PSH-22-0025

*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 9, 2021 ) Case No.: PSH-22-0025
)
__________________________________________)
Issued: May 13, 2022
____________________________
Administrative Judge Decision
____________________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 an access authorization should
not be granted to the Individual.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. The local security office (LSO) determined that derogatory information regarding the
Individual existed, including his numerous alcohol-related arrests, and asked a DOE-consulting
Psychologist (DOE Psychologist) to evaluate him. Subsequently, the LSO issued the Individual a
letter in which it notified him that it possessed reliable information that created substantial doubt
regarding his 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) and Guideline J (Criminal Conduct) of the
Adjudicative Guidelines. Ex. 1 at 1-4.
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
hearing. The LSO submitted eight exhibits (Ex. 1–8) and the testimony of the DOE Psychologist.
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 -
Hearing Transcript (Tr.) at 71. The Individual offered one exhibit (Ex. A), testified on his own
behalf, and offered the testimony of two friends (Individual’s Friends). Tr. at 9, 17, 24.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as the first 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.” Adjudicative Guidelines at ¶ 21.
The LSO cited the DOE Psychologist’s report which determined that the Individual met the
diagnostic criteria for Alcohol Use Disorder (AUD), Moderate, under the Diagnostic and
Statistical Manual of Mental Disorders – Fifth Edition (DSM-5), along with the Individual’s
criminal record of twelve alcohol-related arrests and charges. Ex. 1 at 1-2. The LSO’s assertions
justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at ¶ 22(c)–(d).
The LSO also cited Guideline J (Criminal Conduct) as a basis for its determination that the
Individual was ineligible for access authorization. Ex. 1. “Criminal activity creates doubt about a
person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines at ¶ 30. The LSO cited the Individual’s twenty-two arrests (including alcohol and non-
alcohol related arrests) as justification for raising Guideline J. Ex. 1 at 2-4. The Individual’s
twenty-two arrests justifies the LSO’s invocation of Guideline J. Adjudicative Guidelines at
¶ 31(b).
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 regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t 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.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
- 3 -
IV. FINDINGS OF FACT AND HEARING TESTIMONY
The Individual was arrested on twenty-two occasions on a variety of charges between 1978 and
2017. Ex. 1 at 2-4; Tr. at 26-44. He admitted the charges raised by the LSO were true, although
he disputed the validity of the underlying actions that resulted in some of the arrests. Tr. at 26-44.
The twenty-two charges include twelve alcohol-related offenses, comprised of ten Driving While
Intoxicated (DWI) charges,2 one Battery of a Household Member charge, and one Involuntary
Manslaughter While Intoxicated charge. Ex. 1 at 1-2; Tr. at 26-44. The Individual claimed that he
was “railroaded” on the 2007 Battery of a Household Member charge, because he was teasing his
girlfriend with a mop when she leaned and caused a small scratch. Id. at 31. This incident occurred
after he consumed alcohol. Id. at 31-34. The Individual explained that the charge of Involuntary
Manslaughter while Intoxicated resulted from his truck being hit by a motorcyclist at a high rate
of speed. Id. at 43-44. The motorcyclist died as a result of the accident. Id. The Individual asserted
that, while he had consumed some alcohol prior to the accident, he was not intoxicated. Id.
After explaining the multitude of charges, the Individual testified that he knew he had a problem
with alcohol, because he was jailed as a result of some of the charges. Tr. at 47. He explained to
the DOE Psychologist that he attended Alcoholics Anonymous (AA) in the early 1990s when his
girlfriend at the time complained that he was consuming too much alcohol. Ex. 5 at 6. He
acknowledged that around 1998 he attended alcohol counseling. Id. He also stated to the DOE
Psychologist during the evaluation that there would be long periods of time when he completely
abstained from alcohol, usually after an alcohol-related incident. Ex. 5 at 6.
At the evaluation, the Individual reported to the DOE Psychologist that he had attended AA for
several weeks in the early 1990s. Tr. at 6. Further, he related that he had attended an alcohol
awareness class in 1999 and a three-week outpatient alcohol program. Id. While undergoing an
employment-related physical in 2015 when previously employed by the contractor, the Individual
admitted to the LSO the amount of alcohol he was consuming. Id. at 48-49; Ex. 5 at 6. As a result
of those admissions, he testified, the LSO informed him that the only way for him to keep his
employment was to consult the Employee Assistance Program (EAP). Tr. at 50; Ex. 5 at 6.
According to the Individual, in order to continue with EAP, the EAP counselor required the
Individual to be abstinent and undergo weekly testing. Tr. at 50; Ex. 5 at 6. The Individual initially
abstained from alcohol after meeting with the EAP counsel, but not long after, he was laid off from
his employment, and as a result did not implement the EAP counselor’s plan. Thereafter, he began
consuming alcohol again. Tr. at 51; Ex. 5 at 6.
At the February 2021 evaluation, the Individual stated to the DOE Psychologist that he was
consuming four to six 12-ounce cans of beer approximately four to five times per week. Ex. 5 at
6. Despite this claim, the Individual averred that he had not consumed alcohol since Christmas
2020. Id. Yet the Individual’s post-evaluation laboratory tests indicates significant alcohol
consumption within a month of the evaluation. Ex. 5 at 8, 21. At the hearing, the Individual testified
that he did not remember the exact date of his last alcohol consumption prior to his evaluation, and
that during the evaluation the DOE Psychologist had asked him to “guess.” Tr. at 53.
Finally, the Individual testified that he was not surprised by his AUD diagnosis. Tr. at 56. He also
stated that he did not read the report, because it was “uncomfortable reading.” Id. The Individual
2 One of the ten charges was Driving Under the Influence from October 1998. Ex. 1 at 3. For ease of
reading, I have referred to it as a DWI.
- 4 -
admitted that he only recently read the DOE Psychologist’s recommendations, including that he
be abstinent and attend individual counseling with a certified alcohol counselor and AA for a
minimum of two years. Id. at 57; Ex. 5 at 9. He asserted that he had reduced his alcohol
consumption, but he recently consumed a few beers the night before he started attending the EAP
on March 29, 2022. Id. at 58; Ex. A. As of the hearing date, the Individual had attended two
sessions at EAP. Ex. A. In order to continue with EAP, the EAP counselor requires him to attend
weekly group counseling sessions, individual counseling, and AA. Tr. at 59. He avowed that he
was going to see his Personal Care Physician two weeks after the hearing and ask for an order for
the Phosphatidylethanol (PEth) blood tests with the results to be delivered to the LSO. Id.
The Individual’s two friends testified that the Individual infrequently consumed alcohol with them.
Tr. at 11, 20. One friend testified that he was convinced the Individual consumes alcohol because
the friend believes everyone does. Id. at 10. The other friend stated that the Individual never
appeared intoxicated or “hung over.” Id. at 20. Both friends asserted that the Individual was very
trustworthy and honest. Id. at 11, 21.
The DOE Psychologist briefly discussed the criteria that the Individual met to warrant a diagnosis
of AUD, Moderate. Tr. at 65. Those criteria include persistent desire or unsuccessful attempts to
reduce his consumption; cravings and urges to use alcohol; recurrent use despite failure to fulfill
obligations at work and home; continued use despite persistent interpersonal problems;
occupational activities reduced due to use; and recurrent use in situations where it is physically
hazardous. Ex. 5 at 8; Tr. at 64-65. The DOE Psychologist testified that he recommended
permanent abstinence because the Individual continued relapsing into heavy alcohol consumption,
and he has had numerous alcohol-related incidents. Tr. at 65. He continued that he recommended
individual counseling with a certified alcohol counselor and active participation in AA for a
minimum of two years. Id. at 65; Ex. 5 at 9. In his report, the DOE Psychologist defined active
participation as a minimum of six meetings a week, obtaining a sponsor, and showing evidence of
working the “steps.” Ex. 5 at 9.
At the hearing, the DOE Psychologist did not hear any testimony that altered his recommendations
regarding rehabilitation or reformation. Tr. at 65, 68. He did testify that the fact that the Individual
is reengaging with EAP and will be getting monthly PEth tests is positive sign. Id. at 66. However,
because the Individual had undergone treatment before, without success, the DOE Psychologist
expressed concern that the Individual lacked insight into his AUD diagnosis. Id. at 67. He asserted
that he “would expect . . . an acknowledgment [by the Individual] that . . . this is going to be
difficult. . . . Even the honest acknowledgment [that] I miss drinking, or I had a craving for
alcohol.” Id. He also expressed concern that it had been over a year since the evaluation, and the
Individual had not begun any attempt at rehabilitation or reformation until just prior to the hearing.
Id. at 68.
V. ANALYSIS
A. Guideline G
The LSO’s reliance on the DOE Psychologist’s determination that the Individual met the
diagnostic criteria for AUD, Moderate, under the DSM-5, and twelve alcohol-related arrests and
charges justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at ¶ 22(a), (d), (e).
An individual may mitigate security concerns under Guideline G if:
- 5 -
(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;
(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).
None of the mitigating conditions under Guideline G have been met by the Individual in this case.
Regarding the first mitigating factor, the Individual admitted that he consumed alcohol less than a
month prior to the hearing. No unusual circumstances existed that led the Individual to his alcohol
use at that time. Likewise, the Individual has not met the second, third, or fourth mitigating factor.
Although he admitted that alcohol created complications in his life, the only evidence of his
addressing the difficulties brought forth by his alcohol use is his very recent attendance at the EAP
as shown by the letter from the EAP counselor stating that he had attended two sessions. Further,
he has demonstrated no pattern of abstinence since he last consumed alcohol less than a month
prior to the hearing. Also, the Individual has a history of treatment and relapse, having attended
AA previously in the early 1990s, an alcohol-awareness class in 1999, and a three-week outpatient
alcohol program, also in 1999 prior to his evaluation with the DOE Psychologist.
Accordingly, I find that the Individual has not resolved the security concerns asserted by the LSO
under Guideline G.
B. Guideline J
The Individual’s numerous arrests justify the LSO’s invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(b). An individual may mitigate security concerns under Guideline J if:
(a) so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances, that it is unlikely to recur and does not cast doubt
on the individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those pressures
are no longer present in the person’s life;
(c) [there is] no reliable evidence to support that the individual committed the offense;
and
(d) there 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(a)–(d).
- 6 -
Although all the Individual’s most recent criminal charge occurred over five years prior to the
hearing date, I still find that none of the mitigating factors have been satisfied. Regarding the
first factor, the Individual has not shown that he is rehabilitated or reformed from his AUD,
which was a contributing factor in twelve of the arrests. The Individual has had 10 DWIs, and
claimed at the hearing that his most recent offense occurred because he “could no longer trust”
his designated driver. Tr. at 45. Therefore, until he has controlled his alcohol use, he has not
shown that his criminal behavior is unlikely to recur, especially given his past treatment and
attempts at abstinence and AA. See, e.g., Personnel Security Decision, OHA Case No. PSH-
17-0038 (2017) (stating “[w]hile the individual's DUI and DWIs occurred over a decade ago,
the individual is not only still consuming alcohol but is continuing to exercise poor judgment
due to his alcohol consumption”). As to the second factor of mitigation, there is no evidence
that he was pressured or coerced into committing the acts that resulted in his arrest. Likewise,
the Individual has admitted that he committed the offenses listed by the LSO. Finally, although
there has been a significant passage of time since his last arrest, as mentioned above, the fact
remains that most of the arrests involved alcohol, and he has not mitigated the alcohol-related
concerns.
Thus, I find that the Individual has not resolved the security concerns asserted by the LSO
under Guideline J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines G and J 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 not 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 not be granted. This Decision may be appealed in accordance with the procedures set forth
at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals