PSH-22-0093

*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-22-0093
)
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Issued: September 27, 2022
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set forth
at 10 C.F.R. Part 710, entitled, “Procedures for Determining Eligibility for Access to Classified
Matter and Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance should be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that he hold a security
clearance. Derogatory information was discovered regarding the Individual’s alcohol use. The
Local Security Office (LSO) began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility to continue
holding a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The OHA Director appointed me as the Administrative Judge in
this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the Individual
presented the testimony of four witnesses and testified on his own behalf. The LSO presented the
testimony of the DOE-Contractor Psychologist who had evaluated the Individual. See Transcript
of Hearing (hereinafter cited as “Tr.”). The LSO submitted 12 exhibits, marked as Exhibits 1
through 12 (hereinafter cited as “Ex.”). The Individual submitted five exhibits, marked as Exhibits
A through E.
1 Under the regulations, “‘[a]ccess authorization’ means an administrative determination that an individual is eligible
for access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a).
Such authorization will also be referred to in this Decision as a security clearance.
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II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The Notification Letter informed the Individual that information in the possession of the DOE
created a substantial doubt concerning his eligibility for a security clearance. That information
pertains to Guideline G (Alcohol Consumption) of the National Security Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines). These guidelines are not inflexible rules
of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in
conjunction with the factors listed in the adjudicative process. 10 C.F.R. § 710.7.
Guideline G states that excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about an individual’s reliability
and trustworthiness. Adjudicative Guidelines at ¶ 21. Conditions that could raise a security concern
under this guideline include:
(a) Alcohol-related incidents away from work, such as driving while under the
influence, fighting, child or spouse abuse, disturbing the peace, or other incidents
of concern, regardless of the frequency of the individual's alcohol use or whether
the individual has been diagnosed with alcohol use disorder;
(b) Alcohol-related incidents at work, such as reporting for work or duty in an
intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare
and safety of others, regardless of whether the individual is diagnosed with
alcohol use disorder;
(c) Habitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder;
(d) Diagnosis by a duly qualified medical or mental health professional (e.g.,
physician, clinical psychologist, psychiatrist, or licensed clinical social worker)
of alcohol use disorder;
(e) The failure to follow treatment advice once diagnosed;
(f) Alcohol consumption, which is not in accordance with treatment
recommendations, after a diagnosis of alcohol use disorder; and
(g) Failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence.
Id. at ¶ 22.
The LSO alleges that, in August 2021, the Individual was arrested and charged with Aggravated
Driving Under the Influence (DUI). In January 2022, a DOE-Contractor psychologist (the
Psychologist) diagnosed the Individual with Unspecified Alcohol-Related Disorder and opined that
the Individual habitually consumed and binged alcohol. Accordingly, the LSO’s security concerns
under Guideline G are justified.
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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 the relevant evidence, favorable and unfavorable, as to whether the granting or
continuation of a person’s access authorization will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The entire process is a
conscientious scrutiny of a number of variables known as the “whole person concept.” Adjudicative
Guidelines ¶ 2(a). The protection of national security is the paramount consideration. The
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the
national interest” standard for granting security clearances indicates “that security determinations
should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir.
1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security
clearance).
The Individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
On August 29, 2021, the Individual was arrested for DUI at a DUI Checkpoint. Ex. 6. He had
consumed two to three beers in one to two hours before driving his girlfriend’s car to the
mechanic’s shop. Ex. 8 at 1. He performed poorly on field sobriety tests and the arresting report
stated that he had refused to submit to a breathalyzer test. Ex. 6. In response to a letter of
interrogatory, the Individual stated that while he was reading an informed consent statement, the
officer’s breathalyzer machine timed out and the officer, unable to perform the test, told him he
would mark it as a refusal. Ex. 8 at 2.
At the hearing, the Individual presented the testimony of his Employee Assistance Program
Counselor, his sister, his brother-in-law, and his Alcoholics Anonymous sponsor.
The Employee Assistance Program (EAP) Counselor first met the Individual in September 2021,
when he entered individual counseling after his DUI. Tr. at 9–10. She stated that during these
sessions, the Individual identified ways he used alcohol to cover emotions and deal with
interpersonal and family difficulties. Id. at 12. She stated she believed the Individual had benefitted
from their counseling sessions, had become more aware himself, and was able to open up without
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feeling judged. Id. at 12–13. She testified that the Individual did not want his daughter to see him
drinking and did not want to use alcohol to deal with his relationship issues. Id. at 15. She also
testified that the Individual, compared to other people in his group counseling sessions (also
through EAP), had above average growth and transformation. Id. at 17–18. The Individual told her
he intends to continue attending Alcoholics Anonymous (AA) meetings and working with his
sponsor, regardless of the hearing’s outcome. Id. at 12. Her last meeting with the Individual was in
August 2022. Id. at 14–15.
The Individual’s sister testified that their family had a history of alcohol use. Tr. at 38. Growing
up, the Individual lived with their dad and the sister lived with their mom, so the alcohol use each
of them observed may have been different. Id. at 41. She stated that when they were kids, both of
their parents drank alcohol regularly, but she did not remember either of her parents being drunk.
Id. at 40–41. She testified that when they were kids, drinking was not really talked about in the
family. Id. at 38. As adults, the sister, the Individual, their partners, and their children held lots of
family events, such as attending concerts, barbecuing, playing games, and visiting local attractions.
Id. at 30–31. She testified that during these family events, the Individual did drink. Id. at 31. She
stated that before the Individual’s DUI, she did not think the Individual drank too much. Id. at 34.
She recalled that, with the exception of this incident, the Individual would not drive home if he had
been consuming alcohol and that the Individual typically used rideshare services when he was
drinking. Id. at 39. The sister testified that the Individual quit drinking “pretty quickly” after his
DUI. Id. at 42–43. She stated the Individual told her about his counseling and his group meetings
and told her that he felt the meetings were helping him. Id. at 33.
The Individual’s brother-in-law testified that he has known the Individual since 2006, about the
time he met the Individual’s sister. Tr. at 46. He stated that before the Individual’s arrest for DUI,
he would see the Individual once or twice a month for dinners or sports events, during which the
Individual would sometimes drink. Id. at 47–48. He never felt the Individual’s drinking was out of
control. Id. at 48. He stated that since the Individual’s arrest for DUI, he has not seen the Individual
use alcohol, and has not seen alcohol in the Individual’s house. Id. at 49, 51. The Individual had
shared with him about his AA meetings and individual counseling sessions. Id. at 51–52. The
brother-in-law stated that he had not noticed changes in the Individual’s behavior since he stopped
drinking. Id. at 53. He stated the Individual is a reliable person and is one of the most honest people
he knows. Id.
The Individual’s sponsor met the Individual in an AA meeting about 6 months before the hearing
date. Tr. at 58. He stated the Individual asked him to be his sponsor, which involved seeing the
Individual during the weekly AA meetings and talking about sobriety, how to deal with family
issues, and “whatever helps us to stay sober.” Id. He stated that, having witnessed serious alcohol
addiction in AA, he would not call the Individual’s alcohol issues “serious,” but noted that any
time a person goes to AA, they need help. Id. He testified that the Individual was working through
the 12 Steps and that the Individual was on the eighth Step—making a list of all persons he has
harmed. Id. at 62–63. The sponsor stated that besides AA, he is not aware of other forms of
treatment the Individual is receiving. Id. at 63–64. He believed the Individual planned on not
drinking in the future and testified that they had discussed staying sober. Id. at 64. The Individual’s
AA attendance demonstrated to the sponsor that he “wants to be sober and he wants to change.” Id.
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The Individual testified about the various forms of treatment he had received since his DUI. After
he reported his DUI to his employer, the employer placed him in a Fitness for Duty Program and
he enrolled in individual and group counseling sessions with the EAP Counselor. Tr. at 73–74. He
testified that during the individual counseling sessions, he discussed issues that were not covered
in group settings. Id. at 77. The Individual also enrolled in a 6-week alcohol awareness group
offered by his employer’s EAP that discussed risky behavior, the characteristics of alcoholism and
binge drinking, and other topics. Id. at 74–75.
The Individual also participated in a 12-week EAP course called, “Maintaining Changes and
Substance Use.” Tr. at 76. As of the hearing date, he was still enrolled in the course and had last
attended a session in August 2022. The Individual testified that he participated in 90 AA meetings
in 90 days. Id. at 77, 79–80. He started documenting his attendance at AA meetings in March 2022.
Id. At 83. The Individual testified that he also participated in an AA “back to basics” program
outside of his regular meetings as an accelerated way of getting familiar with the Steps. Id. at 83–
84. The Individual’s AA attendance record was submitted into evidence before the hearing and was
marked as Exhibit C.
The Individual underwent drug testing as part of his employer’s Fitness for Duty Program. Tr. at
84. He took daily breathalyzer tests at a mobile lab unit, and random urine tests to screen for alcohol
consumption, ending in January 2022. Id. He stated the Psychologist recommended he undergo
monthly blood testing to screen for alcohol use in the preceding four weeks, which he began doing
in February 2022 (about four weeks after he underwent such a test as part of the Psychologist’s
evaluation). Id.; Ex. A. The sample for the Individual’s most recent blood test included in the record
was collected in the hours before the hearing. Tr. at 90; Ex. E. All of the Individual’s test results,
including breathalyzer, urine, and blood tests, were negative for alcohol use. Ex. 2 at 23–102; Ex.
A; Ex. A Addendum; Ex. E. The Individual expressed that it was important to him that there be no
lapse in testing while he was in the administrative review process. Tr. at 88–89. The Individual
testified that his sobriety date was August 29, 2021, and that he would have one year of sobriety a
few weeks after the hearing. Id. at 93–94. He stated he didn’t want to say he would never drink
again but testified that he wants to remain abstinent now, and that he would only consider drinking
in the future after discussing it with his family and his sponsor. Id. at 94, 153. He stated that he did
not want to drink now because he wants to maximize his time with his daughter on weekends and
that, even prior to his DUI, he typically refrained from alcohol consumption during the work week.
Id. at 95. The Individual also testified that he wanted to finish the 12 Steps. Id. at 94.
The Individual described his past use of alcohol and stated that before his DUI, he would drink 3-
4 beers a day on weekend days, twice a month. Tr. at 109, 111. He explained he did not drink on a
specific schedule, but he would typically drink during certain events, like mud volleyball or while
camping, and his consumption was not consistent. Id. at 112. He stated he also drank in social
settings. Id. at 112–13. This was discrepant from his description as written in the Psychologist’s
report, which he attributed to the different way that questions were asked. Id. at 114–16. He stated
that he may drink in the future, but not now, and he has not yet discussed this with his AA sponsor.
Id. at 117. He stated that he is willing to continue seeking outside treatment because he finds
opening up and talking about his emotions and alcohol use very helpful. Id. at 121. He stated he is
trying to change the way he communicates because that has caused problems in his personal
relationships in the past. Id. at 121–22.
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The Individual was evaluated by the Psychologist in January 2022. In her report, the Psychologist
stated that the Individual’s drinking increased during 2021. Ex. 9 at 6. The report stated that during
2021 the Individual would drink alcohol on one weekend day (Friday or Saturday) per week and
on that day would consume between one and six cans or bottles of beer in two to four hours. Id.
The report stated that a male of the Individual’s “height, weight and age who consumes a 6-pack
of 4.2% 12-ounce beers over a period of 2 to 4 hours would reach estimated BACs of .06 to .09
g/210L, with intoxication reached at .08 g/210L.” Id. The Psychologist defined binge drinking as
“five or more drinks for a male, and reaching intoxication.” Id. In support, she cited to definitions
from the National Institute on Alcohol Abuse and Alcoholism (NIAAA) and from the Substance
Abuse and Mental Health Services Administration (SAMHSA) contained in a 1998 scholarly
journal. Id. at 9. She also wrote that “[b]ecoming intoxicated on a monthly basis has been accepted
as ‘habitual’ drinking.” Id. at 6. In support, she cited to an OHA opinion in a personnel security
case. Id. at 10.
Currently, NIAAA defines binge drinking as “a pattern of drinking alcohol that brings blood
alcohol concentration (BAC) to 0.08 percent—or 0.08 grams of alcohol per deciliter—or higher.
For a typical adult, this pattern of alcohol misuse corresponds to consuming 4 or more drinks
(female), or 5 or more drinks (male) in about 2 hours.” Understanding Binge Drinking, NIAAA
(December 2021), https://www.niaaa.nih.gov/publications/brochures-and-fact-sheets/binge-
drinking. SAMHSA defines binge drinking for males as “drinking five or more drinks on the same
occasion on at least 1 day in the past 30 days.” Center for Behavioral Health Statistics and Quality,
Key Substance Use and Mental Health Indicators in the United States: Results from the 2019
National Survey on Drug Use and Health HHS Publication No. PEP20-07-01-001, NSDUH Series
H-55), SAMHSA 12 (2020), https://www.samhsa.gov/data/sites/default/files/reports/rpt29393/201
9NSDUHFFRPDFWHTML/2019NSDUHFFR1PDFW090120.pdf.
In her report, the Psychologist diagnosed the Individual with Unspecified Alcohol-Related
Disorder2 due to his habitual and binge drinking and his history of alcohol consumption. She
recommended that he remain in the Maintaining Changes course in which he was enrolled for at
least nine months and undergo monthly blood tests3 to confirm his abstinence. The Individual was
directed to undergo a blood test as part of the evaluation, which returned a negative result. Id. at 6.
The Psychologist testified that the Individual substantially complied with her treatment
recommendations. Tr. at 126–27, 129. She considered the Individual’s sobriety date to be one
month before her evaluation, which occurred in January 2022, because the Individual’s blood test
from that day showed that he had not consumed alcohol in the preceding month. Id. at 131–32. The
Psychologist testified that the Individual’s daily breathalyzers, from September 2021 through
January 2022, did not affect her judgment of the Individual’s sobriety date for the purpose of her
recommendations, because she had recently attended a seminar that demonstrated circumstances
2 The diagnostic criteria used for Unspecified Alcohol-Related Disorder states that this diagnosis applies to
“presentations in which symptoms characteristic of an alcohol-related disorder that cause clinically significant distress
or impairment in social, occupational, or other important areas of functioning predominate but do not meet the full
criteria for any specific alcohol-related disorder or any of the disorders in the substance-related and addictive disorders
diagnostic class.” Ex. 9 at 8.
3 The Psychologist specifically recommended Phosphatidylethanol blood tests, which under the proper circumstances
can detect certain patterns of alcohol consumption over the preceding 28-30 days. The term “blood tests” in this
decision indicates Phosphatidylethanol testing.
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under which a person could drink on a daily basis and still pass a breathalyzer test. Id. at 151–54.
She also stated she was uncomfortable relying on ETG (urine) tests because the test can show
alcohol use in the preceding two to seven days and her practice group had deemed that variability
to lack scientific rigor. Id. at 154–56. The Psychologist declined to specify the minimum length of
time her research indicated that an ETG test could monitor for alcohol use. Id. at 156.
The Psychologist testified that for a male, binge drinking is “five or more drinks in two hours.” Tr.
at 135. The Psychologist explained that during the evaluation, the Individual reported drinking four
to six beers in two to four hours, which “would meet the description of binge drink[ing]
adequately.” Id. at 137–8.
The Psychologist did not feel confident making a prognosis because she viewed the Individual’s
testimony about his alcohol history as discrepant from his description during her evaluation and
because she believed the Individual did not have clarity about what would indicate to him that
future alcohol consumption would be acceptable. Id. at 127–128. However, she testified that she
no longer considers the Individual to be a habitual or binge drinker and that he no longer fits the
criteria for Unspecified Alcohol-Related Disorder. Id. at 138–39. She further testified that in her
clinical opinion, the Individual is reformed and rehabilitated. Tr. at 139. She stated that the
Individual’s participation in his EAP counseling group “had been excellent,” and that he showed
commitment by making the effort to attend an AA meeting on a Sunday when he was traveling
with his family. Id. at 140–41. She also noted that the Individual attended 90 AA meetings in 90
days and made a financial commitment in taking PEth tests, for which the Individual had paid
hundreds of dollars out of pocket every month. Id. at 140–1. She stated she the Individual is “doing
this in good faith, and being very conscientious.” Id.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching my decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against granting or restoring security clearances, I must deny access authorization if I
am not convinced that the LSO’s security concerns have been mitigated such that restoring the
Individual’s clearance is not an unacceptable risk to national security.
Under Guideline G, conditions that could mitigate security concerns include:
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(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.
Adjudicative Guidelines at ¶ 23.
Mitigating factors (b) and (d) apply in this case. The Individual has acknowledged his problematic
drinking and taken appropriate steps to address that problem. He has completed, and continues to
participate in, multiple alcohol treatment programs since his arrest for DUI and has done so
consistently. The EAP Counselor testified that the Individual’s personal growth, compared to
others in his group sessions, has been “above average.” The Individual’s sponsor credibly testified
to the Individual’s progress in working through the 12 Steps and to the Individual’s commitment
to maintaining sobriety. The Individual has remained in an appropriate aftercare program, the
Maintaining Changes course. The Psychologist testified that the Individual had substantially
completed her recommendations and opined that he is rehabilitated and reformed. Additionally,
during the hearing, the Individual’s AA sponsor, sister, and brother-in-law testified as to the
positive impact the counseling sessions have had on the Individual and his consumption of alcohol.
In addition, I find that there is sufficient evidence to establish the Individual’s pattern of abstinence
and to establish that he had been abstinent for just under one year as of the hearing date. For the
past seven months, the Individual has undergone monthly PEth testing, showing negative results.
The Individual also underwent several months of random ETG testing, showing negative results.
Prior to that, the Individual underwent several months of near daily breathalyzer testing, showing
negative results.
For the foregoing reasons, I find that the Individual has mitigated the security concerns set forth by
the LSO under Guideline G.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for access authorization under Guideline G of the
Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
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concerns. Therefore, I conclude that restoring DOE access authorization to the Individual “will not
endanger the common defense and security and is clearly consistent with the national interest.” 10
C.F.R. § 710.7(a). Accordingly, I find that the DOE should restore access authorization to the
Individual.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals