PSH-22-0041

*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: January 7, 2022 ) Case No.: PSH-22-0041
)
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Issued: April 1, 2022
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (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
The Individual is employed by a DOE contractor in a position which requires that he hold a security
clearance. Based on information gleaned from an October 2020 Enhanced Subject Interview (ESI)
and the Individual’s responses to a December 2020 Letter of Interrogatory (LOI), 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.
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
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
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testified on his own behalf, presented the testimony of eight witnesses, and submitted three
exhibits, marked as Exs. A through C. See Transcript of Hearing, Case No. PSH-22-0041 (cited as
“Tr.”) The DOE Counsel presented the testimony of one witness and submitted nine exhibits
marked as Exs. 1 through 9.
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 “alcohol-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 “habitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the individual is
diagnosed with alcohol use disorder.” Adjudicative Guidelines at ¶ 22(a), (c). With respect to
Guideline G, the LSO alleged that 1) in May 2021, a DOE Psychologist concluded the Individual
habitually or binge consumed alcohol to the point that would impair judgment, and 2) the
Individual has a history of habitual or binge consumption of alcohol to the point of impairment, as
evidenced by his responses to the LOI, a 2009 encounter with law enforcement after consuming
alcohol, and a 2006 citation for underage drinking. 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 “evidence (including, but not limited to, a credible allegation, an
admission, and matters of official record) of criminal conduct, regardless of whether the individual
was formally charged, prosecuted, or convicted.” Adjudicative Guidelines at ¶ 31(b). With respect
to Guideline J, the LSO alleged that the Individual has engaged in criminal conduct including 1) a
2009 encounter with law enforcement where the Individual was tested and found to be above the
legal alcohol limit, and 2) a 2006 citation for underage drinking. Ex. 2 at 3. Therefore, I find that
the LSO had sufficient justification to invoke Guideline J in the present case.
III. Regulatory Standards
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
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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 and Hearing Testimony
In the LOI, the Individual disclosed that he had two alcohol-related encounters with law
enforcement. Ex. 5 at 1, 2-3. Specifically, in 2006, he was charged with underage drinking. Id. at
1. In 2009, the Individual fell asleep on a bench after consuming alcohol at a concert and
subsequently was administered an alcohol breath test by local police. Id. at 2-3. The Individual
failed the test, but he was not arrested. Id. at 3. At the time he completed the LOI, the Individual
stated that he was consuming alcohol one to three times a week, usually consuming between one
to three 12-ounce beers or one to two 5-ounce glasses of wine at a time. Ex. 5 at 1. He also admitted
that he consumed enough alcohol to register above the legal limit of .08 percent two to three times
per month. Ex. 5 at 2.
The Individual testified that he last consumed alcohol six weeks prior to the hearing. Tr. at 16, 19.
He also testified that he has not participated in Alcoholics Anonymous (AA), as he believes he has
the tools and support of his family in his life and has not had a problem regulating his alcohol
consumption. Id. at 17-18. The Individual testified that he has not undergone any
Phosphatidylethanol (PEth) testing, other than the test conducted with the psychological
evaluation. Id. at 26. In his response to the LOI, the Individual indicated that he consumes alcohol
one to three times per week, yet his medical records reflect that he reported he was consuming
alcohol three to five times per week. Ex. 6 at 1; Ex. B at 2. When questioned at the hearing about
the disparity between what he reported to the LSO versus what he reported to his primary care
physician, the Individual indicated that he consumed alcohol on average one to three times per
week. Id. at 21.
The Individual’s character witnesses, including his wife, sister, sister-in-law, high school friend,
college friend, and two work colleagues, all testified that the Individual was trustworthy and would
not violate the national security. Tr. at 31, 41, 46, 49, 58, 68, 70, 76-77, 84. In addition, they all
stated that they had never seen the Individual have issues with alcohol. Id. at 32, 40, 48, 54, 79,
86. The Individual’s sister claimed that if she had ever seen him have a problem with alcohol, she
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would have spoken to him about it. Id. at 32.2 One of the Individual’s co-workers, who is also a
friend, stated that they get together socially once a month, and he has never seen anything regarding
the Individual’s alcohol consumption that would give him concern. Id. at 79.
The Individual’s primary care physician (Physician) testified that she has been treating him for
two years. Tr. at 91. She said that when she first began treating him, they discussed the
Individual’s alcohol consumption because he was overweight, his blood pressure was high, his
AST was a little high, and he had an elevated liver function. Id. at 93; Ex. B at 23-27. The Physician
indicated that at their second appointment, it was apparent that he had reduced his alcohol
consumption. Id. at 96. In the Individual’s medical file, she noted that he reported “drinking less
alcohol.” Ex. B at 15. However, the Physician stated that she had no experience with PEth tests.
Id. at 98.
During his May 2021 psychological evaluation with the DOE Psychologist, the Individual reported
“drinking to the point of intoxication once or twice per month, usually in the context of . . . special
events or backyard gatherings.” Ex. 7 at 5. Also, during the evaluation, the Individual stated that
his alcohol consumption for the previous five years was one to three days per week. Id. He asserted
that his heaviest alcohol consumption had been approximately two weeks prior to the evaluation
when he attended a wedding, admitting to consuming eight beers and one glass of wine over the
course of a multi-hour wedding. Id. The DOE Psychologist concluded that the amount of alcohol
the Individual reported having consumed at the wedding would equal a Blood Alcohol Content of
.154 percent.
After the evaluation, the Individual underwent two laboratory tests, including the PEth test and an
Ethyl Glucuronide (EtG) urine test. The test results were evaluated by a consulting psychiatrist,
who concluded that although the EtG test was negative, the PEth test was positive and showed
heavy alcohol consumption. Id. at 6. The DOE Psychologist concluded that, while the Individual
does not have an Alcohol Use Disorder, he does habitually, or binge, consumes alcohol to the point
that would impair judgment. Id. at 9. In his report, he recommended that, to show rehabilitation
or reformation, the Individual complete six months of abstinence, verified by frequent PEth testing.
Id. He also endorsed participation in Alcoholics Anonymous (AA) three times per week for a
period of six months, including obtaining a sponsor and working through the twelve steps. Id. The
DOE Psychologist also suggested participation in an intensive outpatient treatment program. Id.
At the hearing, the DOE Psychologist confirmed his diagnosis and treatment recommendations.
Tr. at 150.
2 The Individual’s sister stated that, although they do not live in the same city, she has been spending more time with
the Individual because they are both teleworking, so she would occasionally work remotely for a week from where he
lives. Tr. at 30.
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V. 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).
The Individual has not recognized his maladaptive alcohol use. Although he had remained
abstinent for six weeks prior to the hearing, I cannot conclude that the Individual has mitigated the
Guideline G concerns stated in the Notification Letter. In his May 2021 report, the DOE
Psychologist provided very specific recommendations that the Individual did not endeavor to
complete. As the Individual testified, he has not participated in AA nor has he undergone any PEth
testing. The DOE Psychologist could not conclude that the Individual had sufficiently shown that
he was reformed or rehabilitated. Considering 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 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;
* * *
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).
Both charges raised by the LSO occurred over 12 years prior to the date of the hearing. These
charges occurred while the Individual was in college. Given this and the lack of other criminal
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incidents, I find that sufficient time has elapsed since the latest criminal behavior so as not to cast
doubt on his reliability, good judgement, or trustworthiness. Accordingly, the Individual has
resolved the 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 raised by Guideline G as 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. 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