PSH-22-0071

*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-22-0071
)
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Issued: June 24, 2022
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Administrative Judge Decision
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James P. Thompson III, 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 possession of a security
clearance. The DOE Local Security Office (LSO) discovered information regarding the
Individual’s alcohol use. The information prompted the LSO to request that the Individual be
evaluated by a DOE-consultant Psychiatrist (“Psychiatrist”). Afterward, the LSO informed the
Individual by letter (“Notification Letter”) that it possessed reliable information that created
substantial doubt regarding his eligibility to possess a security clearance. In an attachment to the
Notification Letter, entitled Summary of Security Concerns (SSC), the LSO explained that the
derogatory information raised security concerns under Guideline G of the Adjudicative Guidelines.
The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. The Director of the Office of Hearings and Appeals appointed me as the
Administrative Judge in this matter, and I subsequently conducted an administrative review
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.
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hearing. See Transcript of Hearing (Tr.). At the hearing, the Individual presented the testimony of
three witnesses and testified on his own behalf. The LSO presented the testimony of the
Psychiatrist. The Individual submitted seven exhibits, marked Exhibits A through G. The LSO
submitted twelve exhibits, marked Exhibits 1 through 11.2
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline G (Alcohol Consumption) of the Adjudicative
Guidelines as the basis for concern regarding the Individual’s eligibility to possess a security
clearance. Exhibit (Ex.) 1 at 5.
Guideline G provides that “[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. Conditions that
could raise a security concern include “[a]lcohol-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 “[h]abitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the individual is
diagnosed with alcohol use disorder[.]” Id. at ¶ 22(a) and (c). The SSC cited that, in December
2021, the Psychiatrist evaluated the Individual and subsequently concluded that he was habitually
consuming alcohol to the point of impaired judgment, and, in October 2021, local authorities
arrested and charged the Individual with Driving Under the Influence of Intoxicating Liquors
(DUI). Ex. 1 at 5. The cited information justifies the LSO’s invocation of Guideline G.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d
1399, 1403 (9th Cir. 1990) (strong presumption against the issuance of a security clearance).
The Individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
2 The LSO’s exhibits were combined and submitted in a single, 156-page PDF workbook. Many of the exhibits are
marked with page numbering that is inconsistent with their location in the combined workbook. This Decision will
cite to the LSO’s exhibits by reference to the exhibit and page number within the combined workbook where the
information is located as opposed to the page number that may be located on the page itself.
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The Part 710 regulations are drafted to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. at
§ 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 record includes a Supplemental Incident Report that the Individual submitted to his employer
after his October 2021 arrest for DUI. Ex. 7. The included police report indicates that the Individual
was observed in a vehicle “sitting in the driver seat half inside the vehicle[.]” Ex. 6 at 24. He was
later arrested and charged with DUI after submitting to Standardized Field Sobriety Tests and
providing breath samples. Id. at 24-25.
In response to the DOE’s 2021 Letter of Interrogatory (LOI), the Individual provided more detail
regarding the DUI and his alcohol use. He explained that he consumed half a pint of whiskey
within two hours prior to his DUI, and he admitted that he was intoxicated at the time of the
incident. Ex. 8 at 50. He reported subsequently joining an alcohol treatment program, starting to
attend Alcoholics Anonymous (AA) meetings, attending online alcohol recovery classes, and
attending treatment provided by his employer. Id. at 51. He also reported that he had stopped
consuming alcohol. Id. at 52.
The record includes the report the Psychiatrist provided after evaluating the Individual in
December 2021. Ex. 9. During the evaluation, the Individual reported that he had been receiving
individual counseling and group therapy for his alcohol use, and he was attending six meetings a
week. Id. at 63. As part of the evaluation, the Psychiatrist contacted the Individual’s treatment
providers for his individual and group treatment programs, and the providers stated that he was
following their recommendations. Id. at 65-66. However, based on the Individual’s history of
alcohol consumption as reported to the treatment providers, the Psychiatrist concluded that the
Individual had been habitually consuming alcohol to the point of impaired judgment. Id. at 67.
During the evaluation, the Individual submitted to a phosphatidylethanol (PEth) test to detect
alcohol consumption, and the negative result corroborated the Individual’s statements to the
Psychiatrist regarding his recent abstinence. Id. at 66. The Psychiatrist opined that the Individual
was early in the treatment recovery process and therefore had not yet shown adequate evidence of
rehabilitation and reformation. Id. at 67. The Psychiatrist recommended that the Individual
complete his current treatment programs, continue aftercare such as SMART recovery or AA for
an additional six months, and remain abstinent from alcohol for six months. Id.
The record includes an AA attendance sheet that indicates the Individual has been attending
meetings weekly since November 2021. Ex. C. He also provided a certificate of completion for
the six-week group therapy program and a certificate of completion for an Intensive Outpatient
Program (IOP), which he completed in March 2022. Ex. D. He also provided attendance sheets
that indicate he has been attending two separate aftercare programs. Ex. D at 2, 4-6. Finally, the
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record includes the results from PEth tests that the Individual underwent in December 2021,
January 2022, March 2022, April 2022, and May 2022. Ex. E; Ex. F. All results were negative. Id.
At the hearing, the Individual’s counselor (“Counselor”) testified. The Counselor provides
treatment through the Individual’s employer’s Employee Assistance Program (EAP), and she first
met with the Individual in early November 2021 because the Individual proactively reached out to
the EAP after his DUI. Tr. at 13. She testified that the Individual completed her six-week group
alcohol education and awareness class in January 2022 before participating in the EAP aftercare
group program, which he continues to attend weekly. Id. The Counselor described how the
Individual learned through treatment “that alcohol can lead to trouble for [him].” Id. at 18. She
also testified that the Individual had reached out to her for support when he was feeling “stressed
or anxious” during recovery, she saw him bond and connect with other individuals participating in
her group program, and he consistently followed all of her treatment recommendations. Id. at 19-
20. The Counselor gave the Individual a very good prognosis. Id. at 22.
A substance abuse counselor for the Individual (“SA Counselor”) testified that the Individual
completed a twelve-week IOP in March 2022 that included weekly individual therapy and peer
group sessions. Id. at 27, 29. The SA Counselor reported that the Individual voluntarily chose to
continue treatment through an IOP aftercare program.3 Id. at 28. The SA Counselor further testified
that the Individual is “an inspiration” to all of the program co-participants and that the Individual
is “doing great” and “will continue to do well.” Id. at 30, 32.
The Individual’s current alcohol addiction counselor (“Addiction Counselor”) testified that the
individual is one of her “good guys” because he “keeps showing up” to the IOP aftercare program,
and he does exactly what he is supposed to do, sometimes going “above” her recommendations.
Id. at 45. She testified that she took over his treatment from his previous counselor.4 Id. at 44. She
described his consistent participation in aftercare treatment, stated that he has a “great attitude,”
and gave the Individual an excellent prognosis. Id. at 47.
The Individual testified about the circumstances of his DUI and his subsequent actions. He testified
that, on the day of the DUI, he consumed whiskey while visiting with an acquaintance. Id. at 37.
The Individual consumed more alcohol than he originally intended, and he attempted to drive
home. Id. He testified that he accepted responsibility for driving under the influence and putting
himself in the position to be charged with DUI, and he viewed it as a learning experience that had
a big impact on him. Id. at 41, 53. He characterized his decision to drive under the influence as
“stupid.” Id. at 53.
He confirmed that he proactively reached out to EAP after his DUI, and he testified that he
continues to attend and benefit from AA, the online recovery course, and aftercare treatment. Id.
at 54, 56-57. He explained that the various programs help him in different ways. Tr. at 56. For
3 This is separate from the EAP aftercare treatment program.
4 The Addiction Counselor’s predecessor provided a written statement on the Individual’s behalf that stated that the
Individual appeared dedicated to the treatment process, that he had been fully compliant, and that his conduct indicated
a favorable prognosis. Ex. G.
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example, he finds AA motivational because he gets to hear and learn from the stories of other
participants. Id. at 56. Alternatively, he benefits from EAP aftercare by interacting with people
closer to his age who also work for his employer. Id. at 57.
The Individual testified that he stopped consuming alcohol in late October 2021 and that he had
been abstinent for seven months. Id. at 55. He testified that he intended to abstain indefinitely. Id.
at 59, 62. He further testified that his current girlfriend supports his sobriety and that she also
stopped consuming alcohol. Id. at 39-40. The Individual reflected on how he wanted to avoid
getting into trouble or causing further stress for his family. Id. at 51. He testified that he had
successfully avoided alcohol in social settings, even when he was with friends with whom he used
to consume alcohol, because he has been able to avoid his triggers by recognizing the consequences
of alcohol consumption. Id. at 58, 71. He also testified that his friends had been supportive of his
decision to abstain. Id. at 71.
Finally, the Psychiatrist testified that the Individual’s treatment progress, described above, had met
all of the Psychiatrist’s treatment recommendations, and the Psychiatrist opined that the Individual
had a good prognosis. Id. at 85. In reaching his opinion, the Psychiatrist noted that the Individual
had a support system, “available interventions,” and a commitment to sobriety. Id. The Psychiatrist
further concluded that the Individual had rehabilitated or reformed his habitual use of alcohol. Id.
at 89.
V. ANALYSIS
A. Guideline G Considerations
Conditions that can mitigate security concerns based on alcohol consumption include the
following:
(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[.]
Adjudicative Guidelines at ¶ 23.
The Individual brought forth sufficient evidence to apply ¶ 23(b) and ¶ 23(c) to resolve the
Guideline G security concerns. Because I rely upon much of the same evidence in applying both
mitigating factors, the following analysis addresses them together.
First, there is ample evidence that the Individual acknowledged his pattern of maladaptive alcohol
use. His testimony demonstrates that he understood his alcohol use was a problem, and he
proactively set out to address it by following the recommendations of his treatment providers. He
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also identified and reflected on how his poor judgement precipitated his DUI and how his conduct
negatively impacted his life and his family, and he expressed regret for his behavior.
Second, the Individual put forth evidence of the actions that he has taken to overcome the problem:
he stopped consuming alcohol; he successfully completed a six-week treatment program and an
IOP; he is currently participating in aftercare treatment, AA, and online treatment classes; and he
continues to maintain his sobriety. Thus, the record establishes that he is currently participating in
treatment and there is no evidence in the record that the Individual has a history of relapse.
Finally, the Individual demonstrated a clear and established pattern of abstinence in accordance
with treatment recommendations. First, he demonstrated that he has abstained from alcohol for a
period that exceeded the Psychologist’s recommendation. Second, the Psychiatrist opined that the
Individual had met all of his treatment recommendations and reformed and rehabilitated his
habitual consumption of alcohol, and I conclude the Individual is making satisfactory progress in
his treatment programs. In reaching my conclusion, I favorably considered the Individual’s candor
and agree with the Psychiatrist’s opinion that the Individual has a good prognosis, which is in line
with the positive opinions of the Individual’s treatment providers. Accordingly, I find that the
Individual has resolved the Guideline G security concerns.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline G of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of 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 SSC. 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.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals