PSH-22-0068

*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: March 28, 2022 ) Case No.: PSH-22-0068
)
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Issued: July 11, 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 be restored.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In 2015, the local security office (LSO) conducted a personnel security interview (PSI)
of the Individual during which the Individual disclosed that he was charged with several offenses
related to a fight at a bowling alley in which he participated after consuming alcohol. Exhibit (Ex.)
12 at 14–32.2 The Individual also disclosed that he had participated in an intensive outpatient
program (IOP) for alcohol treatment in April 2012 after a four-day binge drinking episode
triggered by the death of a family member and had abstained from alcohol since he entered
treatment. Id. at 32–54. The Individual was subsequently granted a DOE security clearance. Ex.
13 at 41–42.
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 individual exhibits. For example, the third page of Exhibit 12 is marked as page 1 due to two preceding
pages marked with roman numerals. This Decision cites to pages in the order in which they appear in exhibits without
regard for their internal pagination.
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On August 4, 2021, the LSO received notice that the Individual had entered an alcohol treatment
program. See Ex. 5 (summarizing information related to the LSO’s consideration of the
Individual’s eligibility for a security clearance). The LSO issued the Individual a letter of
interrogatory (LOI) concerning his use of alcohol. Ex. 6. In his response to the LOI, the Individual
indicated that he had voluntarily entered treatment following a binge drinking episode. Id. at 4.
A DOE-contracted psychologist (DOE Psychologist) conducted a clinical interview of the
Individual on December 10, 2021. Ex. 7 at 2. The Individual disclosed to the DOE Psychologist
that the event that led him to seek treatment “was the worst binge of [his] life” during which he
“drank and passed out from Saturday [un]til Thursday.” Id. at 4. On December 22, 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), Severe, in Early
Remission, under the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition
(DSM-5). Id. at 10–11.
The LSO issued the Individual a letter in which it notified him that it was suspending his security
clearance because it possessed reliable information that created substantial doubt regarding his
eligibility to hold a security clearance. 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) of the Adjudicative Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. 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 thirteen exhibits (Ex. 1–13). The Individual submitted ten exhibits
(Ex. A–J). The Individual testified on his own behalf, and offered the testimony of three character
witnesses and a counselor (Individual’s Counselor). Hearing Transcript (Tr.) at 3, 9, 17, 25, 30,
38. The LSO offered the testimony of the DOE Psychologist. Id. at 3, 73.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as the basis for its determination that the
Individual was ineligible for access authorization. Ex. 1. “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, Severe, in Early Remission, under the DSM-5, the Individual’s admission to having
engaged in binge drinking, and the charges filed against the Individual in 2001 for participating in
a fight after consuming alcohol. Ex. 1. The LSO’s assertions that the Individual had alcohol-related
incidents away from work, 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).
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).
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.
IV. FINDINGS OF FACT
In 2001, the Individual was charged with obstructing an officer, unlawfully assisting minors to
obtain alcohol, and public affray for his role in a fight at a bowling alley. Ex. 13 at 69. The
Individual consumed at least six beers and two shots of hard alcohol prior to engaging in the fight.
Ex. 12 at 16–20. The Individual was employed as a law enforcement officer at the time of his arrest
and was placed on two weeks unpaid leave for his conduct. Id. at 23–30.
In April 2012, the Individual went on a four-day binge drinking episode after the death of a relative.
Id. at 32–36. The Individual went to a friend’s house to drink because his wife “was pretty upset.”
Id. at 37. During this binge drinking episode, the Individual would consume alcohol to
intoxication, “sleep, wake up, [] feel hungover, . . . [and] start the cycle again.” Id. According to
the Individual, he engaged in this binge drinking episode “to escape the fact that [his relative] had
passed and that [he] and [his] wife had not been getting along prior to [his relative] passing.” Id.
at 38.
The Individual’s April 2012 binge drinking episode ended when his mother and his wife came to
the friend’s home where he was staying to convince him to stop. Id. at 40. The law enforcement
agency that employed the Individual referred him to the 2012 IOP. Id. at 42–43. In the ten-week
2012 IOP, the Individual participated in twelve hours of weekly treatment and attended Alcoholics
Anonymous (AA) meetings three times weekly. Id. at 44, 46, 48. Following completion of the
2012 IOP, he attended aftercare, including AA meetings, for six weeks. Id.
In 2014, the Individual relapsed and resumed consuming alcohol. Tr. at 42 (attributing his relapse
to a “lack of coping skills, marital problems, different parenting styles that [he and his] wife []
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have” and indicating that “the only avenue [he] had [to cope] was drinking in excess”); Ex. 7 at 5.
Following his relapse, the Individual binge consumed alcohol on weekends when his family was
not at home. Ex. 7 at 5. The Individual attributed this behavior to an absence of structure in his life
when he was not working. Id.
On the evening of August 1, 2021, the Individual went to a hospital complaining of nausea,
tremors, and dizziness, which medical practitioners at the hospital identified as symptoms of
alcohol withdrawal. Ex. 11 at 1. The Individual reported to the hospital that his practice over the
prior six days had been to “wake[] up and drink[] until he passes out [and] then repeat this
[behavior].” Id. The Individual also reported having experienced auditory hallucinations after
drinking. Id.
The Individual reported his hospital admission to the DOE contractor and was referred to a mental
health practitioner employed by the DOE contractor. Ex. 9 at 14. The Individual told the mental
health practitioner that he had engaged in binge drinking “several times during the past couple
years,” which he attributed to enjoying drinking with old friends and “wanting to escape”
arguments with his wife, and had taken sick leave or personal days from work on days in which
he engaged in binge drinking. Id.
On August 10, 2021, the Individual was admitted into the 2021 IOP. Ex. 10 at 7. As part of his
participation in the 2021 IOP, the Individual attended group counseling three times weekly,
individualized counseling once weekly, and AA meetings once weekly. Tr. at 30–31, 51. The
Individual successfully completed the 2021 IOP and was discharged in October 2021. Ex. 10 at 7.
In addition to the 2021 IOP and associated aftercare, the Individual completed a substance abuse
class at a local college to better understand addiction and recovery. Tr. at 57; Ex. I.
The LSO issued the Individual the LOI in September 2021. Ex. 6. The Individual reported that his
alcohol consumption had increased since he began working for the DOE contractor in 2015 and
that he “needed [] more alcohol to reach [] intoxication [] and [he] continued to drink for more
than 2 days [at a time].” Id. at 5. He indicated that he engaged in binge drinking “to escape any
type of life stresses or problems and [because he] lacked the coping skills to avoid the over
drinking.” Id.
On December 10, 2021, the Individual met with the DOE Psychologist for a clinical interview. Ex.
5 at 2. During the clinical interview, the Individual disclosed that, prior to his hospitalization, he
consumed alcohol to intoxication on most days on which he was not working. Id. at 9. The
Individual told the DOE Psychologist that he had abstained from alcohol since his August 2021
hospitalization and intended to continue abstaining from alcohol in the future. Id. at 5. At the
request of the DOE Psychologist, the Individual provided blood and urine samples for laboratory
testing. Id. at 8. The results of these tests were negative for chemical evidence of alcohol
consumption. Id.
The DOE Psychologist issued her Report on December 22, 2021. Id. at 10. In the Report, she
concluded that the Individual met the diagnostic criteria for AUD, Severe, in Early Remission
under the DSM-5. Id. at 9. She recommended that the Individual demonstrate rehabilitation by
abstaining from alcohol for at least twelve months, documenting his abstinence from alcohol with
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Phosphatidylethanol (PEth) testing every two months, and participating in AA or aftercare for
twelve months. Id.
The DOE contractor required the Individual to undergo twice monthly random alcohol screenings
for two years, beginning in September 2021. Exs. B, J. Each of the screenings completed as of
May 2022 was negative for traces of alcohol. Ex. J. The Individual also provided urine samples to
the IOP provider for testing on a monthly basis from November 2021 through April 2022 while
participating in aftercare. Ex. D. Each of these samples tested negative for evidence of alcohol
consumption. Id. The Individual additionally provided samples for PEth tests in April and May of
2022, both of which were negative for traces of alcohol consumption. Exs. E–H.
At the hearing, the Individual’s supervisor and two other persons in his management chain testified
that he has demonstrated trustworthiness and reliability in the workplace. Tr. at 9, 11–12, 17, 20–
21, 25–27. The Individual’s Counselor testified that the Individual successfully completed the
2021 IOP in October 2021 and had voluntarily remained in aftercare up to the date of the hearing.
Id. at 31, 35. She testified that the Individual had “done a tremendous job” in the 2021 IOP and
always positively contributed to group treatment sessions. Id. at 31, 35–36. She indicated that her
ongoing individualized counseling sessions with the Individual focused on identifying triggers for
alcohol consumption, how to avoid relapses, and strategies for addressing relapses if they occur.
Id. at 32–33.
The Individual testified that he had abstained from alcohol since his August 2021 relapse and
intended to continue to do so in the future. Id. at 68. He indicated that, through treatment, he had
learned to identify “people, place[s], and things” that triggered him to drink and how to manage
those triggers without relapsing. Id. at 50, 60, 71. The Individual testified that he has stopped
communicating with friends with whom he drank with in the past and no longer attends sporting
events or other places where he would be tempted to consume alcohol. Id. at 62–63. He also
reported that he manages stress and introduces structure into his life outside of work by exercising
at a gym. Id. at 61.
The DOE Psychologist testified that she believed that the Individual had “rigorously followed” her
recommendations and demonstrated rehabilitation. Id. at 76. She testified that the Individual’s
changed social activities to avoid triggers for alcohol and emphasis on self-care were positive for
his recovery. Id. She opined that the Individual’s prognosis for avoiding a return to problematic
alcohol consumption was “good.” Id. She explained that her prognosis was positive, despite the
Individual’s prior relapse after treatment, because of the Individual’s proactive approach to
obtaining assistance and motivation to achieve and sustain recovery. Id. at 77–78.
V. ANALYSIS
A. Guideline G
The LSO’s allegations that the Individual binge consumed alcohol to the point of impaired
judgment and was charged for participating in a fight after consuming alcohol, as well as the DOE
Psychologist’s diagnosis of the Individual with AUD, justify the LSO’s invocation of Guideline
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G. Adjudicative Guidelines at ¶ 22(a), (c)–(d). Conditions that may mitigate security concerns
under Guideline G include:
(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’s alcohol-related charges are mitigated by the passage of over twenty years since
the Individual committed the offenses. Additionally, the LSO has not alleged that the Individual
committed any alcohol-related offenses since 2001. Accordingly, I find that the security concerns
raised by the Individual’s alcohol-related offenses are mitigated by the first mitigating condition
under Guideline G. Id. at ¶ 23(a).
The Individual has repeatedly acknowledged his maladaptive alcohol use and taken action to
overcome this problem through his participation in the 2021 IOP and aftercare. The Individual
successfully completed the 2021 IOP, and the Individual’s Counselor described the Individual as
an active and positive participant in group counseling. The Individual also testified at the hearing
that he had abstained from alcohol since August 2021 and provided documentation of alcohol
testing supporting his claimed abstinence. The DOE Psychologist testified that the Individual had
complied with her treatment recommendations and had a positive prognosis regarding his chance
of relapse into problematic alcohol consumption in the future. For these reasons, I find that the
Individual has established the applicability of the second and fourth mitigating conditions under
Guideline G. Id. at ¶ 23(b), (d).
In light of the Individual’s successful completion of the 2021 IOP, the Individual’s Counselor’s
positive account of the Individual’s participation in the 2021 IOP, the results of the alcohol testing
obtained by the Individual, and the positive prognosis given by the DOE Psychologist, I find that
the Individual has resolved the security concerns asserted by the LSO under Guideline G.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline G of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
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common-sense manner, including weighing all the testimony and other evidence presented at the
hearing, I find that the Individual has 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 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