PSH-21-0023

*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: March 15, 2021 ) Case No.: PSH-21-0023
)
__________________________________________)
Issued: May 11, 2021
___________________________
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 not be granted.
I. Background
The Individual, an applicant for a DOE security clearance, underwent a background investigation
conducted by the United States Office of Personnel Management (OPM). On July 19, 2019, OPM
issued a report of its findings. Ex. 9 at 5. The OPM’s report indicates that an OPM investigator
(the Investigator) conducted an Enhanced Subject Interview (ESI) of the Individual on June 12,
2019. Ex. 9 at 53. During this ESI, the Individual disclosed that he had: been arrested for Driving
While Intoxicated (DWI) on October 16, 1997; undergone voluntary outpatient alcohol treatment
from December 2018 through January 2019, and had decided to discontinue this treatment before
its completion. Ex. 9 at 55-56. On October 21, 2019, a Local Security Office (LSO) issued a
Letter of Interrogatory (LOI) to the Individual. Ex. 6 at 1. The Individual submitted his response
to the LOI on October 23, 2019, confirming that a breathalyzer test was administered at the time
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.
2
of his DWI arrest and stating that this test measured his blood alcohol concentration BAC at .17
percent. Ex. 6 at 3.
Because of the concerns raised by the ESI and LOI about the Individual’s alcohol consumption,
the LSO requested that the Individual be evaluated by a DOE-contractor Psychiatrist (Psychiatrist)
who interviewed the Individual on November 25, 2019. Ex. 7 at 4. During the interview, the
Individual indicated that he had voluntarily participated in an Intensive Outpatient Program for
alcohol treatment (IOP) from December 2018 through January 2019. Ex.7 at 2. The Psychiatrist,
however, reviewed records from the IOP indicating that the Individual attended the IOP from
October 2019 through November 2019. Ex. 7 at 2. The IOP’s records further indicated that its
staff had diagnosed the Individual with “Alcohol Dependence,”2 and had recommended that he
undergo intensive inpatient treatment, as well as an IOP, and that he attend Alcoholics Anonymous
(AA). Ex. 7 at 7. The Psychiatrist further reported that the IOP records indicated that the Individual
had refused to meet with the IOP’s physician and had discontinued the IOP much earlier than
recommended, having made little progress in treatment. Ex. 7 at 3. The Psychiatrist diagnosed the
Individual with AUD, Severe, and indicated that the Individual “habitually consumes alcohol to
the point of impaired judgement[.]”3 Ex. 7 at 6, 11-12. The Psychiatrist further opined that the
Individual did not demonstrate adequate evidence of rehabilitation or reformation. Ex. 7 at 12.
Accordingly, the Psychiatrist recommended that the Individual abstain from alcohol for one year,
attend three AA meetings every week for a year, successfully complete a four-to-six week IOP,
and participate in his employer’s Employee Assistance Program (EAP) for alcohol. Ex. 7 at 11-
13.
After receiving the Report, the LSO determined that unresolved derogatory information continued
to raise significant security concerns about the Individual. Accordingly, the LSO began the present
administrative review proceeding on May 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 entitled to a hearing before an Administrative Judge 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), the Individual testified on his
own behalf and submitted one exhibit marked as Exhibit A (hereinafter “Ex.”). See Transcript of
Hearing, Case No. PSH-21-0023 (hereinafter cited as “Tr.”). The DOE Counsel presented the
testimony of the Psychiatrist and submitted nine exhibits marked as Exhibits 1 through 9.
II. The Notification Letter and the Associated Security Concerns
2 During the interview, the Individual indicated that he had not been given a diagnosis by at the IOP. Ex. 7 at 3.
3 A Phosphatidyl Ethanol (PEth) test was ordered in conjunction with the evaluation. The PEth test detects alcohol use
during the previous 28-days. Ex. 7 at 6.
3
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created substantial doubt concerning his eligibility for a security clearance.
In support of this determination, the LSO cited Guideline G 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), “[e]xcessive alcohol consumption often leads to the exercise of
questionable judgment or the failure to control impulses, and can raise questions about an
individual's reliability and trustworthiness.” Adjudicative Guidelines at ¶ 21. Among those
conditions set forth in the Adjudicative Guidelines that could raise a disqualifying security concern
are “alcohol-related incidents away from work, such as driving while under the influence[,]”
“[h]abitual or binge consumption of alcohol to the point of impaired judgement[,]” and
“[d]iagnosis by a duly qualified medical or mental health professional . . . of alcohol use disorder.”
Id. at ¶¶ 22(a), (d). The LSO alleged that (1) the Psychiatrist diagnosed the Individual with Alcohol
Use Disorder, Severe (AUD), using the criteria set forth in the Diagnostic and Statistical Manual
of Mental Disorders – Fifth Edition (DSM-5), without rehabilitation or reformation; (2) the
Psychiatrist concluded that the Individual habitually consumes alcohol to the point of impaired
judgement; (3) from 2014 through October 2018, the Individual consumed one-half to one pint of
whiskey or two to four mixed drinks every two to three days on a weekly basis; and (4) police
arrested and charged the Individual with DWI on October 16, 1997, after he registered a breath
alcohol content of .17 percent.
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
An 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.
IV. The Hearing
4
At the Hearing, the Individual testified that he does not dispute any of the conclusions in the
Psychiatrist’s Report. Tr. at 12. However, he further testified that he no longer has an active
problem with alcohol, noting that he had not consumed alcohol since May 16, 2020.4 Tr. at 10-
11. He further testified that he has no intention of ever using alcohol again and recognizes that
even one drink would be “a bad idea.” Tr. at 18. He believes that he can never let his “guard
down.” Tr. at 11. The Individual’s recognition that his alcohol use could result in the loss of his
family led him to stop consuming alcohol on May 16, 2020. Tr. at 11, 15, 17-18. He testified that
his family life improved after he stopped using alcohol. Tr. at 17.
The Individual testified that he participated in addiction treatment, attending a total of four to five
individual sessions and two AA meetings in late 2018. Tr. 18-19. Although the IOP diagnosed him
with Alcohol Dependence and recommended follow-up services, the Individual did not comply
with these recommendations because discussing his personal issues with strangers makes him
uncomfortable. Tr. 19-20. He also testified that he has no intention of attending AA meetings or
seeking further treatment but remains confident that he can maintain his sobriety without treatment
and would reach out to his wife if he felt he needed help. Tr. at 25, 27-28. He testified that he
avoids social situations that would likely involve the consumption of alcohol and still avoids some
of his in-laws because they want him to be “their drinking buddy.” Tr. at 21-22. The temptation of
having a drink still strikes him occasionally, but he has successfully endured considerable physical
pain and stress without using alcohol since May 16, 2020. Tr. 23-25, 27.
The Psychiatrist began his testimony by explaining why he diagnosed the Individual with AUD,
Severe, and how he arrived at his treatment recommendations for the Individual. Tr. at 33-35. He
testified that the Individual began his reformation on May 16, 2020, (when he stopped using
alcohol) and “has high levels of motivation to stay alcohol abstinent,” but would not be considered
to be reformed until he had abstained from alcohol use for at least five years. Tr. at 37. He further
opined that the Individual has not been rehabilitated since he did not complete a treatment program.
Tr. at 34. The Psychiatrist noted that the Individual had complied with his first treatment
recommendation by abstaining from alcohol use for almost a full year. Tr. at 37-38. The
Psychiatrist noted, however, that the Individual had not complied with his other three treatment
recommendations, noting that he needs to attend AA regularly; complete an IOP; and attend his
EAP’s alcohol program. Tr. at 39-40. The Psychiatrist further testified that the Individual now
recognizes that he has an alcohol problem that requires him to maintain “a daily life pattern” of
abstinence from alcohol use. Tr. at 38. However, the Psychiatrist expressed concern over the fact
that the Individual is largely keeping his feelings to himself, stating that “this is a bit of a red flag
for me in terms of how much effort [the Individual] will have to put forward on his own…to
maintain himself alcohol free.” Tr. at 38. The Psychiatrist opined that the Individual’s risk of
relapse remains high without completed treatment. Tr. at 41. He further opined that the Individual
remains in early remission and is “on the cusp of having a good prognosis.” Tr. at 42-44.
V. Findings of Fact
The Individual has been diagnosed by a Psychiatrist with AUD, Severe, after having been
diagnosed with Alcohol Dependence by the staff of an IOP that he attended but did not complete.
4 The Individual testified he had an alcohol problem from 2019 to May 2020. Tr. at 11.
5
The Individual fully recognizes that he has an alcohol problem and that he needs to permanently
abstain from alcohol use. The Individual testified that his last use of alcohol occurred on May 16,
2020. Since, the Individual’s hearing testimony was highly credible, I find that he has abstained
from alcohol use for almost a full year. However, the Record shows that the Individual’s AUD
was severe, and the Psychiatrist has convincingly opined that the Individual’s rehabilitation is
incomplete because of his failure to obtain treatment (in the form of an IOP), counseling (by
attending his EAP’s alcohol program), or support (by attending AA). Moreover, during the
Individual’s hearing testimony, he candidly discussed ongoing challenges to his sobriety, including
family members who pressure him to share a drink with them and his continued urges to use
alcohol. The Psychiatrist’s testimony further convinced me that the Individual may be
underestimating the challenges to his sobriety that await him. I am, therefore, not convinced that
the Individual can maintain his abstinence without the assistance provided by a formal treatment
program, counseling, and AA membership.
VI. Analysis
The Adjudicative Guidelines provide that 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; and
(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). While it is undeniable that the Individual has made
commendable strides, I find that the none of the mitigating conditions set forth at § 23(a)-(d) are
present.
The mitigating condition set forth at § 23(a) is not present. While it has been almost a full year
since the Individual’s last use of alcohol, the Individual’ misuse of alcohol clearly occurred on a
frequent basis over an extended period. The Individual has not shown that his alcohol misuse is
unlikely to recur, because it is a symptom of a serious disorder, AUD, Severe, and since his
recovery is tenuous at this time because of the severity of his AUD and because he has not sought,
treatment, counseling, or support.
6
The mitigating condition set forth at § 23(b) is also not present. While the Individual forthrightly
acknowledges his pattern of maladaptive alcohol use and has convinced me that he has abstained
from alcohol use for almost a year, he has not fully complied with the treatment recommendations
of the Psychiatrist or the IOP staff. I am not convinced that the Individual can maintain his
abstinence without the assistance provided by a formal treatment program, counseling, and AA
membership.
The mitigating conditions set forth at § 23(c) and § 23(d) are not present since the Individual has
not completed nor is currently participating in counseling or a treatment program and that the
Individual has a previous history of ineffective treatment and relapse.
VII. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G. After
considering all the evidence, both favorable and unfavorable, in a commonsense manner, I find
that the Individual has not mitigated the security concerns raised under Guideline G. Accordingly,
the Individual has not 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 denied. 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