PSH-22-0056

*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 14, 2022 ) Case No.: PSH-22-0056
)
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Issued: April 25, 2022
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access
authorization should not be restored.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires her to hold a security
clearance. On May 30, 2021, the Individual was arrested for Driving Under the Influence (DUI).
Exhibit (Ex.) 4 at 1. The local security office (LSO) issued the Individual a letter of interrogatory
(LOI) concerning her alcohol use. Ex. 7. In her response to the LOI, the Individual indicated that
she needed to consume “7-9 12-ounce beers or hard seltzers” to become intoxicated and that she
consumed alcohol to the point of intoxication about one to two times monthly. Ex. 8 at 2.
A DOE-contracted psychologist (DOE Psychologist) conducted a clinical interview of the
Individual on September 7, 2021. Ex. 11 at 2.2 At the request of the DOE Psychologist, the
Individual provided blood and urine samples for laboratory testing. Id. at 7. A Medical Doctor
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
2 The internal pagination of numerous exhibits offered by the LSO does not correspond to the number of pages
included in the exhibit. For example, the second page of Exhibit 11 is marked as page 1 due to an unnumbered first
page. This Decision cites to pages in the order in which they appear in exhibits without regard for their internal
pagination.
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(MD) who interpreted the results of the laboratory tests indicated that the results were “congruent
with heavy alcohol consumption.” Ex. 12. On September 15, 2021, the DOE Psychologist issued
a Psychological Assessment (Report) in which she determined that the Individual met the
diagnostic criteria for Alcohol Use Disorder (AUD), Moderate, under the Diagnostic and
Statistical Manual of Mental Disorders – Fifth Edition (DSM-5). Ex. 11 at 8–9.
The LSO issued the Individual a letter notifying her that her security clearance had been suspended
and that it possessed reliable information that created substantial doubt regarding her eligibility to
hold a security clearance. Ex. 1. In a Summary of Security Concerns (SSC) attached to the letter,
the LSO explained that the derogatory information raised security concerns under Guideline G
(Alcohol Consumption) and Guideline J (Criminal Conduct) of the Adjudicative Guidelines. Ex.
2.
The Individual exercised her right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 3. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted fourteen exhibits (Ex. 1–14). The Individual submitted ten exhibits
(Ex. A–J). The Individual testified on her own behalf and offered the testimony of two character
witnesses. Hearing Transcript (Tr.) at 17, 88, 110. The LSO offered the testimony of the DOE
Psychologist. Id. at 124.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as the first basis for its determination that the
Individual was ineligible for access authorization. Ex. 2 at 1–3. “Excessive alcohol consumption
often leads to the exercise of questionable judgment or the failure to control impulses, and can
raise questions about an individual’s reliability and trustworthiness.” Adjudicative Guidelines at
¶ 21. The SSC cited: the DOE Psychologist’s determination that the Individual met the diagnostic
criteria for AUD, Moderate, under the DSM-5; the MD’s opinion that the laboratory test results
provided evidence that the Individual engaged in heavy alcohol consumption; the Individual’s
arrest for DUI; and the Individual’s admission to consuming alcohol to intoxication at least
monthly in her response to the LOI. Ex. 2 at 1–3. The LSO’s assertions that the Individual was
arrested for DUI, habitually or binge consumed alcohol to the point of impaired judgment, and was
diagnosed with AUD by the DOE Psychologist, justify the LSO’s invocation of Guideline G.
Adjudicative Guidelines at ¶ 22(a), (c)–(d).
The LSO cited Guideline J (Criminal Conduct) as the other basis for its determination that the
Individual was ineligible for access authorization. Ex. 2 at 3. “Criminal activity creates doubt about
a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines at ¶ 30. The SSC cited the Individual’s arrest for DUI. Ex. 2 at 3. The LSO’s allegation
that the Individual was arrested for DUI justifies its invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(b).
III. REGULATORY STANDARDS
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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
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest”
standard for granting security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert.
denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
An 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). An 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.
IV. FINDINGS OF FACT
The Individual has received positive performance evaluations from the DOE contractor and
completed numerous professional trainings and certification programs since 2015. Ex. B; Ex. H.
The Individual frequently engages in charitable activities, and has received significant recognition
from her community for her positive contributions. Ex. C; Ex. E. The Individual’s friends and
professional colleagues perceive her to be a reliable and trustworthy person possessing sound
judgment. Ex. D; Tr. at 97–98, 113–17.
On May 30, 2021, the Individual and her husband attended a barbecue where she consumed four
12-ounce beers, eight 12-ounce alcoholic seltzers, and two shots of hard alcohol. Ex. 6 at 2; Ex. 8
at 1; Ex. 11 at 4. The Individual attempted to drive home from the barbecue and was arrested for
DUI. Ex. 4 at 2–6; Ex. 5 at 2; Ex. 6 at 2.3 The Individual’s breath alcohol content (BRAC) was
measured at 0.196 and 0.183. Ex. 4 at 2, 7; Ex. 5 at 2.
Over the 10-year period prior to her arrest for DUI, the Individual consumed alcohol multiple times
weekly and became intoxicated at least once per month. Ex. 8 at 2; see also Ex. 6 at 3 (estimating
that she had become intoxicated twenty times in the 12-month period prior to her arrest for DUI
and admitting that she had consumed as many as eighteen alcoholic drinks in one day during that
period). According to the Individual, she needed to consume seven-to-nine 12-ounce beers or hard
seltzers during this period to become intoxicated. Ex. 8 at 2.
3 The Individual does not dispute any of the information contained in Exhibit 4 (Arrest Report) or Exhibit 5 (Probable
Cause Affidavit) concerning her arrest and DUI charge, except the statement of a witness to law enforcement that the
witness observed her strike her husband, which she denies occurred. Tr. at 48–49.
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On June 17, 2021, the Individual met with a Licensed Social Worker (LSW) for an assessment.
Ex. A at 2; see also Ex. I at 1 (reflecting the training and credentials of the LSW). The Individual
told the LSW that she had not consumed alcohol since her arrest for DUI. Ex. A at 4. The Individual
reported being “about 90 percent ready to remain abstinent” from alcohol, and attributed her
motivation to doing so to “legal problems” and to showing herself that she was capable of quitting
alcohol use. Id. at 6. The LSW determined that the Individual met the diagnostic criteria for AUD,
Mild, under the DSM-5 and recommended that the Individual participate in an alcohol education
course. Id. at 8; see also Tr. at 135–36 (reflecting testimony of the DOE Psychologist that the
alcohol education course in question is the lowest level of intervention recommended by the
American Society of Addiction Medicine).
The Individual met with the DOE Psychologist for a clinical interview on September 7, 2021. Ex.
11 at 2. During the clinical interview, the Individual represented that she had benefited from the
alcohol education course recommended by the LSW, had consumed approximately ten alcoholic
drinks since her arrest for DUI, and last consumed alcohol approximately two days prior to the
clinical interview, when she drank one beer. Id. at 5.
At the request of the DOE Psychologist, the Individual provided blood and urine samples for
laboratory Ethyl Glucuronide (EtG) and Phosphatidylethanol (PEth) tests. Id. at 7. An EtG test
measures the presence of a metabolite of ethanol in a subject’s urine, and can detect chemical
evidence of alcohol consumption up to four days after the subject last consumed alcohol. Ex. 14
at 2. A PEth test measures the presence of the PEth biomarker in a subject’s blood, and can detect
chemical evidence of alcohol consumption up to four weeks after a subject last consumed alcohol.
Id. at 2–3. The EtG test was negative, which the MD interpreted as “strong medical evidence that
the [Individual] was abstinent from alcohol during the three days prior to the sample collection.”
Ex. 11 at 27. The PEth test was positive at a level of 156 nanograms (ng) per milliliter (mL). Id.
Based on the negative EtG test, and the half-life of the PEth molecule, the MD calculated that the
Individual’s PEth level was approximately 234 ng/mL four days prior to the specimen collection.
Id. The MD opined that the Individual’s estimated PEth level was “congruent with heavy alcohol
consumption,” and noted that a study had found that a PEth level of 202 ng/mL was correlated
with an average consumption of 4.3 alcoholic drinks per day. Id.
On September 15, 2021, the DOE Psychologist issued her Report in which she opined that the
Individual met the diagnostic criteria for AUD, Moderate, under the DSM-5.4 Id. at 7–8. The DOE
Psychologist recommended that the Individual demonstrate rehabilitation or reformation by
participating in an intensive outpatient rehabilitation program (IOP) followed by aftercare for a
total of twelve months of treatment, actively participating in Alcoholics Anonymous (AA) for
twelve months, abstaining from alcohol for the duration of treatment, and documenting her
abstinence from alcohol through at least six PEth tests over the 12-month treatment period. Id. at
8–9.
4 Specifically, the DOE Psychologist found that the Individual met five diagnostic criteria for AUD: (1) unsuccessful
efforts to cut down or control alcohol use; (2) craving or strong desire or urge to use alcohol; (3) recurrent alcohol use
resulting in a failure to fulfill major role obligations at work, school, or home; (4) alcohol use continued despite a
persistent or recurrent physical problem that is likely to have been caused or exacerbated by alcohol (pre-diabetes);
and, (5) tolerance. Ex. 11 at 7–8.
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On September 16, 2021, pursuant to a plea agreement related to the charge of DUI resulting from
her May 30, 2021, arrest, the Individual was sentenced to one year of unsupervised probation. Tr.
at 37; Ex. J. The Individual complied with the terms of her probation by paying a fine, performing
community service, and having an interlock device installed on her vehicle. Tr. at 37; Ex. J. The
interlock device registered numerous failed tests based on the vehicle operator’s positive BRAC
in the two-week period after the interlock device was installed on the Individual’s car.5 Ex. G at 1,
9–52. The interlock device has not registered a failed test based on the vehicle operator’s positive
BRAC since October 19, 2021. Id. at 2–7, 52.
The Individual met with the LSW for a second assessment on February 28, 2022. Ex. A at 9. The
Individual reported to the LSW that she last consumed alcohol on January 8, 2022. Id. at 10. The
LSW determined that the Individual met the diagnostic criteria for AUD, Mild, in early remission
under the DSM-5. Id. She recommended that the Individual participate in outpatient treatment,
including group counseling, individual counseling, and “random and frequent” alcohol testing. Id.
at 17.
The Individual commenced a 16-week outpatient treatment program several days prior to the
hearing. Tr. at 25–27, 60–61. The Individual testified that, as part of this treatment, she must
undergo alcohol testing twice weekly. Id. at 27–28; see also Ex. F (reflecting that the Individual
provided a sample for a blood alcohol test unrelated to her treatment program on March 3, 2022,
the results of which were negative for traces of alcohol). The Individual has not undergone the
PEth testing recommended by the DOE Psychologist, and attributed this to not knowing how to
obtain such a test. Tr. 67–68. The Individual testified that she has abstained from alcohol since
January 8, 2022, and is willing to pursue individual and group counseling on an ongoing basis if
necessary to regain her security clearance. Id. at 21, 40–41.
At the hearing, the DOE Psychologist opined that the alcohol education class recommended by the
LSW following the first assessment was insufficiently rigorous considering the severity of the
Individual’s AUD. Id. at 135–36. She likewise opined that, although the outpatient treatment
program the Individual is attending is appropriate for a person with AUD, Mild, the IOP she
recommended for the Individual was a more appropriate intervention for a person with AUD,
Moderate, because an IOP involves more hours of treatment and covers a greater breadth of
treatment topics. Id. at 142–46, 152. The DOE Psychologist indicated that the alcohol testing the
Individual had recently undergone was not the PEth testing she had recommended, and that the
Ethyl Alcohol test reflected in Exhibit F was the variety used to measure the presence of alcohol
immediately following an alcohol-related incident, such as a DUI arrest. Id. at 141–42. The DOE
Psychologist opined that the Individual had not demonstrated rehabilitation or reformation, and
that she could not provide a favorable prognosis for the Individual’s recovery. Id. at 143, 150.
5 The Individual testified that the interlock device erroneously measured alcohol on her breath in the first three weeks
after it was installed due to mechanical failure which was resolved through recalibration by a technician. Tr. at 35–
37.
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V. ANALYSIS
A. Guideline G
The Individual’s arrest for DUI, alleged habitual or binge consumption of alcohol to the point of
impaired judgment, and diagnosis with AUD justify the LSO’s invocation of Guideline G.
Adjudicative Guidelines at ¶ 22(a), (c)–(d). 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; and,
(d) the individual has successfully completed a treatment program along with any
required aftercare, and has demonstrated a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations.
Adjudicative Guidelines at ¶ 23(a)–(d).
The Individual was arrested for DUI within one year prior to the hearing, and is still serving
probation for that offense. Moreover, the results of the September 2021 laboratory testing provide
strong evidence that the Individual engaged in heavy alcohol consumption approximately six
months prior to the hearing. The recency of the Individual’s problematic alcohol consumption
leads me to conclude that her alcohol use continues to cast doubt on her reliability, trustworthiness,
and judgment. Moreover, the Individual repeatedly admitted to having engaged in regular, heavy
alcohol consumption for ten years prior to her arrest for DUI. Thus, her problematic alcohol
consumption was neither infrequent nor occurred under unusual circumstances. For these reasons,
I find that the first mitigating condition under Guideline G is inapplicable in this case. Id. at ¶ 23(a).
As of the date of the hearing, the Individual claimed to have abstained from alcohol for less than
three months and to have participated in outpatient treatment for one week. Even if the Individual’s
self-reported period of abstinence from alcohol was substantiated, which her single blood alcohol
test is insufficient to accomplish, it would be too brief to show an established pattern of abstinence.
The DOE Psychologist recommended that the Individual abstain from alcohol for twelve months
and substantiate her abstinence through periodic PEth testing.6 As the Individual’s claimed period
6 I found the DOE Psychologist’s explanation of her diagnosis of the Individual with AUD, Moderate, persuasive.
However, even if I was persuaded that the LSW’s diagnosis of the Individual with AUD, Mild, was more appropriate
than the DOE Psychologist’s diagnosis, I would nevertheless find the Individual’s period of abstinence insufficient to
establish the applicability of the mitigating condition. The DOE Psychologist indicated that she would typically
recommend six months of abstinence from alcohol for a person diagnosed with AUD, Mild, to demonstrate
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of abstinence is far shorter, and not supported by robust alcohol testing, I find that the second
mitigating condition under Guideline G is inapplicable. Id. at ¶ 23(b).
While the Individual has enrolled in an outpatient treatment program, she had only participated in
one week of treatment as of the date of the hearing, and the DOE Psychologist testified that the
program was not of sufficient intensity to satisfy her treatment recommendations. Additionally,
the Individual has not provided evidence corroborating that she is actively participating in the
program, complying with treatment recommendations, and making satisfactory progress. Thus, the
Individual has not established the applicability of the third mitigating condition under Guideline
G. Id. at ¶ 23(c). The final mitigating condition under Guideline G is not applicable because the
Individual has only just begun treatment for AUD and did not assert that she had completed a
treatment program as of the date of the hearing. Id. at ¶ 23(d).
While the Individual demonstrated that she is an effective employee and positive member of her
community, she is still in the early stages of recovery from AUD. Given the Individual’s admitted
alcohol misuse over a period of many years, the brief period of abstinence from alcohol the
Individual claimed as of the date of the hearing, and the DOE Psychologist’s opinion that the
Individual had not demonstrated rehabilitation or reformation and did not have a positive prognosis
for recovery, I find that the Individual has not resolved the security concerns asserted by the LSO
under Guideline G.
B. Guideline J
The Individual’s arrest for DUI justifies the LSO’s invocation of Guideline J. Id. at ¶ 31(b). An
individual may mitigate security concerns under Guideline J if:
(a) so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances, that it is unlikely to recur and does not cast doubt
on the individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those pressures
are no longer present in the person’s life;
(c) 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.
Id. at ¶ 32(a)–(d).
rehabilitation or reformation; the Individual has abstained for a far shorter time period. Tr. at 154. Furthermore, the
Individual has only undergone one blood alcohol test at a time of her choosing and did not begin the “random and
frequent drug and alcohol testing” recommended by the LSW until she commenced the outpatient treatment program
in the week prior to the hearing. Supra p. 5. Thus, the Individual would not have established a pattern of abstinence
in accordance with treatment recommendations even if I credited the LSW’s less severe diagnosis of AUD.
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The Individual does not allege that she was coerced into committing the DUI or that she did
not commit the offense. Accordingly, only the first and fourth mitigating conditions are
potentially applicable in this case.
The Individual’s arrest for DUI occurred less than one year prior to the hearing and she will
continue to serve the probation to which she was sentenced in connection with the offense until
September 2022. In light of the recency of the Individual’s arrest, and the fact that she is still
serving probation, I find that insufficient time has elapsed for me to conclude that the passage
of time, in and of itself, mitigates the security concerns related to her conduct. Moreover, the
frequency of the Individual’s admitted intoxication and the recency of her claimed abstinence
from alcohol indicates that she is too early into her recovery for me to conclude that she is
unlikely to engage in alcohol-related criminal conduct in the future. For these reasons, I find
the first mitigating condition under Guideline J inapplicable. Id. at ¶ 32(a).
The Individual demonstrated extensive charitable community involvement. She also
established her completion of employment-related training and a positive employment record.
However, most of the positive activities the Individual demonstrated occurred prior to her
criminal conduct and therefore do not establish rehabilitation. Although the Individual testified
that she has complied with the terms of her probation, she had only served about half of that
sentence as of the date of the hearing. While the Individual has shown that she possesses many
positive traits and has engaged in beneficial activities, she has not brought forth sufficient
evidence of rehabilitation following her criminal conduct to establish the applicability of the
fourth mitigating condition of Guideline J. Id. at ¶ 32(d).
As none of the mitigating conditions under Guideline J are fully satisfied in this case, and the
Individual’s recovery is not sufficiently established to conclude that she is not at risk of
engaging in alcohol-related criminal conduct in the future, I find that the Individual has not
resolved the security concerns asserted by the LSO under Guideline J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines G and J of the Adjudicative Guidelines. After
considering all the relevant information, favorable and unfavorable, in a comprehensive, common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
find that the Individual has not brought forth sufficient evidence to resolve the security concerns
set forth in the Summary of Security Concerns. Accordingly, I have determined that the
Individual’s access authorization should not be restored. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals