PSH-20-0068

*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: August 4, 2020 ) Case No.: PSH-20-0068
)
__________________________________________)
Issued: September 25, 2020
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “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 not be restored.
I. BACKGROUND
On June 27, 2019, the Individual was arrested and charged with Driving While Under the Influence
of Alcohol (DUI). Ex. 3. The Individual had a history of five previous alcohol-related arrests as a
minor: on March 29, 2000; February, 13, 2000; January 11, 1998; March 3, 1997; and December
29, 1996. Ex. 7 at 3–5. As a result, the Local Security Office (LSO) requested that the Individual
undergo a psychological evaluation. On December 6, 2019, a DOE-contracted psychologist (the
Psychologist) conducted a clinical interview (the Clinical Interview) of the Individual as part of his
psychological assessment of the Individual. Ex. 4 at 2. On December 12, 2019, the Psychologist
issued a report (Report) in which he concluded that the Individual habitually consumed alcohol to
the point of impaired judgement. Ex. 4 at 7-8.
The LSO informed the Individual, in a notification letter dated May 18, 2020, that it possessed
reliable information that created substantial doubt regarding his eligibility to hold a security
clearance. Ex. 2 at 2. In a summary of security concerns (SSC) attached to the notification letter,
the LSO explained that the derogatory information raised security concerns under “Guideline G,
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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Alcohol Consumption” and “Guideline J, Criminal Conduct” of the Adjudicative Guidelines. Id. at
4–5.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). Ex. 1. The Director of OHA appointed me as the Administrative
Judge in this matter. At the hearing that I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g),
I took testimony from three witnesses: the Psychologist, the Individual’s supervisor (the
Supervisor), and the Individual. See Transcript of Hearing, Case No. PSH-20-0068 (hereinafter
cited as “Tr.”). The LSO submitted seven exhibits, marked as Exhibits (Ex.) 1 through 7. The
Individual submitted six exhibits marked as Exhibits A through F.2
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 Guidelines G 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 cited the Psychologist’s conclusion that the
Individual habitually consumed alcohol to the point of impaired judgement, the Individual’s June
27, 2019, arrest for DUI, and the Individual’s five alcohol-related arrests as a minor as raising a
security concern. Ex. 2 at 4–5. These allegations adequately justify the LSO’s invocation of
Guideline G. “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 LSO also cited the Individual’s 2019 arrest for DUI as raising a security concern under
Guideline J (Criminal Conduct). Ex. 2 at 4. Ex. 2 at 4. “Criminal activity creates doubt about a
person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines at ¶ 18. The Individual’s June 27, 2019, DUI arrest justifies the LSO’s invocation of
Guideline J. Guideline J at ¶ 31(b).
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
2 The Individual designated two related documents as Exhibit C1 and Exhibit C2. For the purposes of this decision, I
refer to the documents as one exhibit.
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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
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. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
IV. FINDINGS OF FACT
The Individual has a history of five alcohol-related arrests, as a minor, between 1996 and 2000
(including a 1998 DUI). Ex. 7 at 3–5. On June 27, 2019, the Individual was again arrested and
charged with DUI. Ex. 3 at 1. The arresting officer measured the Individual’s breath alcohol content
at .185 percent. Id. at 2–3.
As a result of this arrest, the LSO requested that the Psychologist evaluate the Individual. The
Psychologist conducted the Clinical Interview on December 6, 2019, and issued the Report on
December 12, 2019. Ex. 4 at 2, 8. During the Clinical Interview, the Psychologist questioned the
Individual about his alcohol consumption pattern. The Individual estimated that he consumes four
to six craft beers over two to four hours, twice a weekend. Ex. 4 at 5. Based on the information
provided by the Individual, the Psychologist estimated that the Individual’s blood alcohol content
would range from .11 percent to .23 percent during a typical night’s consumption. Ex. 4 at 5. The
Psychologist indicated that the Individual reported that he became intoxicated one or twice every
other weekend. Ex. 4 at 5. The Psychologist opined that his estimates and the Individual’s reports
of his consumption were consistent with the results of laboratory tests administered to the
Individual at the Psychologist’s behest. 3
Based on the Individual’s pattern of consuming alcohol to intoxication on an at least a twice-
monthly basis, the Psychologist concluded that the Individual habitually consumed alcohol to the
point of impaired judgement. Id. at 7. The Psychologist recommended that the Individual
demonstrate rehabilitation or reformation by participating in an Intensive Outpatient Treatment
Program (IOP) of at least nine hours weekly for several months followed by an aftercare program
for a total of twelve months of treatment. Id. at 8. The Psychologist also recommended that the
Individual abstain from alcohol for at least nine months, and document his abstinence by having
PEth tests at least every eight weeks during this period. Id. The Psychologist opined that the
proposed treatment would be ineffective if the Individual failed to recognize that his alcohol
consumption was problematic. Id.
3 The Psychologist requested that the Individual undergo ethyl glucuronide (EtG) and phospatidylethanol (PEth)
laboratory tests to measure his recent alcohol consumption. Id. According to the physician who interpreted the
laboratory test results, the EtG test was positive for a metabolite of ethyl alcohol, indicating that the Individual had
recently consumed alcohol. Id. The physician indicated that the PEth test was positive for the PEth biomarker at 162
ng/mL, which was consistent with consuming at least four drinks a day several days a week. Id. at 6.
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On July 23, 2020, the Individual met with a counselor (the Counselor) for an initial screening. Ex.
D at 1. This screening included the administration of a computerized survey known as the Global
Appraisal of Individual Needs (GAIN). Ex. D at 1. The Individual has submitted a
recommendation and referral summary from the counselor (Counselor’s Summary), dated July 31,
2020. Ex. D. The Counselor’s Summary indicated that the Counselor found that the Individual had
“expressed no internal motivation to remain clean and sober, stating that he only wants to get his
clearance back.” Id. at 5. The Counselor’s Summary further stated that the Individual “reported
severe substance use problems in the past 90 days.” Id. at 6. The Counselor’s Summary provided
numerous recommendations for the Individual to pursue recovery with accompanying target dates
for completion. Id. at 2–9. However, the Counselor further concluded that the Individual did not
meet the “criteria for placement in substance abuse treatment due to his self-report that indicates
minimal alcohol use and no use of other substances.” Ex. D at 9. However, The Counselor’s
Summary found that the Individual met the criteria for placement in an educational program. Id.
The Counselor’s Summary concluded by stating: “Client should be monitored for continued
use/relapse or further legal, social/work related or family issues that may be caused or exacerbated
by continued use and if this occurs, a raise in level of care to outpatient treatment would be
appropriate.” Ex. D at 9.
The Hearing
The Supervisor testified that he had managed the Individual since October 2015. Tr. at 15. While
the Supervisor reported that he interacted with the Individual on a near-daily basis regarding the
Individual’s work duties prior to the COVID-19 pandemic, and approximately twice weekly by
phone since the beginning of the COVID-19 pandemic, he did not socialize with the Individual
outside of work, and had no knowledge of the Individual’s consumption of alcohol. Id. at 17–19.
The Supervisor indicated that the Individual disclosed to him that he was arrested for DUI shortly
after the fact and that the Individual denied that he had ever been arrested for DUI before. Id. at
18–19. The Supervisor testified that he had never suspected the Individual of having any alcohol
issues and had always perceived the Individual to be a trustworthy and effective worker. Id. at 17-
20.
The Individual testified that he realized that alcohol was causing him problems since it was
affecting his eligibility for a security clearance, and that he was abstaining from alcohol while
working with the Counselor in order to explore whether he used alcohol as a “defense mechanism.”
Id. at 26–27. The Individual reported that he had consumed alcohol on three occasions since the
Clinical Interview, and that he consumed two drinks on each of those occasions. Id. at 28–29. The
Individual testified that his last use of alcohol occurred on July 18, 2020, approximately two months
prior to the hearing. Tr. at 29.
The Individual claimed that the Psychologist’s Report overstated his alcohol consumption prior to
the Clinical Interview. Id. at 24. According to the Individual, the drinking habits he reported during
the Clinical Interview were his “worst-case” levels of alcohol consumption and that he did not
intend to communicate that he always consumed alcohol at that level when he drank. Id. The
Individual testified that, prior to meeting with the Psychologist, he typically consumed alcohol
outside of the home every other weekend. Id. at 39–41. The Individual testified that he sometimes
felt intoxicated on the occasions when he drank, but he usually did not drink to intoxication because
hangovers were too painful at his age and would impair his work and recreational activities. Id. at
41–42.
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The Individual admitted that he had lacked motivation to address his problems with alcohol when
he first met with the Counselor in July 2020, but indicated that he subsequently developed the
desire to get to the root of the problems that he had experienced as a result of drinking alcohol and
to work on resolving defense mechanisms to improve his personal relationships. Tr. at 32–35. The
Individual denied knowledge of why the Counselor’s Summary indicated that he had experienced
severe substance abuse problems in the 90 days prior to their first meeting. Id. at 31. The Individual
admitted that he had not pursued the recovery steps recommended by the Counselor, except for
meeting with the Counselor, and contended that the COVID-19 pandemic had impaired his ability
to pursue social recovery outlets recommended by the Counselor. Id. at 37–39. The Individual
admitted that he had only met with the Counselor twice following the initial meeting. Id. at 35–36.
However, the Individual expressed the intention to meet with the Counselor on a weekly basis in
the future. Id. at 35. The Individual also reported meeting with an Employee Assistance Program
counselor. Id. at 36–37; see also Ex. E (showing that the Individual inquired about counseling via
e-mail).
The Psychologist testified that, based on the Individual’s testimony during the hearing, the
Individual had not met the treatment recommendations set forth in his Report and that the opinions
he expressed in his Report were unchanged. Tr. at 79–80, 84. The Psychologist opined that it was
common for persons with patterns of problematic alcohol consumption to abstain for a short time
only to revert to problematic drinking, and that the Individual’s approximately two months of
abstinence was insufficient to establish that he could control his alcohol use. Id. at 80. The
Psychologist stated that he was uncertain about the Individual’s motivation to abstain from alcohol
going forward, and that he was not confident that the Individual “had really turned that corner yet.”
Id. at 78–79. Moreover, the Psychologist opined that, without the Individual’s participation in an
IOP, as recommended in his Report, he would not have confidence in the Individual’s ability to
avoid returning to problematic drinking. Id. at 82. Due to the Individual’s failure to follow his
recommendations, the short duration of his abstinence, and the lack of information concerning the
Individual’s social support and motivations, the Psychologist expressed that the Individual had a
less than a “moderately positive prognosis” for avoiding returning to problematic drinking which
he quantified as approximately a forty to fifty percent chance of avoiding a relapse into problematic
drinking. Id. at 84–85.
V. ANALYSIS
A. Guideline G (Alcohol Consumption)
The Individual’s alcohol-related arrests and citations, and the allegation that he habitually
consumed alcohol to the point of impaired judgment, raise security concerns under Guideline G.
Adjudicative Guidelines at ¶ 22(a), (c). Before considering potentially mitigating conditions under
Guideline G, I will first address the Individual’s contention that the Psychologist overestimated the
extent of his drinking. The Report indicated that the PEth test results indicated that the Individual
consumed alcohol to intoxication on, at least, a weekly basis. Supra p. 4. I find the laboratory test
results and the Report’s contemporaneous account of the clinical interview more compelling
evidence of the Individual’s prior drinking habits than the Individual’s uncorroborated and self-
serving hearing testimony. Moreover, even if the Individual had reported consuming alcohol to
intoxication once every two weeks, rather than twice weekly, that pattern of intoxication would be
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sufficiently frequent to constitute habitual consumption of alcohol to the point of impaired
judgment.
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).
In the present case, the Individual’s problematic alcohol use continued at least until the December
6, 2019, Clinical Interview. Moreover, it is clear that the Individual’s problematic alcohol use
constituted an enduring pattern, rather than an unusual occurrence. As discussed above, the
Individual has not yet shown that his problematic alcohol use is unlikely to occur, since the
Individual admits that he did not fully comply with any of the Psychologist’s treatment
recommendations. Instead, the Individual testified that he has substantially reduced his alcohol
consumption after meeting with the Psychologist, began abstaining from alcohol approximately
two months prior to the hearing, and met with a counselor4 for alcohol-related counseling on three
occasions. These actions constitute a far less intensive response to his alcohol problem than was
recommended in the Report.5
While the Individual has recently begun to acknowledge his pattern of maladaptive alcohol use,
and has provided some evidence of actions taken to overcome this problem, as discussed above,
that evidence is not sufficient to demonstrate a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations. Until the Individual
addresses his problematic drinking through proper treatment, and demonstrates an appropriate
period of abstinence from alcohol, his judgement and reliability can be expected to be impaired in
the future.
4 The Individual’s testimony that he substantially reduced his alcohol consumption after meeting with the Psychologist,
and began abstaining from alcohol approximately two months prior to the hearing is not supported by any corroborating
evidence in the Record, such as the testimony of witnesses familiar with his drinking practices or results from alcohol
testing.
5 Significantly, the Individual’s two months of abstinence falls far short of the recommended nine-month period of
abstinence. Further, the Individual did not attend an IOP or similar program and his three meetings with the Counselor
were too infrequent to establish meaningful treatment progress.
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For the aforementioned reasons, none of the mitigating conditions under Guideline G are
applicable in this case. Therefore, I find that the Individual has not resolved the security concerns
asserted by the LSO under Guideline G.
B. Guideline J (Criminal Conduct)
The Individual’s arrest for DUI raises security concerns under Guideline J. Adjudicative
Guidelines at ¶ 31(b). An individual may mitigate security concerns under Guideline J if:
(a) so much time has elapsed since the criminal behavior happened, or it happened under
such unusual circumstances, that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those pressures are
no longer present in the person’s life;
(c) no reliable evidence to support that the individual committed the offense; and
(d) there is evidence of successful rehabilitation; including, but not limited to, the passage
of time without recurrence of criminal activity, restitution, compliance with the terms
of parole or probation, job training or higher education, good employment record, or
constructive community involvement.
Adjudicative Guidelines at ¶ 32(a)–(d).
The passage of approximately fifteen months since the Individual’s most recent arrest for DUI is
insufficient to mitigate the security concerns associated with his alcohol-related offenses,
particularly in light of the Psychologist’s opinion that the Individual’s prognosis for avoiding a
relapse into problematic alcohol consumption is less than moderate. The Individual’s criminal
activity concerns are inextricably linked to his problematic alcohol consumption. Accordingly,
until this problem is adequately addressed, the root cause of his criminal activity remains
unaddressed. Until the Individual takes appropriate steps to resolve his problematic alcohol
consumption through treatment and an appropriate period of abstinence, I cannot find that the
Individual’s criminal behavior is unlikely to recur. Therefore, the first mitigating condition under
Guideline J is inapplicable.
The Individual acknowledged that his operation of a motor vehicle while under the influence of
alcohol led to his 2019 DUI, and that this offense was the product of poor judgment on his part.
Therefore, the second and third mitigating conditions under Guideline J are inapplicable in this
case. Id. at ¶ 32(b)–(c). As to the fourth mitigating condition, as noted above, the passage of fifteen
months since the Individual’s arrest for DUI is insufficient to establish rehabilitation. Moreover,
because the Individual has not shown that he has been successfully rehabilitated from the
underlying condition which has led to his criminal activity, the fourth mitigating condition under
Guideline J is inapplicable. Id. at ¶ 32(d).
For the reasons set for above, I find that the Individual has not established the applicability of any
of the mitigating conditions under Guideline J in this case. Accordingly, I find that the Individual
has not resolved the security concerns asserted by the LSO under Guideline J.
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VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guidelines G and J of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I find that the Individual has not resolved the security concerns asserted by the LSO.
Accordingly, I have determined that the Individual’s access authorization should not be restored.
Either party may seek review of this Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals