PSH-22-0017

*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: December 1, 2021 ) Case No.: PSH-22-0017
)
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Issued: May 13, 2022
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Administrative Judge Decision
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James P. Thompson III, 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
The DOE employs the Individual in a position that requires possession of a security clearance. In
2020, the DOE Local Security Office (LSO) discovered derogatory information regarding the
Individual’s alcohol use which prompted the LSO to request that the Individual be evaluated by a
DOE-consultant psychologist (“Psychologist”). Afterward, the LSO informed the Individual by
letter (“Notification Letter”) that it possessed reliable information that created substantial doubt
regarding his eligibility to possess a security clearance. In an attachment to the Notification Letter,
entitled Summary of Security Concerns (SSC), the LSO explained that the derogatory information
raised security concerns under Guideline G and Guideline J of the Adjudicative Guidelines.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. The Director of the Office of Hearings and Appeals appointed me as the
Administrative Judge in this matter, and I subsequently conducted an administrative review
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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hearing. See Transcript of Hearing (Tr.). At the hearing, the Individual presented the testimony of
four witnesses and testified on his own behalf. The LSO presented the testimony of the
Psychologist. The LSO submitted eighteen exhibits, marked Exhibits 1 through 18.2 The Individual
submitted eight exhibits, marked Exhibits A through H.3
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline G (Alcohol Consumption) and Guideline J (Criminal
Conduct) of the Adjudicative Guidelines as the basis for concern regarding the Individual’s
eligibility to possess a security clearance. Ex. 1 at 6-7.
Guideline G provides that “[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. Conditions that
could raise a security concern include “[a]lcohol-related incidents away from work, such as driving
while under the influence,” and “[d]iagnosis by a duly qualified medical or mental health
professional (e.g., physician, clinical psychologist, psychiatrist . . .) of alcohol use disorder[.]” Id.
at ¶ 22(a) and (d). The SSC cited the following information:
1. [In 2021, the Psychologist] concluded that [the Individual] met Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition, [] criteria for Alcohol Use Disorder (mild)
which is a mental condition that impairs judgment, with no adequate evidence of
rehabilitation.
2. [In December 2020, local authorities] arrested and charged [the Individual] with
Aggravated Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor
or Drugs 1st Offense, Failure to Maintain a Traffic Lane, Driving While Intoxicated with
A Minor in the Vehicle, Abuse of a Child (Does Not Result in Death of Great Bodily
Harm), Turning Movements and Required Signals, Open Container (Drink) and Speeding
in a Construction Zone. He admitted he consumed four miniature (50 ml) bottles of vodka
prior to the arrest.
3. [In May 2020, local authorities] arrested and charged him with Driving While Under the
Influence of Intoxicating Liquor 1st, Failure to maintain a Lane, and No Proof of Insurance.
He admitted that he consumed four miniature (50 ml) bottles of vodka prior to the arrest.
4. [In October 2013, local authorities] arrested him for Aggravated Driving While Intoxicated
and Reckless Driving. He admitted that he had been drinking, amount not recalled, prior to
the arrest.
2 The LSO’s exhibits were combined and submitted in a single, 286-page PDF workbook. Many of the exhibits are
marked with page numbering that is inconsistent with their location in the combined workbook. This Decision will
cite to the LSO’s exhibits by reference to the exhibit and page number within the combined workbook where the
information is located as opposed to the page number that may be located on the page itself.
3 The Individual’s exhibits will be referenced in the same manner as the LSO’s exhibits, except for Exhibit H, which
is a separate document. See supra.
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Ex. 1 at 6-7. The above information justifies the LSO’s invocation of Guideline G.
Under Guideline J, “[c]riminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness.” Adjudicative Guidelines at ¶ 30. “By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Id. Conditions that
could raise a security concern include “[e]vidence (including . . . an admission[] and matters of
official record) of criminal conduct, regardless of whether the individual was formally charged,
prosecuted, or convicted[.]” Id. at ¶ 31(b). The LSO recited the Individual’s above arrests and
criminal charges. That information justifies the LSO’s invocation of Guideline J.
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 or her 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. Id. at
§ 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
In October 2013, the Individual was charged with Aggravated Driving While Intoxicated (DWI)
and reckless driving after he crashed his vehicle. Ex. 17 at 177; Ex. 18 at 246. During a security
interview conducted by the Office of Personnel Management (OPM) in 2016, he told an OPM
investigator that this DWI was a one-time event that would never happen again. Ex. 18 at 246. The
record includes the Individual’s written response to questions presented in the LSO’s 2021 Letter
of Interrogatory (LOI). Ex. 14. Therein, the Individual explained that he lost his sister in a fatal
car accident earlier in 2013, and he turned to alcohol to deal with his extreme grief. Id. at 92. He
explained that he stopped consuming alcohol to intoxication after his arrest because it threatened
his employment. Id. at 96. However, after his brother’s sudden death in June 2019, he began
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consuming “hard liquor increasingly” and to intoxication on “holidays, birthdays, and death
anniversaries.” Id. Realizing he had a problem, the Individual self-enrolled in an intensive
outpatient alcohol treatment program (IOP) in March 2020. Id. at 98.
In May 2020, police records reflect that the Individual was again charged with a DWI after initially
being stopped for a traffic violation and then failing an officer-administered field sobriety test
(FST). Ex. 13 at 78-79. The officer discovered opened and unopened containers of alcoholic
beverages in the vehicle. Id. at 79. In his response to the LOI, the Individual reported that he was
stopped by the police as he drove to the cemetery to visit the graves of his siblings, which he
decided to do after consuming alcohol. Ex. 14 at 84.
In December 2020, the Individual was charged with DWI for a third time after initially being
pulled over for several traffic infractions and then failing a FST. Ex. 9 at 43. His child was with
him at the time, and the officer observed open miniature containers of alcohol in the Individual’s
vehicle. Ex. 9 at 43. The Individual explained in his LOI response that he did not expect to have
his child that day based on a prior arrangement with the child’s mother. Ex. 14 at 87. However,
the child’s mother called the Individual to take the child to an appointment because the mother had
a scheduling conflict. Id.
The record contains the report the Psychologist produced after evaluating the Individual in 2021.
Ex. 15. During the evaluation, the Individual reported that, during the IOP, he attempted to abstain
but frequently consumed alcohol throughout the program. Id. at 107. He reported that, in May
2020, he began seeing a social worker to address his alcohol use and his “pathological grieving.”
Id. at 108. He also reported that he abstained from alcohol after his May 2020 DWI up until the
events immediately preceding his December 2020 DWI, when he consumed alcohol to address the
intensified grief he experienced because of the holidays. Id.
At the time of the Psychologist’s evaluation, the Individual reported being under the care of a
mental health professional and taking medication to treat his diagnosed depression. Id. at 109. He
was also receiving continuing therapy from the IOP counselor, and he had completed a twelve-
week educational program delivered by his employer’s Employee Assistance Program (EAP).4 Id.
He also reported that he had been attending one or two Alcoholics Anonymous (AA) virtual
meetings a week but had not found a sponsor or begun working the “Steps.” Id. The Individual
also reported that he had been abstinent since December 2020. Id. The Psychologist requested that
the Individual undergo an Ethyl Glucuronide (EtG) test and Phosphatidylethanol (PEth) test to
detect whether the Individual had consumed alcohol. Id. at 109-10. Both test results were negative
and consistent with the Individual’s claim that, on the date of the evaluation, he had been abstinent
for six months. Id. The Individual told the Psychologist that he would remain abstinent for the
foreseeable future because he recognized that no amount of alcohol was healthy for his recovery.
Id. at 109.
Based on the Individual’s history of alcohol consumption, the Psychologist diagnosed him with
AUD, mild. Id. at 110, 111. The Psychologist provided the following recommendations for the
Individual to demonstrate reformation of his AUD: six additional months of abstinence
4 While the Psychologist’s report indicated that it was a six-week program, both the provider’s testimony and the
Individual’s Certificate of Completion establish that it lasted twelve weeks. Tr. at 31; Ex. A at 4.
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documented by laboratory testing; commitment to permanent abstinence; and continued
counseling “to resolve the reasons he is stuck in the grieving process.” Id. at 111.
The record includes a February 2022 letter from a clinical psychologist who began treating the
Individual as part of a Fitness for Duty evaluation in June 2020. Ex. B at 8. The clinical
psychologist confirmed the Individual’s relapse in December 2020 and reported that the Individual
thereafter began attending AA. Id. The clinical psychologist also reported that the Individual had
“successfully completed intensive outpatient substance abuse treatment, regularly attends [AA]
meetings, [] has an AA sponsor[,] and [a]ll of his [EtG] tests were negative.” Id. The clinical
psychologist’s letter and the record include the results of the Individual’s several EtG and PEth
tests, which are consistent with the Individual having been abstinent from December 2020 to
March 2022. Ex. B at 8; Ex. C at 11-12; Ex. D. at 14-20.
At the hearing, a clinical counselor (“Group Counselor”) testified on the Individual’s behalf. She
facilitated the twelve-week group EAP treatment program the Individual started attending in
January 2021. Tr. at 12-13. She described it as a “structured group” with “psycho-education,
journaling homework, sharing homework, listening, sharing, [and] interaction.” Id. at 14. She
detailed the Individual’s positive participation in the group sessions throughout the program and
described him as “fully engaged.” Id. at 15-16. She testified that she last met with the Individual
in March 2022 and observed that he has a “robust outpatient support system.” Id. at 14. She stated
that she was so impressed, she asked him to “come back to the group and share his experience.”
Id. at 16.
The Individual’s AA sponsor (“Sponsor”) testified at the hearing. The Sponsor testified that he
had worked with the Individual for approximately three months, and that they had been seeing
each other two to three times a week after AA meetings. Id. at 24-25. He described the contents of
their discussions, including working the AA Steps. Id. at 25-26. The Sponsor described the
Individual as “open and honest about his problems[.]” Id. at 28. He also testified that the Individual
has been “meeting all the requirements that have been set upon him[.]” Id. at 33.
The Individual’s wife testified that she had seen a huge improvement with the Individual’s alcohol
use, starting with his actions after the May 2020 DWI. Id. at 51. She testified that he made changes
in his life that led to the two getting married and starting a family, but that he became complacent
before his December 2020 DWI. Id. She testified that he now considers sobriety to be a lifelong
change. Id. She described being involved in his recovery by doing some of the AA readings with
him, which also helps her understand what he is going through. Id. She also stopped consuming
alcohol to support the Individual’s recovery. Id. She described activities that he engages in instead
of consuming alcohol, like maintaining their property, focusing on creating art, and spending more
time with their children. Id. at 54-55, 57.
The Individual testified that he accepted responsibility for his DWIs because they were his
mistakes caused by his problematic alcohol consumption. Id. at 64. He referred to himself as “an
alcoholic.” Id. at 64, 80. He stated, “it’s not something I’m proud of. I don’t want to be an
alcoholic.” Id. at 64. Once he came to that realization, he wanted to take steps to change his life.
Id.
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He reviewed the circumstances of his three DWIs. He testified that the traumatic death of his sister
in 2013 led him to consume alcohol to avoid dealing with the grief, and the DWI and related
charges were dismissed before going to trial. Id. at 65-66. For the next seven years, he consumed
alcohol infrequently and avoided dealing with his grief. Id. at 67. Then, in 2019, his brother passed
away, and he could no longer avoid the feelings of grief. Id. He returned to his pattern of
consuming alcohol to numb the feelings. Id. He testified that, on the day of his May 2020 DWI,
he decided to drive to the cemetery to deal with his feelings of depression and anger. Tr. at 67-68.
After his May 2020 DWI, he continued participating in the IOP and stopped consuming alcohol
without addressing the underlying grief. Id. at 68. He testified that holidays, birthdays, and death
anniversaries would make him feel depressed, and he would crave alcohol. Id. After seven months
of sobriety, with Christmas approaching, he chose to consume alcohol to deal with his feelings and
received his final DWI. Id. This time, he decided to take responsibility for his conduct because he
feared that this DWI, unlike the others, would not be dismissed. Id. at 69. However, it too was
dismissed after eight months. Id. In the interim, he realized that “grief was . . . a big part of [his]
alcoholism[,]” and he needed to address it if he was going to stay sober. Id.
He described thereafter working with his IOP counselor to address his grief, which he identified
as his biggest trigger. Id. at 69, 73. He combined this focus on grief with his alcohol treatment. Id.
at 70. In addition to addressing grief, he identified his weekly, in-person AA meetings and
obtaining an AA sponsor as significant factors that distinguish his current recovery from his prior,
unsuccessful attempt because they increased his understanding of the AA program. Id. at 71, 72-
73. He testified that he learned from his mistake of not reaching out to a counselor or another
resource instead of deciding to consume alcohol when he was sad and upset during the 2020
Christmas holiday. Id. at 72-73. He testified that his recent recovery efforts demonstrate a change
in circumstance that will ensure he does not relapse again. Id. at 73, 75-77. He described AA as a
necessity. Id. at 81. He testified that he wants to finish AA and remain sober. Id. at 74, 85. He also
testified positively about the support his wife provides and that he appreciates her involvement.
Id. at 88. He testified that he obeys the law and that, since he is abstinent, there is “no way of [him]
drinking and driving” or “getting in trouble with the law or anything else.” Id. at 92-93.
The Psychologist testified that the recommendation for rehabilitation and reformation in his report
had been conservative because the Individual had previously relapsed after five months of
abstinence. Id. at 96. The Psychologist testified that the Group Counselor gave a notably positive
assessment of the Individual’s progress. Id. at 97. After having the benefit of observing the hearing
testimony and reviewing the Individual’s negative laboratory test results, the Psychologist testified
that the Individual had “met everything [] asked, and he’s done it in a way that is impressive.” Id.
The Psychologist also noted that the Individual’s wife’s sincere testimony demonstrated “great
support.” Id. Furthermore, the Psychologist noted that the Individual’s clinical psychologist rarely
writes letters of support, and the fact that she did so for the Individual provided strong support for
finding reformation. Id. at 98. The Psychologist concluded that Individual demonstrated
reformation and had a good prognosis. Tr. at 99-100.
V. ANALYSIS
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A. Guideline G Considerations
A condition that can mitigate security concerns based on alcohol consumption is that “[t]he
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[.]”
Adjudicative Guidelines at ¶ 23(b).
The Individual brought forth sufficient evidence to apply ¶ 23(b) and resolve the Guideline G
security concerns. First, there is ample evidence that the Individual acknowledged his pattern of
maladaptive alcohol use. His testimony demonstrates that he referred to himself as an alcoholic,
described how his past alcohol use was problematic and how he used it to avoid grief, and
connected his criminal conduct to his poor decision-making related to alcohol consumption.
Second, the Individual put forth evidence of the following actions that he has taken to overcome
the problem: he stopped consuming alcohol; he actively participated and fully engaged in a twelve-
week treatment program; he openly and sincerely addressed his triggers with treatment
professionals; he frequently attended AA meetings and obtained a supportive sponsor; he enlisted
the continuing support of his wife; and he continues to maintain his sobriety.
Finally, the Individual demonstrated a clear and established pattern of abstinence in accordance
with treatment recommendations. First, he demonstrated that he stopped consuming alcohol after
his December 2020 DWI, and he has remained sober thereafter, surpassing a year by the hearing
date. He also demonstrated that he intends to remain sober indefinitely. My findings are supported
by the Individual’s testimony, glowing witness testimony, and negative laboratory test results.
Second, the Psychologist opined that the Individual, through his efforts, demonstrated adequate
reformation of his AUD by meeting all of the Psychologist’s treatment recommendations. In
reaching my conclusion, I favorably considered the Individual’s candor, and I adopt the
Psychologist’s opinion that the Individual has a good prognosis. Accordingly, I find that the
Individual has resolved the Guideline G security concerns.
B. Guideline J Considerations
Based on the record in this case, the Individual has resolved the Guideline J security concerns by
demonstrating that “[t]here is evidence of successful rehabilitation; including, but not limited to,
the passage of time without recurrence of criminal activity, restitution, compliance with the terms
of parole or probation, job training or higher education, good employment record, or constructive
community involvement.” Adjudicative Guidelines at ¶ 32(d).
The record reflects that the Individual has not engaged in criminal conduct since he received his
last DWI, which occurred over one year ago. While the passage of time may be relatively brief, I
find that the Individual’s criminal conduct was inextricably linked to his AUD, and my above
findings in the preceding section demonstrate that the Individual has abstained from alcohol for
over a year, reformed that condition by following the Psychologist’s recommendations, effectively
addressed the underlying issues that contributed to his past behavior, and obtained a positive
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prognosis. I therefore find that the Individual demonstrated successful rehabilitation, and the
criminal conduct is therefore unlikely to recur. Accordingly, I conclude that the Individual has
resolved the Guideline J 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 and Guideline J of the Adjudicative
Guidelines. After considering all of the relevant information, favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all of the testimony and other
evidence presented at the hearing, I find that the Individual has brought forth sufficient evidence
to resolve the security concerns set forth in the SSC. Accordingly, I have determined that the
Individual’s access authorization should be restored.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals