PSH-21-0002

*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: November 12, 2020 ) Case No.: PSH-21-0002
)
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Issued: January 29, 2021
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “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, Subpart A, entitled “General Criteria and Procedures for
Determining Eligibility for Access to Classified Matter or 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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In October 2018, the Individual’s employer issued him a written reprimand for misuse
of the sick leave policy when he used sick leave, instead of vacation time, to attend a company
hosted event, to which the Individual brought and consumed alcohol. Ex. 3; Ex. 6. In response to
this incident, the Local Security Office (LSO) provided the Individual with a Letter of Interrogatory
(LOI), which he completed in July 2019. Ex. 7. He later underwent a psychological evaluation by
a DOE consultant psychiatrist (Psychiatrist) in December 2019. Ex. 8.
Due to unresolved security concerns related to the Individual’s conduct and alcohol use, the LSO
informed the Individual, in a Notification Letter, that it possessed reliable information that created
substantial doubt regarding the Individual’s eligibility to hold a security clearance. In an attachment
to the Notification Letter, the LSO explained that the derogatory information raised security
concerns under Guideline E (personal conduct) and Guideline G (alcohol consumption) of the
Adjudicative Guidelines. Ex. 1.
1 Access authorization is defined 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). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted eleven numbered exhibits (Exhibits 1-11) into the record and presented the testimony of
the Psychiatrist. The Individual introduced five lettered exhibits (Exhibits A-E) into the record, and
presented the testimony of seven witnesses, including himself. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate numeric designation. The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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 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.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cites Guideline E and Guideline G of the Adjudicative Guidelines. Guideline
E concerns “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules or regulations.” Guideline E at ¶ 15. This conduct can call into
question an individual’s reliability, trustworthiness, and ability to protect classified or sensitive
information. Id. Guideline G relates to security risks arising from excessive alcohol consumption.
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.
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In citing Guideline E, the LSO relied upon the Individual’s admission in the LOI that his employer
issued him a written reprimand due to a misuse of the sick leave policy, which resulted in a
suspension without pay. Ex. 1. The Individual later revealed, during the psychological evaluation,
that the disciplinary action was also taken because he brought beer to a company hosted event in
August 2018, information that was absent from the LOI. Id. The LSO also cited the Individual’s
statements in the LOI that, apart from verbal arguments, he had never had any alcohol-related
incidents. Id. However, during the psychiatric evaluation, the Individual explained that he was
involved in a serious motor vehicle accident in August 2013, “in which alcohol was a factor because
he was intoxicated at the time.” Id.
The LSO additionally cited Guideline G, relying on the Psychiatrist’s determination that the
Individual met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)
criteria for Alcohol Use Disorder, Moderate, in Early Remission, without adequate evidence of
reformation. Id. In addition to the aforementioned 2013 motor vehicle accident and the 2018
company hosted event, the LSO cited two additional alcohol related-incidents: (1) a July 2017
physical altercation, occurring while in the Individual was under the influence of alcohol, and (2)
an April 2015 incident in which the Individual was charged with Driving Under the Influence of
Alcohol (DUI). Id.
IV. Findings of Fact
As stated above, after receiving a written reprimand from his employer for the misuse of the sick
leave policy, the Individual completed an LOI in July 2019. Ex. 6; Ex. 7. In the LOI, the Individual
stated that he attended a company hosted event with alcohol and became intoxicated. Ex. 7 at 1.
The Individual stated that he was unaware that alcohol was not permitted at the event. Id. He further
noted that the written reprimand for the misuse of the sick leave policy was the result of leave he
had taken to attend the company hosted event. Id. at 1-2. He explained that he “thought sick leave
and vacation were all the same and didn’t matter,” and he was trying to save “vacation time for an
upcoming vacation.” Id. at 1.
The Individual clarified that he no longer consumed alcohol and did not plan to consume alcohol
in the future. Id. at 6. He noted that he last consumed alcohol in September 2018, having
approximately two or three beers on a hunting trip. Id. The Individual reported that he enrolled in
and completed an outpatient treatment program and planned to join a recovery program. Id. at 5;
see Ex. C.
In early December 2019, the Psychiatrist conducted an evaluation of the Individual. Ex. 8. In his
report, the Psychiatrist explained that the Individual encountered his first significant alcohol-related
incident in August 2013 while driving an all-terrain type vehicle, under the influence of alcohol.2
Ex. 8 at 1. The vehicle ultimately flipped, permanently injuring the Individual. Ex. 8 at 1. The
Psychiatrist reported on a second alcohol-related incident in April 2015, wherein the Individual
was arrested for DUI upon wrecking his car in a ditch after he had consumed alcohol in a bar. Id.
at 3. During the evaluation, the Individual additionally revealed that, in May 2017, he was
consuming alcohol at a wedding and became involved in a physical altercation with another man.
Id. at 4. The most recent alcohol-related incident occurred in August 2018, when the Individual
2 The information surrounding this event was absent from the LOI. Ex. 7.
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brought beer to a company hosted event. Id. The Individual explained to the Psychiatrist that he
was not aware that alcohol was prohibited, and although he did not recall how many beers he
consumed, he did become intoxicated. Id. He also added that his “boss noted that he was obviously
intoxicated…, and wrote him up.” Id.
The Psychiatrist reported that the Individual completed a three-month alcohol education and
treatment program, beginning in October 2018. Id. at 5. The Individual also reported that, following
the work event, he was required to undergo random alcohol screenings, all of which had been
negative. Id. The Psychiatrist noted that although the Individual indicated in the LOI that he
intended to abstain from alcohol and join a recovery program, at the time of the evaluation, he had
not attended any of the recovery meetings and had chosen to consume approximately ten beers over
the course of a November 2019 weekend hunting trip. Id. at 1. When the Psychiatrist inquired about
the Individual’s future intent with respect to alcohol consumption, the Individual stated that he
would not “go back to what it was,” and that if he did consume alcohol, it would only be during
hunting trips. Id. at 6.
In his report, the Psychiatrist ultimately diagnosed the Individual with Alcohol Use Disorder,
Moderate, in Early Remission. Id. at 10. However, he did not feel that the Individual had
demonstrated adequate evidence of rehabilitation or reformation and determined that, in order for
the Individual to show adequate evidence of rehabilitation or reformation, he would need to show
a desire to enter a treatment program. Id. The Psychiatrist recommended a treatment program of
moderate intensity, such as a group outpatient program, meeting at least twice per week, or
individual alcohol abuse counseling. Id. Finally, the Psychiatrist recommended at least six months
of abstinence from alcohol, and he noted that at the time of the evaluation, the Individual’s
prognosis was “only fair.” Id. at 1, 10.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual has sufficiently mitigated the security concerns noted by the LSO
with regard to Guideline E and Guideline G. I find that restoring the Individual’s DOE security
clearance will not endanger the common defense and security and is clearly consistent with the
national interest. 10 C.F.R. § 710.27(a). Therefore, I have determined that the Individual’s security
clearance should be restored. The specific findings that I make in support of this Decision are
discussed below.
At the hearing, seven witnesses testified on the Individual’s behalf: an Employee Assistance
Program (EAP) counselor (Counselor), his aunt, his uncle, a friend, his recovery group leader, a
colleague from his recovery group, and the Individual himself. The Individual’s Counselor testified
that when the Individual initially engaged in EAP, he was seeing a counselor who has since retired.
Tr. at 11. The Individual was then transferred to her care, and she began working with him in
January 2020. Id. She noted that, at that time, the Individual reported that he had last consumed
alcohol approximately six weeks prior during a hunting trip. Id. at 14. She reported that the
Individual began working with EAP after completing an external alcohol recovery program and
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that, in addition to her individual counseling, the Individual participated in and completed an
alcohol education and awareness group she conducts. Id. at 11-12; Ex. B. She noted that, at the
time she first met with the Individual, he was already participating in a recovery program, and she
recommended that he attend Alcoholics Anonymous (AA) as well, which he began in January
2020. Tr. at 13,15.
The Counselor testified that she had met with the Individual for six counseling sessions so far, and
they were meeting “fairly regularly” from January through March of 2020 until the COVID-19
pandemic struck. Id. at 14-15. She explained that, in her time working with the Individual, he
“always participated, very verbal, very active, he always initiated.” Id. at 19. She indicated that she
felt that the Individual had begun serving as a role model to other group participants. Id. The
Counselor noted that when she met with the Individual in November 2020, the Individual reported
a year of sobriety from alcohol, and he maintained his abstinence despite being subjected to leave
without pay for several months, going through a divorce, and ending an unhealthy relationship with
his mother due to her own alcohol consumption. Id. at 17. She explained that through this time, he
continued to engage in his recovery group and work through the AA steps with his sponsor. Id.
The Individual’s co-worker and friend (Friend) also testified on his behalf. Id. at 28. The Friend
testified that he and the Individual interacted approximately three to four times per week, hunted
together, and socialized outside of work. Id. at 29. The Friend noted that the last time he saw the
Individual consume alcohol was during a hunting trip in November 2019. Id. at 30. He elaborated,
stating that when the two went hunting together in 2020, the Individual did not consume any
alcohol. Id. He further explained that he invited the Individual to Christmas dinner, and despite the
presence of alcohol, the Individual did not consume it. Id. The Friend testified to the Individual’s
commitment to AA and his sobriety. Id. at 31.
The Individual’s aunt (Aunt) testified and explained that a series of tragic events in the Individual’s
life “precipitated a downward spiral” for him, and she began to notice that his alcohol consumption
was becoming excessive. Id. at 46. She noted that she had been abstinent from alcohol for 27 years,
so the Individual did not consume alcohol around her, but she noticed that “his behavior was quite
different” and concerning. Id. at 47. The Aunt explained that once the Individual lost his clearance,
“he decided to get serious about the quitting drinking, and he started going to AA” and church. Id.
She noted that he became abstinent from alcohol on November 19, 2019. Id. at 54. The Aunt
revealed that, at that time, she began daily walks with the Individual, during which they would have
long conversations. Id. at 48. They also began talking on the phone, and she noticed “a huge change
in him.” Id.
The Aunt additionally explained that the Individual’s mother, her sister, is an alcoholic, and that
the mother had recently moved in with the Individual. Id. at 49-51. The Aunt stated that the
Individual felt so strongly about his own recovery that he “just flat out told her she couldn’t drink
and…he couldn’t be around her drinking,” at which point she moved out of the Individual’s house.
Id. The Aunt noted that the Individual attends daily AA meetings, sometimes attending twice a
day,3 and she added that “he knows drinking is not the solution to any problems anymore.” Id. at
52.
3 The Individual’s AA log sheets support the Aunt’s testimony, reflecting consistent daily attendance. Ex. A.
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The Individual’s recovery group leader (Leader) also testified and explained that the Individual
began attending the program over a year prior to the hearing and has been in attendance “every
time that [they] are open.” Id. at 59-60. The Leader noted that the Individual is doing well in the
program, participates, and is willing to contribute. Id. at 62-63. He explained that he believes that
the Individual has become abstinent from alcohol with the purpose of “chang[ing] his life.” Id. at
64.
The Individual testified on his own behalf. In addressing the August 2013 motor vehicle accident,
the Individual explained that he did not list the incident on the LOI as “alcohol-related” because,
although he had consumed alcohol on the day of the accident, the cause of the accident was “that a
bunch of people jumped on” the vehicle causing it to flip. Id. at 78. The Individual acknowledged
that he should have listed the incident on the LOI. Id.
Turning to the written reprimand, the Individual clarified that it was his understanding that the
reprimand was based solely upon the misuse of leave for the work-sponsored event. Id. at 78. He
stated that he told the Psychiatrist that the reprimand was also related to the possession and
consumption of alcohol because he “wasn’t too clear” about the specifics of the reprimand, and
“everything was a blur.” Id. However, upon examining the reprimand, it is clear that it was based
solely upon the misuse of leave. Id.; see Ex. 6.
With regard to the August 2018 work sponsored event, the Individual acknowledged that he did
bring alcohol to the offsite event as he did not believe it would be a problem, but that he now knows
that “it was definitely a misjudgment…to even take alcohol or think of that.” Tr. at 79. The
Individual additionally acknowledged the May 2017 altercation at the wedding and the April 2015
DUI, noting that both were incidents in which alcohol created problems in his life. Id. at 80-81.
The Individual explained that after he met with the Psychiatrist, he became aware that his alcohol
consumption was problematic, and he needed to seek treatment. Id. at 84. The Individual testified
that he became abstinent from alcohol on November 19, 2019, and he did not intend to consume
alcohol in the future. Id. at 101-102. He attributed the changes in his life to his attendance at AA
and his recovery program. Id. He explained that although he had abstained from alcohol between
his September 2018 and November 2019 hunting trips, he was not involved in a formal recovery
program, and he realized that if he did not “get involved with a program or make changes in [his]
own life,” he would not be successful in recovery. Id. at 86. He stated, “you can be dry from not
drinking, but if you’re not changing all of your other behaviors…it’s just a matter of time before
you slip back into it.” Id.
The Individual testified that he has now successfully completed all AA steps and regularly reaches
out to his Aunt and his Leader for support in stressful times. Id. at 90-91; see Ex. D. In addressing
the stress of the past year, and becoming abstinent from alcohol during the COVID-19 pandemic,
the Individual stated that although “it’s been a struggle…It’s amazing how my life’s turned around
with working through the steps and…sorting the ideas of temptation out of [my] head.” Id. at 95.
The Psychiatrist, after observing the hearing and listening to the testimony offered by the Individual
and all other witnesses, testified that he felt that the Individual had “exceeded” all of the
Psychiatrist’s requirements. Id. at 108. The Psychiatrist opined that “there is now adequate
evidence of rehabilitation or reformation” from the Alcohol Use Disorder. Id. at 111. He explained
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that his diagnosis has changed from partial remission to full sustained remission. Id. at 112. The
Psychologist explained that the basis for this new opinion arises from the Individual’s: (1)
acknowledgement that he has a problem with alcohol; (2) full participation in a structured
treatment; and (3) completion of more treatment for a longer duration than was recommended. Id.
The Psychiatrist testified that he felt that the Individual’s prognosis was “good for his maintaining
his freedom from alcohol use problems.” Id. He also elaborated that he felt that the Individual’s
self-report of his alcohol use “is more reliable than most,” as the Individual disclosed that he had
consumed alcohol on a recent elk hunting trip, an incident of alcohol consumption that would have
never been revealed had the Individual not reported it. Id. at 109. As such, the Psychiatrist opined
that it was “more likely” that the Individual’s testimony, with regard to his alcohol consumption,
was credible. Id. at 110.
Guideline E
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified information. Of special interest is any failure to provide truthful and
candid answers during the security clearance process or any other failure to cooperate with the
security clearance process. See Guideline E at ¶ 15. Deliberately omitting, concealing, or falsifying
relevant facts from any personnel security questionnaire can disqualify an individual from holding
access authorization. Id. at ¶ 16(a). In the event that an individual makes prompt, good-faith efforts
to correct the omission, concealment, or falsification before being confronted with the facts, the
individual may be able to mitigate the security concerns. Id. at ¶ 17(a). Additionally, if information
is unsubstantiated, the security concern may also be mitigated. Id. at ¶17(f).
Here, security concerns arose regarding Guideline E as it appeared that the Individual may have
concealed the August 2013 motor vehicle accident and from the LOI. Additionally, a security
concern arose due to the Individual’s revelation to the Psychiatrist that his possession and
consumption of alcohol at the work-sponsored event was the cause of his written reprimand,
information that was absent from the LOI. However, upon examining the record, the Individual
freely shared this information with the Psychiatrist without being confronted with the adverse
information. See id. at ¶ 17(a). With regard to the August 2013 incident, he clarified that he did not
believe it was an “alcohol-related incident,” as alcohol was not the cause of the accident, but he
freely acknowledged that, upon reconsideration, he should have listed the event on the LOI. I
additionally note that although the Individual’s possession and consumption of alcohol was not
permitted at the work sponsored event, it was not the cause of the written reprimand and subsequent
disciplinary action, as the reprimand was solely related to the misuse of sick leave. See Ex. 6; id.
at ¶ 17 (f).
Guideline G
Diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical
psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder is a condition
that could raise a security concern and may disqualify an individual from holding a security
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clearance. Guideline G at ¶ 22(d). Additionally, alcohol-related incidents away from or at work
could raise disqualifying security concerns. Id. at ¶ 22(a), (b). If an individual acknowledges his
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, he may be able to mitigate the security concern. Id.
at ¶ 23(b). Additionally, alcohol-related incidents away from or at work could raise disqualifying
security concerns. Id. at ¶ 22(a), (b).
In this case, the Individual had a history of four concerning alcohol-related events: (1) bringing and
consuming alcohol, to the point of intoxication, at a work hosted event, (2) the May 2017 physical
altercation, (3) the April 2015 DUI, and (4) the August 2013 motor vehicle accident. Additionally,
the Psychiatrist diagnosed the Individual with Alcohol Use Disorder, Moderate, in Early
Remission. However, the Psychiatrist testified that the Individual “exceeded” all treatment
recommendations and opined that the Individual is in full sustained remission with a “good”
prognosis. Furthermore, the Individual has acknowledged that he had a problem with alcohol and
has completed the EAP treatment program and continues to seek EAP counseling services. He has
been abstinent from alcohol for over one year and consistently attends and meaningfully engages
in daily AA meetings, as well as his recovery group. See Guideline G at ¶ 23(b).
It is clear, based upon the evidence in the record and the testimony presented at the hearing, that
the Individual has taken substantial steps to overcome the concerns regarding his alcohol
consumption. Additionally, given the Individual’s openness and candor during the psychiatric
evaluation, as well as his willingness to acknowledge his mistakes and lapses in judgment, I find
that the Individual has adequately established that restoring his security clearance will not endanger
the common defense and security, and that doing so is clearly consistent with the national interest.
Thus, I conclude that the Individual has sufficiently resolved the security concerns set forth in the
Notification Letter with respect to Guideline E and Guideline G.
VI. Conclusion
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 have found that the Individual has brought forth sufficient evidence to resolve the
security concerns associated with Guideline E and Guideline G. 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 regulations set forth at 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals