PSH-21-0123

*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: September 30, 2021 ) Case No.: PSH-21-0123
)
__________________________________________)
Issued: February 3, 2022
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Administrative Judge Decision
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Richard A. Cronin, Jr., 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 security
clearance should be restored.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. As part of a reinvestigation for his security clearance, the Individual completed a
Questionnaire for National Security Positions (QNSP) in October 2018. Ex 9. The Individual
disclosed on the QNSP that he had been arrested and charged with Driving Under the Influence
(DUI) in 1998. Id. at 33–34. As a result, the LSO provided the Individual with a Letter of
Interrogatory (LOI), which he completed in December 2020. Ex. 6. He later underwent a
psychological evaluation by a DOE consultant psychologist (DOE Psychologist) in March 2021.
Ex. 7.
Due to unresolved security concerns, the LSO informed the Individual, in a letter dated May 12,
2021 (Notification Letter), that it possessed reliable information that created substantial doubt
regarding the Individual’s eligibility to hold a security clearance and, as a result, the Individual’s
security clearance was being suspended. In an attachment to the letter (Summary of Security
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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Concerns), the LSO explained that the derogatory information uncovered in the reinvestigation
raised security concerns under Guideline G of the Adjudicative Guidelines. Ex. 1.
The Individual exercised his 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 review
hearing. The LSO submitted ten numbered exhibits (Ex. 1–10) into the record, and presented the
testimony of the DOE Psychologist at the hearing. The Individual submitted 15 exhibits (Ex. A
through O) into the record, and presented the testimony of five witnesses, including his own.
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. The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as
a basis for denying the Individual a security clearance. 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. Guideline G at ¶ 21.
In citing Guideline G, the LSO relied upon the DOE Psychologist’s report (Report) that the
Individual “habitually or binge consumes alcohol to the point of impaired judgment” and has not
demonstrated adequate evidence of rehabilitation or reformation. Ex. 1. Cited as additional
Guideline G derogatory information, the LSO referenced the Individual’s November 1998 DUI
arrest.
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 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 entire process
is a conscientious scrutiny of several variables known as the “whole person concept.” Adjudicative
Guidelines ¶ 2(a). The protection of the national security is the paramount consideration. 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 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.
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§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
As stated above, due to unresolved security concerns surrounding his alcohol consumption, the
Individual underwent a psychological evaluation with the DOE Psychologist in February 2021.
Ex. 7 at 3. During the evaluation, the Individual explained that he received a DUI as a junior in
college and subsequently completed a diversion program including an eight-hour education class.
Id. at 4. The Individual reported that, after abstaining from alcohol for 10 years, he resumed
consuming alcohol in 2013. Id. He also reported to the DOE Psychologist that he consumed one
or two alcoholic drinks during three or four days of the week, and he consumed five to six alcoholic
drinks during one or both days of the weekend. Id. He also told the DOE Psychologist that he
drinks to the point of intoxication monthly.2 Id.
As part of the evaluation, the DOE Psychologist ordered a Phosphatidylethanol (PEth) test and an
Ethyl glucuronide (EtG) test. Id. at 5. The Individual’s PEth test returned positive results of 38
ng/mL. Id. A physician evaluated the results and indicated that a PEth result of more than 20 ng/ml
was evidence of “moderate to heavy alcohol consumption.” Id. at 11–12. The Individual’s EtG test
indicated that he had not consumed alcohol in the previous four days before the test. Id. at 11. The
DOE Psychologist’s Report stated that, “[t]ogether, EtG and PEth indicate [the Individual] usually
consumes alcohol at a moderate to heavy level but had not consumed alcohol in the four days
before the [urine drug screen].” Id. at 6. The DOE Psychologist concluded that the Individual
habitually and excessively consumes alcohol to the point of experiencing impaired judgment, and
has not shown adequate evidence of rehabilitation or reformation. Id. He recommended that the
Individual abstain from alcohol, and attend substance abuse treatment involving weekly group
therapy sessions for a minimum of 12 weeks with a practitioner licensed to provide substance
abuse treatment. Id. at 7. The DOE Psychologist also recommended that the Individual participate
in release prevention/aftercare group therapy occurring no less than monthly for the remainder of
one year, and participate in a program such as Alcoholics Anonymous (AA) or Rational Recovery
at least weekly for a year. Id. He also recommended that the Individual undergo random alcohol
tests to monitor his alcohol use. Id.
The Individual submitted reports indicating six negative PEth tests, a negative random urinalysis
(UA) test report, and as well as weekly AA attendance sheets from the period June through
November 2021. Ex. A, B, and C. He also submitted evidence from a sobriety treatment program
he undertook including his treatment plan, copies of attendance sheets for group therapy and
individual therapy sessions, and a certificate of completion dated November 2021. Ex. D; Ex. E;
Ex. F; Ex. G. Additionally, he submitted letters from his therapists from his sobriety treatment
program who both attested to his active, consistent participation in all components of the program.
Ex. H; Ex. I.
2 In his LOI, the Individual reported that he consumed alcohol weekly, and consumed alcohol to the point of
intoxication approximately one time per week or less. Ex. 10 at 3–4.
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The Individual also submitted exhibits related to his employment including performance
appraisals, and several awards for excellence and outstanding achievements. Ex. I; Ex. J. Ex. K.
He also submitted character reference letters from his current supervisor, his former supervisor,
and his coworker. Ex. L; Ex. M; Ex. N. All his character references provided excellent references,
expressed no concerns about the Individual’s alcohol consumption, and stated that he was
trustworthy, honest, and reliable. Id.
V. HEARING TESTIMONY
Regarding his November 1998 DUI, the Individual testified that at the time the incident occurred,
he was a college student and was at a bar with a group of friends. Id. at 13. While at the bar, he
and his friends planned to go to a party. He decided to “[get] drunk” because he believed that he
was not going to be driving to the party. Id. at 13–14. Although someone else drove him to the
party, he later decided to drive his friends from the party back to the bar, and was subsequently
cited for DUI. Id. at 14–15. After completing a diversion program related to his DUI arrest, the
Individual stated that he changed his behavior in that he no longer engaged in drinking alcohol and
driving. Id. at 15. He testified that around 2002, he decided to completely stop consuming alcohol
when he moved back home after graduating from college. Id. at 15–16.
The Individual stated that the amount of alcohol and frequency of intoxication listed in the DOE
Psychologist’s Report was just an estimate and he believed that he may have overreported the
amount of alcohol he consumed. Id. at 28–30, 67. He admitted that at the time of his clinical
interview with the DOE Psychologist, he did not believe he had a problem with alcohol, however,
once he received the DOE Psychologist’s Report, he realized that his alcohol consumption was
problematic. Id. at 67.
The Individual asserted that he has complied with all the DOE Psychologist’s treatment
recommendations. Id. at 37. He testified that he last consumed alcohol in April 2021.3 Id. at 26.
He stated that he provided the DOE Psychologist’s Report to his sobriety treatment program, and
ensured that his treatment plan was based on the Report’s recommendations. Id. at 31–32. He
testified that his participation in all his treatment components have motivated him and taught him
how to successfully maintain his sobriety, and he asserted that he is able and willing to rededicate
himself to never using alcohol to excess, including not habitually or binge consuming alcohol. Id.
at 46.
The Individual also asserted that he has made diligent efforts to apply what he learned from
participating in the treatment program, AA, and psychotherapy. Id. at 38. He indicated that he
made efforts to go beyond the treatment recommendations including meeting for outside
discussions separate from his program with fellow program participants to discuss the lessons
learned. Id. at 68. He described specific tools that he has implemented from his treatment program
including the willingness to be vulnerable and discuss his sobriety with others, improving his
physical health, and the methods he uses to cope with triggers. Id. at 39, 54–57. He testified that
he been very forthcoming in disclosing to his family, relatives, and coworkers about his past
alcohol consumption and current abstinence from alcohol. Id. at 39–40. He asserted that he has a
3 The Individual reported in his LOI that he last drank to intoxication on November 28, 2020. Ex. 10 at 3.
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strong support system comprised of family, friends, and neighbors who motivate him to continue
following the DOE Psychologist’s treatment recommendations. Id. at 43.
The Individual’s wife, who was aware of the allegations in the SSC, testified that she and the
Individual have been married for 13 years and have lived together throughout that time. Tr. at 79.
She also stated that in the last 13 years, she has never had a concern regarding his use of alcohol.
Id. at 82.
The Individual’s wife further testified that the Individual decided to start consuming alcohol again
around 2013, and he chose to do so because he believed that he could drink responsibly. Id. at 72–
73. She stated that prior to the Individual making this decision, they discussed it, and she had no
concerns at that time about his decision to begin consuming alcohol again. Id. She testified that
when the Individual consumed alcohol, she was usually with him, and it was usually in their home
on social occasions when he was spending time with friends and neighbors. Id. at 81. She stated
that the last time she observed him to be intoxicated was in approximately January 2021, when
they had invited friends into their home, and they consumed a few more cocktails than intended
that night. Id. at 83–84. She stated that she has not seen him consume any alcohol since mid-April
2021. Id. at 84. The wife testified that although she currently drinks alcohol, she does not believe
that the Individual would be tempted to consume alcohol with her because he has not told her that
her use of alcohol makes it difficult for him to abstain. Id. at 76. She further testified that during
the previous period when the Individual abstained from alcohol, she also consumed alcohol, and
it never caused problems regarding the Individual’s prior abstinence. Id. The wife stated that she
absolutely supports his decision to not use alcohol. Id. at 76.
The wife testified that in April 2021, when the Individual’s security clearance was suspended, he
stopped consuming alcohol. Id. at 74. She stated that the Individual took the information he
received very seriously and began following all the recommendations that were provided to him
including attending AA meetings, and participating in group therapy and individual therapy. Id. at
75. The wife asserted that the Individual applies the lessons that he has learned from his treatment
programs on a regular basis, and she provided examples including the Individual’s discussions he
has with her about specific strategies he uses to help maintain his sobriety. Id. at 80. The wife
testified that she firmly believes that the Individual will be able to continue complying with the
DOE guidelines to not habitually or binge consume alcohol, and will have no problems upholding
those standards. Id. at 77.
The Individual’s neighbor and former supervisor testified that they had observed the Individual
consume alcohol but never seen the Individual have a problem with or become intoxicated because
of his alcohol consumption. Both also attested to the Individual’s excellent character and
trustworthiness. Id. at 88-89, 90-92, 98-100, 104. The former supervisor also testified that he was
aware that the Individual worked hard to comply with attending AA meetings. Id. at 104.
The Individual’s therapist testified that she first began working with the Individual when he
entered his sobriety treatment program. Id. at 111. She stated that the Individual did not meet the
criteria for Substance Use Disorder. Id. She testified that from her review of the DOE
Psychologist’s Report, and the Individual’s desire to comply with its recommendations, they
formulated a treatment plan for him that included the Report’s recommendations. Id. The therapist
testified that the Individual began seeing her for individual therapy on a weekly basis, and then in
group therapy. The Individual also participated in additional support for sobriety, including AA
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meetings, and other peer-support recovery groups. Id. She stated that all the treatment groups that
he has participated in have noted the Individual’s willingness and participation, especially in group
sessions, where they have observed that he has shown a “willingness to take everything he can get
from it.” Id. at 112. The therapist also provided examples in which the Individual successfully
demonstrated his ability to apply the skills he has learned from treatment including stress tolerance,
emotional regulation, and the development of resilience, and she testified that he has used these
skills in his daily life and to manage stressful events. Id. at 114, 117.
The therapist opined that the Individual has a very good prognosis regarding his future intention
towards alcohol. Id. at 118. She further opined that she does not characterize the Individual as a
habitual drinker or an excessive consumer of alcohol, nor does he consume alcohol to the point of
impaired judgment. Id. at 113. She stated her belief that the Individual will not have difficulty
refraining from excessive use of alcohol, nor will he have difficulty with binge drinking in the
future. Id. at 115. Regarding the Individual’s future intentions, he has told her that he feels that he
has benefitted from treatment and would like to continue that on a regular basis as part of his
support system to continue to meet his ongoing life goals. Id. at 119.
The Individual submitted into the record a November 11, 2021, letter of recommendation from his
former therapist at his treatment program. Ex. H. The former therapist outlined the actions the
Individual has taken including participating in additional group and individual sessions “on a
structured and regular basis for more than the recommended 12 weeks” and he opined that the
Individual has gained the skills he needs to help ensure long-term success in maintaining his
sobriety. Ex. H.
The DOE Psychologist testified last, after observing the testimony of the other witnesses. He
opined that the Individual does not currently suffer from a condition such as binge drinking, or any
other conditions that would cause the DOE to have a potential issue regarding his possession of a
security clearance. Id. at 124. He concluded that the Individual followed through with the
recommended treatment plan, and he determined that the Individual has shown that he actively
participated and benefited from treatment. Id. at 123. The DOE Psychologist explained that
although he originally recommended one year of treatment, he believes that the Individual has
been able to sufficiently accomplish his treatment goals more quickly than he originally estimated.
Id. at 125. He based his opinion on the Individual’s negative blood and urine tests, his participation
in treatment, his ability to state what he has learned in treatment, and his therapist’s testimony. Id.
V. ANALYSIS
An individual may mitigate security concerns under Guideline G, in relevant part, if:
(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;
(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.
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Adjudicative Guidelines at ¶ 23(b), (d).4
Regarding the mitigating factors described in ¶ 23(b) and (d), the record reflects that the Individual
has recognized his maladaptive alcohol use and has taken substantive steps toward mitigating
Guideline G concerns. He began abstaining from alcohol as soon as his security clearance was
suspended, and provided evidence of his abstinence by submitting reports of six negative PEth
tests, and a random UA test. Not only was he diligent in beginning his journey into sobriety, he
was also diligent in fulfilling all the treatment recommendations made by the DOE Psychologist.
He has and continues to participate in weekly AA meetings and provided attendance sheets to
support his testimony. He has also participated in group therapy and individual therapy, and
provided supporting testimony from his therapist regarding his excellent prognosis. As stated by
his former therapist and current therapist, his participation in treatment has gone beyond the
recommended 12 weeks, and he has expressed to his current therapist that he would like to continue
participating in treatment as part of his support system to maintain his sobriety. Moreover, the
Individual has successfully completed a sobriety treatment program and its aftercare component,
and he has provided both objective evidence and credible witness testimony attesting to the
Individual’s clear an established pattern of abstinence in accordance with treatment
recommendations. Further, the DOE Psychologist opined that the Individual has complied with his
treatment recommendations and has sufficiently addressed the concerns regarding his former
alcohol consumption. Therefore, I find that the Individual has put forth sufficient evidence to
satisfy the mitigating conditions under ¶ 23(b) and ¶ 23(d). In reviewing all the evidence before
me, I find that the Individual has resolved the Guideline G security concerns.
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 of the Adjudicative Guidelines. After
considering all 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.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Error! Reference source not found.
Administrative Judge
Office of Hearings and Appeals
4 I find that the other Guideline G mitigating factors are not applicable in this case.