PSH-21-0050

*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: February 5, 2020 ) Case No.: PSH-21-0050
)
__________________________________________)
Issued: June 30, 2021
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (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 access
authorization should be restored.
I. Background
Upon reporting to work, the Individual was instructed to take a random Breath Alcohol Test (BAT)
on January 27, 2017, which resulted in a Blood Alcohol Concentration (BAC) of 0.06. Ex. 7 at 1.
As a result, the Individual was “placed on site restriction[,]” various services were arranged for the
Individual through the Employee Assistance Program (EAP) and the Individual was instructed to
comply with various conditions relating to his use of alcohol, including frequent testing. Ex. 6 at
1; Ex. 7 at 1. The Individual also underwent a Personnel Security Interview conducted by a
Personnel Security Specialist for the Local Security Office (LSO) on March 9, 2017. Ex. 12. As a
matter of routine, the Individual completed and signed a Questionnaire for National Security
Positions on May 27, 2019, in which he indicated that his “use of alcohol [has not] had a negative
impact on [his] work performance[.]” Ex. 11 at 37.
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.
2
On April 1, 2020, the Individual submitted to another random BAT, resulting in a BAC of 0.028.
Ex. 5 at 1. The Individual admitted that he had consumed four mixed vodka drinks between the
hours of 7:00 pm and 9:00 pm the prior evening. Ex. 5 at 1; Ex. 8 at 3. The Individual was referred
to a substance abuse professional (SAP) for an assessment, which resulted in a June 4, 2020 report.
Ex. 10. In the same fashion as before, the Individual was told to comply with several conditions
relating to his use of alcohol. Ex. 10 at 3. The LSO also requested that the Individual be evaluated
by a DOE-Contractor Psychiatrist (DOE Psychiatrist), who subsequently issued a report of his
findings (Report) on August 18, 2020. Ex. 8. After receiving the DOE Psychiatrist’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 and Administrative Judge in order to resolve the substantial doubt regarding
his eligibility to hold 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 and presented the testimony of two other witnesses, along
with twenty-five exhibits, marked as Exhibits A through Y (hereinafter cited as “Ex.”). See
Transcript of Hearing, Case No. PSH-21-0050 (hereinafter cited as “Tr.”). The DOE Counsel
presented the testimony of one witness and submitted fourteen exhibits marked as Exhibits 1
through 14.
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 Adjudicative Guidelines. Ex. 1. Under
Guideline G (Alcohol Consumption), “[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. Among those
conditions set forth in the Adjudicative Guidelines that could raise a disqualifying security concern
are “alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or
impaired condition…or jeopardizing the welfare and safety of others, regardless of whether the
individual is diagnosed with alcohol use disorder[,]” and “[d]iagnosis by a duly qualified medical
or mental health professional . . . of alcohol use disorder.” Id. at ¶¶ 22(a), (c)-(d).
With respect to Guideline G, the LSO alleged that (1) the DOE Psychiatrist diagnosed the
Individual with Alcohol Use Disorder (AUD), Moderate, without adequate evidence of
rehabilitation or reformation, and further concluded that the Individual’s AUD “causes, or may
cause, a significant defect in judgement or reliability[;]” (2) random BAT results on April 1, 2020,
indicated blood alcohol levels of 0.029 and 0.028, and the Individual admitted that the night before,
he had consumed four mixed drinks, each containing two shots of vodka; (3) random BAT results
on January 27 2017, registered a BAC of 0.06, and during a subsequent interview, the Individual
admitted that he had consumed approximately five sixteen-ounce beers in addition to smaller beer
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samples between the hours of 7:20 pm and midnight the previous evening. Ex. 1 at 1. For these
reasons, I find that LSO properly invoked Guideline G of the Adjudicative Guidelines.
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
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 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
A Personnel Security Specialist (Specialist) interviewed the Individual on March 9, 2019. Ex. 12
at 2. The Individual confirmed that he tested positive for alcohol in a random breathalyzer test on
January 27, 2017. Ex. 12 at 9. He stated that on the 26th, he began consuming alcohol between
7:20 pm and 7:40 pm, drinking approximately five sixteen-ounce beers, as well as smaller
“tasters,” over the span of approximately five hours. Ex. 12 at 10-12. Other than taking an
additional sip of beer in the early morning hours of the 27th, the Individual denied consuming any
more alcohol prior to reporting to work on the 27th. Ex. 12 at 12-13. The Individual informed the
Specialist that he is precluded from consuming alcohol “within eight hours of working,” and if he
is randomly chosen for a breathalyzer test, he must register below 0.02. Ex. 12 at 15. On January
27th, the Individual registered a 0.06, and as a result, was required to undergo various screenings,
interviews, and educational classes. Ex. 12 at 16-23. The Individual denied having ever consumed
alcohol within eight hours prior to reporting to duty before the January 27th incident. Ex. 12 at 25.
As requested, the Individual attended five education classes, which he completed in February
2017, was reprimanded for the incident, and was subject to further testing. Ex. 8 at 4.
On April 1, 2020, a random BAT was administered to the Individual, which registered a blood
alcohol level of 0.029, with a confirmatory test registering at 0.028. Ex. 14. The Individual
underwent two assessments with an SAP, the first on April 6, 2020, and a follow-up on June 3,
2020. Ex. 10 at 3-4. In a June 4, 2020, report following the second assessment, the SAP took note
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of the Individual’s admission that his alcohol consumption had increased over the previous four
months, and that on his days off, he would begin “consuming alcohol ‘around 8:00 pm or 9:00 pm,
and would continue until around 1:00 am[.’]” Ex. 10 at 2. The SAP stated that in the prior
assessment of April 6, 2020, it was determined that the Individual has a high probability of
substance use disorder and he was diagnosed with Alcohol Use Disorder, Mild. Ex. 10 at 2. The
April 6, 2020, recommendations included individual counseling, and twenty-five hours of
counseling and education, inclusive of participation in a program like Alcoholics Anonymous
(AA). The Individual consented to participate in AA, counseling, education courses, and a follow-
up assessment. Ex. 10 at 3-4. In the June 3, 2020, follow-up assessment, the substance abuse
counselor found that the Individual “had successfully complied with…recommendations as
required by the DOE.” Ex. 10 at 4.
The Individual was evaluated by the DOE Psychiatrist on August 10, 2020, and a subsequent report
was completed on August 18, 2020. Ex. 8.2 The Report provided that the Individual stated that he
last used alcohol the night before the April 1, 2020, random test, and that he had completed thirty
hours of AA meetings. Ex. 8 at 5. The Individual identified his heaviest period of drinking as
having taken place prior to his second violation. Ex. 8 at 6. The Individual was diagnosed with
AUD, Moderate, without evidence of rehabilitation or reformation. Ex. 8 at 10. The DOE
Psychiatrist recommended twelve months of sobriety and “participation in a [twelve]-step or
similar” program. Ex. 8 at 10. The DOE Psychiatrist also concluded that the Individual’s AUD
diagnosis “can impair his judgement, stability, reliability, or trustworthiness[.]” Ex. 8 at 10.
V. Individual’s Exhibits
The Individual submitted a report from his therapist (Individual’s Therapist) which indicated that
the Individual had been receiving therapy since December 3, 2020. Ex. A at 1. The Individual’s
Therapist opined that the Individual “did meet criteria for [AUD] in the past[,]” but that he had
remained abstinent for more than a year, and had participated in eight counseling sessions. Ex. A
at 1-2. He also stated that the Individual “does not have an emotional, mental, or personality
condition that impairs his judgment[,]” and offered an excellent prognosis. Ex. A at 2.
The Individual also submitted his AA attendance logs from April 11, 2020 to May 25, 2021,
documenting sixty-five meetings attended. Ex. J; Ex. U. The Individual also submitted evidence
that he had attended six Employee Assistance Program (EAP) sessions from April 2020 to May
2020, and that no additional treatment recommendations had been made. Ex. W at 1. The
Individual also completed a four-hour alcohol awareness online course on April 20, 2020, for
which he submitted a certificate of completion. Ex. Y.
2 In conjunction with the examination, two laboratory tests were performed, a Phosphatidylethanol (PEth)
test and an Ethyl Glucuronide (EtG) test. Ex. 8 at 9. The PEth test was negative, indicating the Individual
“had not been drinking on a regular, heavy basis within a few weeks of the test, and has not had binge
episodes or moderate drinking within about a week of the test.” Ex. 8 at 9. The EtG was also negative,
which indicated that Individual had not consumed alcohol within three days prior to the collection of the
sample. Ex. 8 at 9.
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Additionally, the Individual entered into the record two negative EtG tests, one of which was a
hair test, from December 10, 2020, as well as negative BATs from November 17, 2020 and January
28, 2021. Ex. K; Ex. L; Ex. M; Ex. N. The Individual’s exhibits also included negative PEth tests
from January 28, 2021, March 4, 2021, and April 8, 2021. Ex. O; Ex. P; Ex. Q. The Individual also
submitted multiple negative randomized, workplace BATs and drug tests ranging from September
2013 through November 2020, save for the positive BATs on January 27, 2017 and April 1, 2020.
Ex. V.
VI. Hearing Testimony
The Individual’s coworker, a clearance holder and employee of 37 years who has known the
Individual since approximately 2007 or 2008, testified that he never observed seeing the Individual
under the influence of alcohol or smelled alcohol on the Individual. Tr. at 9. He also stated that he
finds the Individual trustworthy, stating “[h]e’s gained my trust in a tremendous way.” Tr. at 11.
After providing that the Individual had explained the situation behind these proceedings to him,
the witness also expressed his belief that the Individual has support and understanding among his
colleagues. Tr. at 11-12, 15-16.
The Individual’s Therapist testified that he first saw the Individual in a therapeutic capacity in
December 2020 and has had nine sessions with him thus far. Tr. at 18. Based on the information
the Individual provided, the Individual’s Therapist felt that Acceptance and Commitment Therapy
(ACT) would be most appropriate for the situation. Tr. at 19. This approach does not involve any
diagnoses, instead focusing on “building a life you love[.]” Tr. at 20, 22. Although the Individual’s
Therapist did not diagnose the Individual, he did receive paperwork from the Individual that
indicates the Individual was diagnosed with AUD, which the Individual’s Therapist accepted. Tr.
22-23. However, the Individual’s Therapist opined that, as the Individual has been abstinent for
over a year, he does not “meet criteria right now for an alcohol use disorder[.]” Tr. at 23.3 The
Individual’s Therapist noted that he believes therapy is working for the Individual, in that the
Individual is using what he has learned in therapy to make decisions, as well as to deal with stress,
without using alcohol by focusing on what is important to him. Tr. at 26-30, 34-36, 38-39.4
Because of the skills the Individual has acquired, the Individual is “willing to endure something
uncomfortable like anxiety and do the task without needing alcohol to cope with it.” Tr. at 30. The
Individual’s Therapist also noted that he believes it is significant that the Individual shared with
his friends his desire to remain sober, as it has garnered him support. Tr. at 30. He opined that as
3 The Individual’s Therapist acknowledged that he had not administered any alcohol tests to the Individual.
Tr. at 45.
4 The Individual’s Therapist provided an example in which the Individual gathered with friends with whom
he would previously consume alcohol, as they had assembled in remembrance of a deceased friend. Tr. at
27. The Individual chose to focus on the relationships he had formed with the decedent and those in
attendance. Tr. at 28. The Individual, as a result, did not experience craving or urges to consume alcohol.
Tr. at 28. The Individual also recounted several social situations where he refrained from consuming
alcohol, although others around him did partake, stating “the experience makes me better without it.” Tr. at
59-61.
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long as the Individual continues to practice his newfound skills, his prognosis is good to excellent.
Tr. at 31, 44.5
The Individual began his testimony by stating that he has been abstinent from alcohol since April
1, 2020. Tr. at 47. He stated that he “[did not] have to have somebody tell [him] not to drink[,]” as
“[he] knew then that that was done.” Tr. at 55. He further testified that he followed all of the
recommendations made by the SAP following the April 1st incident, which consisted of a four-
hour online educational class, six individual counseling sessions, and sixteen hours of AA or a
similar program. Tr. at 47-48. Although he completed the recommended sixteen hours of AA, he
continues to attend meetings and participates when he can. Tr. at 48.6 The Individual currently
tries to attend at least one meeting per week. Tr. at 52-53. Since returning to work, the Individual
has taken several tests screening for alcohol and signed a “last chance agreement,” indicating that
his employer will not tolerate a positive alcohol test. Tr. at 50-52. The Individual also stated that
he has no “desire for alcohol at all.” Tr. at 56. He stated that he recognized that alcohol has no part
to play in the life he wants to live, and he understands that alcohol caused him problems in the
past. Tr. at 57. The Individual testified that he enjoys support not only among his colleagues, but
among his friends and family, as well. Tr. at 59, 66-67.
The DOE Psychiatrist testified that he was impressed by the Individual’s determination at their
first meeting in August of 2020, and was encouraged by the Individual’s four-month sobriety at
that time. Tr. at 72, 74. The DOE Psychologist testified that, although the Individual continues to
carry the AUD diagnosis, he is now in sustained remission. Tr. at 73. The DOE Psychologist also
opined that the Individual has shown adequate reformation and rehabilitation. Tr. at 74. He further
opined that, as long as the Individual remains mindful, his prognosis is good. Tr. at 75.
VII. Analysis
The Individual’s alcohol related incidents at work and a diagnosis of AUD all raise security
concerns under Guideline G of the Adjudicative Guideline. The Adjudicative Guidelines provide
that an individual may mitigate security concerns under Guideline G if “the individual
acknowledges his or her pattern of maladaptive use, provides evidence of actions taken to
overcome this problem, and has demonstrated a clear and established patters of modified
consumption or abstinence in accordance with treatment recommendations.” Guideline G at ¶ 3(b).
The record reflects that the Individual has recognized his maladaptive alcohol use and has taken
substantive steps toward mitigating Guideline G concerns. Although it would have been ideal for
the Individual to recognize his maladaptive alcohol use the first time he tested positive for alcohol
when a random BAT was administered, he did come to this important realization immediately after
the second BAT was administered in April 2020, resulting in approximately four months of
sobriety by the time he was evaluated by the DOE Psychiatrist. Tr. at 47, 72-74. Not only was he
diligent in beginning his journey into sobriety, he was diligent in fulfilling all requirements
5 The Individual’s Therapist also took note of the fact that the Individual has completed independent
research and reading regarding the matter of recovery. Tr. at 31-32, 53-55; Ex. R; Ex. T.
6 Due to the pandemic, the Individual began his foray into AA by attending virtual meetings and continues
to attend these virtual meetings. Tr. at 48-49. He also admitted that he has not engaged a sponsor. Tr. at 68.
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established by the SAP and the DOE Psychiatrist, and he engaged the services of a therapist. Ex.
10 at 4; Ex. A; Ex. W; Ex. Y. The Individual was able to offer evidence of hours of AA meetings
and therapy, participation in his company’s EAP, the completion of an online educational course,
as well as multiple negative screenings for alcohol to corroborate his testimony. Ex. 8 at 9; Ex. J;
Ex. K; Ex. L; Ex. M; Ex. N; Ex. O; Ex. P; Ex. Q; Ex. U; Ex. V; Ex. W; Ex. Y.
By the Individual’s own credible testimony, which is strongly corroborated by other evidence in
the record, he has remained sober since April 1, 2020, and has incorporated the tools he needs to
remain sober seamlessly into his life. Importantly, the DOE Psychiatrist not only noted that the
Individual is in sustained remission, but that he has achieved adequate rehabilitation and
reformation. Tr. at 73-74.
The sweeping actions that the Individual took to address the consequences of his alcohol misuse,
his ongoing abstinence since April 1, 2020, as well as expert opinion that the Individual has been
rehabilitated from his AUD diagnosis, have mitigated the security concerns raised in the
Notification Letter, pursuant to Guideline G at ¶ 3(b).
VIII. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G of the
Adjudicative Guidelines. After considering all of the evidence, both favorable and unfavorable, in
a comprehensive, common sense manner, including weighing all 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 Notification Letter Accordingly, the Individual has
demonstrated that restoring his security clearance would not endanger the common defense and
would be clearly consistent with the national interest. Therefore, the Individual’s security
clearance should be restored. Either party may seek review of this Decision by an Appeal Panel
under the procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals