PSH-21-0104

*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-21-0104
)
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Issued: January 10, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 that requires that he hold a security
clearance. DOE learned derogatory information regarding the Individual’s mental health and
alcohol use. 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
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 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 15 exhibits, marked as Exhibits A
through O.
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) provides 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.
Guideline I (Psychological Conditions) provides 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 Individual’s then-wife filed an Order of Protection after the Individual
struck her while under the influence of alcohol. The LSO further alleged that the Individual was
disciplined while in the Navy for reporting to duty while smelling of alcohol and having a breath
alcohol concentration of .36/210L. Finally, the LSO alleged that, in January 2021, a DOE
Contractor-Psychologist (the Psychologist) opined that the Individual binged alcohol or habitually
drank to excess and that the Individual met certain diagnostic criteria for Bipolar Disorder.
Accordingly, the LSO’s security concerns under Guidelines G and I 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
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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 prescribing nurse practitioner testified that she had been seeing the Individual
since August 2021, when she assumed the caseload of the Individual’s previous prescriber. Tr. at
11–12. During that time, she ordered phosphatidylethanol (PEth) blood tests for him, the results of
which showed that the Individual had not used alcohol in the three months prior to the hearing. Id.
at 14. She testified that the Individual had not reported any symptoms of mania while she had been
treating him and that she believed, based on laboratory testing, that the Individual was compliant
with his medication regimen to treat his Bipolar Disorder. Id. at 16–17. She believed that the
Individual had good insight, which was helpful in his treatment. Id. at 18. The nurse practitioner
was also prescribing the Individual a medication that helped reduce alcohol cravings and testified
that the Individual was actively participating in recovery programs. Id. at 15, 19. She opined that
the Individual’s alcohol use issues are in remission. Id. at 12. She also testified that she believed
the Individual’s support system was robust, including therapy, Alcoholics Anonymous (AA)
meetings, and active involvement in his church. Id. at 20.
The Individual’s spouse testified that she had known the Individual for six months and that they
had been married for three months. Tr. at 24–25. She testified that during the three months she and
the Individual had lived together, there had been no alcohol in the house. Id. at 25. She was familiar
with the Individual’s past struggles with alcohol. Id. at 26. She testified that she and the Individual
were very involved in their church, which encourages alcohol abstinence, and described an active
social life within the church community. Id. at 26–28. The spouse had observed the Individual
attending psychiatric appointments because he did them at home via telemedicine. She and the
Individual had discussed his recovery activities, including AA attendance and his work with an AA
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sponsor. Id. at 30. She testified that the Individual regularly took his medication and had always
been stable since she had known him. Id. at 30. She checked in with the Individual regularly to
gauge his mood and was able to notice when the Individual was “feeling down.” Id. at 35. When
that happened, she and the Individual were able to discuss his feelings and stressors openly. Id. at
39–36. She further testified that if the Individual appeared to be unstable, she would call a member
of their church for advice and assistance. Id. at 30. She believed that the Individual was honest,
reliable, and trustworthy. Id. at 32.
The Individual testified that he was diagnosed with Bipolar Disorder in March 2020, when he began
mental health treatment in response to the incident with his previous spouse. Tr. at 41. After the
incident, he sought out mental health treatment on his own and, upon receiving his diagnosis, began
treatment immediately. Id. at 62. He testified that after abstaining from alcohol, he relapsed in July
2020. Id. at 41. He called a church member for support right after notifying his employer and has
not consumed alcohol since July 18, 2020. Id. The Individual initially attended AA once or twice
a week and had completed the 12 Steps with his sponsor. Id. at 43. He testified that he attended AA
less frequently now and relied more on his wife2 and his church to support him, but he still attended
weekly. Id. He testified that he is active in his church and that he has a strong support system there.
Id.
The Individual testified that in 2016, he had not started treatment and his alcohol consumption was
uncontrolled. Tr. at 45. He was drinking to impairment nightly, which resulted in the 2016 incident
with the U.S. Navy. Id. at 45–46. After attending a military substance abuse program, he remained
abstinent from alcohol for 19-20 months. Id. at 50. He began consuming alcohol in small amounts
shortly after leaving the military. Id. His alcohol consumption escalated and within a year he was
consuming large quantities of alcohol. Id.
The Individual testified that he looks for signs such as paranoid thoughts or sleeplessness to
determine if he is experiencing a hypermanic episode. Tr. 52–53. If he cannot resolve the symptoms
within 24 hours, he begins a medical intervention, in accordance with his treatment plan, to prevent
further mood disruption. Id. at 53. The Individual felt that his Bipolar Disorder was well-controlled
and testified that his quality of life was improved by his treatment. Id. at 56. He described insights
into his treatment plan that demonstrated a thorough understanding of both his medication regimen
and personal experience with his mental health condition. Id. at 52–56.
The Individual described attending an Intensive Outpatient Program (IOP) that included 12 weeks
of anger management programming, 12 weeks of substance education programming, and 24 weeks
of group therapy. Tr. at 54. The program ran for a total of 24 weeks, but he attended group therapy
sessions for an additional six weeks. Id. at 58. He completed the IOP in July 2021. Id. at 54. The
Individual identified stress as a major trigger for his alcohol use and described using alcohol as a
“social lubricant.” Id. at 64. He testified that when he is triggered, he can attend an online AA
meeting at any time or talk to his family and members of his church. Id.
The Individual testified that he was currently looking for a therapist but was having difficulty
finding one who was accepting new patients. Tr. at 59. The Individual had a counseling relationship
2 He testified that while the length of his courtship to his wife may seem short, it was common for a member
of his faith tradition. Id. at 42.
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with his bishop and some ministerial members of his church and intended to fully comply with any
recommendations for further clinical therapy that his nurse practitioner recommended. Id. at 60.
The Individual testified that he was fully compliant with his current medication and treatment
regimens. Id. at 63. He also testified that he can access all of his psychiatric treatments through
telemedicine, if needed. Id. at 64–65.
The Psychologist testified that he did not give the Individual a formal alcohol diagnosis in January
2021 because the Individual did not meet the diagnostic criteria in the DSM-5. Tr. at 71. He testified
that, as a descriptive diagnosis, the Individual had a severe alcohol use disorder that is now in
remission. Id. at 72. The Psychologist testified that the Individual’s Bipolar Disorder is a type that
many men experience as excessive anger, as the Individual did, and that this makes treatment easier
because most people do not want to continue feeling that anger. Id. at 74. He gave the Individual a
good prognosis for both his alcohol use and his Bipolar Disorder. Id. at 75. He testified that the
Individual is reformed and rehabilitated from his alcohol problems. Id. at 75. He further testified
that the Individual’s Bipolar Disorder was under control and that the Individual had a low
probability of recurrence or exacerbation of his extreme symptoms. Id. at 76–77. The Psychologist
had additional confidence in the Individual because he was able to identify changes in himself that
indicated a slide into a manic episode. Id. at 77. He testified that this allows the Individual to
intervene before he has a manic episode. Id.
The Individual submitted into evidence the results of alcohol and drug screenings administered
from February to August 2021 and a blood test for alcohol covering a 4-week period preceding
December 3, 2021. Ex. N; Ex O. All tests had a negative result. Ex. N; Ex. O.
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 of 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
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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.
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 program, 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.
Guideline G’s mitigating factors (2) and (4) are applicable in this case. The Individual successfully
completed an IOP and continued attendance for several weeks after completion. He has maintained
his abstinence for over a year and complied with his nurse practitioner’s treatment plan. He has an
extensive support network on which he can rely when he is struggling. While relapse is not ideal,
the Individual demonstrated that he was able to utilize his support system to recover from is July
2020 relapse and maintain his continued abstinence. The Individual continues to attend AA and is
open and honest with his family regarding his struggles. For these reasons, I find that the Individual
has mitigated the Guideline G concerns.
Guideline I’s mitigating factors (1), (2), and (3) are applicable in this case. The Individual’s Bipolar
Disorder is well-controlled through medication and the Individual has demonstrated compliance
with and understanding of his treatment plan. He sought out a mental health assessment before
being required to do so and immediately began treatment upon receiving his diagnosis. He can
identify signs that he may soon experience a manic episode and has a concrete plan of action to
prevent such an episode. He is under regular care with his nurse practitioner, and neither she nor
the Psychologist indicated that further clinical intervention was required at this time. The
Psychologist gave the Individual a good prognosis and was confident in the Individual’s ability to
recognize his symptoms before experiencing a manic episode. For these reasons, I find that the
Individual has mitigated the Guideline I 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 restoring DOE access authorization to the Individual “will not
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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