PSH-22-0051

*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: February 2, 2022 ) Case No.: PSH-22-0051
)
__________________________________________)
Issued: August 23, 2022
__________________________
Administrative Judge Decision
__________________________
Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set forth
at 10 C.F.R. Part 710, entitled, “Procedures for Determining Eligibility for Access to Classified
Matter and Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance 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. Derogatory information regarding the Individual’s personal conduct, alcohol use, and
criminal activity was discovered. The Local Security Office (LSO) began the present administrative
review proceeding by issuing a Notification Letter to the Individual informing him that he was
entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
regarding his eligibility to continue holding 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), the
Individual presented the testimony of three witnesses. The LSO presented the testimony of the
DOE psychologist who had evaluated the Individual. See Transcript of Hearing (hereinafter cited
as “Tr.”). The LSO submitted 22 exhibits, marked as Exhibits 1 through 22 (hereinafter cited as
“Ex.”). The Individual submitted 17 marked exhibits, marked as Ind. Exhibits A through D, and a
number of unmarked exhibits which will be cited hereafter as “Unlabeled Ind. Exhibit”.
1 Under the regulations, “‘Access authorization’ means 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).
Such authorization will also be referred to in this Decision as a security clearance.
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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 a substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guidelines E, G, and J of the National Security Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a
Sensitive Position, effective June 8, 2017 (Adjudicative Guidelines). These guidelines are not
inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines
are applied in conjunction with the factors listed in the adjudicative process. 10 C.F.R. 710.7.
Guideline E states that “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual's
reliability, trustworthiness, and ability to protect classified or sensitive information. Of special
interest is any failure to cooperate or provide truthful and candid answers during national security
investigative or adjudicative processes.” Adjudicative Guidelines at ¶15. Concerns that could raise
a security concern include:
(a) Deliberate omission, concealment, or falsification of relevant facts from any personnel
security questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status, determine
national security eligibility or trustworthiness, or award fiduciary responsibilities;
(b) Deliberately providing false or misleading information; or concealing or omitting
information, concerning relevant facts to an employer, investigator, security official,
competent medical or mental health professional involved in making a recommendation
relevant to a national security eligibility determination, or other official government
representative;
(c) Credible adverse information in several adjudicative issue areas that is not sufficient
for an adverse determination under any other single guideline, but which, when considered
as a whole, supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the individual may not properly
safeguard classified or sensitive information;
(d) Credible adverse information that is not explicitly covered under any other guideline
and may not be sufficient by itself for an adverse determination, but which, when combined
with all available information, supports a whole-person assessment of questionable
judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with
rules and regulations, or other characteristics indicating that the individual may not
properly safeguard classified or sensitive information. This includes, but is not limited to,
consideration of:
(1) Untrustworthy or unreliable behavior to include breach of client confidentiality,
release of proprietary information, unauthorized release of sensitive corporate or
government protected information;
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(2) Any disruptive, violent, or other inappropriate behavior;
(3) A pattern of dishonesty or rule violations; and
(4) Evidence of significant misuse of Government or other employer's time or
resources;
(e) Personal conduct, or concealment of information about one's conduct, that creates a
vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or
other individual or group. Such conduct includes:
(1) Engaging in activities which, if known, could affect the person's personal,
professional, or community standing;
(2) While in another country, engaging in any activity that is illegal in that country;
(3) While in another country, engaging in any activity that, while legal there, is illegal
in the United States;
(f) Violation of a written or recorded commitment made by the individual to the employer
as a condition of employment; and
(g) Association with persons involved in criminal activity.
Id. at ¶16.
Guideline G states that 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. Conditions that could raise a security concern
include:
(a) Alcohol-related incidents away from work, such as driving while under the influence,
fighting, child or spouse abuse, disturbing the peace, or other incidents of concern,
regardless of the frequency of the individual's alcohol use or whether the individual has
been diagnosed with alcohol use disorder;
(b) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated
or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others,
regardless of whether the individual is diagnosed with alcohol use disorder;
(c) Habitual or binge consumption of alcohol to the point of impaired judgment, regardless
of whether the individual is diagnosed with alcohol use disorder;
(d) Diagnosis by a duly qualified medical or mental health professional (e.g., physician,
clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use
disorder;
(e) The failure to follow treatment advice once diagnosed;
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(f) Alcohol consumption, which is not in accordance with treatment recommendations,
after a diagnosis of alcohol use disorder; and
(g) Failure to follow any court order regarding alcohol education, evaluation, treatment, or
abstinence.
Id. at ¶22.
Guideline J states that criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness and that, 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. Conditions that could
raise a security concern include:
(a) A pattern of minor offenses, any one of which on its own would be unlikely to affect a
national security eligibility decision, but which in combination cast doubt on the
individual's judgment, reliability, or trustworthiness;
(b) 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;
(c) Individual is currently on parole or probation;
(d) Violation or revocation of parole or probation, or failure to complete a court-mandated
rehabilitation program; and
(e) Discharge or dismissal from the Armed Forces for reasons less than “Honorable.”
Id. at ¶31.
The LSO alleges that:
• In 2005, the Individual was cited for Minor In Possession of alcohol;
• In 2015, the Individual was arrested and charged with Aggravated Driving While
Intoxicated (DWI) and had a Blood Alcohol Concentration (BAC) of .18 and .17, according
to two tests;
• In April 2021, after admitting to consuming five beers prior to being pulled over, the
Individual was refused to submit to a breathalyzer test and was arrested and charged with
Aggravated Driving While Under the Influence of Intoxicating Liquor or Drugs and Open
Container;
• In May 2021, the Individual was arrested and charged with Aggravated DWI and Leaving
the Scene of an Accident;
• In August 2021, the Individual turned himself in for an outstanding warrant related to his
April 2021 DWI arrest;
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• In September 2021, a DOE-consultant Psychologist diagnosed the Individual with
Unspecified Alcohol-Related Disorder without adequate evidence of rehabilitation or
reformation;
• In June 2021, the Individual failed to disclose his April 2021 DWI arrest during an intake
assessment at a treatment center he was attending as a result of his May 2021 DWI, and the
Individual did not disclose the arrest until three days later; and
• In July 2021, the Individual failed to disclose his 2015 DWI arrest during an alcohol
assessment.
Ex. 2 at 1–2. Accordingly, the LSO’s security concerns under Guidelines E, G, and J are justified.
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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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 so as 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.
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
The Individual’s group counselor (Counselor 1), a licensed clinical social worker, testified that the
Individual completed a 16-week substance abuse recovery program in November 2021 that
included trigger identification, coping skills, and mindfulness training. Tr. at 18–19, 21, 30. She
testified that the Individual attended faithfully, internalized the information, and demonstrated that
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he was using the skills he learned. Id. at 19, 21. She further testified that the Individual understood
the consequences of his decision to drive after consuming alcohol. Id. at 22, 29. Counselor 1 had
seen the Individual about 10 times because she did not lead every group therapy session. Id. at 28–
29, 32. She testified that the Individual continued to attend the program after completing it in
November 2021, attending as recently as two weeks prior to the hearing. Id. at 30.
The Individual’s individual counselor (Counselor 2) testified that he had held 12 sessions with the
Individual to address relapse prevention, self-care, and positive wellbeing. Tr. at 37–38. During
the Individual’s intake assessment, the Counselor’s clinic had diagnosed the Individual with
Alcohol Use Disorder, Moderate, based on the Individual’s reporting of two previous DUIs. Id. at
39, 43–44. However, during the Individual’s treatment, Counselor 2 came to believe that the
Individual did not have an alcohol use disorder, but was “just not responsible when it [came] to his
drinking.” Id. at 43–44. He believed he had revised the Individual’s diagnosis to Alcohol Use
Disorder, Mild. Id. at 50. Counselor 2 testified that when the Individual began counseling, he was
not considered at high risk for consuming alcohol. Id. at 39. Counselor 2 had been aware of the
Individual’s DUIs and that he had completed a 16-week substance abuse recovery program. Id. at
40. Counselor 2 also testified that the Individual attended a mood regulation group, which was
intended to help attendees manage their emotions, but was not aware of how the Individual
performed in that group because he did not run those groups. Id. at 38, 41. Counselor 2 testified
that the Individual’s performance in individual therapy was satisfactory. Id. at 41. He further
testified that he had “briefly discussed being a responsible thinker,” and in one session he had
“mention[ed] accountability, taking responsibility.” Id. at 51. The Individual was still attending
individual counseling sessions as of the hearing date. Id. at 42.
The Individual’s Alcoholics Anonymous (AA) sponsor testified that the Individual was active in
the group, shared his story, and had identified himself as an alcoholic. Tr. at 56–57, 61. He testified
that the Individual “went pretty quick through the steps,” and his list of people he had affected with
his drinking (compiled for Step 4 and one of the few concrete assignments in the program) was not
long or detailed. Id. at 58, 64–67. He had been the Individual’s sponsor for about 8 to 12 weeks in
the spring of 2022, with his sponsorship concluding around the end of May or beginning of June.
Id. at 57–58. The Individual had not had a different sponsor before him, but he believed the
Individual had found a new sponsor after him. Id. at 58. The sponsor testified that the Individual
had last consumed alcohol about a week before they met in the spring of 2022. Id. at 61. The
sponsor testified that the Individual’s recent alcohol consumption was in conjunction with legal
trouble and his AA attendance was court recommended. Id. at 63. When informed that the
Individual’s most recent known legal trouble occurred in 2021, the sponsor confirmed that the
recent alcohol consumption was, to his knowledge, about a week before they met in 2022 and that
the Individual did not start attending AA until March 21, 2022. Id. at 68–71.
The Individual testified that he had received a citation for underage possession of alcohol when he
was a minor and had pled no contest to a DWI charge in 2015. Tr. at 74–75. After his first DWI,
the Individual continued consuming alcohol. Id. at 75. He did not attend treatment beyond the
alcohol education classes required by the court. Id.
The Individual was charged with DWI again in April 2021. Tr. at 75. Initially, the Individual
testified that he was pulled over on his way home from a fishing trip. Id. He later testified that he
was on his way to his mother’s home when he decided to stop and go fishing for the first time in
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his life. Id. at 75, 79, 82. When he was pulled over, he admitted to the officer that he had consumed
six beers. Id. at 75–76. The Individual testified that he had only consumed five beers and had done
so between noon and 5:00 PM on the day of his April DWI arrest. Id. at 76. After telling the officer
he had consumed several beers, the Individual was asked to perform a field sobriety test, which he
failed, and he was subsequently arrested. Id. The Individual refused to blow into a breathalyzer
when asked to do so. Id. at 78. He testified that he had refused the test because he was struggling
to hear the officer over traffic, a passing train, and the wind. Id. A nearly empty bottle of pineapple
vodka was also found in the Individual’s vehicle that day. Id. at 77; Ex. 10 at 2. The Individual
testified that he had not consumed any of the vodka and that he used it for cooking while camping.
Tr. at 77–78. The Individual further testified that he had not felt impaired when he decided to drive
that day, but after his treatment he knew he was definitely impaired when he drove. Id. at 77, 80.
The Individual then testified that he believed, at the time, that he had passed the field sobriety test.
Id. at 79. At the hearing, he still contested the police report, testifying that he was not speeding at
the time he was pulled over. Id. After his arrest, the Individual was released with conditions that
included a condition that he not consume alcohol. Ex. 10 at 9.
On May 27, 2021, the Individual was again arrested for DWI after hitting a motorcycle. Tr. at 81.
He testified that he was not under the influence of alcohol when he drove that day. Id. at 85. He
testified that he had not been allowed to go into work for several days after taking a COVID-19
vaccine. Id. at 85–86. He then testified that he called in sick to work that morning, May 27 at 7:30
AM. Id. at 86. The record of his call-in stated that he had experienced body aches and fatigue the
day before that had resolved that morning. Id. The record further noted that the Individual had
“denie[d] any fever, chills, cough, SOB,2 DOE,3 chest pain, nausea, loss of taste, smell, vomiting,
diarrhea, or abdominal pain.” Id. The Individual testified that this description was correct at 7:30
AM, but that shortly afterward he began to feel much worse. Id. He testified that about two hours
after making the call, he began experiencing diarrhea again.4 Id. at 92. The Individual stated in his
letter of interrogatory (LOI), that he was turning onto his block when he soiled himself and
mistakenly pressed the accelerator instead of the brake. Ex. 11 at 10. He stated in the LOI that he
hit a motorcycle when he used the accelerator. Id. In the LOI he stated that he continued down the
block, stopped, and wiped himself with a face mask, then turned around and began driving back
toward the motorcycle. Id. He stated in the LOI that an officer pulled him over in front of his home
and told him someone had called and reported the hit and run. Id. The Individual testified that he
refused to take a breathalyzer on May 27 because he knew he had taken medicine and consumed
alcohol the night before and was attempting to hide it from the officers. Tr. at 121.
In his LOI, the Individual stated that he had not consumed alcohol before the DWI. Ex. 11 at 10.
At the hearing, the Individual testified that he drank a six-pack of beer late at night on May 26,
2021, in an attempt to self-medicate, despite feeling sick. Tr. at 92, 98. The Individual also testified
as to his pattern of drinking prior to his April 2021 DWI arrest. He testified that he would only
drink when he was cooking. Id. at 79. He elaborated, testifying that he would use alcohol for
cooking, then drink the remainder of the alcohol, resulting in his consuming several drinks while
2 Shortness of Breath.
3 Dyspnea on exertion, defined as “the sensation of running out of the air and of not being able to breathe fast or deeply
enough during physical activity.” Sharma, Hashmi, Badireddy, Dyspnea on Exertion (May 15, 2022),
https://www.ncbi.nlm.nih.gov/books/NBK499847/.
4 During the hearing, the Individual confirmed the accuracy of the call-in record which indicated that the Individual
had only previously experienced fever and fatigue and that he had denied having diarrhea. Tr. at 86.
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cooking. Id. The Individual later testified that his alcohol consumption had increased after his father
died in 2019. Id. at 81. He testified that his father’s death was a significant contributor to his
problematic alcohol use in May 2021. He further testified that his counselors told him that
“depression was there, it just didn’t, you know, come together until that time frame [of the May
2021 DWI].” Id. The Individual testified that he last consumed alcohol on May 26, 2021. Id. at 98.
He had an interlock device installed on his car for many months after the May DWI. Id. at 110.
The Individual was evaluated by the Psychologist on August 26, 2021. Ex. 15. at 2. The
Psychologist diagnosed the Individual with Unspecified Alcohol-Related Disorder and
recommended weekly individual and twice-weekly group therapy for alcohol treatment for at least
six months; bi-monthly blood tests for alcohol use in the prior 30 days (PEth test); and abstinence
for a at least six months. Id. at 10–11. The Psychologist ordered a PEth test for the Individual,
which had a negative result that indicated the Individual had not consumed alcohol in the preceding
30 days. The Psychologist added that in lieu of the therapy, the Individual could attend AA three
times per week and work with an AA sponsor for at least six months. Id. The Individual completed
a 16-week relapse prevention group program in November 2021. Ind. Ex. 11 at 1. He began
attending individual and group counseling, as well as AA, in March 2022. Ind. Ex. 1; Ind. Ex. 2;
Ind. Ex. 3; Ind. Ex. 9; Ind. Ex. 10. The Individual took PEth tests on April 22, 2022, May 26, 2022,
and June 24, 2022, all of which had negative results showing that the Individual had not consumed
alcohol in the 30 days preceding each test. Ind Ex. 4; Ind. Ex. 5; Unlabeled Ind. Exhibit, Labcorp
Results, June 9, 2022.
The Psychologist described the Individual’s lack of candor during her evaluations as “generalized,”
“across the board,” and “serious.” Tr. at 194. She testified that the Individual’s lack of candor could
have lead to an incorrect diagnosis or treatment. Id. at 194–95. The Psychologist testified that, if
asked to modify her diagnosis after hearing the Individual’s testimony, she would likely change the
diagnosis to Alcohol Use Disorder, Moderate, in sustained remission. Id. at 196, 204–05. She
testified that she believed the Individual to be rehabilitated and reformed and that she believed the
Individual had a good prognosis. Id. at 203–04. She testified that she believed the Individual would
be less likely to have a lack of candor if he faced potential situations with serious consequences.
Id. at 207. She testified that, given the Individual’s reported alcohol consumption before the May
DWI,5 he would have been unlikely to have difficulty driving that day. Id. at 208.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
5 The Psychologist used the amounts the Individual reported at the hearing to calculate his level of intoxication.
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and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against granting or restoring security clearances, I must deny access authorization if I
am not convinced that the LSO’s security concerns have been mitigated such that restoring the
Individual’s clearance is not an unacceptable risk to national security.
Guideline E concerns may be mitigated if:
(a) The individual made prompt, good-faith efforts to correct the omission, concealment,
or falsification before being confronted with the facts;
(b) The refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with professional
responsibilities for advising or instructing the individual specifically concerning security
processes. Upon being made aware of the requirement to cooperate or provide the
information, the individual cooperated fully and truthfully;
(c) The offense is so minor, or so much time has passed, or the behavior is so infrequent,
or it happened under such unique circumstances that it is unlikely to recur and does not
cast doubt on the individual's reliability, trustworthiness, or good judgment;
(d) The individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or factors
that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such
behavior is unlikely to recur;
(e) The individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) The information was unsubstantiated or from a source of questionable reliability; and
(g) Association with persons involved in criminal activities was unwitting, has ceased, or
occurs under circumstances that do not cast doubt upon the individual's reliability,
trustworthiness, judgment, or willingness to comply with rules and regulations.
Adjudicative Guidelines at ¶17.
Guideline G concerns may be mitigated 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;
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(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.
Adjudicative Guidelines at ¶23.
Guideline J concerns may be mitigated 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) 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.
At the hearing, the Individual’s testimony was often inconsistent; he gave varying accounts of the
certain events and varying reasons for his actions. For example, in reciting the facts leading up to
his April 2021 DWI, the Individual first said he was on his way home from a fishing trip when he
was pulled over. He added that it was his first time ever fishing. He later testified that he was on
his way to see his mother when he decided to go fishing. He did not explain why he apparently
decided to go home after fishing instead of continuing on to his mother’s home, nor why he decided
to try his hand at fishing for the first time in the middle of the journey to his mother’s home. Another
example of the Individual’s testimony being contradictory and incredible comes from his recitation
of the facts leading up to his May 2021 DWI. The Individual’s testimony about his physical
condition on that day continues to shift with every retelling. It is difficult at best to draw a
conclusion as to what symptoms, if any, the Individual experienced and why he would drive under
such conditions. Similarly, the Individual insisted he was not intoxicated during the May DWI, but
there is no evidence to support his statements because he refused to submit to alcohol testing with
the stated intent of concealing his alcohol use, however small or distant that use may have been.
Furthermore, the Individual testified that he was on his block when he experienced incontinence
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and that he drove home, cleaned himself outside his home, then got back into his car and drove
back to the scene of the accident, again, on the same block as his home. It is unclear why the
Individual would use his car to return to the scene and why he would drive home to clean up but
do so outside. It is difficult to harmonize all the facts to which the Individual testified under oath
and, given his history of minimizing, omitting, and misstating facts to avoid the consequences of
his actions, I cannot conclude that the Individual has stopped the behavior that caused the LSO to
be concerned, much less mitigated those concerns.
The Individual presented evidence that he had over six months of abstinence from alcohol, as
recommended by the Psychologist. He has also completed a treatment program and continues to
engage in counseling and AA. However, the Individual’s Guideline G concerns are inextricably
intertwined with his Guideline E concerns, and the Individual’s behavior is such that these efforts
cannot, on their own, mitigate the LSO’s concerns. Because the Individual’s criminal conduct is
blended with alcohol use, I cannot find that the Guideline J concerns are mitigated unless the
Guideline G concerns are mitigated as well.
The Individual’s reports of abstinence are supported by PEth testing that covers a period of four
months, only three of them consecutive. Despite the Psychologist’s opinion that the Individual is
medically rehabilitated and reformed, I cannot find that the Individual’s self-report of abstinence
since his May DWI is credible because he has not mitigated the Guideline E concerns. It is unclear
whether the Individual has relapsed, as indicated by his sponsor’s testimony. I am also concerned
by the Individual’s failure to take significant steps toward recovery until nine months after his most
recent DWI. He did not begin attending AA or his therapy and aftercare programs until March
2022, just over 3 months prior to the hearing. The Individual’s sponsor testified that the Individual
had worked the 12 Steps quickly and had not gone into significant detail or depth. I cannot give
significant weight to his 2021 treatment because he did not fully disclose the extent of his alcohol
history, which may have resulted in a different course of treatment. I am not convinced that the
Individual has had sufficient time in his treatment programs to ensure that he has made changes
which will be enduring.
The Individual’s pattern of dangerous and unlawful alcohol-related behavior spans 17 years; his
specific pattern of driving under the influence of alcohol spans six years. The Individual cannot
demonstrate that he is no longer a security concern with only three consecutive months of
documented abstinence. He has gone a year without a DWI before and then proceeded to drink and
drive again years later.
The Guideline G and J concerns at issue are based on particularly egregious events. The Individual
has been arrested for three DWIs, a striking and extreme number of DWIs for a single person over
a lifetime, much less within a 10-year span. His risky behavior while under the influence of alcohol
appears to have escalated over time. The Individual was cited for possessing alcohol as a minor.
Next, he was arrested for his first DWI with a Blood Alcohol Concentration over twice the legal
limit. Then, when pulled over for his second DWI, the Individual refused to comply with police
instructions regarding alcohol testing. Shortly after that, the Individual was arrested for his third
DWI after leaving the scene of an accident that he caused and in which another person was injured.
With each incident the Individual demonstrated increasingly poor decision-making and
increasingly risky behavior. While it is difficult to explicitly show that a pattern of risky and
unlawful behavior has been broken, it is nevertheless imperative that the agency is able to trust the
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Individual to behave appropriately in regard to a legal and widely available product such as alcohol.
The Individual has not demonstrated that his judgment, in both the decision not to drink and the
decision not to drive if he does choose to drink, has improved enough to warrant that trust.
The Individual has clearly taken positive steps to address his alcohol-related issues. However,
doubts remain regarding his commitment to candor and honesty, his ability to sustain abstinence in
the long term, and his ability to refrain from risky and unlawful alcohol-related behavior in the long
term. Accordingly, I cannot find that the concerns under Guideline E, Guideline G, or Guideline J
are mitigated.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for access authorization under Guidelines E, G, and
J of the Adjudicative Guidelines. I further find that the Individual has not succeeded in fully
resolving those concerns. Therefore, I cannot conclude that restoring DOE access authorization to
the Individual “will not endanger the common defense and security and is clearly consistent with
the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore
access authorization to the Individual at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals