PSH-22-0040

*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 29, 2021 ) Case No.: PSH-22-0040
)
__________________________________________)
Issued: April 18, 2022
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 or Special Nuclear Material.”1 As discussed below, after carefully
considering the record before me in light of the relevant regulations and the National Security
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or
Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should not be restored.
I. Background
On October 26, 2020, police charged the Individual with Aggravated Battery on a Household
Member. Ex. 6 at 1; Ex. 7 at 1. The Individual admitted consuming alcohol prior to this incident.
Ex. 6 at 1; Ex. 8 at 1. This information led a Local Security Office (LSO) to request the Individual
to undergo an evaluation by a Psychiatrist (Psychiatrist), who conducted a clinical interview (CI)
of the Individual on April 8, 2021. Ex. 9 at 1. During the CI, the Individual claimed that he had
not consumed alcohol since December 2020. Ex. 9 at 5. In addition to interviewing the Individual,
the Psychiatrist reviewed the Individual’s personnel security file, and ordered two blood tests for
the Individual: an Ethyl Glucuronide (EtG) urine test (which detects alcohol consumption up to 80
hours prior to the test); and a Phosphatidylethanol (PEth) blood test (which detects alcohol use
during the previous 28-days).2 Ex. 9 at 7. The EtG test results were negative, indicating that the
1 An access 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 an access authorization or security clearance.
2 Although the Psychiatrist asked the Individual to take the PEth and EtG tests on April 8, 2021, the date of the CI,
the Individual delayed taking the tests until April 12, 2021. Ex. 9 at 7.
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Individual had not consumed alcohol for the previous several days. Ex. 9 at 7. However, the PEth
test was positive at 41 ng/ml suggesting that the Individual had consumed alcohol in the previous
28 days.3 Ex. 9 at 7.
The Psychiatrist also contacted a counselor (Counselor) who had been providing group alcohol
education services to the Individual since December 10, 2020. Ex. 9 at 6. The Counselor indicated
that the Individual attended the group for 12 weeks and was now attending individual sessions
with the Counselor. Ex. 9 at 6. The Counselor opined that the Individual was “practicing sobriety
and learning the stages of change.” Ex. 9 at 6.
The Psychiatrist issued a report of his findings (the Report) on April 21, 2021. Ex. 9 at 9. In the
Report, the Psychiatrist concluded that the Individual met the criteria for Alcohol Use Disorder,
Mild (AUD) set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition
(DSM-5). Ex. 9 at 9. Noting that the Individual’s laboratory testing indicated that he was still
using alcohol and was being less than honest about his alcohol consumption, the Psychiatrist
recommended that the Individual abstain from the use of alcohol for one year, participate in an
Intensive Outpatient Program (IOP) (including six months of aftercare), and attend weekly
Alcoholics Anonymous (AA) meetings for a full year. Ex. 9 at 9.
After receiving the 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 the substantial
doubt regarding his eligibility to hold a security clearance. See 10 C.F.R. § 710.21.
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 the Administrative Judge
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), I took
testimony from eight witnesses: the Individual, his Sponsor (the Sponsor), his ex-girlfriend (the
Girlfriend), his shop superintendent, two of his fellow AA members, his former union president,
and the Psychiatrist. See Transcript of Hearing, Case No. PSH-22-0040 (hereinafter cited as “Tr.”).
The LSO submitted 11 exhibits, marked as Exhibits 1 through 11 (hereinafter cited as “Ex.”). The
Individual submitted four exhibits, marked as Exhibits A through D.
The Individual’s Ex. A is a “recommendation” from a manager at the Individual’s employer
indicating that the Individual is an exemplary employee. The Individual’s Ex. B is a statement by
his union’s Safety Advocate indicating that the Individual is “an exceptionally well rounded
individual and worker who is constantly expressing good work ethics, loyalty, respect and
integrity.” Ex. B at 1. The Individual’s Ex. C is an AA attendance sheet indicating that the
Individual attended 12 AA meetings between January 10, 2022, and March 28, 2022. The
Individual’s Ex. D is a photograph of four AA coins, which are used to mark specific periods of
sobriety.
3 The laboratory report indicates that “PEth levels in excess of 20 ng/mL are considered evidence of moderate to
heavy ethanol consumption,” but cautioned that “the Center for Substance Abuse Treatment (CSAT) advises caution
in interpretation and use of biomarkers alone to assess alcohol use. Results should be interpreted in the context of all
available clinical and behavioral information.” Ex. 9 at 14.
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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 substantial doubt concerning his eligibility for a security clearance.
In support of this determination, the LSO cited Guideline G of the Adjudicative Guidelines. Under
Guideline G (Alcohol Consumption), the LSO cited the Individual’s alcohol-related arrest and the
Psychiatrist’s conclusion that the Individual met the DSM-5 criteria for AUD. This information
adequately justifies the LSO’s invocation of Guideline G. The Adjudicative Guidelines state:
“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. Among those conditions set forth in the Guidelines that could raise a
disqualifying security concern, under Guideline G, are “alcohol-related incidents away from work,
. . . regardless of the frequency of the individual's alcohol use or whether the individual has been
diagnosed with alcohol use disorder,” and “diagnosis by a duly qualified medical or mental health
provider . . . of alcohol use disorder.” Guideline G at §§ 22(a) and (d).
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 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.
IV. Hearing Testimony
At the Hearing, the Individual’s Sponsor testified that he is also the Individual’s former Union
President. Tr. at 20, 22. They often see each other at the union hall. Tr. at 23. He further testified
that he has never observed the Individual using alcohol or observed that he was intoxicated or
“hung over,” although the Sponsor testified that he had previously noticed that the Individual was
exhibiting signs of depression. Tr. at 20-21. The Sponsor is himself a recovering alcoholic. Tr.
at 21. He has been providing the Individual with advice and guidance in the Individual’s efforts to
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address his alcohol issues. Tr. at 21. He is helping the Individual work his Twelve Step program
and they are currently working on Step Three. Tr. at 21-22. They meet every other Saturday to
read through AA’s Big Book. Tr. at 22-23. The Sponsor testified that the Individual “is showing
all the signs that he genuinely wants to make this work,” and “change his life.” Tr. at 31. He
testified that he has observed a “major change” in the Individual over the past two and a half
months, specifically, the Individual has more confidence, has lost weight, has begun to apply
himself professionally and has become much more engaged in his training. Tr. at 22-25. The
Sponsor testified that he believes that the Individual recognizes that he has a problem with alcohol,
intends to permanently abstain from alcohol use, and is doing everything he needs to succeed in
the program. Tr. at 25, 31-33. There are several AA members in the Individual’s union, and they
provide each other with support and have formed a tight group. Tr. at 30. The Individual’s
relationship with his girlfriend has been a problem for him, and the Individual is ending that
relationship, because he realizes their relationship is a distraction from his sobriety. Tr. at 22-23,
31.
The Girlfriend testified that they are no longer together but are remaining roommates until she can
find new housing. Tr. at 44. When she was asked about the incident that led to the Individual’s
arrest, she testified that they had both consumed alcohol prior to the incident. Tr. at 45. She
testified that the Individual “doesn’t drink” and has been sober for over a year. Tr. at 46, 48. The
last time she observed the Individual using alcohol was the day of his arrest. Tr. at 51. They don’t
keep alcohol in their home, and she does not drink around him. Tr. at 47-47. As of the date of the
hearing, they almost never spend time together. Tr. at 48. She also confirmed the Individual’s
attendance at AA. Tr. at 48, 52.
The Individual’s Shop Superintendent testified that the Individual had worked for him from time
to time during the past three years. Tr. at 58. He does not socialize with the Individual outside of
work hours. Tr. at 58-59. He has never observed the Individual under the influence or with a
hangover. Tr. at 59. He testified that he had previously advised the Individual to curtail his
drinking. Tr. at 60. He noticed that the Individual has recently become a more dependable and
productive employee and that he now exhibits some leadership skills. Tr. at 61.
A fellow AA member (A) testified at the Hearing. He has known the Individual “for a couple of
months.” Tr. at 67. He sees him once a week when they attend AA meetings together. Tr. at 67.
The Individual identifies himself as an “alcoholic” at those meetings. Tr. at 68. The Individual
is “actively involved” during those AA meetings. Tr. at 69.
Another fellow AA member (B) also testified at the Hearing. He testified he sees the Individual
every week at an AA meeting and sometimes they socialize outside of the meetings. Tr. at 83- 84.
He also talks to the Individual one to three times a week. Tr. at 86. The Individual is an active
participant at AA meetings who identifies himself as an “alcoholic” who is committed to getting
and staying sober. Tr. at 83, 85.
The Individual’s former union president testified at the Hearing. He testified that he had observed
“a huge change” in the Individual’s attitude. Tr. at 94. He knows that the Individual is working
the Twelve Step Program with the Sponsor and that the Sponsor thought the Individual was making
good progress. Tr. at 94.
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The Individual testified that he uses “January” as his sobriety date in AA, but also claimed he
“maybe” stopped drinking after his arrest. Tr. at 101-102. He subsequently testified that he could
not remember when he last consumed alcohol but stated that it was “a really long time” ago and
“probably” prior to the CI. Tr. at 112. When asked for the third time when he last used alcohol
he stated: “Probably way back when [the Psychiatrist] had mentioned,” and then, instead of fully
addressing the question at hand, changed the subject. Tr. at 120-121. When he was confronted
with his positive PEth test, he attributed it to his use of mouthwash. Tr. at 103. The Individual
testified that he no longer uses alcohol and does not like to be around people that drink. Tr. at 103.
He stated that he no longer has the urge to drink. Tr. at 104. However, he has not had any
laboratory testing to verify his abstinence, because he cannot afford it. Tr. at 103-104. He testified
that he has not had any alcohol treatment other than AA. Tr. at 104-105. However, he later recalled
his work with the Counselor. Tr. at 119. He stated that he intends to stay in AA and eventually
become a sponsor. Tr. at 109-110. He testified that he is now “a lot . . . happier” and “more
positive.” Tr. at 114. The Individual’s “ultimate goal is to keep alcohol out of my life and to not
use it anymore, because it’s created more issues in my life than positives.” Tr. at 101, 116. The
Individual testified that he knows he “basically screwed up” and that he realizes that “drinking”
caused a lot of problems and left him unhappy. Tr. at 99, 102.
The Psychiatrist testified at the Hearing after observing the testimony of each of the other
witnesses. The Psychiatrist testified that he diagnosed the Individual with AUD in early remission.
Tr. at 128. He believed that the Individual was “off to a good start” but is not yet reformed or
rehabilitated. Tr. at 130. First, he noted that the Individual had developed a high tolerance to
alcohol. Tr. at 130. Second, he noted that the Individual had not followed his treatment
recommendations to attend an IOP and to attend AA meetings for a full year. Tr. at 130. Finally,
he noted that the Individual had not documented his abstinence from alcohol with laboratory tests.
Tr. at 131. The Psychiatrist did cite the Individual’s AA involvement as a positive step towards his
sobriety, however, he noted that the Individual has only been attending AA for three months. Tr.
at 131-132. The Psychiatrist also noted that the Individual had not continued his therapy with the
Counselor. Tr. at 131-132.
V. Analysis
Guideline G
The Individual does not dispute that he was properly diagnosed with AUD. Instead, the Individual
has attempted to mitigate the security concerns raised under Guideline G by unconvincingly
claiming that he has abstained from alcohol use for an indeterminately “long time,” acknowledging
that he has an alcohol problem, and showing that he has become involved in AA. While the
Individual has taken the important first steps of sincerely acknowledging that he has AUD,
attending AA meetings, and working AA’s Twelve Step Program with the support of his Sponsor,
he has not shown that he has sufficiently complied with the reasonable and appropriate
recommendations of the Psychiatrist. First, the Individual has not shown that he has abstained
from alcohol use for 12 months. During this process, the Individual has shown himself to be an
unreliable historian concerning his alcohol use. During the CI, the Individual claimed to have
completely abstained from alcohol use for several months, yet four days later the Individual
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submitted a blood sample for a PEth test which tested positive for alcohol consumption in the prior
28 days. At the hearing, the Individual provided vague and evasive answers concerning his last
use of alcohol and an implausible explanation for his positive PEth test. Additionally, I do not
find the Girlfriend’s testimony to be credible on this issue. Further, the Individual did not show
that his attendance at the group alcohol education classes taught by the Counselor were the
functional equivalent of the IOP followed by six months of aftercare recommended by the
Psychiatrist. Lastly, while the Individual has become meaningfully engaged in AA, that
meaningful engagement only began approximately three months prior to the Hearing, which is
well short of the 12 months recommended by the Psychiatrist.
The Adjudicative Guidelines provide that an individual may 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;
(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; or
(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.
Guideline G at § 23(a)-(d).
The mitigating condition set forth at § 23(a) is not present. Only 18 months have passed since the
Individual’s alcohol-related arrest. Since the Individual has not provided sufficient evidence of
his long-term abstinence or his reform or rehabilitation, his AUD continues to cast doubt on his
current reliability, trustworthiness, and judgment, as exhibited by his failure, during the present
proceeding, to accurately report his alcohol use.
The mitigating condition set forth at § 23(b) is not present. While the Individual has fully
acknowledged that he had a problem with alcohol use, he has not provided evidence of sufficient
actions taken to overcome this problem and has not sufficiently demonstrated a clear and
established pattern of abstinence.
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The mitigating conditions set forth at § 23(c) and § 23(d) are not present since the Individual has
not participated in a treatment program.4
In sum, I find that none of the mitigating factors listed above are applicable in this case.
Accordingly, I find that the Individual has not mitigated or resolved the security concerns raised
under Guideline G by his alcohol-related arrest and AUD diagnosis.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G. After
considering all of the evidence, both favorable and unfavorable, in a commonsense manner, the
Individual has not mitigated the concerns raised under Guideline G. Accordingly, the Individual
has not demonstrated that restoring his security clearance would not endanger the common defense
and would be clearly consistent with the national interest. Therefore, the Individual’s security
clearance should not be restored. The parties may seek review of this Decision by an Appeal Panel
under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
4 The Individual had not submitted sufficient evidence at the Hearing to show that the alcohol education classes were
the functional equivalent of an IOP.