PSH-21-0101

*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: August 23, 2021 ) Case No.: PSH-21-0101
)
__________________________________________)
Issued: February 25, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (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 restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that he hold a security
clearance. Derogatory information was discovered related to his alcohol consumption. The Local
Security Office (LSO) then 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 continue
holding 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 two witnesses and testified on his own behalf. The LSO
presented the testimony of a DOE contractor psychologist who had evaluated the Individual. See
Transcript of Hearing (hereinafter cited as “Tr.”). The LSO submitted 14 exhibits, marked as
Exhibits 1 through 14 (hereinafter cited as “Ex.”). The Individual submitted four exhibits, marked
as Exhibits A through D.
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 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). 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) 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.” 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 in March 2020 the Individual was arrested and charged with “Aggravated
Driving under the Influence (DUI) of Alcohol or drugs with a Blood Alcohol Concentration of .16
or over”; in April 2019 the Individual tested positive for alcohol while at work; later that month, a
partially filled bottle of liquor and a bottle of mixed liquor and cola were discovered inside the
Individual’s vehicle at his work site; and in April 1999 the Individual was charged with being a
Minor in Possession of Alcohol. Ex. 1 at 1. Accordingly, the LSO’s security concerns under
Guideline G are justified.
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).
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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 introduced into evidence the results of three blood tests, which showed that he had
not consumed alcohol in the three months before the hearing. Ex B; Ex. C; Ex. D.
The Individual had seen a psychologist working for his employer (Individual’s Psychologist). The
Individual’s Psychologist had been working with him since March 2020 and was seeing him for a
fitness for duty evaluation. Id. at 11. She had recommended a psychiatric assessment and alcohol
assessment in the community so he could receive further treatment. Id. In her initial assessment,
she noted that the individual suffered from combat-related post-traumatic stress disorder (PTSD),
which was being treated by a Veteran’s Affairs (VA) provider (treatment provider), along with
other personal stressors. Id. at 13.
The Individual’s Psychologist checked in with the Individual periodically to assess his progress,
initially once every other week. Tr. at 14. She testified that the Individual was acting on her
recommendations. Id. She also checked in with the Individual’s treatment provider regarding his
progress. Id. at 15. She testified that the treatment provider reported that the Individual had good
progress, engagement, and attendance. Id. The Individual’s Psychologist testified that the
Individual had fulfilled all of her fitness for duty recommendations and that the Individual was fit
for duty. She based her conclusions on his participation in the programs she recommended and
positive feedback from his supervisor. Id. at 16. While her official contact with the Individual ended
when his fitness for duty issues were resolved in June 2020, she had informal contact regarding his
progress because of his participation in the Employee Assistance Program’s (EAP) alcohol
education and support group. Id. at 12, 16.
The Individual’s EAP Counselor had met with the Individual in 2019 and began working with him
at least once daily in March 2020. Tr. at 22. In April 2020, the Individual began attending an
Intensive Outpatient Program (IOP) for alcohol treatment and was no longer meeting with her. Id.
at 24, 26. In June 2021, the Individual began attending weekly group therapy classes with the EAP
Counselor and had attended consistently ever since. Id. at 26–27. The classes were focused on
alcohol recovery and used a “stages of change” methodology. Id. at 22, 27, 39.
The Individual had sought out the group voluntarily in response to an internal announcement sent
to site employees. Id. at 27. The EAP Counselor testified that the Individual is a mentor within the
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group and regularly participates in sharing and workbook assignments. Id. at 28–29. She had heard
the Individual discuss experiencing and dealing with triggers. Id. at 36. She testified that the
Individual is committed to his recovery and has changed his habits, activities, and social circle to
support his abstinence. Id. at 29. The EAP Counselor further testified that the Individual had been
very clear with her about his intent to remain abstinent indefinitely and that his discussions about
that in the group were sufficient to provide some accountability for him. Id. at 32, 35. She believed
that the Individual was in the “maintenance stage” of the group’s stages of change method. She
gave the Individual an excellent prognosis and testified that she had noticed a significant
improvement in the Individual’s mood, demeanor, and goals. Id. at 33, 41.
The Individual testified that he has learned how to identify his triggers and how to cope with them,
strategies for refusing alcohol when offered, how to identify people to avoid, and other skills to
support his abstinence. Tr. at 48. The Individual testified that he tried AA but struggled to connect
with the people in the program. Id. at 45. When he finished the IOP, the Individual went to
individual counseling. Id. at 46. When he saw the announcement for the EAP weekly group therapy,
he wanted to try it because it was maintenance-focused and he had already been abstinent for
several months by that time. Id. at 49. He testified that he attended the 90-minute group sessions
every week. Id. at 57.
The Individual testified that when he tested positive for alcohol at work, he experienced significant
consequences at work. Tr. at 50. He acknowledged that the consequences made him think about
abstinence, but at that time he did not have the tools to pursue it. However, after his arrest for DUI,
he was required by the court to become abstinent. Id. at 50–51. He had not consumed alcohol since
his DUI on March 26, 2020. Id. at 46. The Individual testified that he intends to remain abstinent
indefinitely. Id. at 46. He further testified that he has seen his entire life improve as a result of
abstinence. Id. His relationships had improved, and he was able to go back to school and pass his
classes. Id. at 53, 55. He had become more involved with his family, attending his children’s
sporting events and spending one-on-one time with his wife. Id. at 53–55.
The Individual had learned conflict management skills that helped him avoid triggers for using
alcohol. Tr. at 55. He had learned to slow down and listen when in conflict with his wife and had
learned skills to communicate openly. Id. The Individual had changed his relationship with the
friend with whom he was drinking on the night before his DUI. Id. at 56. He spoke to the friend
only once or twice a year, and testified that he had to substantively end that relationship in support
of his abstinence.2 Id.
When he was in the IOP, the Individual was also attending individual therapy and the VA group
therapy for a total of nine therapeutic sessions per week. Tr. at 61. The Individual had to pay for
the IOP out of pocket, so he chose to leave the program when he was declared fit for duty. Id. at
62. When he left the IOP, he had completed 10 of 12 weeks of the program. Id. After the IOP, he
continued individual therapy, but had to stop due to a scheduling conflict. Id. at 64. As of the
hearing, he was attending the weekly EAP group therapy, as well as the VA group therapy every
other week. Id. at 57. He saw a psychiatrist once per month and was diligent about taking his
medications as prescribed. Id. at 64, 76, 80–82. The Individual kept the VA crisis line phone
2 The Individual testified that the friend had baptized his son and maintained an appropriate relationship with him, so
he did not cut off contact completely. Tr. at 56.
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number in his phone and had developed sponsor-like relationships with multiple members of his
therapy groups. Id. at 66–67.
The VA group therapy focused on PTSD and the Individual found it helpful. Tr. at 56–57, 74–75.
He stated that he liked being able to meet with people who had similar experiences because he
could learn from them. Id. at 75. The Individual detailed how certain everyday experiences could
trigger his PTSD and how he had learned to manage his symptoms. Id. at 75–78. The Individual
found mindfulness and breathing techniques particularly helpful. Id. He detailed instances when he
had successfully used the intervention methods he had learned. Id. at 78–79.
The DOE Psychologist testified that she would revise her diagnosis of the Individual to Alcohol
Use Disorder-Severe, In Sustained Remission. Tr. at 87. She gave the Individual an excellent
prognosis and testified that the Individual is reformed and rehabilitated. Id. at 88. The Psychologist
noted that she values the EAP Counselor’s opinion and knows her to be candid regarding her
patients. Id. at 89. She noted that the Individual had not consumed alcohol in two years and had
made extensive lifestyle changes to support his abstinence. Id. at 89–90. She testified that “he’s not
just someone who isn’t drinking anymore. He is someone who has reformed and changed his life.”
Id. at 90.
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
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 restoring 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.
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Mitigating factors 2, 3, and 4 are appliable in this case. The Individual acknowledged that his
alcohol consumption was problematic and stated his intent to abstain, both to his peers and in the
hearing. He has already abstained for two years, a clinically significant length of time and longer
than what was recommended by the DOE Psychologist. He has also undertaken a variety of
therapeutic activities to address alcohol abstinence as well as underlying issues that contributed to
his problematic alcohol consumption. The Individual does not appear to have a history of relapse
and, despite not completing his IOP, has made sufficient progress in treatment for both the EAP
Counselor and DOE Psychologist to give him an excellent prognosis. The DOE Psychologist
testified that the Individual is clinically rehabilitated and reformed and is now in sustained
remission. For the foregoing reasons, I find that the Individual has mitigated the Guideline G
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 Guideline G of the
Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
concerns. Therefore, I conclude that restoring 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 restore 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