PSH-21-0001

*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: October 15, 2020 ) Case No.: PSH-21-0001
)
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Issued: February 3, 2021
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 security
clearance should be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold access
authorization. In June 2018, the Individual reported to the Local Security Office (LSO) that he was
arrested for DUI on June 24, 2018. Ex. 9. In response to information gathered from a background
investigation including a personnel security interview, the LSO requested that the Individual be
evaluated by a DOE consulting psychiatrist (DOE Psychiatrist), who subsequently issued a report
of his findings. Ex. 11. After receiving the DOE Psychiatrist’s Report, the (LSO) began the present
administrative review proceeding by issuing a Notification Letter to the Individual informing him
that his security clearance had been suspended and that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his 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.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual presented
the testimony of two witnesses and testified on his own behalf. See Transcript of Hearing, Case
No. PSH-21-0001 (hereinafter cited as “Tr.”). The LSO presented the testimony of one witness.
The LSO submitted 14 exhibits, marked as Exhibits 1 through 14 (hereinafter cited as “Ex.”). The
Individual submitted 23 exhibits, marked as Exhibits A through W.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the first basis
for denying the Individual a security clearance. Ex. 1. Conduct involving questionable judgement,
lack of candor, or unwillingness to comply with rules and regulations can raise questions about an
individual’s reliability, trustworthiness, and ability to protect classified or sensitive information.
Adjudicative Guidelines at ¶ 15. The LSO listed as relevant facts: The Individual was arrested for
DUI on June 24, 2018, and told the arresting officer that he had consumed several beers prior to
the arrest; however, during a psychiatric evaluation with the DOE Psychiatrist on November 30,
2018, he admitted that he was deceptive in the reporting of his alcohol consumption on the date of
his arrest. The LSO’s allegations of lack of candor based on the Individual’s providing discrepant
information regarding his alcohol use justify the LSO’s invocation of Guideline E. Adjudicative
Guidelines at ¶ 16(d).
The LSO also cited Guideline I (Psychological Conditions) of the Adjudicative Guidelines as a
basis for denying the Individual a security clearance. Ex. 1. Certain emotional, mental, and
personality conditions can impair judgment, reliability, or trustworthiness. Adjudicative
Guidelines at ¶ 27. A formal diagnosis of a disorder is not required for there to be a concern under
this guideline. Id. The LSO asserted that the DOE Psychiatrist concluded that the Individual’s
deception regarding his alcohol use is an emotional, mental, or personality condition that can
impair his judgment, stability, reliability, or trustworthiness. The DOE Psychiatrist expressed
concern about what he saw as the Individual’s “blatant lying about his consumption of alcohol”
the night of the DUI and in his report the following day. He concluded that “this itself seems to
indicate poor judgment.” Ex. 11 at 10. In light of these facts, the LSO’s invocation of security
concerns under Guideline I is justified. Adjudicative Guidelines at ¶ 28(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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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
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“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 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 June 24, 2018, the Individual was arrested for Driving Under the Influence (DUI). Ex. 9. In
his June 25, 2018, report to his employer about the arrest, he stated that he told the arresting police
office that he consumed two beers. Ex. 10. In a subsequent personal security interview (PSI) in
September 2018, the Individual stated that, contrary to what he told the arresting police office, he
had consumed a total of four mixed alcoholic drinks and two beers on the night of his arrest. Ex.
13 at 49. After reporting the incident to the LSO, the Individual was referred to the DOE
Psychiatrist for an evaluation. Ex. 11. During the evaluation, the Individual admitted to the DOE
Psychiatrist that he had provided false statements to the police regarding his alcohol use during his
arrest. Ex. 11 at 6; Tr. at 47. Thereafter, the DOE Psychiatrist concluded that the Individual had
an emotional, mental, or psychological condition that can impair his judgment, stability, reliability
or reliability because the individual was deceptive regarding his alcohol use during his DUI arrest.
Ex. 11 at 11.
At the hearing, the Individual confirmed that at his DUI arrest, he told the police officer that he
“had a couple of beers,” admitting that he was deceptive by not fully reporting the amount of
alcohol he had consumed. Tr. at 47, 48–50, 68. The Individual acknowledged that he was dishonest
because he “was terrified when I got pulled over. I was scared. I wasn’t myself[;] I had been
drinking, and I think I just tried to minimize what I had had to drink” Id. at 47. He explained that
he was nervous and worried about getting arrested, and the impact on his job, so he was trying to
minimize the outcome. Id. at 73.
With regard to the report to his employer, the Individual testified that wanted to clarify the amount
of alcohol he reported to the police officer during his DUI arrest. The Police Report stated that the
Individual told the arresting officer that he had consumed several beers. It was important to the
Individual to correct this information because he had alleged that he told the officer that he
consumed “two beers. Ex. 10; Tr. at 75–76; Ex. C at 2, Ex. 9 at 5. The Individual acknowledged
that in hindsight, he could have been clearer in his written report. Tr. at 76–77.
The Individual testified that he never had an intent to deceive anyone other than the police officer
on the night of his DUI. Tr. at 53. He asserted that he has taken positive steps to alleviate the
factors that contributed to his untrustworthy behavior. Id. At 77-78. He testified that he has not
consumed alcohol since his DUI and does not keep alcohol in his home. Id. at 49–50, 53. The
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Individual also obtained an evaluation from a substance abuse professional, as required by his
employer, and complied with the counselor’s recommendations to complete five counseling
sessions and five AA meetings. Id. at 56. The Individual submitted a list of the AA meetings he
attended with signatures and dates that confirmed he attended five AA meetings between June 30,
2018, and July 1, 2018. Ex. A; Tr. at 56–57. He testified that he wanted to demonstrate that he was
trying to do what was being asked of him so he could try to get his clearance back as quickly as
possible so he promptly attended five AA meetings. Tr. at 57–58. The Individual provided copies
of 15 random alcohol tests between July 5, 2018, and February 3, 2020, which were a combination
of random urinalysis tests and breathalyzer tests. Exs. I–W. He testified that he has no intention to
consume alcohol in the future. Tr. at 78–79.
The Individual testified that he completed five counseling sessions and provided a letter from his
counselor (Counselor) dated July 19, 2018, which stated that the Individual actively participated
in treatment, completed five counseling sessions, followed all recommendations, and worked
diligently to develop healthy life strategies and coping mechanisms. Tr. at 58; Ex. B. Moreover,
he later returned to his Counselor for an additional counseling session in November 2020, to ask
for her opinion regarding the DOE Psychiatrist’s report (the report) and to obtain her opinion as to
whether she thought he needed additional counseling sessions. Tr. at 59, 83–84. He also indicated
that after speaking with his Counselor regarding the DOE Psychiatrist’s report and subsequently
reflecting on the report, he gained a clearer understanding of the DOE Psychiatrist’s concerns
regarding his deception. Id. at 51–53. The Individual admitted that at the time he had his evaluation
with the DOE Psychiatrist, he had not recognized that he had slipped into an unhealthy routine
involving alcohol use. Tr. at 53, 64. He explained that after his divorce, he started going out
socially with coworkers, but eventually the socializing stopped and he indicated he started on a
negative trend where he was going out to eat, and consume alcohol before going home. Tr. at 52–
53, 85. He explained that he believes the DOE Psychiatrist had concerns because he had been
untruthful to the police officer, and because he was not “honest with [himself].” Tr. at 64. The
Individual stated, “[the DOE Psychiatrist] viewed it as maybe I was being deceptive, . . . to me, I
feel like I wasn’t really seeing what was going on, and I think that in some way caused him concern,
and rightfully so.” Tr. at 64.
The Individual also asserted that subsequent to his counseling sessions and after re-reading the
DOE Psychiatrist’s report and reflecting back on his DUI, he has developed a greater awareness
of his stressors, and has changed his behavior to decrease his stressors and mitigate the current
security concerns. Tr. at 64–65, 85–86. He testified that at the time of his DUI, he was facing
several stressors, including his divorce; the death of his brother-in-law, with whom he had a close
relationship with; and his father’s prostate cancer relapse. Id. at 54. Moreover, he testified that he
recognizes that both an earlier DUI arrest from 27 years ago and his 2018 DUI were subsequent to
a divorce, and both of those actions were “life-changing events”, which he learned he needs to
watch out for in the future. Id. at 70, 86. As such, he has intentionally decreased his time
socializing, and instead, he spends more time at home. Id. at 54.
The Individual’s witnesses, his sister and brother-in-law, both testified that the Individual is
honest, moral, and trustworthy. Tr. at 26–27, 34, 42. His sister stated that when their parents
divorced, the Individual handled their mother’s finances without an issue. Id. at 14. Both witnesses
confirmed that just prior to his DUI, he and his wife divorced and his sister’s husband, who was
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the Individual’s good friend, died. Id. at 24, 28–29, 36. Both witnesses testified that they have not
seen the Individual consume alcohol since his DUI. Id. at 19, 35, 37. The brother-in-law said he
sees the Individual monthly for dinner, but prior to the Individual’s father’s death and the
pandemic, they saw each other once a week. Id. at 36–37. Both witnesses asserted that they have
not seen the Individual intoxicated and do not believe that he had a problem with his alcohol use.
Id. at 19, 26, 40–41. The brother-in-law avowed that there is no alcohol in the Individual’s house.
Id. at 42–43.
In his December 2018, report, the DOE Psychiatrist concluded that the Individual had an
emotional, mental, or psychological condition that can impair his judgment, stability, or reliability
because the Individual was deceptive regarding his alcohol use during his DUI arrest. Ex. 11 at 11.
In an addendum to his report dated December 14, 2018, the DOE Psychiatrist concluded that the
Individual “has a mental condition of deceitfulness or misrepresenting the facts,” because of the
Individual’s “apparent minimization of his use of alcohol and his denial that he has an alcohol
problem.” Id. at 16. The DOE Psychiatrist’s conclusion was based on a combination of a records
review and a focused psychiatric examination, which included the Individual admitted during the
evaluation that he had been untruthful to the police officer during his DUI arrest concerning his
total amount of alcohol use. Ex. 11 at 1, 6, 10. He recommended that the Individual abstain from
alcohol and undergo laboratory evidence of alcohol tests every six to eight weeks to gain
confidence in his ability to abstain. Ex. 11 at 16.
At the hearing, the DOE Psychiatrist stated that the Individual’s “judgment and his reliability [the]
night [of his DWI] was not good…and when we’re pretty anxious and panicked by the police
pulling us over and all that, that certainly does create a very trying kind of situation.” Id. He further
stated, “what I’ve taken from this today is that I think that at the core, [the Individual] is a pretty
truthful guy,…and… when he’s not disinhibited and impaired about things, I think he—it sounds
like he’s a pretty reliable guy.” Id. at 98.
The DOE Psychiatrist testified that in situations where an individual abstains without participating
in a treatment program, he usually recommends two years of abstinence, which the Individual has
fulfilled. Tr. at 96. The DOE Psychiatrist gave the Individual a “very favorable” prognosis based
on several factors including his length of abstinence, his testimony regarding the DOE
Psychiatrist’s report, his completion of counseling, and the additional actions he took to recontact
his Counselor to seek per professional opinion on his issues and the report. per Id. at 98, 101.
V. ANALYSIS
A. Guideline E
The Individual’s deceptive reporting of his alcohol consumption during his June 2018 arrest raises
security concerns under Guideline E. Adjudicative Guidelines at ¶ 16(d). An individual may
mitigate security concerns, in relevant part, under Guideline E if “The individual has
acknowledged the behavior and obtained counseling to change the behavior or taken other positive
steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, reliable
or other inappropriate behavior, and such behavior is unlikely to recur.” Adjudicative Guidelines
at ¶ 17(d).
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The Individual has readily acknowledged his untruthful statements regarding his alcohol
consumption during his June 2018 DUI arrest. He has also obtained counseling, and took the
additional step of recently contacting his Counselor on his own accord, to seek her professional
opinion as to whether he needed additional counseling, and so he could better understand the
concerns that the DOE Psychiatrist stated in his report. Importantly, he provided objective
evidence of 15 random alcohol tests between July 5, 2018, and February 3, 2020, which support
his assertions that he has not consumed alcohol since his DUI arrest and is able and willing to
commit to abstinence.
While he was dishonest with the police officer on the date of his arrest regarding his alcohol
consumption, he acknowledged his deception during the PSI, to the DOE Psychiatrist, and during
the hearing. While not mitigating, he explained that he lied because he was concerned about his
fear of getting arrested and the impact that would have on his job. Moreover, the Individual’s has
demonstrated, through his testimony, the recent opinion of the DOE Psychiatrist, and the letter
from his Counselor, that he has a greater awareness of the stressors that led to his alcohol
consumption and related untruthfulness. He has taken additional positive steps to alleviate the
stressors, and circumstances, that contributed to his untruthfulness. His credibility is bolstered by
the testimony of both of his witnesses, his objective evidence that supports his testimony that he
remains abstinence, and perhaps most importantly by the opinion of the DOE Psychiatrist who
opined that the Individual has demonstrated adequate reformation and rehabilitation with regard
to honesty. For the foregoing reasons, I find that the Individual’s behavior regarding untruthfulness
is unlikely to recur and that he has resolved the security concerns asserted by the LSO under
Guideline E.
B. Guideline I
The DOE Psychiatrist’s conclusion from his November 30, 2018, evaluative report that the
Individual’s deception regarding his alcohol use is an emotional, mental, or personality condition
that can impair his judgment, reliability, stability, reliability or trustworthiness raises concerns
under Guideline I. Adjudicative Guidelines at ¶ 28 (b). Conditions that may mitigate security
concerns under Guideline I, in relevant part, include the following:
(c) recent 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;
Adjudicative Guidelines at ¶ 29(c).
The DOE Psychiatrist’s opinion in his report formed the basis of the DOE’s security concerns
under Guideline I. It is important to note that the DOE Psychiatrist’s concerns were founded upon
the Individual’s deceptive statement that he made to the police officer during his DUI arrest. As
stated above, the Individual presented significant evidence to demonstrate that he has taken
substantial steps to address the stressors that led to his DUI. This includes seeking counseling,
remaining abstinent for over two years, providing objective evidence of random and negative
alcohol testing, decreasing his attendance at social events, and spending more time at home. Also
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noteworthy is the DOE Psychiatrist’s updated opinion that the Individual is “a pretty truthful guy”
and in fact, the DOE Psychiatrist testified, “I think if he went out and had three beers he would tell
the cop, ‘I had three beers.” Tr. at 101. He further stated, “I think he would cling to the actual
truth of things now more rigorously than he would [have before]…I think he’s going to live and
stand on the truth more now.” Id. Again, most importantly, as discussed above, the DOE
Psychiatrist opined at the hearing that the Individual has demonstrated adequate reformation and
rehabilitation regarding his honesty. Accordingly, I find that the Individual has carried his burden
to demonstrate that he has successfully mitigated the DOE’s security concerns under Guideline I.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines E and I 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’s access authorization should be restored.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals