PSH-20-0051

*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: March 3, 2020 ) Case No.: PSH-20-0051
)
__________________________________________)
Issued: January 13, 2021
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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, “Procedures for Determining Eligibility for Access to Classified Matter and 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 security clearance should be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In May 2019, the Individual reported to the Local Security Office (LSO) that he was
arrested for DWI on May 10, 2019. Ex. 7. The LSO subsequently issued the Individual a Letter
of Interrogatory (LOI) concerning the circumstances of his arrest and additional previous alcohol
related incidents. Ex. 8. The LSO requested that the Individual be evaluated by a DOE consulting
psychologist (DOE Psychologist), who subsequently issued a report of her findings.
Ex. 9. After receiving the DOE Psychologist’s Report, the LSO began the present administrative
review proceeding by issuing a Notification Letter to the Individual, informing him that his
security clearance had been suspended and that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility to hold a
security clearance. See 10 C.F.R. § 710.21.
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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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.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual presented
the testimony of six witnesses and testified on his own behalf. See Transcript of Hearing, Case No.
PSH-20-0051 (hereinafter cited as “Tr.”). The LSO presented the testimony of one witness. The
Individual submitted nine exhibits, marked as Exhibits A through I, and the LSO submitted 12
exhibits, marked as Exhibits 1 through 12
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the first
basis for suspending the Individual’s security clearance. Ex. 1 at 1–2. 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. The LSO asserted that: the DOE Psychologist determined that the Individual
met the diagnostic criteria for Alcohol Use Disorder (AUD), Severe, under the Diagnostic and
Statistical Manual of Mental Disorders – Fifth Edition (DSM-5); the Individual was arrested and
charged with DWI on May 10, 2019; the Individual was arrested for Public Intoxication in June
2009; the Individual was arrested and charged with DWI in July 2004; the Individual was cited for
Consumption of Alcohol by a Minor in June 2004; and the Individual was cited for Consumption
of Alcohol by a Minor in May 2003. Ex. 1 at 1–2. The LSO’s allegations that the Individual
engaged in alcohol-related incidents away from work and was diagnosed with AUD, Severe, by
the DOE Psychologist justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at
¶ 22(a), (d).
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the other basis
for suspending the Individual’s security clearance. Ex. 1 at 2. “Criminal activity creates doubt
about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question
a person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines at ¶ 30. The LSO listed all the same relevant facts, except the DOE Psychologist’s
diagnosis, as support for the Guideline J as those listed for the Guideline G concern. However,
the LSO also added a charge that the Individual was arrested on a warrant for Failure to Complete
Community Service for the DWI he received in July 2004. Ex. 1 at 2. The Individual’s criminal
record justifies the LSO’s invocation of security concerns under Guideline J. Adjudicative
Guidelines at ¶ 31(a)–(b).
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 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
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err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
(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 or her 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.
IV. FINDINGS OF FACT
On May 10, 2019, the Individual was arrested and charged with a DWI. Ex. 6 at 1. He reported his
arrest to the LSO, which asked him to complete a Letter of Interrogatory – Questionnaire (LOI).
Ex. 8. In his response to the LOI, he admitted that he had consumed approximately six beers and
two shots of whiskey prior to his arrest. Ex. 7 at 1–2. He also admitted to five other incidents of
criminal conduct, four of which arose while he was consuming alcohol and one related failure to
comply with a court order relating to another alcohol-related charge. Specifically, in June 2009,
he was arrested for public intoxication. Ex. 8 at 5. In July 2004, he was arrested and charged with
DWI. Id. In August 2005, he was arrested on a bench warrant for failure to complete court-ordered
community service for his July 2004 DWI. Id. Finally, he admitted to charges of consumption of
alcohol when he was a minor in June 2004 and May 2003. Id.
At the hearing, the Individual testified that he has not consumed alcohol since the date of his arrest
for the 2019 DWI and has successfully completed probation for this offense. Tr. at 71–72. After
reporting his 2019 DWI arrest to his employer, he was referred to the same Intensive Outpatient
Program (IOP) which he had previously attended and completed pursuant to a prior arrest. Id. at
73. He admitted that the first time he attended the IOP, he did not exert his best efforts because
he thought it was unfair that they were focusing on his past alcohol history. Id. However, he
actively participated in the second IOP and developed supportive relationships with other
participants. Id. He realized that he had previously been making excuses for his alcohol use which
led to his most recent DWI incident, and that he needed to completely remove alcohol use from
his life. Id. at 74–75. The Individual successfully completed the second IOP and submitted a
certificate verifying his completion. Ex. C.
The Individual also testified that he participates in an aftercare program, which is led by a
counselor (Counselor). Id. at 76. Following aftercare sessions, several fellow aftercare participants
gather in the parking lot to discuss the lessons they have learned from the session, and share what
they are all experiencing. Id. at 76–77. The Individual explained that the parking lot group
members have continued to attend in-person group meetings by themselves during the COVID-19
quarantine because they had become accountability partners to each other which was important to
him in his sobriety journey. Id. at 78. He testified that he has also attended individual counseling
since February 2020, where he has worked on addressing his insecurities without the use of
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alcohol, and on finding an Alcoholics Anonymous (AA) sponsor that was a good fit for his needs.
Id. at 79–81, 83.
The Individual testified that he has been attending AA meetings, and submitted a list of the
meetings he has attended with signatures and dates that confirm his attendance three times per
week since late February 2020. Tr. at 82, Ex. G. He obtained an AA sponsor who provided a letter
attesting to the Individual’s work on AA’s 12 steps. Tr. at 8, Ex. B. The Individual also testified
that he took six random breath tests between January 2020 and November 2020, and each test
result was negative. Ex F; Ex. H. He stated that his nail Ethyl Glucuronide (EtG) test which he
took in February 2020 was also negative. Tr. at 88–89; Ex. D. He also submitted a total of eight
Phosphatidylethanol (PEth) tests from March 2020 through October 2020. Tr. at 88–89; Ex. E; Ex.
I.
The Individual testified that he applied the lessons he learned from IOP, aftercare, the parking lot
group, and AA to give a presentation at his workplace to share his experience with problematic
alcohol use and to assist and educate his colleagues. Id. at 94–95. He concluded that he will not
consume alcohol in the future. Id. at 72, 97. He indicated that his Counselor, who provides him
with one-on-one counseling, his wife, and his best friend are his main support. Id. at 97.
The Individual’s wife testified that she has been in a relationship with the Individual for 14 years,
they have a 13-year-old son, and they have been married for four years. Tr. at 9–10. She testified
that after his 2019 DWI arrest, he was devastated and told her he blamed himself for his DWI and
alcohol consumption. Id. at 13. The wife confirmed the Individual’s testimony regarding his
change of attitude and the difference in his participation in the second IOP as compared to the first
time he completed the IOP. Id. at 14, 24–25. She testified that the Individual has told her about his
participation in aftercare and the parking lot group, including the strong friendships he had
developed. Id. at 15–16.
The Individual’s wife also testified that she has observed numerous changes in the Individual’s
behavior since his most recent participation in the IOP and indicated that his attitude towards
alcohol, and his interactions with friends and family, have all improved. Tr. at 18–19, 23–27. For
example, he spends more time with their son alone; as a family, they do more outdoor recreational
activities and attend their son’s football games; and as a couple, they spend more time at home
instead of going out with friends. Id. at 23, 25. If she and the Individual go to social outings with
friends where alcohol is served, the Individual does not consume alcohol, and if his friends have
consumed alcohol, he offers to give them a ride. Id. at 19. The wife indicated that the Individual
asserted to her that he is “done” with alcohol. Id. at 19–20.
Two of the Individual’s coworkers and his supervisor also testified in support of the Individual.
The first coworker testified that he interacts with the Individual every day, including when the
Individual assists him in transporting his deliveries. Id. at 40. The first coworker stated that the
Individual told him he blames himself for his DWI and has discussed with him the actions he has
taken to maintain abstinence, including his participation in various program meetings. Id. at 41–
42. He further stated that the Individual told him “he’s done” using alcohol, and the coworker
asserted that the Individual is sincere in his commitment. Id. at 43, 45. The Individual’s second
coworker, who is also his wife’s cousin, testified that he has known the Individual since he was a
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teenager, and he socializes with the Individual twice a month outside of work, including at family
events. Id. at 48. The second coworker stated that he last saw the Individual consume alcohol in
2018 at a football game that they both attended. Id. at 54. He testified that, since the Individual’s
DWI, he observed that the Individual’s behavior changed in that he no longer consumed alcohol
whenever they went out socially including at family events where alcohol is served. Id. at 49–50.
The second coworker further stated that the Individual has discussed with him his future intent to
remain abstinent, and he believes the Individual can succeed in maintaining his sobriety. Id. at 54–
55. He also has no concerns about the Individual’s reliability, trustworthiness, or honesty. Id. at
53.
The Individual’s supervisor testified that the Individual is a very dedicated employee who does
whatever task his employer requests of him, and that he considers the Individual to be one of the
leaders of their department. Id. at 31–32. He confirmed the Individual’s testimony regarding the
presentation he and his colleague gave to their coworkers to raise awareness about driving after
consuming alcohol. Id. at 33–34. He testified that he finds the Individual to be trustworthy,
honorable, and reliable, and concluded by stating, “In the past five years that I’ve known the man,
he has . . . not once lied to me. He’s been committed to anything that he states that he’s going to
do. When he sets his mind to it, he does it.” Id. at 35.
The Individual’s best friend and accountability partner testified that he has been through a similar
sobriety journey along with the Individual including IOP, aftercare, and the parking lot group. Id.
at 58–59. He testified that the Individual is one of the “founders” of the parking lot group and
provided examples of the Individual’s active participation, including his initiating some of the
group discussion topics and providing guidance to other group members. Id. at 59, 61, 64–65. He
also confirmed the Individual’s explanation of the purpose of the parking lot group, including its
importance to the participants in providing a support network and accountability to each other
which is integral to maintaining their sobriety. Id. at 59–60. Lastly, he testified that he finds the
Individual to be “100 percent” trustworthy, honest, and reliable, Id. at 63.
The Individual’s Counselor testified that he was involved in the Individual’s first and second IOPs,
currently leads the Individual’s aftercare program, and provides the Individual with one-on-one
counseling. Tr. at 102-03, 104. He observed two main changes in the Individual’s behavior and
actions that occurred during his most recent IOP. First, the Individual approached the IOP with
complete humbleness due to the DWI. Id. at 103. Therefore, he was able to recognize and admit
that he was using alcohol to manage his shyness, mistrust, and social anxiety. Id. at 103–104. The
second change the Counselor noticed involved the Individual’s level of anxiety, which the
Counselor initially assessed at the moderate to severe level. Id. at 104. However, the Counselor
indicated that, through the Individual’s participation in individual therapy, aftercare, and the
parking lot group, he has learned to express his emotions without suspicion and develop trust in
sharing his experiences with others, all without the use of alcohol. Id. The Counselor concluded
that the Individual “built a program of recovery that was assisting him in a way to abstain and
grow, and . . . that should remain. . .. As for the probability of relapse, . . .. It really hinged on his
commitment to [the] program that he's built.” Id. at 125.
In her November 2019 report, the DOE Psychologist diagnosed the Individual with AUD, Severe.
Ex. 9 at 2, 9. This diagnosis was based on the DOE Psychologist’s review of the Individual’s
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Personnel Security File and the forensic interview, along with the results of three tests administered
after the interview: a urine drug screen 5-panel test including Alcohol, an EtG test, and a PEth test.
Id. at 7–8. According to a medical doctor who reviewed the results of the tests, the negative results
from the EtG and Peth tests were strong evidence that the Individual had not consumed alcohol for
at least three days prior to the tests; had not consumed alcohol on a regular, heavy basis within a
few weeks prior to the tests; and had not had binge drinking episodes or moderate drinking within
one week prior to the tests. Id. In addition, the urine drug screen 5-panel including Alcohol was
negative. Id.2
Also in her report, the DOE Psychologist opined that the Individual should abstain from alcohol
for a period of not less than one year, attend Alcoholics Anonymous (AA) three times per week
for a minimum of one year, find a sponsor or participate in another evidenced-based treatment,
and undergo random alcohol testing not less than six times throughout the 12 months of his
treatment. Id. at 8–9. She further recommended he take four random PEth tests. Id. at 9.
At the hearing, the DOE Psychologist testified that, based on the exhibits and hearing testimony,
she has seen evidence that the Individual has been participating in the treatment she recommended
in her report. Tr. at 119-20. As such, the DOE Psychologist concluded that, in her opinion, the
Individual has demonstrated adequate evidence of reformation. Id. at 120. She further opined that
the Individual’s prognosis is “quite good” as long as he continues to participate in AA, the support
groups he has (whether that be aftercare or the parking lot group), and individual counseling. Id.
at 124. She concluded that the Individual’s risk of relapse would be much greater if he should stop
his involvement with these types of support. Id.
V. ANALYSIS
A. Guideline G
The Individual’s arrests for DWI, diagnosis of AUD, Severe, by the DOE Psychologist, and other
alcohol-related arrests all raise security concerns under Guideline G. Adjudicative Guidelines at
¶ 22(a), (d). The Adjudicative Guidelines provide, in relevant part, that an individual may mitigate
security concerns under Guideline G if “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.” Guideline G at ¶ 23(b).
The Individual has made laudable efforts to mitigate the security concerns related to his alcohol
consumption. The Individual has acknowledged his pattern of maladaptive alcohol consumption
and has taken action to overcome the problem by promptly engaging in a second IOP after his May
2019 DWI arrest. In addition to completing the second IOP, he has followed the treatment
recommendations of the DOE Psychologist. He has participated in AA meetings three times per
week, has obtained an AA sponsor, and continues to participate in aftercare and the parking lot
group where he has developed a strong support system with accountability partners. Notably,
although the DOE Psychologist recommended that he undergo at least four PEth tests, the
2 This test also provided evidence that the Individual had not consumed alcohol in the 12 hours prior to the tests. Ex.
9 at 12.
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Individual took it upon himself to take eight PEth tests, all of which were negative, demonstrating
his commitment to abstinence. He also submitted six random breath tests from January 2020
through November 2020, and each test result was negative.
I find the Individual to be credible in his testimony. He has supported his assertions of his
abstinence from alcohol use with objective evidence, and has provided consistent testimony from
his supervisor, coworkers, best friend, wife, and Counselor regarding his reliability and
trustworthiness. Moreover, he has gone beyond his own recovery to serve and assist others in their
own sobriety journeys through his role as a founding member of the parking lot group, and the
presentation he gave to his coworkers regarding the problems associated with alcohol
consumption.
In light of the Individual’s compliance with treatment recommendations, demonstrated abstinence
from alcohol, development of a network to support his continued abstinence, and the positive
testimony of two experts as to his prognosis, I am convinced that the Individual has resolved the
security concerns asserted by the LSO under Guideline G.
B. Guideline J
The Individual’s arrests for DWI and other alcohol-related arrests raise security concerns under
Guideline J. Adjudicative Guidelines at ¶ 31(a)–(b). An individual may mitigate security concerns
under Guideline J, in relevant part, if so much time has elapsed since the criminal behavior
happened, or it happened under such unusual circumstances, that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment. Adjudicative
Guidelines at ¶ 32(a).
In cases in which OHA Administrative Judges have determined that individuals’ criminal conduct
is the product of their abuse of alcohol, Administrative Judges have consistently determined that
where the individual’s criminal conduct is a direct product of his problematic alcohol consumption,
the criminal conduct is mitigated by the individual’s rehabilitation or reformation from an Alcohol
Use Disorder. See, e.g., Personnel Security Hearing, OHA Case No. PSH-20-0018 at 15 (2020)
(finding that “once the Individual resolves the security concerns raised by his use of alcohol, the
associated [Guideline J] concerns pertaining to his alcohol-related arrests will also be
mitigated.”).3 In this case, I find that the Individual’s criminal offenses are the direct product of
his previous, escalating problematic consumption of alcohol. As described above, I also find that
the Individual has resolved the security concerns related to his alcohol consumption through
treatment and one and a half years of abstinence from alcohol. Thus, I conclude that adequate time
has passed since the Individual’s criminal activities, and those activities happened under such
circumstances that they are unlikely to recur.
For the foregoing reasons, I find that the Individual has resolved the security concerns asserted by
the LSO under Guideline J of the Adjudicative Guidelines.
3 Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
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VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline G and Guideline J of the Adjudicative
Guidelines. 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 find that the Individual has brought forth sufficient evidence to resolve
the security concerns set forth in the Summary of Security Concerns. Accordingly, I have
determined that the Individual’s access authorization should be restored. Either party may seek
review of this Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals