PSH-22-0036

*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 20, 2021 ) Case No.: PSH-22-0036
)
__________________________________________)
Issued: March 17, 2022
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Procedures for Determining Eligibility
for Access to Classified Matter of 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 which requires that he hold a
security clearance. The Individual reported to the Local Security Office (LSO) that he had been
arrested in August 2020 for Driving Under the Influence [of alcohol]. Ex. 4. In a September 2020
letter, he also reported three other charges that he received along with the Driving Under the
Influence (DUI) charge. Ex. 4. Based on the information provided in the September 2020 letter
and the Individual’s responses to a Letter of Interrogatory (LOI) issued by the LSO, the LSO
requested that the Individual undergo a psychological evaluation. This evaluation was conducted
by a DOE-consultant psychologist (DOE Psychologist) in May 2021. After receiving the DOE
Psychologist’s report, the LSO began the present administrative review proceeding by issuing a
Notification Letter to the Individual, informing him that his security clearance was suspended and
that he was entitled to a hearing before an Administrative Judge to resolve substantial doubt
regarding his eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater 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
2
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as Administrative Judge in
this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the Individual
testified on his own behalf and submitted six exhibits, marked as Exs. A through F. See Transcript
of Hearing, Case No. PSH-22-0036 (cited as “Tr.”) The DOE Counsel presented the testimony of
one witness and submitted fifteen exhibits marked as Exs. 1 thorough 15.
II. The Notification Letter and Associated Security Concerns
Guideline G
Guideline G (Alcohol Consumption) provides that an individual’s, “[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. Among those conditions set forth in the Adjudicative Guidelines that could
raise a disqualifying security concern are “[a]lcohol-related incidents away from work, such as
driving while under the influence…regardless of the frequency of the individual's alcohol use or
whether the individual has been diagnosed with alcohol use disorder[,]” and “[d]iagnosis by a duly
qualified medical or mental health professional…of alcohol use disorder[.]” Adjudicative
Guidelines at ¶ 22(a), (d).With respect to Guideline G, the LSO alleged that 1) in May 2021, a
DOE Psychologist diagnosed the Individual with Alcohol Use Disorder (AUD), Moderate, in Early
Remission, and recommended at least six months of sobriety and participation in a counseling
program; 2) the DOE Psychologist opinion that the Individual acts in an impulsive manner, which
could cause him subsequent regret; and 3) the DOE Psychologist’s determination that because of
his history of habitual or binge alcohol consumption, the Individual has had “multiple alcohol
related incidents that have caused adverse effects on his life.” Ex. 2 at 1-3. Given this, I find that
the LSO had sufficient justification to invoke Guideline G in the present case.
Guideline J
Under Guideline J (Criminal Conduct), “[c]riminal activity creates doubt about a person’s
judgement, reliability, and trustworthiness. By its very nature, it calls into questions a person’s
ability or willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at
¶ 30. Among those conditions set forth in the Adjudicative Guidelines that could raise a
disqualifying security concern is “[a] pattern of minor offenses, any one of which on its own be
unlikely to affect a national security eligibility, but which in combination cast doubt on the
individual’s judgement, reliability, or trustworthiness,” and “[e]vidence…of criminal conduct,
regardless of whether the individual was formally charged, prosecuted, or convicted.”
Adjudicative Guidelines at ¶ 31(a)-(b). With respect to Guideline J, the LSO alleged that the
Individual has had a pattern of criminal conduct and minor offenses spanning from 1988 to 2020,
including his 2020 DUI. Ex. 2 at 3-5. Therefore, I find that the LSO had sufficient justification to
invoke Guideline J in the present case.
III. Regulatory Standards
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A DOE administrative review process under Part 710 requires me, as Administrative Judge, to
issue a Decision that reflects my comprehensive, common-sense judgement, made after
consideration of all the relevant evidence, favorable or unfavorable, as to whether the granting or
continuation of a person’s access authorization will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory standard
implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”), Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The Individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The Part
710 regulations are drafted to permit the introduction of a very broad range of evidence at personal
security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h).
Hence, an individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
IV. Findings of Fact
In his LOI, the Individual confirmed that on August 1, 2020, he was initially stopped by law
enforcement for an improper lane change. Ex. 6 at 1. The Individual reported that on the day of
his DUI charge, he had consumed four beers and three mixed drinks, and that his breath alcohol
content (BAC) at the time of his arrest registered at .164 and .171. Ex. 6 at 1. At the time he
completed the LOI, he was consuming alcohol three to four times a week, usually consuming
between one to six beers at a time. Ex. 6 at 1. He also admitted that he consumed enough alcohol
to register above the legal limit of .08% once per week, and that he had operated a vehicle six
times at this limit in the previous twelve months. Ex. 6 at 2. The Individual disclosed the fact that
he had been charged with several alcohol-related offenses, dating back to the 1980s. Ex. 6 at 2.2
The Individual entered a plea of guilty to the DUI charge in December 2020, and the remainder of
the charges against him were dismissed. Ex. 7 at 6-7. Pursuant to the plea, the Individual’s driving
privileges were suspended for three months, a fine was levied against him, an interlock device was
required to be installed in his car, and he was placed on probation. Ex. 7 at 6. On January 14, 2022,
upon the successful completion of his probation, the Individual’s guilty plea was set aside, and the
case was dismissed. Ex. D.
During his psychological evaluation with the DOE Psychologist, the Individual reported having
consumed a total of five beers and three mixed drinks on July 31, 2020, the evening preceding his
August 1, 2020, DUI charge. Ex. 9 at 3. The DOE Psychologist concluded that the amount of
2 The Individual also acknowledged the existence of these alcohol related charges from the 1980s and 1990s in a 2018
Enhanced Subject Interview (ESI). Ex. 10 at 2. He attributed these incidents to “being youthful” and “bad decisions.”
Ex. 10 at 2. During that interview, he denied any adverse effects on his life due to alcohol use. Ex. 10 at 2.
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alcohol the Individual reported having consumed was inconsistent with the Individual’s reported
BAC, as the amount he reported would have resulted in a BAC of only .07. Ex. 9 at 3. The
Individual reported that although he last consumed alcohol in November 2020, “he has not
consumed alcohol since his probation began on [December 1, 2020].”3 Ex. 9 at 5. The DOE
Psychologist diagnosed the Individual with AUD, Moderate, in Early Remission and determined
that his prognosis was fair, as he had not yet participated in an alcohol treatment program. Ex. 9
at 8. Regarding what would demonstrate sufficient evidence of rehabilitation of the Individual, the
DOE Psychologist recommended that the Individual abstain from alcohol for at least six months,
that he attend individual and group alcohol rehabilitation counseling no less than two-to-three
times per week, and in the alternative, that the Individual attend Alcoholics Anonymous (AA), or
a similar program, meeting no less than three times per week. Ex. 9 at 9. If the Individual chose to
attend AA meetings, he should secure the assistance of a sponsor to work through the program’s
Twelve Steps and adequately document his participation and attendance. Ex. 9 at 9. The DOE
Psychologist also recommended that three alcohol tests be conducted within the recommended six
months of abstinence. Ex. 9 at 9.
On January 7, 2022, the Individual underwent a computer-generated Global Appraisal of
Individual Needs (GAIN) assessment, which was administered by an evaluator. Ex. A.4 The
Individual was diagnosed with AUD, Moderate, in Sustained Remission. Ex. A at 1. The
assessment determined that the Individual intends to remain abstinent but also reported that the
Individual “did not endorse any reasons for quitting.” Ex. A at 7. The GAIN assessment did not
recommend that the Individual engage in substance abuse treatment. Ex. A at 7.
V. Hearing Testimony
At the hearing, the Individual denied having ever used alcohol while at work. Tr. at 17-18. He
acknowledged that his experiences with alcohol have been “mostly negative[,]” and that alcohol
consumption can impact his work life and his relationships. Tr. at 18-20. Regarding his past
alcohol-related charges, the Individual testified that when he was young, he was “acting out” in
response to his home life and did not undergo any counseling at that time. Tr. at 23-24, 26. He did,
however, undergo treatment when he was a teenager, as it was recommended by his employer. Tr.
at 58-59; Ex. 15. Regarding the August 1, 2020, DUI charge, the Individual testified that he visited
a friend’s home, and when he was stopped by law enforcement for an illegal lane change on his
way home, his BAC was measured twice resulting in .16 and .17 alcohol levels. Tr. at 26-27, 55.
Until the August 1, 2020, DUI, the Individual had not been charged with DUI since the 1990s. Tr.
at 27. He went on to confirm that he took responsibility for the 2020 DUI and reported it
appropriately. Tr. at 28-29. After appearing in court for the matter, the Individual decided that he
needed to “do away with alcohol in [his] life[.]” Tr. at 30. The Individual testified that pursuant to
3 In conjunction with the examination, Phosphatidylethanol (PEth) and Ethyl Glucuronide (EtG) tests were
administered. Ex. 9 at 7. Both tests were negative for alcohol, which was consistent with the Individual’s assertion
that he had abstained from alcohol. Ex. 9 at 7; Tr. at 103-04.
4 During her testimony, the DOE Psychologist stressed that the GAIN Assessment provides computer-generated
results. Tr. at 114. She did not agree with the conclusion that no treatment was recommended. Tr. at 114-15.
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his plea agreement, the Individual was ordered to complete a year of probation, have an interlock
system installed in his car for the duration of a year, and pay an assessed fine. Tr. at 30-34.5 The
Individual stated that prior to his evaluation with the DOE Psychologist he would consume
approximately one to three beers, three or four times every week. Tr. at 84-85. He admitted there
were times he would consume up to six or seven beers and drive. Tr. at 85.
The Individual testified that he received the DOE Psychologist’s report and reviewed the
recommendations. Tr. at 39. By the time he met with the DOE Psychologist, he had already
completed six months of sobriety, but had not complied with “the AA or the counseling[]”
recommendation. Tr. at 39-40.6 The Individual decided to abstain from alcohol on November 7,
2020, prior to the psychological evaluation because he recognized that he had “put [his] job in
jeopardy,” and realized that he “needed to straighten [his] life out.”7 Tr. at 42, 86-88. On February
3, 2022, the Individual began using an “alcohol tester that…pairs through [his] phone,” requiring
him to blow into a device three times every day, producing a report pertaining to his alcohol
consumption. Tr. at 45-47, 68-69; Ex. E. The Individual also began attending AA meetings, having
attended three by the time of the hearing, but had not yet secured a sponsor. Tr. at 48-50, 72.
Although the Individual had previously attended AA meetings, he confirmed that he stopped
attending meetings, as he was not “able to stick with it.” Tr. at 66. The Individual acknowledged
that he had previously attempted to abstain from alcohol three or four times over the course of his
adult life. Tr. at 66, 78-79. Since receiving the psychological evaluation, the Individual
acknowledged that he had not undergone any PEth testing, as recommended by the DOE
Psychologist. Tr. at 71.
The DOE Psychologist testified that she was given access to the Individual’s personnel file, which
she reviewed prior to meeting with the Individual. Tr. at 98-99. Based on the results of the
psychological testing during her evaluation of the Individual, the DOE Psychologist found him to
be honest and candid, save for some questioning pertaining to his juvenile legal history. She noted
5 The Individual testified that to start his car, the Individual was required to blow into the interlock device. Tr. at 34;
Ex. F. On 800 occasions he blew into the device, his BAC passed. Tr. at 34-35; Ex. F. However, there were 30
“violations” where the Individual refused to retest. Tr. at 35; Ex. F. The Individual explained by stating that it is his
understanding that failing to blow enough air to trigger the device results in a “fail.” Tr. at 35. The Individual, having
contracted Covid-19 during the time the device was in his car, had occasionally had trouble blowing enough air to
activate the device. Tr. at 35-36. Further, during his probation, the Individual also submitted to one thirteen-panel
blood test and two multi-panel blood tests, all of which were negative for the substances tested. Tr. at 68; Ex. C. The
DOE Psychologist could not determine if the tests tested for alcohol. Tr. at 68, 111-12. She also could not conclude
whether the Individual had consumed alcohol, waited a period, then blew into the interlock system to “get around the
interlock device.” Tr. at 112.
6 The Individual testified that he lives in a town in which, to his knowledge, there are no counseling services. Tr. at
38-39. He also stated that the DOE Psychologist did not recommend counseling when he met with her for the
evaluation. Tr. at 44. The Individual was actively seeking counseling services at the time of the hearing. Tr. at 48.
7 The Individual testified that between his August 1, 2020, DUI charge and his sobriety date, he consumed alcohol
while on week-long hunting trip. Tr. at 87. He entered a plea in the 2020 DUI matter in late November 2020 but could
not recall receiving a court order to remain abstinent from alcohol in the time between making his first court
appearance and entering the plea. Tr. at 87, 90. During his evaluation with the DOE Psychologist, he informed her
about this incident. Tr. at 90.
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that her testing also revealed the Individual demonstrated “some impulsivity.” Tr. at 100-01. The
DOE Psychologist confirmed that she diagnosed the Individual with AUD, Moderate, in Early
Remission at the time of the evaluation. Tr. at 104. Accordingly, she recommended a period of
abstinence of not less than six months, deviating from the standard twelve months period because
she believed the Individual had not been drinking since his reported sobriety date. Tr. at 105-06.
She also recommended that the Individual obtain alcohol rehabilitation counseling with an
individual and group component or attend AA meetings, and work through the AA program with
a sponsor, two or three times per week. Tr. at 106, 109. The DOE Psychologist also recommended
“at least two PEth tests over [the] course of six months.” Tr. at 106. At the time of the report, the
Individual was given a fair prognosis, but that prognosis would have changed to “good” or
“excellent” had the Individual participated in an alcohol rehabilitation program. Tr. at 110. The
DOE Psychologist indicated that she would have preferred to have some objective evidence, like
PEth tests, to verify that the Individual had been abstinent, as self-reports “are notoriously
incorrect.” Tr. at 115-16. Ultimately, at the time of the hearing, the DOE Psychologist could not
conclude that the Individual showed adequate evidence of rehabilitation or reformation, and she
could not conclude whether the Individual was in early or sustained remission. Tr. at 129-32.
VI. Analysis
Guideline G
The Adjudicative Guidelines provide that an Individual can mitigate security concerns under
Guideline G if:
a) So much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's
current reliability, trustworthiness, or judgment;
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;
Adjudicative Guidelines at ¶ 23(a)-(b).
Although the Individual has recognized his maladaptive alcohol use and has enjoyed over a year
of sobriety, I cannot conclude that the Individual has mitigated the Guideline G concerns stated in
the Notification Letter. In her May 2021 report, DOE Psychologist provided very specific
recommendations that the Individual did not endeavor to implement in their entirety. Although the
Individual has engaged with his local AA chapter, he had only attended three meetings at the time
of the hearing and had not yet secured a sponsor. In the alternative, it was recommended that the
Individual seek substance abuse treatment with an individual and group component. As of the date
of the hearing, the Individual had not yet done so. Further, although the Individual had recently
engaged a service that tests for alcohol three times per day, the results of which were not yet
available at the time of the hearing, and submitted logs from the interlock device in his car, the
DOE Psychologist had specifically recommended PEth alcohol testing to provide objective proof
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of the Individual’s sobriety. Based on the foregoing, the DOE Psychologist could not conclude
that the Individual had sufficiently shown that he was reformed or rehabilitated. Considering the
Individual’s years-long history of maladaptive alcohol use and his failure to thoroughly implement
the DOE Psychologist’s recommendations, the Individual has failed to completely resolve the
Guideline G concerns.
Guideline J
The Adjudicative Guidelines provide that an Individual can mitigate security concerns under
Guideline G 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;
* * *
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).
Although all but one of the charges occurred prior to 2009, the most recent offense was the DUI
in 2020. The Individual’s 2020 DUI is relatively recent. Further, the more egregious of the charges
enumerated in the Individual’s criminal record are alcohol related, including the 1990 and 2020
DUIs. Considering the charges within the context of the Individual’s history of alcohol misuse,
his admission that he previously operated his car under the influence of alcohol and his relatively
recently established sobriety, I conclude that not enough time has elapsed since the latest criminal
behavior so as not to cast doubt on his reliability, good judgement, or trustworthiness. It is also for
these reasons that I cannot conclude that the behavior took place under unusual circumstances. As
stated above, the Individual has indicated that he has committed himself to abstinence, but the
Individual has not presented sufficient evidence of successful rehabilitation from his AUD
diagnosis. The resolution of his 2020 DUI is encouraging, but I am not convinced the Individual
has been successfully rehabilitated without a showing of further treatment and additional lifestyle
changes. Accordingly, the Individual has failed to resolve Guideline J security concerns.
VII. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G and J of
the Adjudicative Guidelines. After considering all the evidence, both 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 Summary of Security Concerns.
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.
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Therefore, the Individual’s security clearance should not be restored. Either party may seek review
of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals