PSH-22-0092

*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: May 26, 2022 ) Case No.: PSH-22-0092
)
__________________________________________)
Issued: August 24, 2022
____________________________
Administrative Judge Decision
____________________________
Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 should not be
granted access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. On July 8, 2021, the Individual submitted a Questionnaire for National Security
Positions (QNSP) in which he disclosed that he had been arrested for Driving Under the Influence
(DUI) in 2015 and 2020. Exhibit (Ex.) 6 at 30–32, 40. The Office of Personnel Management
(OPM) subsequently conducted a background investigation of the Individual which revealed that
he had been arrested for reckless driving in 2008, domestic assault in 2010, DUI in 2010, and DUI
and associated traffic offenses in 2012. Ex. 7 at 83–90. OPM’s investigation also revealed that
orders of protection related to alleged domestic violence were issued against the Individual in
2010, 2012, and 2020. Id. at 90–96. During an interview with an OPM investigator on July 20,
2021, the Individual reported that he became intoxicated on a monthly basis after consuming
approximately ten beers. Id. at 58, 64. He also disclosed that he was serving probation in
connection with his 2020 DUI offense until September 2021. Id. at 64. On August 23, 2021, the
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 -
Individual notified the OPM investigator that he had been arrested for DUI earlier that month. Id.
at 67–69.
The local security office (LSO) issued the Individual a letter of interrogatory (LOI) concerning his
alcohol use and alleged criminal conduct. Ex. 5. The Individual’s responses to the LOI did not
resolve the security concerns, and the LSO issued the Individual a letter notifying him that it
possessed reliable information that created substantial doubt regarding his eligibility for access
authorization. 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. 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 seven exhibits (Ex. 1–7). The Individual submitted ten exhibits (Ex.
A–J). The Individual testified on his own behalf. Hearing Transcript (Tr.) at 3, 11. The LSO did
not call any witnesses to testify.
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. 1 at 1–2. “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 Individual’s admission to consuming alcohol to intoxication on a monthly
basis; the Individual’s arrests for DUI; the Individual’s citations for traffic offenses after
consuming alcohol; and the Individual’s alleged acts of domestic violence after consuming
alcohol. Ex. 1 at 1–2. The LSO’s assertions that the Individual was arrested for DUI, engaged in
domestic violence after consuming alcohol, and habitually or binge consumed alcohol to the point
of impaired judgment justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at
¶ 22(a), (c).
The LSO cited Guideline J (Criminal Conduct) as the other basis for its determination that the
Individual was ineligible for access authorization. Ex. 1 at 2–3. “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 arrests and citations for reckless driving,
domestic assault, and DUI; his violation of his probation for his 2020 DUI offense; and the orders
of protection issued against him in connection with alleged incidents of domestic violence. Ex. 1
at 2–3. The LSO’s allegations that the Individual engaged in criminal conduct and violated the
terms of his probation for the 2020 DUI offense justify its invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(b), (d).
III. REGULATORY STANDARDS
- 3 -
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
In August 2008, the Individual was cited for reckless driving. Ex. 5 at 20;2 Ex. 7 at 64, 86. The
Individual admitted that he consumed alcohol prior to driving his vehicle on this occasion, but
denied that he was intoxicated. Ex. 5 at 20. He pleaded guilty and was sentenced to a six-month
probationary period. Id. at 21; Ex. 7 at 86.
In February 2010, the Individual’s girlfriend (Girlfriend A) filed a petition for an order of
protection against the Individual based on her allegations that he had thrown her into furniture on
two occasions.3 Ex. 7 at 95–96. Girlfriend A subsequently withdrew the petition. Id. at 96. On June
26, 2010, the Individual was arrested for domestic assault based on Girlfriend A’s allegations that
he “came to [her] house drunk,” argued with her about child support obligations, struck her, and
threatened to kill her. Id. at 63, 84, 94; see also Ex. 5 at 16–17 (reflecting the Individual’s
admission to having consumed alcohol “3 or 4 hours before the argument” and assertion that she
“falls back” [sic] after reaching into the vehicle in which the Individual was sitting during the
argument). The charges were dismissed after Girlfriend A failed to appear in court. Ex. 7 at 63.
Girlfriend A was granted an additional order of protection against the Individual in November
2 Due to an unnumbered page inserted by the Individual in his response to the LOI, the pagination of Exhibit 5 does
not correspond to the order in which the pages appear. This Decision cites to pages in the order in which they appear
without regard for their internal pagination.
3 The Individual admitted during the hearing that he was first arrested for alleged domestic violence in 2006 following
a domestic dispute with the mother of one of his children. Tr. at 36–37. This arrest was not cited in the SSC as a
security concern. The Individual represented that the woman fell when she tried to snatch a phone out of his hand
during an argument, that he had not harmed her, and that the charges were dismissed at the discretion of the prosecuting
agency after he avoided any further arrests or citations for six months. Id. at 36–39.
- 4 -
2010 based on her allegations stemming from the June 2010 incident and her assertion that the
Individual had physically assaulted and threatened her on other occasions. Id. at 94–95.
On November 6, 2010, the Individual was arrested and charged with DUI. Id. at 85–86. The
charges associated with this arrest were reduced to reckless driving. Id. at 86; Tr. at 42–43.
On May 12, 2011, a court extended the order of protection against the Individual concerning
Girlfriend A for one year and ordered him to attend forty-five domestic violence intervention group
meetings during that period. Ex. 7 at 92. On June 7, 2012, Girlfriend A sought to further extend
the order of protection. Id. at 91. She alleged that the Individual had threatened her over the phone,
including telling her that he would kill her with a firearm he possessed if he saw her in public. Id.
Girlfriend A’s request to extend the order of protection was denied after she failed to appear at a
hearing. Id. at 92.
On June 9, 2012, the Individual was arrested and charged with DUI, driving on a suspended
driver’s license, and other traffic offenses. Id. at 62–63; see also Ex. 5 at 6–7 (reflecting the
Individual’s admission to having consumed “a couple 24oz beers over 2 or 3 hours” before
operating his vehicle). He pleaded guilty, and a court ordered the suspension of his driver’s license
for one year and sentenced him to a six-month probationary period. Ex. 5 at 7–8; Ex. 7 at 63.
The Individual was arrested and charged with DUI in October 2015 after a law enforcement officer
observed him experiencing difficulties driving out of the parking lot of a club where he had
consumed alcohol. Ex. 7 at 61, 89–90. The Individual pleaded guilty and was sentenced to forty-
eight hours jail time, a one-year probationary period, community service, and revocation of his
driver’s license for one year. Ex. 5 at 6; Ex. 7 at 89–90.
In January 2020, the Individual was arrested and charged with DUI. Ex. 7 at 61, 97–98. The
Individual pleaded guilty and in September 2020 he was sentenced to a one-year probationary
period and ordered to perform community service, undergo an alcohol evaluation, attend
Alcoholics Anonymous (AA) meetings, and have an interlock device installed on his vehicle. Ex.
5 at 4; Ex. 7 at 61–62.
In December 2020, a girlfriend of the Individual (Girlfriend B) filed for an order of protection
against the Individual. Ex. 7 at 91. She alleged that a September 2020 argument between them
“became physical,” that she had told the Individual to leave and never contact her again following
the incident, and that the Individual had contacted her against her wishes on December 8, 2020.4
Id. The court ordered the Individual and Girlfriend B to attend a hearing concerning the matter. Id.
On December 22, 2020, the court granted Girlfriend B’s request for an order of protection after
making “a particularized finding of fact that the [Individual] grabbed [Girlfriend B] by the throat.”
Id. The Individual was ordered to have no contact with Girlfriend B for one year and prohibited
from possessing firearms. Id.
4 The Individual denied that he had hurt Girlfriend B and speculated that she might have been motivated to seek an
order of protection if she “was with her significant other” when he sent the text messages “to make them feel better.”
Tr. at 29.
- 5 -
On July 8, 2021, the Individual signed and submitted the QNSP. Ex. 6 at 40. On July 20, 2021, he
met with the OPM investigator for an interview. Ex. 7 at 58. During the interview, the Individual
indicated that he needed to consume approximately ten beers in a sitting to become intoxicated
and that he consumed alcohol to intoxication on a monthly basis. Id. at 64. He asserted that he had
“learned his lesson” from his January 2020 arrest for DUI and that “there [was] no possibility of a
recurrence or continuation of this conduct in the future.” Id. at 62.
On August 23, 2021, the Individual notified the OPM investigator that he had been arrested on
August 6, 2021, and charged with DUI and violation of probation.5 Id. at 68. The Individual
reported to the OPM investigator that his friends told him that he had consumed “two shots and a
few mixed drinks” but he could “not recall any details of the night.” Id. The Individual was placed
on supervised pre-trial release following his arrest. Ex. I. The Individual is subject to drug and
alcohol screenings pursuant to his pre-trial release, but has only been tested on two occasions: on
August 20, 2021, shortly after his monitoring began, and in August 2022, approximately two
weeks prior to the hearing. Tr. at 24; Ex. E; Ex. F. The Individual will remain on pre-trial release
until his next court appearance in December 2022, at which time the prosecuting agency will
stipulate to the dismissal of the charges provided that the Individual is not charged with any
additional offenses and attends counseling and AA. Ex. H.
The Individual enrolled in an intensive outpatient program (IOP) for alcohol treatment in
September 2021 which he successfully completed on November 1, 2021. Ex. A; Ex. 5 at 13.
According to the Individual, the IOP taught him facts about the science of addiction and helped
him to identify elements of his personal history that may have contributed to his alcohol misuse.
Tr. at 16. The IOP practitioners recommended to the Individual that he participate in individualized
therapy after discharge from the IOP. Ex. A.
Based on the recommendation of the IOP, the Individual has met with a counselor on at least a bi-
weekly basis since September 2021. Tr. at 18; see also Ex. D (indicating that the Individual has
attended counseling with the counselor since September 2021). According to the Individual, the
counseling is focused on stressors in his life and the counselor “hasn’t spoke[n] much on the
drinking . . . .” Tr. at 18.
Beginning on September 2, 2021, the Individual attended AA meetings on approximately a weekly
basis up to the date of the hearing. Ex. C. The Individual testified that he was an active participant
in the AA program and had worked the twelve steps of the AA program. Tr. at 13–14, 40–41. He
indicated that he had attempted to form a relationship with a sponsor but did not “know what
happened with that . . . .” Id. at 14.
On February 2, 2022, the Individual submitted his response to the LOI. Ex. 5 at 27. He represented
that he had not consumed alcohol since his August 2021 arrest for DUI. Id. at 10. Pursuant to his
supervised release, the Individual provided a urine sample for an Ethylglucuronide (EtG) test on
5 The report of investigation prepared by OPM indicates that the Individual reported being arrested for violating the
terms of parole. Ex. 7 at 68. The Individual subsequently clarified that he was arrested for violating the terms of his
probation related to his 2020 DUI. Ex. 5 at 1; Tr. at 44.
- 6 -
August 1, 2022, the results of which were negative for traces of alcohol consumption.6 Ex. E. The
Individual testified at the hearing that he underwent weekly alcohol testing while participating in
the IOP. Tr. at 24. The Individual also provided a hair sample for an EtG test on August 5, 2022,
the results of which were negative for traces of alcohol consumption.7 Ex. G; Ex. J.
At the hearing, the Individual testified that he had abstained from alcohol since his 2021 arrest for
DUI. Tr. at 17. He indicated that he recognized “the severity of . . . [his] problems and the drinking”
and that he intended to abstain from alcohol. Id. at 20–21.
V. ANALYSIS
A. Guideline G
The Individual’s arrests for DUI, alleged domestic violence after consuming alcohol, and history
of binge consuming alcohol justify the LSO’s invocation of Guideline G. Adjudicative Guidelines
at ¶ 22(a), (c). Conditions that could mitigate a security concern 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; 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.
Id. at ¶ 23(a)–(d).
The Individual has established a pattern of avoiding alcohol-related offenses for significant periods
of time, most notably the period of more than four years between his October 2015 and January
2020 arrests for DUI, only to reoffend after engaging in binge drinking episodes. This pattern
6 An EtG test of a urine sample can usually detect chemical traces of alcohol consumption in which a subject engaged
several days prior to the collection date, depending on the cutoff level applied by the laboratory measuring the sample.
See Personnel Security Hearing, OHA Case No. PSH-21-0071 at 6 (2021) (reflecting the opinion of an expert witness
that an EtG urine test could usually detect traces of two alcoholic drinks for up to forty-eight hours following
consumption). Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
7 The effectiveness of EtG tests of hair samples for detecting alcohol consumption may vary considerably depending
on the extent of a subject’s alcohol consumption. See Personnel Security Hearing, OHA Case No. PSH-22-0064 at 9
n. 5 (2022) (quoting the testimony of an expert witness that the sensitivity of an EtG hair test is dependent on the
amount of alcohol the subject consumed and that “it’s going to more likely pick it up if you drink a lot than if you
drink a little”).
- 7 -
indicates that the passage of one year since the Individual’s August 2021 arrest is insufficient to
conclude that his alcohol-related misconduct is unlikely to recur. Moreover, the Individual’s
extensive history of alcohol-related offenses indicates that the Individual’s alcohol-related
misconduct was neither infrequent nor the product of unusual circumstances. Accordingly, I find
the first mitigating condition under Guideline G inapplicable. Id. at ¶ 23(a).
While the Individual has acknowledged his maladaptive alcohol use, he has not brought forth
sufficient evidence of his efforts to overcome his alcohol misuse or modified consumption of
alcohol to establish the applicability of the second or fourth mitigating conditions. The Individual
did not provide expert testimony or other authority to support that an EtG hair test could reliably
detect alcohol consumption in a person like the Individual with a history of engaging in episodic
binge drinking rather than heavy, daily alcohol consumption. In light of the uncertain ability of the
EtG hair test to capture isolated binge drinking episodes, I assigned minimal weight to the results
of the Individual’s EtG hair test. See supra note 7. The Individual’s urine EtG test in August 2022,
and self-described testing during his two-month participation in the IOP, do not cover a sufficient
period of time for me to conclude that he has established a pattern of modified consumption or
abstinence from alcohol since his August 2021 DUI as he claims.
Moreover, while the Individual demonstrated that he completed the IOP and provided sign-in
sheets showing that he consistently attended AA, he has not brought forth evidence to establish
that he was an active participant in either program or that he has fully complied with their
recommendations. In the absence of treatment records or testimony from a practitioner at the IOP,
I am unable to conclude whether the Individual merely attended mandatory treatment sessions and
made the minimum effort required to complete the IOP or fully engaged with the treatment
program, followed all recommendations, and established a foundation for sustainable recovery.
Likewise, while the Individual has submitted sign-in sheets to show that he physically attended
AA meetings, there is no evidence in the record to support his testimony that he actively
participated in meetings, he denied having an active sponsor, and he did not offer testimony from
witnesses who could corroborate that he worked the twelve steps of the AA program.
More extensive support for the Individual’s claimed abstinence and recovery are critically
important because he has committed alcohol-related offenses even after claiming to have
controlled his alcohol misuse in the past. Notably, the Individual assured the OPM investigator
that he had “learned his lesson” from his January 2020 arrest for DUI and that “there [was] no
possibility of a recurrence or continuation of this conduct in the future” just one month prior to his
August 2021 arrest for DUI. In the absence of more robust alcohol testing records and
corroborating witness testimony from persons who observed the Individual’s participation in the
IOP and AA, I find that the Individual has not established the applicability of the second and fourth
mitigating conditions under Guideline G. Adjudicative Guidelines at ¶ 23(b), (d).
While the Individual established that he is currently attending individualized counseling, he
acknowledged that the counseling is not primarily focused on alcohol misuse. As the Individual is
not currently enrolled in a treatment program or undergoing counseling specifically for alcohol
misuse, I find the third mitigating condition under Guideline G inapplicable. Id. at ¶ 23(c).
- 8 -
In light of the Individual’s extensive history of binge drinking and alcohol-related offenses, I find
that his self-reported abstinence and commitment to avoiding alcohol misuse in the future are
insufficient to establish the applicability of the mitigating conditions in light of the limited alcohol
testing and lack of witness testimony to support his claims. Accordingly, I find that the Individual
has not resolved the security concerns asserted by the LSO under Guideline G.
B. Guideline J
The Individual’s arrests for DUI, including while on probation for the 2020 DUI offense, alleged
acts of domestic violence, and other citations justify the LSO’s invocation of Guideline J. Id. at
¶ 31(b), (d). Conditions that could mitigate a security concern under Guideline J include:
(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; or,
(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).
The Individual’s most recent arrest for DUI occurred approximately one year prior to the
hearing and reflected the continuation of a pattern by the Individual of reoffending after months
or years of avoiding arrests or citations. The Individual’s recovery from his alcohol misuse is
too uncertain, and too little time has passed, for me to conclude that the Individual will not
revert to his prior patterns of behavior. Accordingly, I find the first mitigating condition under
Guideline J inapplicable in this case. Id. at ¶ 32(a).
The second mitigating condition under Guideline J is inapplicable because the Individual does
not assert that he was pressured or coerced into committing criminal conduct. Id. at ¶ 32(b).
The Individual does not contest that he operated a vehicle while intoxicated and, although he
denied committing the domestic violence offenses alleged by the LSO, the issuance of orders
of protection against the Individual in favor of multiple women, a court’s order that he attend
domestic violence intervention group meetings for one year, and the finding of fact by a court
that the Individual grabbed Girlfriend B by the throat are sufficient for me to conclude that
there is some reliable evidence that the Individual committed the offenses in question.
Accordingly, I find the third mitigating condition under Guideline J inapplicable. Id. at ¶ 33(c).
As noted above, the passage of one year since the Individual’s last instance of criminal conduct
is insufficient for me to conclude that he will not reoffend due to his pattern of reoffending
after months or years without arrests or citations. Moreover, the Individual violated the terms
of his 2020 probation when he was arrested for DUI in August 2021, and it is too early to
- 9 -
conclude that he will successfully abide by the terms of his current supervised release which
ends in December 2022. Considering these factors, and in the absence of other positive
information demonstrating rehabilitation or reformation, I find the fourth mitigating condition
under Guideline J inapplicable. Id. at ¶ 33(d).
The Individual’s lengthy history of arrests, and the troubling allegations of domestic violence
raised against him by multiple women, present significant concerns as to his judgment and
reliability. Having concluded that none of the mitigating conditions are applicable in this case,
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
should not be granted access authorization. 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