PSH-21-0061

*The original of this document contains information which is subject to withholding from disclosure under
5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: May 10, 2021 ) Case No.: PSH-21-0061
)
__________________________________________)
Issued: October 25, 2021
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 or Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance should be granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that he hold a security
clearance. During a background investigation, derogatory information was discovered regarding
the Individual’s alcohol consumption and a recent mental health diagnosis. The Local Security
Office (LSO) began the present administrative review proceeding by issuing a Notification Letter
to the Individual informing him that he was entitled to a hearing before an Administrative Judge in
order to resolve the substantial doubt regarding his eligibility to hold a security clearance. See
10 C.F.R. § 710.21.
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
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the
Individual presented the testimony of one witness and testified on his own behalf. The LSO
presented the testimony of the DOE psychologist who had evaluated the Individual. See Transcript
of Hearing (hereinafter cited as “Tr.”). The LSO submitted nine exhibits, marked as Exhibits 1
through 9 (hereinafter cited as “Ex.”). The Individual submitted six exhibits, marked as Exhibits A
through G.
1 Under the regulations, “Access authorization” means 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 also be referred to in this Decision as a security clearance.
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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 pertains to Guidelines G and I 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). These guidelines are not inflexible rules
of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in
conjunction with the factors listed in the adjudicative process.
Guideline G (Alcohol Consumption) states that “[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. The
conditions set forth in the Guidelines that could raise a disqualifying security concern are alcohol-
related incidents, at or away from work, regardless of the frequency of the individual's alcohol use
or whether the individual has been diagnosed with alcohol use disorder; habitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the individual is
diagnosed with alcohol use disorder; Alcohol Use Disorder diagnosis by a duly qualified medical
or mental health professional; failure to follow treatment advice after diagnosis; alcohol
consumption that is not in accordance with treatment recommendations after a diagnosis of alcohol
use disorder; and failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence. Adjudicative Guidelines at ¶ 22.
The LSO alleges that the Individual backed his car into a tree while under the influence of alcohol
in April 2018; pretended, while under the influence of alcohol, to pour water on his girlfriend while
she was driving in April 2017; and was arrested and held overnight in jail, while under the influence
of alcohol, in the United Kingdom in March 2014. The LSO further alleges that in February 2020,
a DOE Contractor Psychologist (the DOE Psychologist) opined that the Individual consumed
alcohol in a habitual manner to a level that has been found to impair judgment. Accordingly, the
LSO’s security concerns under Guideline G are justified.
Guideline I (Psychological Conditions) states that “[c]ertain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 28.
The conditions that could raise a security concern and may be disqualifying include behavior that
casts doubt on an individual's judgment, stability, reliability, or trustworthiness, not covered under
any other guideline, that may indicate an emotional, mental, or personality condition; an opinion
by a duly qualified mental health professional that the individual has a condition that may impair
judgment, stability, reliability, or trustworthiness; voluntary or involuntary inpatient
hospitalization; failure to follow a prescribed treatment plan related to a diagnosed
psychological/psychiatric condition that may impair judgment, stability, reliability, or
trustworthiness; and pathological gambling. Adjudicative Guidelines at ¶ 28.
The LSO alleges that the DOE Psychologist diagnosed the Individual with Generalized Anxiety
Disorder in February 2020. Given the information described above, the LSO’s security concerns
under Guideline I are justified.
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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 “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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
The Individual’s spouse testified that she does not see the Individual as an anxious person and
stated that he had a “heart of gold.” Tr. at 22, 27. She further testified that she did not recall seeing
the Individual consume alcohol since before her pregnancy in early 2020. Id. at 23. She believed
that he intended to remain abstinent. Id. She also committed to supporting the Individual’s
abstinence. Id. at 26. She testified that there had not been alcohol in their home since early 2020,
before she was pregnant, and that she and the Individual want to set a good example for their child
by abstaining from alcohol permanently. Id. at 27–28, 35–36.
The spouse testified that the incident in which the Individual pretended to pour water on her while
she was driving was not a serious incident. Tr. at 24. She recalled that the Individual sprayed some
water on her and she lightly hit him to make him stop because it was cold. Id. She testified that it
was a joke and that she apologized to the Individual for hitting him. Id.
The spouse testified that the Individual backed his car into a tree after driving home under the
influence of alcohol. Tr. at 25. The next day, she received a phone call from the Individual. Id. She
described him as being upset about his actions. Id. The spouse recalled being surprised that the
Individual had driven under the influence of alcohol because she had never observed him do that
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before. Id. at 39–41. She added that she had never seen the Individual drive under the influence of
alcohol since that time either. Id. She stated that, typically, the Individual would either have a
designated driver or use a ride share application when he drank alcohol outside the home. Id.
The spouse recalled that the Individual began abstaining from alcohol after being evaluated by the
DOE Psychologist. Tr. at 32–33. She stated that he had appeared surprised that he was being sent
for an evaluation by the DOE Psychologist and that, afterward, he took his abstinence very
seriously. Id. at 31–32. She testified that the Individual attended an Intensive Outpatient Program
(IOP) after meeting with the DOE Psychologist. Id. at 33.
The spouse believed the Individual was not having difficulties with anxiety or excessive worry. Tr.
at 43–44. She recalled that the Individual learned several skills in the IOP, such as meditation and
better listening skills, that he continued after completing the program. Id. at 34, 41. She described
her relationship with the Individual, in terms of stress management, as being a partnership in which
she and the Individual would support each other by giving each other space initially and then
regrouping later to talk through issues they were experiencing, whether with each other or with
someone else. Id. at 42.
The Individual testified that in the weeks following his 2020 psychological evaluation he would
occasionally have one alcoholic drink with coworkers after work. Tr. at 61. He stated that he
disagreed with his wife’s testimony that he had not consumed alcohol since she became pregnant
and testified that he had not attempted to hide his alcohol consumption from her. Id. at 123. In late
May 2020, the Individual started the IOP, which required him to pick a date to stop drinking
completely. Id. at 61–62. He picked June 1, 2020, and testified that he had not consumed any
alcohol since that date. Id. The Individual testified that he started the IOP on his own, before
receiving the DOE Psychologist’s recommendation to do so, because he wanted to demonstrate his
commitment to resolving his alcohol issues and wanted to be accountable. Id. at 63. After
completing the IOP, the Individual attended aftercare and continued urinalysis testing until his
daughter was born. Id. at 63–65. At that time, he continued his abstinence with caring for his
newborn consuming his time. Id. at 66.
The Individual had also attended Alcoholics Anonymous (AA) as part of the IOP and continued
attending the program for about six months after finishing the IOP. Tr. at 78–80. He also attended
AA briefly in 2018 after the incident in which he backed his car into a tree. Id. at 79–80. During
his time in AA in 2020, the Individual had a sponsor and worked the 12 Steps, but had stopped
attending the program after his daughter was born. Id.
The Individual testified that he was enjoying his alcohol-free life and that he considered abstinence
to be part of keeping his daughter safe and secure. Tr. at 76. He stated that alcohol was a
“problematic substance” for him and that he intended to remain abstinent permanently. Id. at 76–
78. He described practicing skills learned in the IOP in his daily life, particularly mindfulness and
meditation skills, which he called “game-changer[s].” Id. at 77, 88–89. He stated that he practices
these skills with his wife as well. Id.
The Individual testified that all three alcohol-related incidents described in the Summary of
Security Concerns occurred during celebrations. Tr. at 72. He added that, after moving to his
current location, he had intentionally chosen friends that do not regularly consume alcohol. Id. at
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108. He described celebrating his recent birthday with a board game night during which no one
consumed alcohol. Id. He also described a recent visit to play board games with friends during
which his friends consumed wine, but he abstained. Id. at 108–09. He noted that, on that occasion,
he was aware of how his friends’ alcohol consumption was negatively affecting the social occasion
and that this reinforced his desire to remain abstinent. Id. The Individual also testified that, instead
of attending happy hours, he socializes with colleagues by going on hikes with them. Id. at 109–
10. He further noted that his colleagues also hold security clearances and are all careful about their
alcohol use if they chose to drink at all. Id. at 110.
At the hearing, the Individual described his stress management techniques. Tr. at 111–12. He noted
that he had used them during one of the breaks because he noticed that he was becoming “a little
too elevated.” Id. at 111. The Individual testified that, when feeling stress in the moment, he will
take a brief pause to practice deep breathing. Id. He stated that situations that were more stressful
may take more mindfulness to work through. Id. at 111–12. He also stated that he found it helpful
to triage multi-part issues, identifying and focusing on tasks requiring immediate attention before
worrying about problems that could or should be handled later. Id. at 112. The Individual described
confronting worst case scenarios internally by envisioning outcomes, which helped him gain
perspective on situations. Id. a t 112–113. He testified that doing this type of reality testing helped
him realize that most issues are less consequential than they first appear. Id.
The Individual testified that he is now past the “once-in-a-lifetime” stressors—such as planning his
marriage and dealing with the onset of a pandemic—that he faced in previous years and now only
encounters ordinary stressors, which he handles appropriately and without difficulty. Tr. at 115,
118. When asked how he would handle a sudden “once-in-a-lifetime” stressor, the Individual stated
that he would seek therapy immediately to help him form a plan to manage his mental health
appropriately as he dealt with the stressor. Id. at 115–16. He noted the importance of asking for
help when going through difficult times. Id. at 116.
After the conclusion of the Individual’s testimony, the DOE Psychologist testified that, in his
opinion, the Individual showed adequate evidence of rehabilitation or reformation regarding his
use of alcohol. Tr. at 145. He testified that he did not, at the time of his report nor at the time of the
hearing, believe the Individual’s anxiety posed a threat to the Individual’s judgment,
trustworthiness, or reliability. Id. at 146. He gave the Individual a very good prognosis for
remaining abstinent. Id. at 147.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
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and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against granting or restoring security clearances, I must deny access authorization if I
am not convinced that the LSO’s security concerns have been mitigated such that granting the
Individual’s clearance is not an unacceptable risk to national security.
Guideline G provides that security concerns arising from alcohol consumption can be mitigated
when: (1) the individual’s alcohol use was so infrequent or so long ago that it is unlikely to recur
and does not cast doubt on his current reliability, trustworthiness, or judgment; (2) the individual
acknowledges his pattern of alcohol abuse, provides evidence of actions taken to overcome this
problem, and has demonstrated a clear and established pattern of modified consumption or
abstinence; (3) the individual has no history of relapse and is making satisfactory progress in
treatment or counseling; or (4) the individual has successfully completed a treatment program and
has established pattern of modified consumption or abstinence. Adjudicative Guidelines at ¶ 23.
The Individual has shown that mitigating criteria (2) and (4) are applicable in this case. The
Individual described multiple real-life instances in which he saw how alcohol caused difficulties in
his life and acknowledged that his alcohol use was problematic. He attended an IOP and continued
attending treatment after completing the program. His commitment to abstinence was reinforced
not just by his desire to avoid the harms of alcohol abuse, but also by his commitment to the health
and safety of his family, his colleagues, and the public. The Individual has remained abstinent for
well over a year, and the testimony of the DOE Psychologist supports the evidence that he has
established a pattern of abstinence. For these reasons, I find that the Individual has mitigated the
Guideline G security concerns.
Guideline I provides that security concerns arising from psychological conditions can be mitigated
when: (1) the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan; (2) the individual has
voluntarily entered and is currently receiving counseling or treatment, if the condition is amenable
to treatment, and the individual currently has a favorable prognosis by a duly qualified mental
health professional; (3) a duly qualified mental health professional employed by, or acceptable to
and approved by, the U.S. Government has recently opined that an individual's previous condition
is under control or in remission, and has a low probability of recurrence or exacerbation; (4) the
past psychological/psychiatric condition was temporary, the situation has been resolved, and the
individual no longer shows indications of emotional instability; and (5) there is no indication of a
current problem. Adjudicative Guidelines at ¶29.
The Individual has shown that mitigating criteria (3) and (5) are applicable in this case. The DOE
Psychologist opined that the Individual’s anxiety did not pose a threat to his judgment,
trustworthiness, or reliability. Furthermore, the Individual has sufficient self-awareness to identify
when he is experiencing elevated stress levels and has developed coping mechanisms to manage
that stress in the moment and on an ongoing basis. He has maintained this practice while
undergoing the difficult conditions that accompany caring for a newborn child during a global
pandemic, indicating that he is currently, and will continue, managing his stress appropriately such
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that there is no indication of a current problem. Accordingly, I find that the Individual has mitigated
the Guideline I security concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guidelines G and I of
the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
concerns. Therefore, I conclude that granting DOE access authorization to the Individual “will not
endanger the common defense and security and is clearly consistent with the national interest.” 10
C.F.R. § 710.7(a). Accordingly, I find that the DOE should grant access authorization to the
Individual at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals