PSH-21-0120

*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: September 30, 2021 ) Case No.: PSH-21-0120
)
__________________________________________)
Issued: January 27, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (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 not be restored.
I. BACKGROUND
The Individual is employed by the DOE in a position which requires that he hold a security
clearance. Derogatory information was discovered regarding the Individual’s 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 on September 30, 2021. 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 a DOE-contractor psychologist (Psychologist) who had
evaluated the Individual. See Transcript of Hearing (hereinafter cited as “Tr.”). The LSO
submitted 11 exhibits, marked as Exhibits 1 through 11 (hereinafter cited as “Ex.”). The Individual
submitted 10 exhibits, marked as Exhibits A through J.
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) 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:
(1) 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;
(2) Habitual or binge consumption of alcohol to the point of impaired judgment, regardless of
whether the individual is diagnosed with alcohol use disorder;
(3) Alcohol Use Disorder diagnosis by a duly qualified medical or mental health professional;
(4) Failure to follow treatment advice after diagnosis;
(5) Alcohol consumption that is not in accordance with treatment recommendations after a
diagnosis of alcohol use disorder; and
(6) Failure to follow any court order regarding alcohol education, evaluation, treatment, or
abstinence.
Adjudicative Guidelines at ¶ 22.
The LSO alleged that the Individual was arrested for Driving Under the Influence of Alcohol (DUI)
with a blood alcohol concentration (BAC) of 0.22 g/L in August 2019; was arrested for DUI and
Reckless Driving on Highway in November 2003; was arrested for DUI in January 2003; and was
arrested for Disorderly Conduct of Intoxicating Drug/Alcohol in December 2000. The LSO further
alleged that, in February 2021, the DOE Psychologist concluded that the Individual binged or
habitually consumed alcohol to the point of impairment such that his judgment, reliability, and
trustworthiness could be impaired. 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 the relevant evidence, favorable and unfavorable, as to whether the granting or
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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 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 supervisor testified that he has never suspected the Individual of having been
intoxicated at work. Tr. at 13. He had seen the Individual consume one or more drinks in an evening
at workplace Christmas parties but did not believe the Individual had consumed alcohol to
impairment on those occasions. Id. at 12. He further testified that he would not have allowed the
Individual to drive home if he had believed the Individual was impaired. Id. at 14–15. He believed
the Individual to be honest, trustworthy, and reliable.
The Individual testified that he was arrested for DUI in 2021 after consuming about eight standard
drinks over about four hours. Tr. at 18–20. He consumed alcohol at home and then went to a
restaurant with his son, where he consumed two 22 oz. beers. Id. When he was pulling out of his
parking space to leave the restaurant, a police officer knocked on his window and stopped him to
administer a field sobriety test. Id. at 18. The Individual was then arrested and charged with DUI.
Id. When tested that night, his BAC was 0.22 g/L, nearly three times the legal limit. Id. The
Individual testified that, at the time, he did not feel impaired to the point that he should not drive,
but acknowledged that his BAC was over the legal limit. Id. at 21. Regarding his two prior DUI
arrests, the Individual testified that the arrests occurred nearly two decades before the hearing and
the Individual did not remember many details. However, he recalled that both arrests occurred
when he was leaving a restaurant. Id. at 23–25. He received the Disorderly Conduct charge after
getting into an altercation with a bar bouncer while under the influence of alcohol. Id. at 25–26.
The Individual testified that, before his evaluation with the Psychologist, he was consuming four
to five drinks per night, four nights per week. Tr. at 33. He received the Psychologist’s report in
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May 2021. Id. at 38. The Psychologist’s report stated that for her to have confidence in the
Individual’s ability to control his alcohol use, the Individual should abstain from alcohol for 12
months with blood tests every two months to confirm his abstinence, and that he should complete
an Intensive Outpatient Program (IOP) of eight to twelve weeks. Ex. 8 at 13. The Individual
testified that he decided to “take her word for it” and called his healthcare provider to enroll in an
IOP. Id. at 39.
The Individual testified that his healthcare provider first referred him to a physician for assessment
and that the doctor told him to taper his alcohol use because the amount he had been drinking made
withdrawal a concern. Tr. at 42–42. The physician called weekly to monitor his symptoms and the
Individual did not report having withdrawal symptoms. Id. at 43–44. After three weeks, the
physician referred the Individual to an IOP, which he began in August 2021. Id. at 40, 43, 77–78.
The IOP included alcohol education classes and group therapy twice per week. Id. at 44, 46. He
testified that he had learned coping mechanisms such as biking, reading, or taking a walk, and had
replaced alcohol with carbonated beverages at social events. Id. at 48. He did not undergo any
blood testing to confirm his abstinence, but on the Tuesdays and Thursdays that he attended the
IOP he was subject to random urine tests. Id. at 48–49. The Individual had also attended seven
sessions of an alcohol abstinence support group similar to Alcoholics Anonymous. Id. at 49, 58–
59. The Individual testified that he was unsure if he had completed the 12-week IOP. Id. at 66, 82.
The Individual began abstaining from alcohol in July 2021, but consumed two glasses of wine later
in 2021 on Christmas Day. Tr. at 42, 64–65. When asked why he had chosen to drink over the
holidays, the Individual responded:
Well, I thought to have a glass of wine, not go overboard, and that's pretty much it.
Nothing—not that I—you know, not that I—you know, it's not like some people
say, “Oh, you know, I—I haven't had a drink for so long, and then I had a drink,
and I feel really bad about it.” Well, I wasn't feeling bad about it. I was like I can
have a drink, I can have a glass of wine or two and not have it be a problem, which
it isn't.
Id. at 64. He testified that he had not told his support group that he drank on Christmas Day and
had not been back to his IOP group therapy in the three weeks since then. Id. at 65. When asked
about his future plans for drinking alcohol, the Individual responded:
Well, to not. … Not—not as much as I have in the past. If I—if I have a drink, I—
like I said, I'm not going to get down on myself about it. But I'm not going to search
it out, and it's not going to be anything that I—you know, I'd rather stay on the path
I'm on.
Id. at 65–66. He later added that he “didn't feel it was noteworthy. And it's not like I was trying to
hide anything. It's just I didn't feel it was that big of an issue.” Id. at 91. The Individual testified
that his wife continues to keep wine in their home and she consumes it with dinner regularly. Id. at
68.
The Psychologist testified that she was concerned that the Individual had not completed 12 months
of abstinence and that he had demonstrated a lack of insight into his alcohol problem by drinking
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alcohol on Christmas Day. Id. at 97. She also testified that he had demonstrated overconfidence in
his conscious decision, without hesitation or reflection about the possible consequences of not
remaining abstinent, to consume alcohol on Christmas Day. Id. at 97–98. She believed that the
Individual was inconsistent and demonstrated a lack of clarity about the severity of his alcohol
problem, particularly in light of the serious legal and professional consequences he had suffered as
a result of his alcohol consumption. Id. at 99–99. She expressed concern that the Individual’s wife
continued consuming alcohol in front of him. Id. at 99. The Psychologist testified that she did not
believe the Individual was rehabilitated or reformed from his alcohol issues. Id. at 100. When asked
what her prognosis for the Individual was, she testified that she thought there was a moderate
chance that he would relapse into problematic alcohol use. Id.
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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None of the mitigating factors are applicable in this case. The Individual’s history of alcohol related
arrests and unsafe behavior reaches back decades and he continued consuming large quantities of
alcohol several nights per week even after being sent to the Psychologist for evaluation for alcohol
issues. His decision to consume alcohol on Christmas Day casts serious doubt on his reliability and
judgment. Similarly, the Individual has not fully acknowledged the severity of his alcohol abuse.
His decision to consume alcohol mere weeks before a hearing to decide if his alcohol use should
preclude him from holding a security clearance is evidence that he has not established a pattern of
modified consumption or abstinence. The Individual relapsed less than a month before the hearing
and was unsure if he had completed the 12-week IOP nearly six months after beginning it.
Therefore, based on the evidence, I cannot find that the Individual has resolved the Guideline G
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 not succeeded in fully resolving those
concerns. Therefore, I cannot 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 not 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