PSH-21-0082

*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: June 29, 2021 ) Case No.: PSH-21-0082
)
__________________________________________)
Issued: October 19, 2021
___________________________
Administrative Judge Decision
___________________________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General 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 denied.
I. Background
The Individual submitted a Questionnaire for National Security Positions (QNSP) to a Local
Security Office (LSO) on February 1, 2019, in which he reported that he had been arrested for
Driving Under the Influence (DUI) in November 2018. Ex. 9 at 1, 37. The United States Office
of Personnel Management (OPM) subsequently conducted a background investigation of the
Individual, which it completed on June 27, 2019. Ex. 10 at 1. During that investigation, on March
14, 2019, an OPM Investigator conducted an Enhanced Subject Interview (ESI) of the Individual,
in which the Individual was questioned about the DUI arrest. The Individual stated that, after
consuming approximately five mixed drinks in a four-hour period, he did not feel intoxicated and
decided to drive home. Ex 10 at 64. However, he fell asleep at the wheel and hit a parked car,
which led to his arrest. Ex. 10 at 64. During the ESI, the Individual was also questioned about an
alcohol-related incident in the summer of 2015, which led police to, in the Individual’s words,
took him to the ‘drunk tank’ to sober up. Ex. 10 at 64. He indicated that he was released the next
morning and was not charged with a criminal offense. Ex. 10 at 64. The OPM Investigator also
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater 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 to authorization or security clearance
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obtained the Individual’s police record which confirmed that he had been arrested for DUI on
November 10, 2018. Ex. 10 at 81.
On February 24, 2020, the LSO issued Letters of Interrogatory (LOI) to the Individual. Ex. 6 at
1. The Individual submitted his Response to the LOI (the Response) to the LSO on March 3, 2020.
Ex. 6 at 11. In the Response, the Individual admitted that he had been arrested for DUI on
November 10, 2018. Ex. 6 at 2. The Individual initially stated that he could not recall how much
alcohol he had consumed prior to this DUI arrest, but subsequently he admitted consuming
approximately six to ten mixed drinks during the four-hour period preceding his DUI arrest. Ex. 6
at 2, 12. Although he admitted that he had been intoxicated, he also stated: “I do recall feeling
able to drive after sobering up.” Ex. 6 at 2, 9. The Individual initially claimed that he had not
been administered a breath alcohol test at the time of this arrest, but subsequently admitted that a
breathalyzer test indicated that his blood alcohol level at the time of his DUI arrest was between
.15 and .17%. Ex. 6 at 4, 12. In response to questions concerning the alcohol-related incident in
the summer of 2015, the Individual stated that, after an argument with his then-wife, he left his
home and was stopped by police who then took him to a psychiatric hospital, where he stayed
overnight. Ex. 6 at 5-6. The Individual claimed that he had consumed a “moderate amount” of
alcohol prior to this incident. Ex. 6 at 5.
Because of the Individual’s DUI and alcohol-related hospitalization, the LSO requested that he
undergo an evaluation by a DOE-contracted Psychologist (DOE Psychologist), who conducted a
clinical interview (CI) of the Individual on August 28, 2020. Ex. 7 at 2. In addition to interviewing
the Individual, the DOE Psychologist reviewed the Individual’s medical records and personnel
security file, spoke with a psychologist (EAP Psychologist B) employed by Individual’s Employee
Assistance Program (EAP) who had provided counseling to the Individual, and provided for the
administration of three tests to the Individual: a standardized psychological assessment, the
Minnesota Multiphasic Personality Inventory - 2 – Restructured Form; the Ethyl Glucuronide
(EtG) urine test (which detects alcohol up to 80 hours after any alcoholic beverage is consumed);
and a Phosphatidylethanol (PEth) blood test (which detects alcohol use during the previous 28-
days). Ex. 7 at 2. The DOE Psychologist issued a report of her findings (the Report) on August
27, 2020. Ex. 7 at 2.
The Report indicates that the Individual’s account, provided to her at the CI, of the circumstances
leading to his detainment by police and his overnight stay in a psychiatric facility in the summer
of 2015, was consistent with the account that he had provided in the Response. Ex. 7 at 2-3.
During the CI, the Individual also provided an account of the circumstances which led to his
November 10, 2018, DUI arrest that was generally consistent with the account he had provided in
the Response. Ex. 7 at 2. However, the Report notes that the Individual’s accounts of his alcohol
consumption that he provided during the Response, the ESI, and the CI were inconsistent with one
another. Ex. 7 at 2. In the Response, the Individual states that he consumed six to ten mixed drinks
during the four hours prior to his DUI arrest. During the ESI, he claimed to have consumed five
mixed drinks prior to the DUI. During the CI, he stated that he had consumed five or six drinks
during the one and a half hours prior to his DUI arrest. Ex. 7 at 2. The DOE Psychologist further
reported that, during the CI, the Individual claimed that he could only remember being intoxicated
on two occasions: on the night in 2015 that he was detained by police and spent the night in the
psychiatric facility, and on the night of his DUI arrest. Ex. 7 at 3. He further claimed that he could
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only recall two occasions when he consumed more alcohol than he had intended: a birthday
gathering in 2011, and the night of his DUI arrest. Ex. 7 at 3. During the CI, the Individual claimed
that he last consumed alcohol on April 13, 2020 (his birthday), over four months prior to the
August 28, 2020, CI. Ex. 7 at 3. However, the DOE Psychologist’s report indicates that the PEth
test administered to the Individual on the day of the CI was positive, indicating that the Individual
had consumed a moderate to heavy amount of alcohol during the previous 28 days.2 Ex. 7 at 4.
During the CI, the Individual informed the DOE Psychologist that he had sought counseling from
the Veteran’s Administration (VA) to help him process a fellow Marine’s suicide. Ex. 7 at 4. The
Individual, however, denied that he had ever had suicidal thoughts. Ex. 7 at 4. The Individual also
refused to sign a release that would have allowed the DOE Psychologist to obtain his counseling
records from the VA. Ex. 7 at 4-5.
The DOE Psychologist reported that she had contacted EAP Psychologist B by telephone. Ex. 7 at
2, 5. During this conversation, EAP Psychologist B reported that the focus of his therapy with the
Individual had been to address the Individual’s losses during his military service, his childhood
experiences, and his failed marriage. Ex. 7 at 5. EAP Psychologist B further reported that he had
obtained the Individual’s mental health records from the VA, which had indicated that the
Individual had expressed suicidal ideation in 2014. Ex. 7 at 5. However, EAP Psychologist B
reported that the Individual had convincingly denied any present suicidal ideation during his
therapy sessions with the Individual. Ex. 7 at 5. EAP Psychologist B described the Individual to
the DOE Psychologist as “guarded and evasive about his emotions and what was going on with
him internally.” Ex. 7 at 5.
The Report concluded that “there is evidence that [the Individual] engages in binge drinking to the
point of impaired judgment,” and that the Individual’s “self-reported frequency of drinking is not
reliable. . ..” Ex. 7 at 6. Moreover, the DOE Psychologist opined:
[The Individual] has difficulty regulating feelings of shame, and he responds to
these feelings by withholding information that might cause embarrassment or
discomfort. While this did not rise to the level of a personality condition, it was
clinically significant as it led to lapses in judgment regarding how much
information to disclose about his drinking and past suicidal ideation. This called his
trustworthiness to reveal potentially embarrassing information into question. It led
to his not being reliable and consistent in telling the complete truth. Emotional
distress about the suicides of fellow marines contributed to out of control drinking,
and until it is resolved, he continues to be at risk of being unstable.
Ex. 7 at 6.
To address the concerns about the Individual’s alcohol consumption, the DOE Psychologist
recommended that the Individual abstain from the use of alcohol for 12 months, and actively
participate in an abstinence-based alcohol treatment program or Alcoholics Anonymous (AA), by
attending meetings at least three times a week for 18 months. Ex. 7 at 6. To address the concerns
raised by the Individual’s mental condition, the DOE Psychologist recommended that “he receive
2 The EtG test administered to the Individual on that date was negative. Ex. 7 at 4.
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weekly, one-hour psychotherapy sessions with the goals of learning suicide prevention skills,
processing the suicides of his fellow marines, and improving his ability to tolerate distress with
adaptive coping skills. The therapy should continue for at least a year or until he and his therapist
agree that he has met the treatment goals.” Ex. 7 at 6. The DOE Psychologist further opined:
“Therapy through the VA or with a therapist skilled in working with veterans is recommended.”
Ex. 7 at 6.
After receiving the Report, the 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 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), I took
testimony from seven witnesses: the Individual, his second-tier supervisor, three of his coworkers,
the DOE Psychologist, and EAP Psychologist B. See Transcript of Hearing, Case No. PSH-21-
0082 (hereinafter cited as “Tr.”). The LSO submitted ten exhibits, marked as Exhibits 1 through
10 (hereinafter cited as “Ex.”). The Individual submitted three exhibits, marked as Exhibits A
through C.
The Individual’s Exhibit A consists of the Individual’s treatment notes from the EAP. These
records indicate that the EAP’s initial diagnostic impression of the Individual was “alcohol abuse”
and that his initial treatment plan was for weekly counseling.3 Ex. A at 2-3.
The Individual’s Ex. B is a scholarly article entitled Phosphatidylethanol in Blood as a Marker of
Chronic Alcohol Use: A Systematic Review and Meta-Analysis published in the International
Journal of Molecular Sciences at www .mdpi.com/journal/ijms in 2012. The Abstract of this meta-
3 The EAP treatment records further indicate that the Individual was initially resistant to participating in the counseling
sessions mandated by his employer. On March 26, 2019, he was informed that he was being monitored by the EAP
because of his DUI and that he needed to comply with the EAP monitoring. Ex. A at 4. On June 20, 2019, the
Individual’s initial EAP counselor (EAP Psychologist A) wrote him an email noting that he had missed an appointment
and further stating:
As I mentioned to you, one of the conditions following an incident similar to yours, is follow-up
with an EAP psychologist on an ongoing basis. . . . If you are not willing to follow through with
monitoring/counseling, then we will need to recommend suspension of your [] certification. If you
would like to reschedule your appointment, please call [] as soon as possible. Compliance can be
accomplished with brief, monthly appointments. We can discuss length of monitoring. If you would
prefer working with a different psychologist, that is also a possibility. Please let me know how you
would like to proceed.
Ex. A at 5. Ex. A indicates that EAP Psychologist A contacted the Individual to discuss this email and that the
Individual claimed that he had not been able to read it because of computer problems. Ex. A at 5. Ex. A indicates that
the Individual failed to show up for his appointments or to respond to the EAP attempts to schedule appointments on
several occasions and had to be repeatedly reminded that he was being monitored by the EAP. Ex. A at 4, 6, 8. 9.
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analysis concluded: “The present analysis demonstrates a good clinical efficiency of PEth for
detecting chronic heavy drinking.” Ex. B at 1.
The Individual’s Ex. C is the written declaration of the Individual’s immediate supervisor, who
wrote that the Individual has “performed his duties with complete professionalism” and indicated
that he has “never questioned” the Individual’s reliability or judgment. Ex. C at 1-2. He further
opined that he had not detected any signs of alcohol abuse by the Individual. Ex. C at 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 substantial doubt concerning his eligibility for a security clearance.
In support of this determination, the LSO cited Guidelines G and I of the Adjudicative Guidelines.
Under Guideline G (Alcohol Consumption), the LSO cites the Individual’s DUI arrest and the
Psychologist’s conclusion that the Individual binge consumes alcohol to the point of impaired
judgment. This information adequately justifies the LSO’s invocation of Guideline G. The
Adjudicative Guidelines state: “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. Among those conditions set forth
in the Guidelines that could raise a disqualifying security concern, under Guideline G, are
“alcohol-related incidents away from work, such as driving while under the influence, . . . or other
incidents of concern, regardless of the frequency of the individual's alcohol use or whether the
individual has been diagnosed with alcohol use disorder,” and “habitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with
alcohol use disorder.” Guideline G at §§ 22(a) and (c).
Under Guideline I (Psychological Conditions), the LSO cites the Psychologist’s conclusion that
the Individual has an emotional, mental, or personality condition or conditions that can impair his
judgment, reliability, stability, or trustworthiness. These allegations adequately justify the LSO's
invocation of Guideline I. The Adjudicative Guidelines state: "[c]ertain emotional, mental, or
personality conditions can impair judgement, reliability, or trustworthiness." Guideline I at § 27.
Among those conditions set forth in the Guidelines that could raise a disqualifying security concern
are “behavior that casts doubt on an individual’s' judgment, stability, reliability, or trustworthiness
not covered under any other guideline and that may indicate an emotional, mental, or personality
condition including, but not limited to . . . deceitful . . . behaviors,” and “[a]n opinion by a duly
qualified mental health professional that the individual has a condition that may impair judgement,
stability, reliability or trustworthiness.” Guideline I at §§ 28(a) and (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
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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.
IV. Hearing Testimony
The Individual’s second-tier supervisor testified at the hearing that the Individual has had no
security incidents or disciplinary actions during his employment at a DOE facility. Tr. at 17. Three
coworkers of the Individual testified on his behalf at the hearing. The first coworker (Coworker
A) described himself as a close friend, “almost like a brother.” Tr. at 26. Coworker A described
the Individual as a light drinker whose never consumes more than one or two drinks at a time. Tr.
at 27. He testified that he last observed the Individual consuming alcohol “maybe a little less than
a month ago or three weeks ago,” when the Individual consumed two beers. Tr. at 28. A second
coworker (Coworker B) described the Individual as a “mentor,” “a great leader,” and a “dear
friend.” Tr. at 35. He testified that he consumes alcohol with the Individual “maybe once, twice
a month.” Tr. at 36. On those occasions, Coworker B testified, the Individual has consumed
“maybe a glass of wine or a beer at most.” Tr. at 37. However, Coworker B recalled an occasion
where he observed the Individual consuming two glasses of wine. Tr. at 37. Coworker B also
testified that the Individual “talks about wanting to be strong for everybody, and wanting to be that
individual that if anybody were to pass, that he knows that they would want him to be strong and
keep his head up, you know, and be there for everybody.” Tr. at 41. A third coworker, (Coworker
C) testified that he “kind of adopted” the Individual “almost as a stepson.” Tr. at 49. He has
observed the Individual consuming alcohol, but never in excess, and has never observed the
Individual in an intoxicated state. Tr. at 50. Coworker C testified that he was surprised when the
Individual was arrested for DUI. Tr. at 52. The Individual told Coworker C that he was not
intoxicated at the time of the DUI but had just fallen asleep at the wheel. Tr. at 53.
EAP Psychologist B testified at the hearing. He testified that he is “a Substance Abuse
Professional, as recognized by the Department of Energy, [and] a court-appointed expert regarding
substance abuse.” Tr. at 78. He testified that he had been counseling the Individual through the
EAP since December 28, 2020, after the Individual had initially received counseling from EAP
Psychologist A. Tr. at 64-65. The Individual had originally entered the EAP to receive counseling
for substance abuse or alcohol use because of his DUI, and his employer, a DOE Contractor,
expected him to meet with a EAP psychologist every two weeks for a six-month period to monitor
his progress in addressing the concerns raised by his DUI arrest. Tr. at 66, 90. EAP Psychologist B
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testified that it was difficult for the Individual to trust him as a therapist because he was employed
by the Individual’s employer. Tr. at 67. He testified that he thought that the Individual had been
honest with him but had not been “open” with him. Tr. at 67. He further described the Individual
as “defensive” and “guarded” and noted that the Individual did not trust the EAP. Tr. at 67, 84.
The Individual’s counseling sessions with EAP Psychologist B ended when the Individual had
completed the 12 sessions required by his employer. Tr. at 69-70, 90. EAP Psychologist B
testified that the focus of his counseling with the Individual was on his emotional state rather than
his alcohol issues. Tr. at 73-74. EAP Psychologist B was not concerned that the Individual was
abusing alcohol and saw no “red flags” regarding the Individual’s alcohol use. Tr. at 74, 92-93.
He made no recommendations to the Individual to address any alcohol issues. Tr. at 75, 93. EAP
Psychologist B testified that the Individual “did express that there were times he has had suicidal
thoughts, but again, I think as we've progressed, it became more apparent that, you know, he had
protections in place and that those thoughts were in the past and that he was not going to act upon
them.” Tr. at 76. EAP Psychologist B testified that he did not have any concerns about the
Individual’s judgement, noting that the Individual was not irrational or impulsive, and was
“properly focused” and “reasoned in his conclusions.” Tr. at 76-77. However, EAP Psychologist
B further testified that the Individual did experience some “emotional dysregulation” and
“cognitive distortions” which were addressed during their counseling sessions. Tr. at 94. He
testified that he did not provide the Individual with “in-depth” psychotherapy. Tr. at 82.
The Individual began his testimony at the Hearing by providing an account of the circumstances
which led to his DUI arrest. He initially testified that he attended a social event at which he
consumed five or six or “maybe a little more” alcoholic beverages, but subsequently testified “I
honestly don’t remember” the amount of alcohol that he consumed on the evening of his DUI. Tr.
at 107-108, 146. He repeatedly testified that he did not feel intoxicated at the time. Tr. at 143-146.
He attempted to drive himself home but fell asleep at the wheel and hit a parked car. Tr. at 108.
His BAL was above the legal limit and he was taken to jail. Tr. at 109. After this incident, he
began seeking counseling from the Veteran’s Administration (VA) where he discussed the loss of
his fellow Marines. Tr. at 113. During his counseling at the VA he “opened up about suicidal
ideation” in 2019, and admitted that he considered suicide but decided against it because he didn’t
want to hurt those who cared for him. Tr. at 113, 116, 118. He also discussed family matters
concerning his sister who was having mental health issues, and his former marriage that ended in
2016. Tr. at 114, 116. While he obtained sporadic counseling from the VA in 2020, he has not
received any counseling from the VA in 2021. Tr. at 115, 133.
The Individual admitted he failed to disclose his suicidal ideation experience to the DOE
Psychologist when she asked about it. Tr. at 118. When the Individual was asked why he failed
to disclose his previous suicidal ideation to the DOE Psychologist, he cited his distrust of the EAP.
Tr. at 118.
The Individual testified that he does not keep alcohol in his home; that he only drinks socially; and
that he has not consumed alcohol to the point of impairment since his DUI. Tr. at 120, 122-123.
The Individual further testified that he does not binge drink, or regularly drink to the point of
impairment. Tr. at 125. The Individual admitted that he told the DOE Psychologist that he last
consumed alcohol on his birthday, April 13, 2020, but repeatedly claimed that that statement was
truthful. Tr. at 124, 131. When he was asked why he tested positive for alcohol on the day of the
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CI, he initially provided a non-responsive answer.4 Tr. at 125. The Individual then testified that
he was not trying to deceive the DOE Psychologist. Tr. at 125. The Individual subsequently
testified that he stated that his last use of alcohol occurred on his birthday because it was the last
instance of alcohol use he could remember. Tr. at 132. He further testified that he would be
capable of abstaining from alcohol use for 12 months if he was asked to do so and would be willing
to undergo PEth testing every other month. Tr. at 126. He further testified that he was willing to
enter an alcohol treatment program, and to participate in AA if he was required to do so. Tr. at
126. When asked by his attorney if he was willing to follow the psychotherapy treatment program
recommended by the DOE Psychologist, the Individual responded by stating, “If that’s asked of
me, yes, I am.” Tr. at 127. The Individual testified that he reached out to “psychologists to start
something along the lines of emotional dysregulation” in March or April of 2021. Tr. at 127-128.
He has had an initial assessment, in April 2021, and several subsequent assessments, but is waiting
to be assigned a psychologist. Tr. at 128, 136-137.
The Individual testified that he first saw the DOE Psychologist’s report in December 2020.5 Tr.
at 134. When the DOE Counsel asked the Individual why he did not take action to implement the
DOE Psychologist’s recommendations during the 11 months after he received her report, he
testified that he believes that he was already complying with her recommendations. Tr. at 135.
When the DOE Counsel asked the Individual about the 2015 incident, the Individual testified that
he had been having wine with his then-spouse and her parents at his in-laws’ home. Tr. at 142.
He and his then-spouse began arguing and he decided to walk home. Tr. at 142. His then-spouse
called the police. Tr. at 142. When the police arrived, they offered to take him to a local psychiatric
facility.6 Tr. at 142. He could not recall how much wine he had consumed that night, however he
is sure that it was “in moderation.” Tr. at 142-143. When he was subsequently asked why he
identified this incident during the CI as one of the two times he felt intoxicated, the Individual
testified: “Well, that's the time that I felt like maybe I did have a little too much, if I'm getting put
into [the psychiatric facility] or if I'm walking home and she's calling the cops on me. I felt like
that could possibly be a time of intoxication, because I had drank during that time.” Tr. at 143.
The Individual testified that he has not received any counseling for alcohol use. Tr. at 153.
4 Specifically, the Individual stated:
I know that the test came out that I did have some, and to be honest, the last event that I know that
I had something was on my -- on my birthday. During COVID, there was nothing open, but when
we went out, bars were closed, eating establishments were closed, so my time at my -- me telling
[the DOE Psychologist] that, that's the last thing that I referred to as me having an event that I felt
like I had alcohol like that.
Tr. at 125.
5 The Individual, apparently trying to discredit the DOE Psychologist, testified that EAP Psychologist B told him that
he had not talked with the DOE Psychologist before she issued the Report, so that when the Report mentioned the
DOE Psychologist’s conversation with EAP Psychologist B “it raised a flag” for him. Tr. at 134.
6 The DOE Psychologist testified that the specific psychiatric facility to which the Individual was admitted is “an
inpatient psychiatric hospital. That's not a place where you go to sleep it off. A person has to be a danger to themselves
or to others, or be greatly disabled to be admitted . . . to me that says that he's probably minimizing just how intoxicated
he was and whether he was a danger to himself at that time.” Tr. at 181.
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The DOE Psychologist testified after observing the testimony of each of the other witnesses at the
Hearing. The DOE Psychologist testified that the Individual has engaged in binge drinking on at
least two occasions: the 2018 DUI arrest and the 2015 incident which led to his hospitalization.
Tr. at 158. She further noted that both incidents resulted from emotional distress: in 2018, a fellow
Marine had committed suicide, and in 2015, he was having issues with his spouse. Tr. at 158. She
stated that, while there is no evidence that the Individual consumes excessive amounts of alcohol
on a regular basis, his binge drinking is problematic because it results in lapses of judgement and
instability. Tr. at 158-159. She noted that the Individual has provided conflicting accounts of how
much alcohol he consumed prior to his DUI arrest. Tr. at 160. Moreover, she was concerned that
the Individual was unable to monitor the amount of alcohol he consumes when he drinks and is
unable to accurately judge his level of impairment and therefore does not have control over his
drinking. Tr. at 160. She was further concerned about the Individual’s claim that his last use of
alcohol occurred on his birthday, when his testing indicated otherwise. Tr. at 163. She further
noted that the Individual had not complied with any of her recommendations concerning his
alcohol use. Tr. at 163-164. He has not abstained from alcohol use. Tr. at 163. He has not
participated in AA. Tr. at 164. She noted that Individual’s testimony that he has not engaged in
excessive alcohol consumption cannot be relied upon because his self-reporting has been
inaccurate, opining that because the Individual “has been inconsistent and untruthful about how
often he has engaged in binge drinking, there are likely many more times than he has disclosed to
us.” Tr. at 180.
The DOE Psychologist testified that, while the Individual’s emotional issues don’t qualify for a
diagnosis under the DSM, the manner in which he regulates his emotions causes him to be
overwhelmed at times. Tr. at 159. When he becomes overwhelmed by his emotions, he engages
in excessive alcohol consumption. Tr. at 159. She further opined that the Individual has “problems
in how he manages embarrassment and shame in that he hides the truth and withholds information.
That's problematic in terms of his ability to be trustworthy and to really be reliable, and needing
to actually say what happened, and to be consistent with that.” Tr. at 159. The DOE Psychologist
noted that the Individual has been withholding information from his friends, his therapists, and the
DOE. Tr. at 161.
The DOE Psychologist further opined: “My recommendation was that he meet with the therapist
until the therapist and he agreed that he had met the treatment goals, and I don't see evidence of
that. I do see that he went to therapy, but that they did not work on those goals, and it was not a
year of treatment.” Tr. at 165. The DOE Psychologist was concerned that the Individual has had
“basically no psychotherapy.” Tr. at 168. She noted that EAP Psychologist B specifically testified
that he did not provide the Individual with therapy or treatment, and that the Individual had only
six counseling sessions with the VA. Tr. at 165- 166. She discounted the Individual’s alleged
willingness to comply with her recommendations, noting that he has had 11 months to act on her
recommendations, but has failed to do so. Tr. at 166. The DOE Psychologist further opined: “I
heard a lot of dodging of questions, or not being straightforward and forthcoming with information
in answers to questions, and that I found concerning.” Tr. at 169. Moreover, the DOE Psychologist
cited the Individual’s “inability to regulate his emotions” as a cause of his binge drinking. Tr. at
180. She noted that the Individual continues to drink without having taken any steps to ensure that
he doesn’t engage in any further binge drinking. Tr. at 180-181. In summation, she testified, “I
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see that he is not trustworthy. He is not reliable. He is vulnerable to being unstable, and he has
poor judgment.” Tr. at 181.
Analysis
Guideline I
The Individual’s hearing testimony, in which he provided deceptive or evasive testimony on
several occasions, validated the DOE Psychologist’s concerns about his judgement,
trustworthiness, and reliability. Moreover, the Record of this proceeding indicates that the
Individual has attempted to conceal his past suicidal ideation and to create the impression that he
had discontinued using alcohol prior to the CI by providing inconsistent and incomplete accounts
of his alcohol and mental health history. This lack of candor continued at the hearing when he
testified that his last use of alcohol before the CI occurred about four months earlier on his birthday
and when he claimed that he had used alcohol in moderation before the incident which resulted in
his hospitalization. Although EAP Psychologist B testified that he did not observe any significant
impairments in the Individual’s judgment, reliability, stability, or trustworthiness, he did not
challenge the DOE Psychologist’s conclusions which were formed at a later time and with the
benefit of additional factual development, including the results of the PEth test. Nor has the
Individual presented any expert testimony or opinion indicating that he has received psychotherapy
or other treatment that successfully addressed this condition.
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline I if:
(a) the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a condition
that is amenable to treatment and the individual is currently receiving counseling or
treatment with a favorable prognosis by a duly qualified mental health professional;
(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;
(d) the past psychological/psychiatric condition was temporary, the situation has been
resolved, and the individual no longer shows indication of emotional instability;
(e) there is no indication of a current problem.
Guideline I at § 29.
Because the Individual has not shown that he has received sufficient treatment for his condition,
§ 29(a) does not provide any mitigation of the security concerns raised under Guideline I. I note
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that EAP Psychologist B specifically testified that that he did not provide the Individual with in-
depth therapy, stating, in reference to his counseling sessions with the Individual, “I don’t know if
it was necessarily therapy.” Tr. at 67.
While the Individual met with EAP Psychologist B for approximately 12 counseling sessions,
those counseling sessions did not occur on a voluntary basis, and were discontinued in January
2021, when they were no longer mandated by his employer. Accordingly, § 29 (b) does not provide
any mitigation of the security concerns raised under Guideline I.
While EAP Psychologist B is a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government, he did not specifically testify that the
Individual’s condition is under control or in remission and/or that it has a low probability of
recurrence or exacerbation. Accordingly, § 29 (c) does not provide sufficient mitigation of the
security concerns raised under Guideline I.
Since I have concluded that the Individual continued to exhibit a lack of judgment, reliability, and
trustworthiness at the hearing, I am not convinced that the situation has been resolved, and I find
that the Individual continues to show indications of emotional instability. Accordingly, neither
§ 29(d) nor § 29(e) provide sufficient mitigation of the security concerns raised under Guideline I.
Accordingly, I find that the Individual has not provided adequate evidence of rehabilitation or
reformation to mitigate and resolve the security concerns raised under Guideline I.
Guideline G
The Individual’s DUI arrest, PEth test results, and alcohol-related hospitalization raised significant
concerns about his alcohol use under Guideline G. The Individual’s repeated provision of
unreliable information concerning his alcohol use during the present proceeding have prevented
the LSO from resolving the substantial doubts raised by this derogatory information. He did not
resolve these concerns at the hearing because he continued to provide untrustworthy and unreliable
testimony about his alcohol use and lack of candor during the earlier stages of this proceeding.
Although EAP Psychologist B testified that he did not observe any indication that the Individual
had an alcohol abuse problem, he did not specifically challenge the DOE Psychologist’s
conclusion that the Individual has been engaging in binge drinking that was formed at a later time
and with the benefit of additional factual development, including the results of the PEth test and
the Individual’s hearing testimony.
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;
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(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.
Guideline G at § 23(a)-(d).
Because the Individual has failed to provide reliable and complete information about his alcohol
use and current consumption, I am unable to reliably determine the frequency and circumstances
concerning his alcohol use and its likeliness to recur. Moreover, the Individual’s repeated failure
to provide accurate information during the present proceeding, which continued into the hearing,
casts doubt on his current reliability, trustworthiness, and judgment. Accordingly, § 23(a) does not
provide sufficient mitigation of the security concerns raised under Guideline G.
The Individual does not fully acknowledge his pattern of maladaptive alcohol use and has provided
no evidence of meaningful actions taken to overcome this problem. He has therefore not shown
that he has been rehabilitated or reformed. Moreover, he has not sufficiently demonstrated a clear
and established pattern of abstinence since the record shows that he has been a less than reliable
historian and that he has continued using alcohol. Therefore, I find that the Individual has not
satisfied the mitigating conditions under § 23(b).
The Individual is not currently participating in alcohol counseling, treatment, or an AA program,
and he has not completed a treatment program. Therefore, I find that the Individual has not
satisfied the mitigating conditions under § 23(c).
The Individual has not completed an alcohol treatment program and has not sufficiently
demonstrated a clear and established pattern of abstinence. Therefore, I find that the Individual
has not satisfied the mitigating conditions under § 23(d).
Accordingly, I find that the Individual has not provided adequate evidence of rehabilitation or
reformation to mitigate and resolve the security concerns raised under Guideline G by his DUI
arrest and history of binge drinking.
V. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G and I.
After considering all of the evidence, both favorable and unfavorable, in a commonsense manner,
I find that the Individual has not mitigated the security concerns raised under Guidelines G and I.
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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