PSH-20-0039

*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 )
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Filing Date: February 5, 2020 ) Case No.: PSH-20-0039
_________________________________________ )
Issued: December 28, 2020
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility XXXXXX (hereinafter referred to as “the Individual”) to
hold an access authorization under the United States Department of Energy’s (DOE) regulations,
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Criteria and Procedures for
Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”1 As discussed
below, after carefully considering the record before me in light of the relevant regulations and the
National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I
conclude that the Individual’s access authorization should not be granted.
I. Background
The Individual is employed by a DOE contractor in a position that requires her to hold a security
clearance. In November of 2018, the Individual completed an Electronic Questionnaire for
Investigations Processing (e-QIP) and revealed that, in 2010, she voluntarily sought treatment for
the use of narcotics and presently remained in treatment. Ex. 8 at 28. In March 2019, the Individual
underwent an interview by the National Background Investigations Bureau (NBIB). Ex. 9. The
interviewer reported that the Individual began taking the medication, Suboxone, in 2010 in order
to “avoid opiate withdrawals.” Id. at 52. According to the NBIB report, the Individual explained to
the interviewer that “there are emphatic warnings about mixing [Suboxone] with alcohol” as “it
can be fatal.” Id. Despite having this information, the Individual reported that, although she had
decreased her alcohol consumption, she continued to consume alcohol. Id. In response to this
information, a DOE consulting psychologist (DOE Psychologist) evaluated the Individual in
September 2019. Ex. 6.
Due to unresolved security concerns related to the Individual’s alcohol consumption, the LSO
informed the Individual, in a Notification Letter dated November 26, 2019 (Notification Letter),
1 Access authorization is defined as “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 be referred to variously in this Decision as access authorization or security clearance.
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that it possessed reliable information that created substantial doubt regarding the Individual’s
eligibility to hold a security clearance. In an attachment to the Notification Letter, the LSO
explained that the derogatory information raised security concerns under Guideline G (Alcohol
Consumption) of the Adjudicative Guidelines. Ex. 1.
Upon receipt of the Notification Letter, the Individual exercised her right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted nine numbered exhibits (Exhibits 1-9) into the record and presented the testimony of the
Psychologist. The Individual introduced nine lettered exhibits (Exhibits A-I) into the record, and
presented the testimony of two witnesses, including herself. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate numeric designation. The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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 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.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cites Guideline G of the Adjudicative Guidelines. Guideline G relates to
security risks arising from excessive alcohol consumption. Excessive alcohol consumption often
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leads to the exercise of questionable judgment or the failure to control impulses, and can raise
questions about an individual’s reliability and trustworthiness. Guideline G at ¶ 21. In citing
Guideline G, the LSO relied upon the evaluation of the DOE Psychologist, who determined that
“laboratory results show that [the Individual] is habitually consuming alcohol to the point of
impaired judgment” and had not demonstrated adequate evidence of reformation or rehabilitation.
Ex. 1. As further bases for citing Guideline G, the LSO relied upon the NBIB report, indicating
that the Individual continued to consume alcohol while taking the medication, Suboxone, despite
her awareness that the medication should not be used in conjunction with alcohol. Id.
IV. Findings of Fact
As stated above, in November of 2018, the Individual completed an e-QIP in which she disclosed
that she entered treatment for narcotic use in 2010, and was using the medication, Suboxone, in
conjunction with her treatment. Ex. 8. In March 2019, the Individual underwent an NBIB interview,
and, according to the NBIB report, she explained to the interviewer that “there are emphatic
warnings about mixing [Suboxone] with alcohol,” including warnings that the mixture could be
“fatal.” Ex. 9 at 53. However, the Individual reported that she continued to consume approximately
one to two glasses of wine on a monthly or bi-monthly basis. Id. The Individual indicated that the
nurse practitioner who treats her “considers this minimal consumption to be dangerous and she
wants [the Individual] to abstain while she is taking Suboxone.” Id.
In September 2019, the DOE Psychologist conducted an evaluation of the Individual. Ex. 6. During
the evaluation the Individual reported that she consumes approximately one to two glasses of wine
one or two times per month; however, she additionally stated that two to three times per year she
becomes “buzzed.” Id. at 6. The DOE Psychologist noted that the Individual reported last
consuming “1.5 glasses of sparkling white wine” four days prior to the evaluation. Id. at 7. The
Psychologist ordered a Phosphatidylethanol (PEth) test, which was positive at a level of 221
ng/mL.2 Id. at 8. The DOE Psychologist opined that the PEth test does not support the Individual’s
contention that she consumes a “moderate amount of alcohol.” Id. at 9. Rather, he noted that he
believes her to be “a regular and heavy consumer of alcohol.” Id. He ultimately determined that the
“laboratory results show that [the Individual] is habitually consuming alcohol to the point of
impaired judgment” without adequate evidence of rehabilitation or reformation.3 Id. The DOE
Psychologist recommended that the Individual abstain from alcohol for a minimum of 12 months,
submit to random alcohol testing, attend psychotherapy, and participate in Alcoholics Anonymous,
or a similar program, for a minimum of 12 months. Id. at 10.
The Individual submitted a letter from her treating nurse practitioner, which noted that when she
first met the Individual in 2014, the Individual reported that she would “drink alcohol once a week
with a six-drink limit.” Ex. D. The nurse practitioner noted that this amount of consumption is
“excessive.” Id. She additionally added that at an early visit with the Individual, the Individual
“was advised that abstaining from alcohol, as well as all other substances[,] was what she needed
to do.” Id. The nurse practitioner reported that as of March 2020, the Individual had been abstinent
from alcohol for three months. Id.
2 The Psychologist noted that the detection limit of a PEth test is 20 ng/mL. Ex. 6 at 8.
3 The DOE Psychologist noted that a DOE consultant psychiatrist was responsible for interpreting the results of the
PEth test. Tr. at 69.
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V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual has not sufficiently mitigated the security concerns noted by the
LSO with regard to Guideline G. I cannot find that granting the Individual’s DOE security clearance
will not endanger the common defense and security and is clearly consistent with the national
interest. 10 C.F.R. § 710.27(a). Therefore, I have determined that the Individual’s security
clearance should not be granted. The specific findings that I make in support of this decision are
discussed below.
At the hearing, two witnesses testified on the Individual’s behalf: her psychologist and the
Individual herself. The Individual testified that she began using the medication, Suboxone,
approximately eight years ago because it prevented her from forming any “cravings or any need
to…take pain pills or opioids.” Tr. 13-14. She noted that although the nurse practitioner who
prescribes her the Suboxone has never ordered her to abstain from alcohol, she has recommended
that she abstain from alcohol. Id. at 14-15. When asked why her nurse practitioner recommended
that she abstain from alcohol, the Individual replied that it was because she would prefer that no
one consumed alcohol. Id. at 15. She further indicated that, based upon discussion with her doctor,
she does “not believe that it is a problem to drink while taking Suboxone.” Id. at 27.
In turning to her interview with the DOE Psychologist, the Individual stated that she informed him
that she had consumed “some alcohol” about a week prior to the evaluation. Id. at 16. She then
went to take the PEth test he ordered; however, that PEth test was misplaced by the laboratory. Id.
As such, a week later, the DOE Psychologist informed her that she would need to take a second
test. Id. at 17. However, in the week between the first and second PEth tests, the Individual testified
that she consumed “a large amount of alcohol.” Id. at 17. She did not recall how much exactly, but
she noted that she did become intoxicated. Id. at 17, 30.
The Individual testified that when the DOE’s concern about her alcohol consumption arose, she
decided to undergo twice weekly alcohol tests for a period of three months.4 Id. at 20-21. She
additionally added that she had been attending substance abuse group sessions with her nurse
practitioner’s practice for approximately seven months. Id. at 21, 34. However, she noted that she
has not discussed her use of alcohol or any of her personal details. Id. at 32. The Individual testified
that she was aware that the DOE was concerned with her use of alcohol, but she went on to say that
she “felt that the concern wasn’t with [her] actual…drinking per se.” Id. at 35-36. She felt that the
DOE’s concern was “based on an incorrect report” of her alcohol consumption. Id. at 36.
When asked why she continued to consume alcohol even after reading the DOE Psychologist’s
report, she stated that she felt that his report and recommendation were based upon incorrect
information, being that the first PEth test was lost. Id. at 41. The Individual clarified that she is not
4 Each of the alcohol tests was negative for alcohol. Ex. F.
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currently abstaining from alcohol. Id. at 40. She added, however, that she “could go back to not
drinking if that’s what makes you more comfortable or, … the DOE more comfortable.” Id.
The Individual’s psychologist testified, stating that he had performed a psychological evaluation
of the Individual. Id. at 46. He reported that he determined that, with regard to alcohol, the
Individual does not have a diagnosable condition and does not require treatment. Id. at 47. He stated
that her alcohol consumption “is consistent with the social use of alcohol, which is considered
normal in our society.” Id. When asked about the results of the PEth test, the Individual’s
psychologist noted that an article that he read on the subject indicated that the PEth test cannot
provide information as to the frequency of one’s alcohol consumption.5 Id. at 48.
The Individual’s psychologist further noted that he was aware that the Individual used Suboxone
in order to maintain the sustained remission of her opioid use disorder. Id. at 57. He testified that
he cannot prescribe medication and was not aware of its counterindications. Id. at 58. When asked
about the Individual’s decision to continue to use alcohol after the DOE Psychologist recommended
that she abstain, the Individual’s psychologist differentiated as to whether the DOE Psychologist’s
recommendation was truly a recommendation or if it was a requirement for her employment. Id. at
64-65. He further remarked that the DOE Psychologist was not her treating provider and that his
recommendation of abstinence from alcohol was “irrelevant and unfounded” in the Individual’s
case. Id. at 62.
The DOE Psychologist, after observing the hearing and listening to the testimony offered by the
Individual and her psychologist, testified that his assessment of the Individual remains unchanged.
Id. at 67. He clarified that he does not believe that the Individual has an alcohol use disorder, but
his testing and evaluation brought up questions regarding the Individual’s “pattern of use of
alcohol,” which he “designated as habitual consumption to the point of impaired judgment.” Id. at
69. When asked about the Individual’s PEth test results, the DOE Psychologist testified that, based
on his understanding, the PEth test cannot “attest to the pattern of drinking, it can merely attest to
the quantity.” He clarified that his use of the word “habitual” arose, not solely from the PEth test,
but from his evaluation of the Individual and the information that she provided about her alcohol
consumption in conjunction with the laboratory result. Id. at 84. The DOE Psychologist noted that
the Individual had not adequately followed his treatment recommendations, and he added that the
Individual’s choice to consume alcohol against the recommendation or wishes of her nurse
practitioner, along with her decision to ignore his recommendations, raises questions about her
judgment. Id. at 71-72, 85.
Guideline G
Habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether
the individual is diagnosed with an alcohol use disorder, is a condition that may raise a
disqualifying security concern. Guideline G at ¶ 22(c). If an individual acknowledges her pattern
of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has
5 The Individual’s psychologist noted that he is not a medical doctor, and it is outside the scope of his practice to offer
opinions about laboratory tests. Tr. at 48. However, he indicated that he relied upon an article by a medical doctor in
providing this testimony. Id.; see Ex. C.
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demonstrated a clear and established pattern of modified consumption or abstinence in accordance
with treatment recommendations, she may be able to mitigate the security concern. Id. ¶ 23(b). In
this case, the DOE Psychologist determined that the Individual “is habitually consuming alcohol
to the point of impaired judgment.” Ex. 6 at 9. Furthermore, she is consuming alcohol in
conjunction with Suboxone, with a clear awareness that “there are emphatic warnings about mixing
this drug with alcohol,” as it can be fatal. Ex. 9 at 52. Further, her nurse practitioner has stated that
she informed the Individual that “she needed to” abstain from alcohol. Ex. D. The Individual’s
characterization of the nurse practitioner’s admonition against drinking as based in the nurse
practitioner’s preference that no one drink alcohol, rather than the dangers of drinking any amount
of alcohol while using Suboxone, as the Individual told the NBIB investigator, suggests she will
look for excuses to justify her decision to drink rather than acknowledge her maladaptive behavior.
Despite knowing of the DOE’s concerns about her alcohol consumption and warnings that she
needs to abstain from alcohol, the Individual did not abide by the DOE Psychologist’s
recommendations, nor did she completely abstain from alcohol. In fact, the Individual’s own
testimony demonstrates that within a week of completing a PEth test in response to the DOE’s
concerns about her alcohol consumption, she became intoxicated. Furthermore, the fact that DOE
only learned of this behavior due to the laboratory’s loss of the first PEth test calls into question
the Individual’s willingness to fully disclose the extent of her alcohol consumption in the absence
of monitoring. Rather than face the implications raised by the second PEth test, the Individual chose
to dismiss the DOE Psychologist’s recommendation to abstain from alcohol on the basis that he
would not have made that recommendation but for her having to retake the PEth test. This raises
substantial concerns about the Individual’s judgment. It is only now, at the hearing, that the
Individual appears to be taking this matter seriously, offering to abstain from alcohol. Based upon
this information, I cannot find that the Individual acknowledges her maladaptive alcohol use or has
demonstrated a clear and established pattern of abstinence in accordance with the DOE
Psychologist’s or her nurse practitioner’s recommendations. Contra Guideline G at ¶ 23(b).
Based upon the evidence in the record before me at this time, I cannot find that the Individual
has adequately established that granting her security clearance will not endanger the common
defense and security, and that doing so is clearly consistent with the national interest. Thus, I
conclude that the Individual has not sufficiently resolved the security concerns set forth in the
Notification Letter with respect to Guideline G.
VI. Conclusion
After considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guideline G. Accordingly, I have determined that the
Individual’s access authorization should not be granted. The parties may seek review of this
Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals