabilitation or reformation from his excessive alcohol use or his UARD, since the
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Individual continued to consume alcohol in unhealthy amounts on a monthly basis. Ex. 11 at 14-
15. The Psychologist further noted that the Individual “[had] not had a period of abstinence or
acquired sufficient knowledge and tools to ensure with confidence that judgement and reliability
are free of potential jeopardy.” Ex. 11 at 14-15. Accordingly, the Psychologist recommended that
the Individual abstain from alcohol use for at least six months, submit to random Blood Alcohol
Content (BAC) testing, and participate in psychological counseling with a “a licensed outpatient
mental health provider who works routinely with substance use issues” for at least six months. Ex.
11 at 15.
The Individual submitted a letter from a court-appointed substance abuse counselor confirming
the Individual’s completion of an alcohol and drug assessment on September 4, 2014. Ex. A at 1.
The court-appointed substance abuse counselor, did not recommend that the Individual undergo
treatment for alcohol or substance abuse issues. Ex. A at 1. However he did recommend that the
Individual complete sixteen hours of drug and alcohol education classes. Ex. A at 1. The
Individual also submitted two letters authored by the Supervisor and the Former Supervisor,
respectively. Ex. B, Ex. C. Both letters attest to the Individual’s good work ethic and diligence.
Ex. B at 1, Ex. C at 1. The Former Supervisor’s letter confirmed that the Individual is subject to
random drug and alcohol testing at work, and has always tested negative. Ex. B at 1.
The Hearing
The Former Supervisor testified that she had been the Individual’s supervisor when he was first
hired in July 2018, and stated that she had not seen the Individual exhibit any unethical behavior.
Tr. at 15. She described the Individual as a worker who takes initiative, follows procedures, and
seeks clarification before proceeding with tasks. Tr. at 16. She testified that the Individual seems
happy with his home life. Tr. at 17She further testified that she has not noticed the smell of alcohol
about the Individual’s person in the morning. Tr. at 20. The witness indicated that the Individual
exhibits good judgement, and is trustworthy and reliable. Tr. at 21.
The Individual’s Supervisor testified that he has been the Individual’s direct supervisor for
approximately six months, and sees the Individual every workday morning. Tr. at 32-33. The
Supervisor characterized that the work they perform as “high-risk,” and confirmed that the
environments in which they work pose a danger to “health and life.” Tr. at 30. He noted the
Individual’s willingness to perform this difficult, important and demanding work. Tr. at 30. When
the Supervisor was asked if he had ever smelled alcohol on or about the Individual’s person, the
Supervisor confirmed that he has not. Tr. at 30. When asked if the Individual has earned the trust
of the men and women with whom he works in those dangerous situations, the Supervisor
confirmed that the Individual had. Tr. at 31. The Supervisor testified that he has learned from
various sources close to the Individual, including the Individual’s fiancé, that the Individual has
not consumed alcohol in a number of months. Id. at 34-35.
The Individual testified that he is subject to random drug and breathalyzer tests at his current place
of employment, even if he is on-call or teleworking Tr. at 43. He attributed his five arrests in 2004
to his youth and lack of maturity, noting that that he “made some really poor decisions and put
[himself] in situations that [were his] fault.” Tr. at 47-48. He further characterized himself at that
time as “just a 20-year-old kid that made some stupid decisions and liked to go and party and
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such.” Tr. at 49. He testified that he is no longer spending time with the same individuals he did
in 2004. Tr. at 48. After the incidents in 2004, the Individual stopped “partying” for about a year,
married his ex-wife, and spent his days working. Tr. at 49. When asked about the circumstances
that resulted in his two arrests in 2014, the Individual stated that the arrest at the fast-food
restaurant was the result of his stubbornness and poor judgement. Tr. at 50. The Individual testified
that although he was charged with DUI that night, he had not actually consumed any alcohol. Tr.
at 72.
The Individual acknowledged that he exercised poor judgement when he operated a motor vehicle
under the influence of alcohol prior to his second DUI arrest in 2014. Tr. at 53. As a consequence
of this arrest, he was fined, and was required to undergo an alcohol and drug evaluation by the
presiding judge. Tr. at 54. The evaluator recommended that the Individual receive 16 hours of drug
and alcohol education. Tr. at 55. The Individual complied with that recommendation. Tr. at 55.
The Individual testified that he was embarrassed by his arrest and learned from his drug and alcohol
education course. Tr. at 57. The Individual testified that he decided to change his behavior after
his evaluation by the Psychologist. Tr. at 60. The Individual testified that his last use of alcohol
occurred on January 1, 2020. Tr. at 63, 65. He testified that does not feel pressure from friends to
consume alcohol, and his efforts to abstain from alcohol are supported by his fiancé. Tr. at 67-68.
He recognizes that he had a problem with alcohol, but now he remains abstinent, and no longer
desires to consume alcohol. Tr. at 73.
The Psychologist testified that she evaluated the Individual on April 25, 2019. Tr. at 79. The
Psychologist testified that, after hearing the other witnesses’ testimony, she now believes that he
has been sufficiently rehabilitated. Tr. at 80-81. The Psychologist cited a number of factors in
support of this conclusion. She noted that the Individual’s random drug tests at his place of
employment had not detected alcohol use and that his supervisors did not suspect alcohol
consumption. Tr. at 82. She further cited the Individual’s testimony that “[h]e does not see a need
for alcohol in the future,” and that he has, in fact, had more alcohol education in the past than he
initially remembered, as factors weighing in his favor. Tr. at 83-84. The Psychologist testified that
she had recommended counseling primarily because she expected that counseling would educate
the Individual about his alcohol use. Tr. at 84-85. Noting that she had recommended a total of
eighteen hours of alcohol education-related counseling, the Psychologist opined that the sixteen
hours of alcohol education the Individual received in 2014 is sufficient to meet her counseling
recommendation. Tr. at 85. The Psychologist further testified about several other factors that led
to her conclusion that the Individual has been rehabilitated from his excessive alcohol use and
UARD. Specifically, she testified that she further considered the Individual’s supervisors’ high
opinion of him, as a factor suggesting his rehabilitation. Tr. at 86. The Psychologist further noted
that six years had passed since the Individual’s last alcohol related arrest. Tr. at 86. She
characterized the Individual’s UARD as mild, and noted that the Individual had no comorbidities.
Tr. at 87. The Psychologist also noted that the Individual had reported that he had not consumed
alcohol since January 1, 2020, and does not plan to use alcohol in the future. Tr. at 82-83. She
further noted the Individual has minimized his life stressors, does not report any difficulties
remaining abstinent, and stated that his primary relationship is going well. Tr. 87-88.
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V. ANALYSIS
Guideline G Concerns
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline G if “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.” Guideline G at § 23(b).
The Individual’s testimony indicates that he now recognizes his maladaptive alcohol use,
especially after he was evaluated by the Psychologist, and that he has taken action to ensure that
the circumstances that resulted in his inappropriate alcohol use are no longer an ongoing concern.
Importantly, the Individual has gone approximately six years without an alcohol-related charge or
arrest and has credibly testified that he has abstained from alcohol consumption since January 1,
2020. Tr. at 63, 86. Further, the Individual has stated that he no longer socializes with former
associates, does not keep the company of those who would find his abstinence problematic, and
has a supportive fiancé. Tr. at 48, 67-68. I note that the Psychologist’s testimony that the
Individual has been rehabilitated from his UARD provides compelling evidence that that
Individual has mitigated the derogatory evidence concerning him raised under Guideline G.
The Psychologist’s opinion that the Individual has been rehabilitated from his UARD, the
testimony of the Individual regarding his understanding of his maladaptive alcohol use, the actions
taken by the Individual to overcome this issue, and his ongoing abstinence from alcohol have
mitigated the security concerns raised in the Notification Letter under Guideline G.
Guideline I Concerns
The Adjudicative Guidelines provide that an individual my mitigate security concerns under
Guideline I if a “[r]ecent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government that an individual's previous condition is
under control or in remission, and has a low probability of recurrence or exacerbation.” Guideline
I at § 29(c).
As indicated in her report, the Psychologist diagnosed the Individual with UARD in 2014, and
found that the disorder had not yet been resolved. The Psychologist further found that, at the time
of the evaluation, the Individual “continue[d] to consume amounts that approach and occasionally
exceed guidelines for moderate consumption.” Ex. 11 at 11. At the hearing, the Psychologist
confirmed that there was no reason to revise that assessment as it stood at the time of the
evaluation. At the Hearing, however, the Psychologist opined that the Individual is now
rehabilitated from his UARD. The Psychologist made this assessment at the hearing based on the
Individual’s recognition of his problem with alcohol, his negative breathalyzer results, his
abstinence from alcohol use since January 1, 2020, and his stated intention to refrain from future
alcohol use. Tr. at 82-83. She also considered the sixteen hours of alcohol education the Individual
received, the fact that his UARD is mild, and without any comorbidities, and her belief that the
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reduced stressors in the Individual’s life will help him with his ongoing efforts to remain abstinent
from alcohol. Tr. at 85-87.
For the reasons set forth above, I conclude that the Individual has mitigated the security concerns
raised in the Notification Letter under Guideline I.
Guideline J Concerns
The Adjudicative Guidelines provide that an individual can mitigate concerns arising under
Guideline J if “there is evidence of successful rehabilitation; including but not limited to the
passage of time without recurrence of the criminal activity, remorse or restitution, job training, ore
higher education, good employment record, or constructive community involvement.” Guideline
J at § 32(d).
As indicated above, the Individual’s last arrest was in 2014, approximately six years ago. The
record also indicates that the Individual paid all associated fines and costs and complied with all
other requirements as outlined by the judgment rendered against him. Tr. at 53-55. Since 2014, the
Individual has secured steady employment, and has endeavored to live in a law-abiding manner.
Tr. at 58-59, 70. Importantly, the Individual has expressed a desire to continue living in a
responsible manner, as he understands the consequences of irresponsible and illegal behavior are
more than he is willing to bear. Tr. at 69-70. Moreover, it is clear from the record that alcohol
consumption was the primary cause of the Individual’s entanglement with the legal system, and
he credibly testified that he has remained abstinent since January 1, 2020. Tr. at 62.
In light of the passage of a significant period of time without the recurrence of criminal activity,
as well as the Individual’s good employment record following his criminal conduct, I find that the
Individual has mitigated and resolved the security concerns arising under Guideline J.
VI. CONCLUSION
For the reasons set for above, I conclude that the LSO properly invoked Guidelines G, I, and J.
After considering all of the evidence, both favorable and unfavorable, in a common sense manner,
I find that the Individual has mitigated those security concerns raised under Guidelines G, I, and
J. Accordingly, the Individual has demonstrated that granting 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 granted. 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