Summary of Decisions - March 07, 2022 - March 11, 2022

Personnel Security Hearing (PSH)

Access Authorization Not Granted; Guidelines G (Alcohol Consumption).

On March 9, 2022, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's finances. The LSO alleged that a DOE - consultant Psychologist (DOE Psychologist) determined that the Individual habitually or   binge consumes alcohol to the point of impaired judgement and that the Individual has not shown adequate sings of reformation or rehabilitation.

At the hearing, the Individual, his wife, former supervisor, and Alcoholics Anonymous (AA) sponsor all testified, as well as the DOE Psychologist. The competent testimony and evidence established that the Individual had been abstinent from alcohol for approximately six months at the time of the hearing, that he had been attending regular AA meetings since August 2021, and that he had been meeting with an AA sponsor since September 2021. It was also determined that although the Individual had been seeing a therapist regularly, the purpose of his therapeutic visits were not specific to his alcohol consumption. Further, the Individual also had prior history of alcohol -specific treatment in 2018, but subsequently relapsed.

In addition to total abstinence from alcohol and AA meetings or a similar program, the DOE Psychologist had recommended the Individual seek therapy specifically to address his alcohol consumption and participate in appropriate aftercare. As the Individual had failed to do the latter, the DOE Psychologist could not find that the Individual had presented appropriate evidence   of rehabilitation or reformation. Further, while there was credible testimonial evidence indicating that the Individual had been abstinent for approximately six months, the Administrative Judge could not find, considering the expert testimony before him, that six months alone was a sufficient period to demonstrate an established pattern of abstinence. As such, the Individual has failed to completely resolve the Guideline G concerns related to his history of alcohol misuse. (OHA Case No. PSH-22- 0016, Cronin)

Access Authorization Not Granted; Guidelines E (PERSONAL CONDUCT) and F (Financial Considerations).

On March 9, 2022, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received derogatory information regarding the Individual's finances, which it relied upon to raise Guidelines E and F security concerns.

The LSO alleged that the Individual owed over $200,000 to the IRS after failing to pay his taxes for 2009 to 2013 when he was working as an Independent Contractor (IC) and his failure to have sufficient taxes withheld as an employee.   In addition, the LSO relied upon the Individual's failure to fulfilled two payment plans with the IRS and the Individual's 2018 assertion that he would do anything to come to an agreement with the IRS, which he failed to finalize. The LSO further alleged that the Individual: 1) knew he was liable for the outstanding taxes; 2) knew that he was supposed to file quarterly tax statements while working as an IC; 3)   realized after the first year of working as an IC that not having taxes withdrawn quarterly was a mistake, but he continued for another three years and accumulated approximately $170,000 in tax debt; 4) the Individual admitted that he has never saved any money outside of his retirement fund; 5) the Individual continued to open credit card accounts, use credit cards, purchase vehicles, and incur additional financial obligation, even though he had not paid his IRS obligations.

The Individual's tax indebtedness has been ongoing since 2009 and the circumstances that led to his indebtedness were not beyond his control. He knew when he became an IC that he would be responsible for paying his taxes and admitted that he knew after the first year that working as an IC was a "mistake." Further, the Individual admitted that his accountant instructed him to pay his taxes quarterly, including providing him with envelopes to mail payment to the IRS.   Finally, the Individual did not act responsibly while he owed the money to the IRS. During the time his tax debt was pending, the Individual took personal trips to Hawaii and Mexico. The Individual paid for his wife and young daughter to go to Hawaii. He also paid for the issuance of passports and transportation for eight people to travel to Mexico.

As of the date of the hearing, although the Individual had an agreement in principle with the IRS to pay an agreed-upon amount to resolve his tax liability, the Individual has failed to comply with at least two previous agreed-to payment agreements with the IRS. Moreover, as of the hearing date, the Individual has not started making payments to the IRS on his current tax liability. Consequently, it is my opinion that the Individual is not yet in compliance with the settlement agreement with the IRS.

The Individual had not mitigated or resolved the security concerns raised by his failure to pay his federal tax liability. Accordingly, the Individual was not able to demonstrate that he had fully resolved the security concerns arising under Guidelines E and F. (OHA Case No. PSH-22-0023, Fishman)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline E ( Personal Conduct)

On March 9, 2022, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual had a history of two alcohol related arrests, a Driving Under the Influence (DUI) arrest in 2014 and a Driving While Intoxicated (DWI) arrest in 2019.

A Local Security Office (LSO) issued a Letter of Interrogatory (LOI) in 2019 to the Individual which specifically asked: "Other than your DWI arrest, has your use of alcoholic beverages caused you to be arrested or detained by police? If so, provide dates and details." The Individual submitted a response to the LOI (the Response) answering this question by stating: "No other arrest pertaining to alcohol," even though he had been arrested for DUI in 2014. The AJ found that the Individual's recent history of two alcohol-related arrests raised significant security concerns that must be sufficiently mitigated in order for the Individual to resolve those concerns arising under Guideline G.

At the hearing, the Individual attempted to mitigate the concerns raised by his two alcohol -related arrests by claiming that he had abstained from alcohol use for five months and that he had begun attending Alcoholics Anonymous (AA) meetings on a weekly basis.   The AJ further found that while the Individual had testified that he had mitigated the concerns raised by his DUI and DWI by abstaining from alcohol use for the previous five months, completing an Alcohol Safety Program (ASP), and attending AA meetings, he had failed to sufficiently corroborate this testimony. The AJ noted that while the Individual's submission of four witness affidavits and the results of a PEth test administered to him on the date of the hearing provided some corroboration of this testimony, that evidence did not sufficiently convince the AJ that he has completely abstained from alcohol use during this five-month period. The AJ noted that none of the four witnesses that provided affidavits attesting that they had not observed the Individual consuming alcohol during this five -month period testified at the hearing and therefore were unavailable for cross -examination. The AJ further noted that while the Individual had submitted the results on one PEth test, that PEth test only showed that the Individual had not used significant amounts of alcohol during the last month of the five -month period in which he claimed he abstained from alcohol use. The AJ further found that even if the Individual had abstained from alcohol use for the five months prior to the hearing, he was not convinced that this period of time would suffice to resolve the security concerns raised by his two alcohol-related arrests, especially since the Individual had not received any significant intervention in the form of treatment or counseling and had a history of operating a motor vehicle while intoxicated after telling an OPM investigator that he does not drive after using alcohol. The AJ further noted that while the Individual had testified that he had begun attending AA meetings, he had not submitted any records of his attendance. Nor had he obtained an AA sponsor, purchased the Big Blue Book, or started the AA's Twelve Step program. Accordingly, the AJ found that the Individual had successfully had not mitigated the security concerns under Guideline G raised by his history of two alcohol -related arrests.

The AJ found that the Individual's omission of his DUI arrest from his LOI Response raised a significant security concern under Guideline E. However, the AJ found that Individual credibly testified that this omission was inadvertent and that he had no intention of misleading the LSO when he omitted this information. The AJ noted that the Individual had previously reported his DUI in a previous security form submitted to the LSO. Accordingly, the AJ found that the Individual had successfully mitigated the security concerns under Guideline E raised by his omission.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0002, Fine)

Access Authorization Granted; Guideline I (Psychological Conditions)

On March 10, 2022, an Administrative Judge determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. The Individual completed a   Questionnaire   for   National Security Positions in which he disclosed that he had been diagnosed with Bipolar II Disorder. The Individual met with a DOE-contracted Psychologist (DOE Psychologist) for a clinical interview and the DOE Psychologist concurred with the Individual's Bipolar II   Disorder   diagnosis.   The   DOE Psychologist recommended that the Individual demonstrate rehabilitation by receiving treatment from a psychiatrist, establishing stability and compliance with a medication regimen for twelve months, and participating in psychotherapy with a psychologist. At the hearing, the Individual established that he had complied with the DOE Psychologist's treatment recommendations, demonstrated positive personal and medical networks to support his recovery, and provided evidence that he had not experienced hypomanic or depressive episodes for over one year. Therefore, the Administrative Judge determined that the Individual had resolved the security concerns under Guideline I and should be granted access authorization. OHA Case No. PSH-22-0031 (Phillip Harmonick). (OHA Case No. PSH-22-0031, Harmonick)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On March 11, 2022, an Administrative Judge (AJ) determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. The Individual is an employee of a DOE contractor in a position that requires the possession of a security clearance. During an investigation, the DOE Local Security Office (LSO) discovered information regarding the Individual's   alcohol   use   that prompted the LSO to request that the Individual be evaluated by a DOE -consultant psychologist (" Psychologist"). After the Psychologist completed the evaluation and provided a report to the LSO, the LSO informed the Individual by letter that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance under Adjudicative Guideline G.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G because the LSO cited the Psychologist's conclusion that the Individual met the criteria for Alcohol Use Disorder, Mild; the Psychologist's conclusion that the Individual habitually or binge consumes alcohol to the point of impaired judgement; and the Individual's 2015 arrest and charges for alcohol- related offenses.

The AJ also determined that the Individual had resolved the security concerns for the following reasons. First, the Individual acknowledged his pattern of maladaptive alcohol use. Second, he took significant action to overcome his problem by ceasing alcohol consumption, successfully completing a recovery treatment program, participating in a long -term group recovery treatment   program, attending AA meetings, and working with an AA sponsor. Third, he changed his mindset around treatment. Fourth, he had no further arrests for alcohol -related conduct. Fifth, he demonstrated a clear and established pattern of abstinence through testimony and PEth test results. Sixth, he maintained his abstinence in accordance with the Psychologist's treatment recommendations, which resulted in the Psychologist concluding that the Individual had rehabilitated and had a good prognosis.

Accordingly, the AJ concluded that the Individual had resolved the Guideline G security concerns . OHA Case No. PSH-22-0021 (James P. Thompson III)