PSH-21-0081

*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: June 29, 2021 ) Case No.: PSH-21-0081
)
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Issued: November 23, 2021
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In July 2020, the Individual was arrested and charged with Simple Assault. His
conditions of release prohibited the consumption of alcohol. Ex. 8; Ex. 9. In August 2020, the
Individual was arrested and charged with Public Intoxication, thus violating the conditions of
release. Ex. 8. As a result of these charges, the Individual was evaluated by a DOE consultant
psychologist (Psychologist) in October 2020. Ex. 11. The Psychologist diagnosed him with Alcohol
Use Disorder, Moderate, and determined that the Individual had not demonstrated adequate
evidence of rehabilitation or reformation. Ex. 11 at 9.
Due to unresolved security concerns related to the Individual’s alcohol use and criminal conduct,
the Local Security Office (LSO) informed the Individual, in a December 2020 Notification Letter,
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) and Guideline J (criminal conduct) of the Adjudicative Guidelines. Ex. 1.
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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Upon receipt of the Notification Letter, the Individual exercised his 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 fourteen numbered exhibits (Exhibits 1-14) into the record and presented the testimony
of the Psychologist. The Individual introduced three lettered exhibits (Exhibits A-C) into the
record, and presented the testimony of four witnesses, including himself. 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) (strong presumption against the issuance of a security clearance).
An 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). An individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted 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 and Guideline J of the Adjudicative Guidelines. Guideline
G relates to security risks arising from excessive alcohol consumption. “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.” Guideline G at ¶ 21.
Guideline J concerns security risks arising from criminal conduct. “Criminal activity creates doubt
about a person’s judgment, reliability, and trustworthiness.” Guideline J at ¶ 30. It “calls into
question a person’s ability or willingness to comply with laws, rules, and regulations.” Id.
In citing Guideline J, the LSO reported that, in July 2020, the Individual was arrested and charged
with Simple Assault. Ex. 1. The conditions of release on this charge prohibited the Individual from
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consuming alcohol. Id. However, in August 2020, the Individual was arrested and charged with
Public Intoxication. Id. As support for citing Guideline G, the LSO relied upon the Psychologist’s
determination that the Individual met the Diagnostic and Statistical Manual of Mental Disorders,
Fifth Edition (DSM-5), criteria for Alcohol Use Disorder, Moderate, without adequate evidence of
rehabilitation or reformation. Ex. 1. In addition, the LSO cited the Individual’s August 2020 arrest
and charge of Public Intoxication. Id.
IV. Findings of Fact
As stated above, due to unresolved security concerns, the Individual underwent a psychological
evaluation with the Psychologist in October 2020. Ex. 11. The Psychologist’s report (Report) noted
that the Individual separated from his wife in January 2020, and the Individual explained that, due
to the separation, his alcohol consumption increased in both frequency and quantity. Ex. 11 at 2.
He stated that he would go out with his friends to consume alcohol and “blow off steam.” Id. at 3.
In July 2020, the Individual was arrested for Simple Assault following an altercation with his wife.
Id. at 3; Ex. 9. As part of his conditions of release on the charge, he was prohibited from possessing
or consuming alcohol. Ex. 11 at 4.
One month later, in August 2020, the Individual was arrested for Public Intoxication after law
enforcement observed him swerving while driving. Id. at 4; Ex. 8. The Individual explained that he
was arrested for Public Intoxication because his alcohol consumption was a violation of his
conditions of release.2 Ex. 11 at 4. The Individual asserted that he was unaware of this release
condition until a law enforcement officer brought it to his attention. Id. The Psychologist noted,
however, that the Individual’s assertion was inconsistent with information that the Individual
previously provided to DOE, in which he “acknowledged making a poor decision to consume
alcohol on the date of the [Public Intoxication] charge, and in light of his awareness of the court
order to abstain from any alcohol consumption.” Id. The Psychologist explained that the Individual
previously reported that, prior to being arrested for Public Intoxication, he had consumed four beers
over the course of two and a half hours. Id. However, during the psychological evaluation, the
Individual reported that he “drank a few beers at dinner” and then went to a bar, where he consumed
two “whiskey drinks.” Id.
The Report noted that, following the Individual’s arrest, his employer required him to meet with a
staff psychologist who referred him to a “drug and alcohol professional” (Alcohol Professional).
Id. at 5. The Alcohol Professional diagnosed him with Alcohol Intoxication, Without Use Disorder,
and recommended that the Individual attended weekly, individual counseling and complete 20
hours of in-person 12-step community-based peer recovery support meetings, such as Alcoholics
Anonymous (AA). Id. The Alcohol Professional recommended that the Individual provide
verification of his attendance at counseling and AA by September 2020. Id. The Individual told the
Psychologist that although he did attend 20 hours of AA, the majority of the meetings were virtual,
as opposed to in person, and he was surprised to learn that the Alcohol Professional would not
accept them as meeting the AA requirement. Id. The Alcohol Professional gave the Individual
additional time to meet the requirement, but as of the date of psychological evaluation, the
Individual admitted that he had not yet fulfilled the requirement. Id.
2 The record is absent of any information that would explain why the Individual was arrested for Public Intoxication
as opposed to Driving Under the Influence (DUI) or a similar charge.
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The Psychologist noted that the Individual claimed that he had not consumed alcohol since August
2020, and although the Individual acknowledged that the AA meetings educated him as to the
definition of an alcoholic, he did not believe he met the criteria. Id. The Individual explained that
he was committed to abstaining from alcohol, but “is not committing to abstinence indefinitely.”
Id. at 6. He stated that “if I drink, I plan to drink [a] minimum amount and not operate a vehicle
after drinking.” Id.
As part of the evaluation, the Psychologist ordered a Phosphatidylethanol (PEth) test, which was
positive at a level of 263 ng/mL. Id. A consulting medical doctor explained that this level was
“consistent with very heavy alcohol consumption.” Id. at 17. The Psychologist noted that the PEth
results were inconsistent with the Individual’s report that he had not consumed alcohol since
August 2020. Id. at 6.
Ultimately, the Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate. Id. at
7. She explained that the Individual’s “inability and/or unwillingness to abstain, his
minimization/denial of the amount he drinks, his non-compliance with some treatment
recommendations, and his lack of understanding about what constitutes an alcohol use disorder
despite having been in AA are all indication of alcohol being a significant problem.” Id. The
Psychologist noted that the Individual had not demonstrated adequate evidence of rehabilitation or
reformation, and to do so, she recommended that he abstain from alcohol for a period of at least 12
months. Id. at 9. She also advised that any random breathalyzers through his employer be supported
by random Ethyl Glucuronide (EtG) tests and at least two PEth tests over a 12-month period. Id.
Finally, the Psychologist added that the Individual should participate in at least one AA session per
week, either virtually or in person. Id. She noted that proof of attendance should be provided. Id.
At the hearing, four witnesses testified on the Individual’s behalf: three friends and the Individual
himself. The first witness (Friend A) testified that he had known the Individual for approximately
25 years and saw him around two times per month. Tr. at 14. He explained that he and the Individual
had “been doing some business stuff together,” and whenever they got together for business, golf,
or watching sports, there was no alcohol involved. Id. Friend A stated that he did not know of any
of the Individual’s legal trouble and was surprised to learn of that information during the hearing.
Id. at 17, 25. He noted that the last time he saw the Individual consume alcohol was during a July
4, 2020 golf tournament, but he did not recall how much alcohol the Individual consumed. Id. at
18, 21. Friend A testified that approximately three weeks prior to the hearing, the Individual
informed him that he was “putting [alcohol] away and bettering himself.” Id. at 19-20.
The second witness (Friend B) testified that he had known the Individual for approximately ten
years and played golf with him “a couple of times a month.” Id. at 29. He explained that the
Individual would “occasionally” consume alcohol on the golf course, drinking approximately three
beers over four and a half hours; however, he noted that he had not seen the Individual consume
alcohol in a “few months.” Id. at 31. Similarly, the third witness (Friend C) testified that he had
known the Individual for approximately 20-25 years. Id. at 41. He explained that he played golf
with the Individual on a weekly to biweekly basis and had not seen him consume alcohol in the
past few months. Id. at 43-44, 46.
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The Individual testified, seeking to mitigate the Guideline G and Guideline J security concerns. Id.
at 67. He explained that, after he was arrested for Simple Assault in July 2020, he did not know
that one of his conditions of release was to abstain from alcohol. Id. at 93. He acknowledged that
he should have read the paperwork he received “a lot better and should have been very clear and
aware of that.” Id. He also acknowledged that, on the night he was arrested for Public Intoxication
in August 2020, he “should not have been behind the wheel.”3 Id. at 94. The Individual explained
that, following his July 2020 and August 2020 arrests, his employer ordered that he attend 20 hours
of AA and attend personal and faith-based psychology sessions. Id. at 67-68. The Individual
testified that the district attorney prosecuting the criminal charges against him agreed that the AA
and psychology sessions were “sufficient to satisfy” the State. Id. at 68.
In support of his testimony, the Individual submitted into the record an AA attendance sheet
showing 25 in-person sessions, spanning from September 2020 to November 2020. Ex. C. He
additionally submitted a letter from a clinical social worker attesting to the Individual’s attendance
of seven and a half hours of telephonic therapy from August 2020 to November 2020, as well as a
letter from the faith-based therapist documenting eight sessions from August 2020 to November
2020. Ex. B; see Tr. at 70. The Individual also provided documentation showing that, upon his
completion of the AA and therapy requirements, the State dismissed the charges against him in
November 2020. Ex. A.
The Individual explained that he enjoyed the faith-based therapy and felt that he had gained new
information about himself and how to better handle situations in his life. Tr. at 71-72. The
Individual estimated that approximately 25-30 percent of the faith-based counseling sessions were
spent discussing alcohol or other “vices” that the Individual stated that he used as self-medication
or distractions. Id. at 72. He explained that he had to end his faith-based sessions as they were cost
prohibitive, but outside of the court and employer ordered requirements, he attended a church
therapy group from June 2021 through September 2021. Id. at 73-74. The Individual asserted that
he continued his sessions with his personal therapist through March 2021 and had been attending
virtual AA sessions since January 2021.4 Id. at 79, 81. The Individual further asserted that his
medical and mental health providers “do not believe that [he is] an alcoholic;” however, he
acknowledged that he did not submit any evidence that would support this contention. Id. at 83.
In turning to his experience in AA, the Individual testified that, although he introduces himself as
an alcoholic, he does not believe that he is an alcoholic. Id. at 87. He merely provides that
introduction so as not to feel “uncomfortable.” Id. The Individual explained that he does not have
a sponsor, does not have a sobriety date, and has not received any sobriety coins.5 Id. at 85-87. He
could not recite the first five steps of AA, and he could not specifically pinpoint the AA step on
3 The Individual testified that his wife “set up the police officer” to arrest him.” Id. at 94.
4 Although the Individual submitted third-party confirmed evidence into the record documenting completion of his
court and employer ordered therapy and AA requirements, the documentation that the Individual submitted to support
his continuation of therapy and AA outside of those requirements consists solely of a typed list of dates from his own
records. See Ex. B-C. The Individual claimed that there was no way to obtain a formal record of his attendance in
virtual AA, a claim that the Psychologist disputes. Tr. at 81, 162. As such, there is nothing in the record to corroborate
his claims of continued AA and therapy attendance.
5 An AA sobriety coin is a token given to AA members representing the amount of time the member has remained
sober.
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which he was working. Id.6 He explained that the longest stretch of time that he had been abstinent
from alcohol was “sort of six months,” in that it was over three months but less than six months.
Id. at 88. The Individual noted that he last consumed alcohol during a dinner with a friend
approximately three weeks prior to the hearing. Id. at 109.
In examining the Psychologist’s Report, the Individual admitted that he purposefully provided an
incorrect answer regarding the last time he consumed alcohol because he was “fearful of [his] job.”
Id. at 117. The Individual testified that he feels “like [he has] been pretty successful at” following
the Psychologist’s recommendations. Id. at 97. The Individual stated that he did have random
alcohol breath and urine tests through his employer,7 but he did not obtain any PEth testing.8 Id. at
142-143. He also noted that he was not successful at maintaining the recommended 12 months of
abstinence. Id. at 144.
The Individual acknowledged that there was a time during which he experienced “a lot of
stressors…and [he] would use alcohol as a vice” and as a means to self-medicate. Id. at 85, 89. He
explained that he has now educated himself and is now self-aware, and his goal, should he choose
to consume alcohol in the future, is to be in control of his consumption, classifying his alcohol use
as “only socially dependent.” Id. at 85, 88-90, 96. The Individual stated that if he encounters future
stressors, he would “have no problem with going through long periods of abstinence.” Id. at 90.
The Psychologist, after observing the hearing and listening to the testimony offered by the
Individual and all other witnesses, testified that she diagnosed the Individual with Alcohol Use
Disorder, Moderate, and did not find adequate evidence of rehabilitation or reformation as the
Individual was still consuming alcohol and was “lying about how often, how much he was
drinking.” Id. at 153. She stated that after hearing all the testimony at the hearing, she did not
receive any information that would lead her to change her diagnosis. Id. at 154-155. When asked
about the Individual’s decision to attend AA while at the same time believing that he is not an
alcoholic, the Psychologist opined that his attendance is “duplicitous” and resulting from DOE’s
scrutiny of his clearance. Id. at 164. She clarified that she felt that the Individual was “not taking
[AA] seriously” and “he’s not in it for change to his behaviors.” Id. at 165. She based this opinion
on the fact that the Individual continues to consume alcohol despite AA being an “abstinence-based
treatment program,” has not obtained a sponsor, has not learned the steps, and is “making loose
interpretations of the steps.” Id. at 164-165.
When asked about her opinion regarding the Individual’s intention to potentially engage in
controlled alcohol consumption, the Psychologist explained that the reason that she recommends
one year of abstinence is to provide an opportunity for individuals to demonstrate that alcohol does
not control them, whether they agree with her diagnosis or not. Id. at 166. She stated that the
6 The Individual testified that “it’s almost impossible for anyone with real knowledge of AA to say I’m at this step” as
it may change from week to week. Tr. at 85.
7 The Individual acknowledged that he did not provide evidence of this testing, stating that those were not his records
but those of his employer. Tr. at 142.
8 At this point in his testimony, it should be noted that the Individual began arguing with the Psychologist about the
wording of her recommendations, stating at one point that “it would be pointless for me to schedule my own PEth
test.” Tr. at 143-144. He noted that the PEth tests were “not on [him] to schedule.” Id. at 144.
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Individual “is not in control of his alcohol if he cannot follow [her] recommendations when his job
is on the line.” Id. She further explained that although there is only one alcohol related criminal
incident in the record, her diagnosis was additionally informed by the Individual’s “response to the
incident in which he was not taking responsibility.” Id. at 168. She cited: the Individual’s claim
that he was unaware that he could not consume alcohol as part of his conditions of release; his
misinterpretation of her recommendations; his failure to obtain evidence of his virtual AA
attendance; and his inaccurate reporting of his alcohol consumption during the psychological
evaluation. Id. at 168-169.
Finally, the Psychologist explained that she observed the Individual, both during the evaluation and
in the hearing, to be defensive and agitated. Id. at 170. She noted that despite stipulating to her
expertise as a Psychologist and acknowledging that he has no expertise in psychology, he had “been
challenging [her] expertise [the] entire hearing.” Id. at 170. The Psychologist opined that the
Individual is minimizing the issues and diminishing her concerns. Id. She ultimately stated that the
Individual had not met her recommendations. Id.
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 regarding Guideline G and Guideline J. I cannot find that restoring 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 restored. The specific findings that I make in support of this
Decision are discussed below.
Due to the interconnected nature of the Guideline G and Guideline J security concerns, I will
analyze them together. Regarding Guideline G, diagnosis of alcohol use disorder by a duly
qualified medical or mental health professional, including a clinical psychologist, is a condition
that could raise a security concern and may disqualify an individual from holding a security
clearance. Guideline G at ¶ 22(d). An Individual’s failure to follow treatment advice once he is
diagnosed, or the consumption of alcohol which is not in accordance with a treatment
recommendation, after a diagnosis of alcohol use disorder, may disqualify and individual from
holding a clearance. Id. at ¶ 22(e), (f). Additionally, alcohol-related incidents away from work
could raise a disqualifying security concern. Id. at ¶ 22(a). If an individual acknowledges the 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, the individual may be able to mitigate the security concern. Id.
at ¶ 23(b).
Turning to Guideline J, evidence of criminal conduct or a violation or revocation of parole or
probation may disqualify an individual from holding a security clearance. Guideline J at ¶ 31(b),
(d). An individual may be able to mitigate such a concern if so much time has elapsed since the
criminal behavior occurred, or it happened under such unusual circumstances, that it is unlikely to
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recur and does not cast doubt on the individual’s reliability, trustworthiness or good judgment. Id.
at ¶ 32(a).
In this case, the Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate, after
law enforcement pulled the Individual over for swerving while driving, which resulted in a charge
of Public Intoxication, violating his condition of release on the July 2020 charge. See Guideline G
at ¶ 22(a), (d); Guideline J at ¶ 31(b), (d). Although the Individual acknowledges that he was
irresponsibly using alcohol to self-medicate and cope with stress, he has not demonstrated a clear
and established pattern of modified consumption or abstinence in accordance with the treatment
recommendations. Contra id. at ¶ 23(b). Further, he has not submitted evidence of his dedicated or
continued participation in AA. The Individual’s virtual attendance records are neither official nor
corroborated, and he has not described adherence to the precepts of the program. Additionally,
despite receiving the Psychologist’s diagnosis, the Individual has not followed her
recommendations, demonstrated argumentative behavior regarding her expertise during the
hearing, and continues to consume alcohol. See id. at ¶ 22(e), (f). As such, I cannot find that the
Individual has mitigated the Guideline G security concerns.
Regarding Guideline J, the Individual’s most recent incident of criminal conduct centered around
his use of alcohol. He was admittedly driving after consuming too much alcohol and in violation
of his conditions of release on the July 2020 charge. As he is still consuming alcohol and has not
mitigated the Guideline G concerns, I cannot find that the criminal conduct occurred under such
unusual circumstances that it is unlikely to recur. Guideline J at ¶ 32(a). Therefore, I find that the
Individual has not sufficiently mitigated the Guideline J concerns.
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 and Guideline J. Accordingly, the Individual has
not demonstrated that restoring his security clearance would not endanger the common defense and
would be clearly consistent with the national interest. Therefore, I have determined that the
Individual’s access authorization should not be restored. 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