PSH-21-0055

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
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Filing Date: May 10, 2021 ) Case No.: PSH-21-0055
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Issued: July 20, 2021
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Administrative Judge Decision
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Phillip Harmonick, 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
On September 21, 2017, the Individual submitted a Personnel Security Information Report (2017
PSIR) to the Local Security Office (LSO) disclosing that she had been arrested and charged with
Driving Under the Influence of Intoxicating Liquor or Drugs (DUI). Exhibit (Ex.) 11. The LSO
conducted a personnel security interview (PSI) of the Individual on May 11, 2018. Ex. 14 at 1.2
During the PSI, the Individual represented that she had consumed one shot of vodka prior to
driving on the day of her arrest and that she failed a field sobriety test due to symptoms of a chronic
medical condition rather than intoxication. Id. at 14–15, 18–19, 25–27.
On June 26, 2018, the Individual submitted a PSIR (2018 PSIR) to the LSO disclosing that she
had been arrested and charged with Reckless Driving, Aggravated Driving While Under the
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 The internal pagination of numerous exhibits offered by the LSO does not correspond to the number of pages
included in the exhibit. For example, Exhibit 14 begins with two pages paginated using Roman numerals and the
pagination restarts at 1 on the third page of the exhibit. This Decision cites to pages in the order in which they appear
in exhibits without regard for their internal pagination.
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Influence of Intoxicating Liquor or Drugs (Aggravated DWI), Abuse of a Child, and Failure to
Notify Owner Upon Striking Fixture or Property. Ex. 9. In September 2019, the LSO issued the
Individual a letter of interrogatory (LOI) concerning her alcohol-related arrests. Ex. 6. The
Individual represented that she had consumed one mimosa and “three sips” of whisky prior to her
arrest. Id. at 1–2. The Individual represented that she failed a field sobriety test in connection with
her arrest for Aggravated DWI due to her chronic medical condition. Id. at 3. She denied that she
had ever driven a vehicle while intoxicated. Id. at 7.
On January 7, 2020, the Individual met with a DOE-contracted psychologist (DOE Psychologist)
for a clinical evaluation. Ex. 12 at 3. The Individual denied having ever driven a vehicle while
intoxicated, represented that she consumed alcohol in moderation, and said that she had not
consumed alcohol for more than two weeks prior to the clinical interview. Id. at 6–7. The
Individual underwent a Phosphatidylethanol (PEth) test at the request of the DOE Psychologist,
the results of which provided evidence that the Individual consumed significantly more alcohol
than she had admitted during the clinical interview. Id. at 8.3 The DOE Psychologist determined
that the Individual met the diagnostic criteria for Alcohol Use Disorder (AUD), Mild, under the
Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5) and habitually
consumed alcohol to the point of impaired judgment. Id. at 10. The DOE Psychologist
recommended that the Individual abstain from alcohol for at least six months, demonstrate her
abstinence from alcohol through weekly ethyl glucuronide (EtG) tests or PEth tests every six
weeks, and either attend an appropriately rigorous intensive outpatient (IOP) alcohol treatment
program for a minimum of twelve weeks or actively participate in Alcoholics Anonymous (AA)
for one year. Id.
The LSO issued the Individual a letter in which it notified her that it possessed reliable information
that created substantial doubt regarding her eligibility to hold a security clearance. In a Summary
of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory
information raised security concerns under Guideline G (Alcohol Consumption) of the
Adjudicative Guidelines. Ex. 1.
The Individual exercised her right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted fifteen exhibits (Ex. 1–15) into the record. The Individual submitted
eight exhibits (Ex. A–H). The Individual presented the testimony of seven witnesses, including
herself, and DOE presented the testimony of the DOE Psychologist. Hearing Transcript (Tr.) at
3–4.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the basis
for its determination that the Individual was ineligible for access authorization. Ex. 1. “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.”
3 A PEth test measures the presence of the PEth molecule, a biomarker of alcohol use, in a subject’s blood. See Ex.
12 at 13 (summarizing the alcohol testing performed on the Individual).
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Adjudicative Guidelines at ¶ 21. The SSC cited the following allegations as raising security
concerns under Guideline G: the Individual was arrested and charged with DUI in 2017; the
Individual was arrested and charged with Reckless Driving, Aggravated DWI, Abuse of a Child,
and Failure to Notify Owner Upon Striking Fixture or Property in 2018; the DOE Psychologist
diagnosed the Individual with AUD, Mild, under the DSM-5; and the DOE Psychologist concluded
that the Individual habitually consumed alcohol to the point of impaired judgment. Ex. 1 at 1. The
LSO’s allegations that the Individual engaged in alcohol-related incidents away from work,
habitually consumed alcohol to the point of impaired judgment, and was diagnosed with AUD,
Mild, justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
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),
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.
IV. HEARING TESTIMONY
A former supervisor of the Individual, who interacted with the Individual on a daily basis for
several years until the supervisor’s retirement in May 2021, testified that the Individual told her
that her security clearance had been suspended as a result of a DWI. Tr. at 15–16, 19–20. The
former supervisor testified that she had received training on detecting alcohol misuse as part of her
role in the Human Reliability Program, and that she had not observed signs of alcohol abuse in her
interactions with the Individual. Id. at 13–14, 16–17. The former supervisor testified that the
Individual demonstrated reliability, trustworthiness, and good judgment at work. Id. at 17–19.
A co-worker who interacts with the Individual daily testified that she had never observed signs of
the Individual having been under the influence of alcohol or hung over at work. Id. at 26–27. The
co-worker also testified that she occasionally interacts with the Individual socially outside of work,
including attending dinners and parties where no alcohol was served. Id. at 26, 32. The co-worker
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testified that the Individual had told her that she was abstaining from alcohol but had not explained
her reasons for doing so. Id. at 32–33.
The Individual’s fiancé testified that he had known the Individual for approximately four years
and has resided with her for one and one half years. Id. at 37–38. The Individual’s fiancé indicated
that he and the Individual were devoutly religious and that adherence to the tenants of their faith
was of great importance to them. Id. at 38–39. The Individual’s fiancé testified that he does not
consume alcohol and that he and the Individual do not keep alcohol in their home. Id. at 40–41.
The Individual’s fiancé further testified that he had last seen the Individual consume alcohol
approximately one and one half years prior to the hearing. Id. at 41.
The Individual’s fiancé asserted that he had only observed the Individual consume alcohol on
special occasions in the past and that he had never observed her consume alcohol to intoxication.
Id. at 49–50. The Individual’s fiancé said that he last observed the Individual consume alcohol in
early 2020 on a trip when she consumed one drink. Id. at 51–52. The Individual’s fiancé testified
that he only saw the Individual approximately twice monthly before they moved in together
because they resided far apart at that time and that he did not have knowledge of the Individual’s
drinking habits prior to when they began residing together. Id. at 90.
The Individual’s fiancé stated that he learned that she was participating in alcohol treatment in
early 2020. Id. at 87. He also testified that, whether or not she needed the treatment, they jointly
agreed that it would be in her best interest to learn more about potential alcohol abuse. Id. at 88.
The Individual’s fiancé indicated that he and the Individual attend a weekly recovery program
together at their church. Id. at 91.
An occupational medicine counselor (Individual’s Counselor) employed at the DOE facility at
which the Individual works testified that she has treated hundreds of individuals for alcohol-related
conditions for over fifteen years. Id. at 55. The Individual’s Counselor testified that she met with
the Individual individually in late 2017 and early 2018 after the Individual was referred to her for
alcohol education following her first arrest for DUI. Id. at 58, 64. The Individual’s Counselor noted
that she recommended to the Individual that she abstain from alcohol at that time. Id. at 65.
The Individual’s Counselor testified that the Individual returned to her in 2020 for alcohol-related
assistance. Id. at 58, 60. At the time that she returned to the Individual’s Counselor in 2020, the
Individual self-reported having abstained from alcohol and made significant changes to her
lifestyle to support her sobriety. Id. at 60, 62. The Individual completed a six-week alcohol
awareness group offered by the Individual’s Counselor in 2020 and a twelve-week course on
maintaining change in alcohol consumption in 2021. Id. at 58–59. In light of the Individual’s self-
reported changes to her lifestyle, the Individual’s Counselor recommended that the Individual
continue her existing efforts. Id. at 67. The Individual’s Counselor testified that she was aware of
the DOE Psychologist recommendation that the Individual complete an IOP, but opined that
pursuing an IOP would have been costly for the Individual and that she believed that the
Individual’s other efforts were sufficient to support her recovery. Id. at 68–69.
The Individual’s Counselor testified that the Individual was an active participant in the two courses
in which she enrolled and demonstrated significant growth and learning, such as avoiding
triggering places and people and making positive lifestyle changes unrelated to alcohol. Id. at 59–
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60, 69–70. The Individual’s Counselor testified that the Individual told her that she began
abstaining from alcohol in January 2020 and that the Individual’s Counselor believed that the
Individual’s ability to make positive changes despite being under stress due to the COVID-19
pandemic and as a result of the adjudication of her eligibility for a security clearance were positive
indicators of her ability to sustain her recovery. Id. at 61. The Individual’s Counselor opined that
the Individual had a “very good” prognosis for maintaining her abstinence from alcohol in the
future. Id.
The Individual’s Cousin testified that she sees the Individual two to three times weekly through
church activities and family gatherings. Id. at 105. The Individual’s Cousin also testified that she
had observed the Individual consume alcohol on occasion in the past but had not observed the
Individual consume alcohol since her 2018 arrest for DWI. Id. at 107–08. The Individual’s Cousin
indicated that she had never perceived the Individual as abusing alcohol. Id. at 111–13.
The Individual testified that both her 2017 DUI and her 2018 DWI charges had been dismissed for
failure to prosecute because the arresting officers failed to appear before the court. Id. at 120–21.
The Individual maintained that she had not driven while intoxicated on either occasion. Id. at 154–
60. The Individual asserted that she failed a field sobriety test in connection with one of her arrests
due to uneven ground and noted that that she had undergone a medical procedure in early 2017,
prior to her arrests for DUI, which she believed may have affected her metabolism and therefore
caused her to be more sensitive to the effects of alcohol than a typical person. Id. at 140–41, 159.
The Individual acknowledged that she probably consumed more alcohol in the past than she should
have considering her perception that the medical procedure enhanced her sensitivity to the effects
of alcohol. Id. at 150.
The Individual was required to undergo frequent breath alcohol tests and EtG tests over a period
of eight months following her 2018 DWI, all of which were negative for alcohol use. Id. at 143–
44; Ex. A. The Individual testified that she was required to meet with a clinical psychologist at the
DOE site at which she worked eleven times as part of a fitness for duty evaluation from 2018 to
2019. Tr. at 123; see also Ex. F at 1 (indicating the dates of the Individual’s meetings with the site
psychologist). Following the required meetings, the site psychologist cleared the Individual to
return to duty without restrictions. Tr. at 124. The Individual also attended three individual
counseling sessions and twelve group counseling sessions from July 2018 to January 2019 through
a local counseling organization. Id. at 124–26; see also Ex. F at 3; Ex. H (commemorating the
Individual’s completion of the program); but see Ex. 12 at 4 (indicating that the counselor told the
DOE Psychologist that the Individual appeared to benefit from the counseling but “appeared fairly
defensive” and he did not “really understood the degree of [her] alcohol use”).
The Individual testified that she abstained from alcohol following her 2018 DWI until
approximately September 2019. Tr. at 165, 178–79. The Individual said that she had not “grasped
enough information” from her counseling in 2018 and 2019 to accept that she should not consume
alcohol and that she believed at that time that moderate drinking was permissible. Id. at 165–66.
The Individual testified that she resumed drinking “slowly” and increased to consuming two to
three drinks when out with friends. Id. at 165–67. The Individual acknowledged that it was possible
that she may have consumed as many as four drinks in one day in December 2019 or January 2020.
Id. at 182–83.
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The Individual reported that she first received the DOE Psychologist’s Report in September 2020
and was unaware of his recommendations until that time. Id. at 122. After receiving the Report,
the Individual obtained six PEth tests from November 2020 to June 2021, all of which were
negative for alcohol use. Id. at 144–45; see also Ex. B. The Individual testified that she considered
attending an IOP, as recommended by the DOE Psychologist, but that a limited number of
programs were available during the COVID-19 pandemic and she lacked the financial resources
to pay for the programs that were available. Tr. at 128. The Individual indicated that she attempted
to meet the DOE Psychologist’s recommendations by attending an alcohol awareness and
education course administered by the Individual’s Counselor in October 2020. Id.; see also Ex. F
at 4 (listing the dates of the Individual’s attendance). The Individual successfully completed the
course. Ex. E. The Individual also completed a twelve-week course on maintaining change in
alcohol use administrated by the Individual’s Counselor. Tr. at 130; Ex. D. The Individual testified
that she is currently attending a faith-based recovery program on a weekly basis. Tr. at 132–35.
The Individual testified that her meeting with the DOE Psychologist was a “wake up call” which
frightened her into changing her behavior. Id. at 139. The Individual testified that she had not
consumed alcohol for one and one half years as of the date of the hearing and expressed the
intention to abstain from alcohol going forward. Id. at 139, 141–42. She also testified that she had
learned to “accept ownership and accountability” for her prior DUI charges, gained insight about
the effects of alcohol on her family and her finances, and disassociated from friends who did not
support her sobriety. Id. at 135–37. The Individual further testified that she occupied her time with
family and church, and avoided situations in which she might experience urges to consume
alcohol. Id. at 136. The Individual represented that she would not return to consuming alcohol if
she regained her security clearance, despite previously returning to consuming alcohol after a long
period of abstinence, because information about alcohol abuse had been presented to her in a new
way through the Individual’s Counselor and she had personally committed to abstaining from
alcohol whereas in the past she perceived that she was being forced to do so. Id. at 137–39.
The DOE Psychologist testified that he believed that the Individual had been untruthful in her
account of the circumstances leading to her arrests for DUI and in her self-reported alcohol
consumption during the clinical interview. Id. at 192–94. However, the DOE Psychologist testified
that he found the opinion of the Individual’s Counselor that the Individual had changed her
behavior with respect to alcohol persuasive, and that his diagnosis of the Individual was changed
to AUD, Mild, in Full Remission in light of the Individual’s eighteen month abstinence from
alcohol. Id. at 198. Moreover, the DOE Psychologist testified that he deemed the Individual to
have satisfied his recommendations for rehabilitation, albeit through an alternative treatment
regimen. Id. at 198–99. The DOE Psychologist expressed that the Individual’s prognosis for
avoiding consuming any alcohol in the future was only fair, but that her prognosis for avoiding
returning to drinking to intoxication or drinking and driving was very good. Id. at 199–200. The
DOE Psychologist expressed the opinion that the Individual’s prior self-deception and
susceptibility to peer pressure put her at risk of a minor relapse. Id. at 201–02, 204–05. However,
the DOE Psychologist opined that the limited volume of the Individual’s prior alcohol abuse, her
physiological limitations as a result of the medical procedure, and her capacity for introspection
would prevent her from relapsing into consuming alcohol to intoxication or drinking and driving.
Id. at 205–06.
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V. FINDINGS OF FACT
The Individual was arrested and charged with DUI in September 2017 after failing a field sobriety
test. Ex. 11. The Individual was arrested and charged with Aggravated DWI, Abuse of a Child,
and Failure to Notify Owner Upon Striking Fixture or Property in June 2018 after failing a field
sobriety test. Ex. 9. All the charges against the Individual were dismissed due to lack of prosecution
after the arresting officers failed to appear in court. Tr. at 120–21; Ex. 7 at 2.
The Individual met with the DOE Psychologist for a clinical interview on January 17, 2020. Ex.
12 at 3. The Individual provided a sample for a PEth test following the clinical interview and tested
positive at 192 ng/mL, which provided strong evidence that the Individual was consuming alcohol
on a regular, heavy basis prior to the clinical interview. Id. at 8. The DOE Psychologist issued a
Psychological Assessment on January 28, 2020, in which he determined that the Individual met
the diagnostic criteria for AUD, Mild, under the DSM-5 and habitually consumed alcohol to the
point of impaired judgment. Id. at 10. The DOE Psychologist recommended that the Individual
abstain from alcohol for at least six months, demonstrate her abstinence from alcohol through
weekly EtG tests or PEth tests every six weeks, and either attend an appropriately rigorous IOP
alcohol treatment program for a minimum of twelve weeks or actively participate in AA for one
year. Id.
The Individual completed a six-session alcohol awareness and education class provided by the
Individual’s Counselor in December 2020. Ex. E. The Individual completed a twelve-session class
on making changes in alcohol use provided by the Individual’s Counselor in March 2021. Ex. D.
The Individual attended weekly faith-based recovery meetings beginning in May 2021. See Tr. at
91, 132–35 (reflecting the testimony of the Individual and her fiancé as to their attendance of the
meetings). The Individual provided samples for six PEth tests; the first on November 13, 2020,
and the last on June 4, 2021. Ex. B. Each of the Individual’s PEth tests was negative for alcohol
use. Id.
After observing the hearing, the DOE Psychologist updated his diagnosis of the Individual to
AUD, Mild, in Full Remission. Tr. at 198. The DOE Psychologist further opined that the Individual
had a “very good” prognosis for avoiding returning to problematic alcohol consumption. Id. at
199–200.
VI. ANALYSIS
The Individual did not contest the allegations contained in the SSC but argued that she had
mitigated the security concerns by abstaining from alcohol, pursuing counseling, and making
positive lifestyle changes that would aid her in abstaining from alcohol in the future. An individual
can mitigate security concerns under Guideline G if:
(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;
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(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; and,
(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(a)–(d).
The first mitigating condition under Guideline G is inapplicable because the Individual’s arrests
for DUI and DWI and the DOE Psychologist’s determination that the Individual met the diagnostic
criteria for AUD are too recent for me to conclude that the passage of time mitigates the security
concerns arising from the Individual’s conduct. Id. at ¶ 23(a). The second mitigating condition
under Guideline G is inapplicable because the Individual’s implausible excuses for her arrests and
the positive PEth test administered at the request of the DOE Psychologist are indicative of a
refusal to fully acknowledge her past pattern of maladaptive alcohol use. Id. at ¶ 23(b). The third
mitigating condition under Guideline G is not applicable because the Individual is not currently
pursuing a formal counseling or treatment program. Id. at ¶ 23(c).
Regarding the fourth mitigating condition under Guideline G, the Individual successfully
completed courses on alcohol awareness and maintaining changes in alcohol use with the
Individual’s Counselor and attended faith-based recovery classes. The DOE Psychologist opined
that the Individual’s treatment regimen satisfied his recommendations. The Individual also
complied with the DOE Psychologist’s recommendations for alcohol testing by undergoing six
PEth tests from November 2020 to June 2021, all of which were negative for alcohol use.
Moreover, the DOE Psychologist gave the Individual a positive prognosis for avoiding returning
to problematic alcohol consumption. As the Individual complied with the DOE Psychologist’s
recommendations, albeit through an alternative treatment regimen, and established more than the
six months of abstinence recommended by the DOE Psychologist through PEth tests, I find that
the Individual has demonstrated the applicability of the fourth mitigating condition under
Guideline G. Id. at ¶ 23(d).
The DOE Psychologist testified that the Individual’s AUD is in full remission and that she has a
“very good” prognosis for avoiding a return to problematic alcohol consumption. The Individual’s
Counselor likewise provided a “very good” prognosis for the Individual to avoid returning to
problematic alcohol consumption. The Individual testified that she abstained from alcohol for
approximately eighteen months as of the date of the hearing, demonstrated over six months of
abstinence from alcohol consumption through PEth testing, and explained that her classes with the
Individual’s Counselor caused her to develop a deeper understanding of alcohol misuse that will
help her avoid returning to problematic alcohol consumption as she did in the past. For these
reasons, I find that the Individual has resolved the security concerns asserted by the LSO under
Guideline G.
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VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE to raise security concerns under Guideline G of the Adjudicative Guidelines. After
considering all of the relevant information, 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 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.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals