PSH-22-0046

*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: January 31, 2022 ) Case No.: PSH-22-0046
)
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Issued: June 28, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 and 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 a DOE Contractor in a position which requires that he hold a security
clearance. Derogatory information regarding the Individual’s alcohol consumption was discovered.
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 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 15 exhibits, marked as Exhibits 1 through 15 (hereinafter cited as “Ex.”). The Individual
submitted five exhibits, marked as Exhibits A through E.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
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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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. 10 C.F.R. 710.7.
Guideline G states that 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. Conditions that could raise a security concern
include:
(a) Alcohol-related incidents away from work, such as driving while under the influence,
fighting, child or spouse abuse, disturbing the peace, 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;
(b) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated
or impaired condition, drinking on the job, or jeopardizing the welfare and safety of
others, regardless of whether the individual is diagnosed with alcohol use disorder;
(c) Habitual or binge consumption of alcohol to the point of impaired judgment, regardless
of whether the individual is diagnosed with alcohol use disorder;
(d) Diagnosis by a duly qualified medical or mental health professional (e.g., physician,
clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use
disorder;
(e) The failure to follow treatment advice once diagnosed;
(f) Alcohol consumption, which is not in accordance with treatment recommendations,
after a diagnosis of alcohol use disorder; and
(g) Failure to follow any court order regarding alcohol education, evaluation, treatment, or
abstinence.
Id. at ¶ 22.
.
The LSO alleges that the Individual was arrested and charged with Driving Under the Influence
(DUI) in September 1981; that the Individual was arrested and charged with Aggravated Driving
While Under the Influence of Liquor and/or Drugs and Failure to Keep a Proper Lookout in May
2021; and that a DOE-consultant Psychiatrist (hereinafter “Psychiatrist”) diagnosed the Individual
with Alcohol Use Disorder, Moderate, without adequate evidence of rehabilitation or reformation.
Accordingly, the LSO’s security concerns under Guideline G are justified.
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III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. The regulatory standard implies that there is a presumption against granting or
restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly
consistent with the national interest” standard for granting security clearances indicates “that
security determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913
F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the
issuance of a security clearance).
The Individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue. The discussion below reflects my application of these
factors to the testimony and exhibits presented by both sides in this case.
IV. FINDINGS OF FACT
Before the Notification Letter was issued, the Individual was evaluated by the Psychiatrist, who
diagnosed him with Alcohol Use Disorder, Moderate, and made several recommendations for the
Individual. Ex. 12 at 8–9. The Psychiatrist recommended that the Individual complete an Intensive
Outpatient Program (IOP) and follow its aftercare recommendations; continue his therapy efforts
already in progress; continue his IOP, aftercare, or current therapy efforts for one year; continue
attending SMART meetings weekly; see a physician for possible prescriptions for medications that
could aid with abstinence; and undergo monthly blood testing to monitor alcohol consumption. Id.
at 9. He also recommended that, if the Individual consumed alcohol during his initial year of
abstinence, he should complete a 30-day residential alcohol rehabilitation program followed by one
year of aftercare treatment. Id.
At the hearing, the Individual testified that he had no disagreement with the Psychiatrist’s diagnosis
or the fact that he received the two DUI charges as described in the agency’s Statement of Security
Concerns. Tr. At 12. He had not been previously diagnosed with an alcohol use disorder, but, as of
the date of the hearing, he believed that he had a problem with alcohol. Id. at 14.
The Individual’s first DUI occurred in 1981 when he was a college sophomore and resulted in a
deferred sentence, which was resolved with attendance at court-mandated classes. Tr. At 14–15.
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He testified that he had been at home waiting for his girlfriend to come over, but when she did not
arrive as agreed he became anxious and started drinking the wine they had planned to consume that
evening. Id. Eventually, he decided to drive to his girlfriend’s dorm to see if he could find her and
was pulled over on the way and arrested for DUI. Id. at 15.
The Individual’s second DUI occurred over Memorial Day weekend in 2021. Tr. at 16. He had
been consuming alcohol at home but later left to meet a friend at a plant nursery. Id. at 16–17. On
the way, he made a wrong turn and his car went into the roadside ditch. Id. at 17–19. An officer
arrived and determined that the Individual’s Blood Alcohol Level was .28. Id. at 16. The case was
dismissed when the arresting officer failed to appear in court, but the Individual did not deny that
he had driven while intoxicated. Id. at 28–29.
The Individual described himself as a weekend drinker and stated that his consumption had
increased over the past year or two more than he “knew or intended” until he was drinking liquor
in the same way he would drink a beer. Id. at 17–18. He testified that he typically drank at home
and was not aware of any time beyond his two DUI incidents when he had driven while over the
legal limit. Id. at 15. At the time of the hearing, the Individual did not keep alcohol in the house
and testified that, if he found himself in a situation where others were consuming alcohol, he did
not feel a desire to consume alcohol. Id. at 27–28.
The Individual decided to abstain from alcohol indefinitely in November 2021, a few weeks after
his evaluation by the Psychiatrist. Tr. at 19. He maintained his abstinence until about two weeks
before the hearing when he had some wine with an old friend who was visiting his town. Id. at 20.
The friend did not know that the Individual had become abstinent and the Individual, caught up in
nostalgia as they discussed old times, decided to consume three glasses of wine with his friend. Id.
at 20, 30, 88. He testified that he intends to pursue complete abstinence indefinitely, regardless of
the outcome of the administrative review process. Id. at 20, 33.
The Individual described the SMART program he attended online weekly, noting that it is an
alternative to AA. Id. at 21, 25. He spoke at length about the program’s basis in cognitive
therapeutic techniques, as well as the program’s structure, exercises, and tools. Id. at 22–24. He
stated that he had not told his group about his recent alcohol consumption. Id. at 69. The Individual
testified that SMART considers the incident to be a lapse, rather than a relapse, because it was a
singular event after which he learned from his mistake and continued his commitment to sobriety.
Id. at 24. He stated that, for that reason, he still considered his sobriety date to be in November
2021. Id. He had developed relationships with the other participants in his group and the moderator
and stated that he would continue to attend that meeting in addition to in-person meetings, if in-
person meetings ever resumed. Id. at 35.
The Individual also described a therapy program he had attended as part of his fitness for duty
program. Tr. at 25–26, 31–33. It involved eight weeks of group therapy and nine weeks of
individual therapy, as well as urine testing for alcohol consumption. Id. at 25–26, 31–32. It focused
heavily on identifying triggers, alternatives to alcohol when feeling triggered, and moving forward
with non-addictive behavior. Id. at 32. The Individual testified that he had purchased and read
books his therapist had recommended as well. Id. Though his therapist had decided that he no
longer needed to attend the program, the Individual was still able to contact her if he was having a
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problem. Id. at 31, 52–53. The Individual had not told his therapist about his recent alcohol
consumption. Id. at 69.
The Individual testified that his children are his major sobriety support system. Tr. at 27. His five
children are adults and four of them are abstinent from alcohol. Id. at 53. One of the children had
struggled with alcohol issues but had been doing much better in recent months. Id. at 54. They
communicated often and were there for each other in their sobriety journeys. Id. at 27.
The Individual recalled that, on the day shortly before the hearing when is friend visited, he did not
contact any members of his support system before his choice to consume alcohol. Tr. at 58. He
testified, “I didn’t really go through the steps that I … have learned.” Id. He went on to testify that
he needs to inform people around him that he does not drink, adding that “[i]t’s actually real [sic]
easy to do that.” Id. at 59. He stated that his plan for the future is to request in advance that visitors
not bring alcohol to his home. Id. at 60.
The Individual had told his partnership group at his firm about his DUI because his clearance could
have been affected. Tr. at 60. Initially, he told the other three members of the executive committee
he was on and they decided as a group that he needed to tell the other partners. Id. at 61. The
Individual had not told his SMART group, his therapist, or his partnership group that he had
consumed alcohol shortly before the hearing. Id. at 68–69. He had told his children. Id. at 69.
The Individual admitted that he had only partially completed the Psychiatrist’s recommendations.
Id. at 33–35. He completed the recommendations to continue the treatment he had already begun
before seeing the Psychiatrist and to discuss medications with a doctor. Id. at 34–36. He had
discussed medications with the doctor at his therapy center but had not discussed them with his
primary care physician who would actually need to prescribe them. Id. at 36–37. Two days before
the hearing, the Individual did his first blood test to monitor for alcohol use over the previous
month. Id. at 37. The results, received after the hearing concluded, stated that chemicals indicating
alcohol use were not detected in the Individual’s blood. Ex. E. The Individual did not begin
abstaining from alcohol until several weeks after his evaluation by the Psychiatrist. Tr. at 45.
The Psychiatrist testified that the Individual had made efforts toward clinical rehabilitation from
his Alcohol Use Disorder, Moderate, diagnosis. Tr. at 76. However, he did not consider the
Individual rehabilitated at the time of the hearing because he had not abstained for one year and
because of his recent alcohol use. Id. He also expressed some concern that the Individual had not
told his SMART group about his recent alcohol use. Id. at 77. The Psychiatrist revised one of his
recommendations, stating that he recommended the Individual resume the IOP rather than enter in-
patient treatment for his recent alcohol use. Id. at 77–78. The Psychiatrist testified that, because of
the recent alcohol use, his prognosis for the Individual’s continued abstinence had changed from
good to guarded. Id. at 78.
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,
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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.
Conditions that may mitigate security concerns under Guideline G include:
(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;
(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.
Adjudicative Guidelines at ¶ 23.
The Individual consumed alcohol despite the risk of severe consequences for doing so in the month
leading up to the hearing. While the individual utilizes the term “lapse” instead of “relapse,” I find
the distinction inconsequential to this analysis; the Individual’s choice to consume alcohol that
evening echoed the behavior leading up to the Individual’s DUI2 in that it threatened the
Individual’s safety and security, albeit financially instead of physically. It is particularly concerning
that the Individual did not use the skills he learned in his IOP and SMART group and that he was
not able to articulate a time outside of his professional life when he had. As a result, the Individual
has not demonstrated that his recovery activities have reduced the chance that he will drink alcohol
in a concerning manner. I cannot find his progress satisfactory. Moreover, I cannot find that he has
demonstrated a clear pattern of abstinence, as his treatment plan recommends, and, therefore, I
2 The 2021 DUI is also recent, occurring less than one year before the hearing.
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cannot find that the Individual’s alcohol consumption no longer casts doubt upon his judgment,
trustworthiness, and reliability. As such, none of the mitigating factors apply in this case.
For the foregoing reasons, I find that the Individual has not 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 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