PSH-22-0094

*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-22-0094
)
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Issued: September 21, 2022
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States Department of Energy’s (DOE)
regulations, as set forth at 10 C.F.R. Part 710, “Procedures for Determining Eligibility for Access
to Classified Matter and Special Nuclear Material.”1 As discussed below, after carefully
considering the record before me in light of the relevant regulations and the National Security
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or
Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should not be granted.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In completing a Questionnaire for National Security Positions (QNSP) in January 2020,
the Individual disclosed that he was arrested in approximately 20092 and charged with “Drunk in
Public.” Exhibit (Ex.) 9 at 38-39. In completing a Letter of Interrogatory (LOI) in January 2022,
the Individual disclosed that, in 2019, his wife called law enforcement due to his intoxication. Ex.
6 at 2. He additionally indicated that, since April 2016, he has become intoxicated “two or three
times per month,” consuming “4-6 drinks over the span of two or three hours.” Id. at 5.
In February 2022, the Individual underwent a psychological evaluation with a DOE consultant
psychologist (Psychologist). Ex. 7. The Psychologist opined that the Individual binges alcohol
habitually two to four times per month to the point of impaired judgment. Id. at 5. She concluded
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 Although the Individual indicated in the QNSP that this arrest occurred in 2009, the Individual’s background
investigation indicated that the arrest occurred in 2010. See Ex. 3.
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that, at the time of the evaluation, the Individual had not demonstrated adequate evidence of
rehabilitation. Id.
Due to unresolved security concerns related to the Individual’s alcohol use, the Local Security
Office (LSO) informed the Individual, in a Notification Letter, that it possessed reliable information
that created substantial doubt regarding the Individual’s eligibility to hold a security clearance. In
the Summary of Security Concerns attached to the Notification Letter, the LSO explained that the
derogatory information raised security concerns under Guideline G (alcohol consumption) of the
Adjudicative Guidelines. Ex. 1.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted 10 numbered exhibits (Ex. 1-10) into the record and presented the testimony of the
Psychologist. The Individual introduced 11 lettered exhibits (Ex. A-K) into the record and
presented his own testimony.3 The hearing transcript in the case will be cited as “Tr.” followed by
the relevant page number.
II. Regulatory Standard
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 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).
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 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.
III. Notification Letter and Associated Security Concerns
3 The Individual’s exhibits consisted of: (A) Statement of Intent regarding alcohol, (B) a document showing that the
2010 charges had been purged, (C) a Declaration of Support from the Individual’s wife, (D) four letters of
recommendations from colleagues or previous colleagues, (E) a performance appraisal, (F) the Individual’s resume,
(G) various awards bestowed upon the Individual, (H) the Individual’s graduate and post graduate degrees, (I) home
and family photos, (J) a professional photo and driver’s license, and (K) a May 2022 PEth test. Exs. A-K.
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As previously mentioned, the Notification Letter included the Summary of Security Concerns,
which set forth the derogatory information that raised concerns about the Individual’s eligibility
for access authorization. The Summary of Security Concerns specifically cited Guideline G of the
Adjudicative Guidelines. Ex. 1. Guideline G relates to security risks arising from excessive alcohol
consumption. “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.
In citing Guideline G, the LSO relied upon the Psychologist’s February 2022 determination that
the Individual engages in habitual binge consumption of alcohol to the point of intoxication,
without adequate evidence of rehabilitation. Ex. 1. It additionally cited two alcohol-related
incidents involving the Individual: (1) the 2019 incident in which the Individual’s wife called law
enforcement due to his intoxication, and (2) the March 2010 arrest for “Drunk in Public.” Id. The
LSO also cited the January 2022 LOI, in which the Individual disclosed that, since April 2016, he
consumed alcohol to the point of intoxication “two to three times a month,” Id.
IV. Findings of Fact
In January 2022, the Individual completed an LOI at the request of the LSO. Ex. 6. The Individual
reported that, in March 2010, he was arrested and charged with “Drunk in Public.” Id. at 1. He
explained that, after consuming “over eight drinks” at a barbeque earlier in the day, he and his
girlfriend engaged in a “loud argument” at the girlfriend’s apartment. Id. As a result, one of the
neighbors contacted law enforcement. Id. When law enforcement arrived, the officers
recommended that the couple separate and “cool down.” Id. After a few hours, the couple
reconciled, and the Individual returned to the girlfriend’s apartment. Id. When he arrived, the same
law enforcement officers were at the apartment, responding to an unrelated incident, and upon
seeing the Individual, arrested him for “Drunk in Public.” Id. The Individual acknowledged that he
was intoxicated at the time of the incident. Id.
The Individual further disclosed that, in 2019, he and his wife went to dinner with friends, where
he likely consumed “in excess of eight” alcoholic beverages. Id. at 2-3. When the couple returned
home, the Individual wanted to continue to consume alcohol, but his wife objected, as he was loud,
and she feared that he would wake their children. Id. at 2. His wife threatened to call law
enforcement if he did not go to bed. Id. The Individual did not go to bed, and therefore, his wife
called the police. Id. When law enforcement arrived, the officers gave the Individual the option of
going to bed or being arrested. Id. The Individual chose to go to bed, and the incident did not
progress any further. Id. at 2-3.
In the LOI, the Individual indicated that he consumed alcohol “anywhere between 4-5 times per
month,” and at social engagements, he would consume “anywhere from 4-8 beers over the course
of an evening.” Id. at 6. He noted that this pattern of consumption began in approximately April
2016, and after “4-6 drinks over the span of two or three hours,” he would become intoxicated. Id.
The Individual estimated that he became intoxicated two or three times per month. Id.
As stated above, due to unresolved security concerns arising from the Individual’s alcohol use, the
Individual underwent an evaluation with the Psychologist in February 2022. Ex. 7. The
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Psychologist noted that, as part of her evaluation, she reviewed the Individual’s medical records,
which revealed that the Individual’s physician advised him, in 2013 and again in 2016, to “decrease
his alcohol intake because he tended to binge drink beer on weekends.” Id. at 2. According to the
Psychologist’s report (Report), in 2017, the Individual sought counseling due to stress. During the
counseling session, the Individual revealed that “he had consumed six to eight servings of alcohol
about three days a week over the [previous] three years.” Id. at 3. The counselor’s notes indicated
that she “had the impression that [the Individual] had unhealthy alcohol use and advised him to
limit his alcohol consumption to no more than 14 servings per week and no more than four servings
per day.” Id. In a follow-up screening, the Individual reported to her that, in 2019, he consumed
“eight drinks once a week.” Id.
During the psychological evaluation, the Individual reported that he did not believe his alcohol
consumption to be problematic and noted that he did not spend “an excessive amount of time or
money on alcohol.” Id. at 4. However, the Individual told the Psychologist that he typically
consumed six to seven vodka drinks at a frequency of approximately once per week. Id. The
Individual indicated that he would not consume more than one glass of wine with dinner during the
work week, and his “heavy consumption of alcohol was limited to the weekend.” Id. The
Psychologist noted that the Individual reported that his last alcohol consumption was at a child’s
birthday party, the Friday prior to the evaluation, where he consumed six or seven alcoholic
beverages. Id.
As part of the evaluation the Individual underwent a phosphatidylethanol (PEth) test, which came
back positive at a level of 39 ng/mL. Id. at 5. A medical doctor reviewed the results and found that
the level was “congruent with significant alcohol consumption,” and, the Psychologist noted that
the results were consistent with the Individual’s “reported drinking behavior, if not a little lower.”
Id. The Psychologist indicated that “drinking to the point of intoxication remains a concern because
it can lead to poor judgment, instability, and lack of reliability.” Id.
Ultimately, the Psychologist concluded that the Individual “binges alcohol habitually two to four
times a month” to the point of impaired judgment. Id. She further found that the Individual did not
demonstrate adequate evidence of rehabilitation and recommended that the Individual “voluntarily
reduce his alcohol consumption and limit his drinking to no more than four drinks on any drinking
day.” Id. at 5-6. She advised that the Individual should demonstrate that he can maintain control of
his alcohol consumption by providing monthly PEth tests or random urine alcohol tests that showed
findings of low levels of alcohol consumption for a least six, but preferably 12 months. Id. at 6.
At the hearing, the Individual testified on his own behalf. The Individual did not dispute the
allegations contained in the Summary of Security Concerns but sought to establish that he had
mitigated the concerns. See Tr. at 12-19. The Individual clarified that he believes that the 2019
incident, where his wife called the police, occurred in 2018, and that since that time, he had
“drastically reduced [his] alcohol consumption” to perhaps “six drinks over the course of a day…on
the high end,” one to three times per month Id. at 16, 20. The Individual stated that this was the
pattern of consumption he reported to the Psychologist. Id. at 20. When asked about the discrepancy
between the eight alcoholic beverage limit he reported on the LOI and the six alcoholic beverage
limit he reported to the Psychologist, the Individual stated that in completing his LOI, he was “being
overly conservative” in his estimation because he “didn’t want to be incorrect.” Id. at 32. He also
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stated that he does not count how many alcoholic beverages he consumes on any given occasion.
Id.
The Individual testified, however, that since being evaluated by the Psychologist, his alcohol
consumption is “even less.” Id. at 20. The Individual stated that, over the course of the summer of
2022, he would consume “four, maybe five” alcoholic beverages at “a few barbecues and pool
parties.” Id. He estimated this this level of consumption occurred “twice or three times at most,
over the past few months,” and he did not become intoxicated. Id. at 20-21. However, later in the
hearing, the Individual testified that he consumed a maximum of five drinks, one to two times per
month, stating that there were two occasions of consumption in June 2022, one occasion in July
2022, and three occasions in August 2022.4 Id. at 54.
The Individual stated that he received a copy of the Psychologist’s Report and recommendations
in approximately May 2022, but he indicated that he “did not catch” her recommendation that he
limit himself to four alcoholic beverages per day. Id. at 36-37. He explained that he “may
have…misread” her recommendations to say, “don’t drink to intoxication and drink responsibly.”
Id. at 37-38. In order to control his consumption of alcohol, the Individual testified that he
consumes “less, or [he does not] drink as quickly as [he] would have a few years ago.” Id. at 39.
He further noted that he “almost exclusively” consumes alcohol at events where there are children
present, and as such, there is a “natural limiting factor,” and he must be “pretty aware.” Id. at 39-
40.
The Individual testified that he submitted a May 2022 PEth test into the record, which produced a
result of 30 ng/mL. Id. at 21; Ex. K. The Individual noted that the laboratory report indicated that
such a result “show[ed] that [he] was on the lower end of moderate [alcohol] consumption.”5 Tr. at
22. When asked about his alcohol consumption leading up to the test, the Individual was unable to
recall, and he testified that he did not “keep track of that.” Id. at 52. However, he recalled that his
son’s birthday party occurred in April, which would have been an event where he would have
consumed “beyond just one or two” alcoholic beverages. Id. The Individual estimated that he
consumed four or five glasses of wine at the party, perhaps six “at the absolute high end.” Id. at 53.
In describing how his decreased alcohol consumption has changed his life, the Individual testified
that he has “more money…in the bank” because he is not spending as much on alcohol, and he no
longer experiences hangovers on the weekends. Id. at 49. Regarding his future intentions toward
alcohol, he stated that he does not “have any intent to drink to intoxication whatsoever.” Id. at 38.
However, he noted that, although he did not have the desire to consume more than the four drinks
recommended by the Psychologist, he did not know if he would consume past that limit. Id. at 47.
The Individual indicated that he recognized that if he were to consume alcohol to excess, he would
face negative consequences, and “that mindset” helps him to control his alcohol consumption. Id.
at 41. He stated that he felt that the four-drink maximum was “definitely achievable.” Id. at 49.
The Psychologist testified after listening to the Individual’s testimony. She noted her understanding
of the Individual’s testimony as stating that he had continued to engage in binge drinking and had
4 The Individual clarified that one of the occasions during which he consumed alcohol in August 2022 consisted of
him having one beer at a baseball game. Tr. at 55.
5 The laboratory report stated that a result of 20-200 ng/mL indicated “moderate alcohol consumption.” Ex. K.
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not demonstrated that he had “rehabilitated or otherwise reformed his use of alcohol.” Id. at 59.
The Psychologist elaborated, stating that, as defined by the National Institutes of Health, binge
drinking for men is the consumption of five or more drinks in one sitting, and based upon the
Individual’s testimony, she felt that the Individual had been engaging in binge drinking
approximately two times per month. Id. She testified that the alcohol consumption the Individual
described during the hearing was “more than the moderate drinking that [she] was
recommending…or low level of drinking having no more than four drinks at any sitting.” Id.
Regarding the Individual’s May 2022 PEth test, the Psychologist testified that she emailed the
medical doctor who interpreted the February 2022 PEth test to obtain his opinion on the new results.
Id. at 70. She stated that the medical doctor indicated that, based on a result of 30 ng/mL, the
Individual could still have been engaging “in binge drinking and then waited a week…or even
waited two weeks until taking the PEth test.” Id. Furthermore, the Psychologist noted that, as stated
in the recommendations in her Report, she would have liked to review multiple PEth tests. Id. at
71.
The Psychologist additionally expressed concern that the Individual does not count the alcoholic
beverages that he consumes per sitting, and as such, she indicated that the Individual cannot be
certain of how much alcohol he is consuming. Id. The Psychologist explained that the “irony of the
impairment in judgment that alcohol creates is that once a person is drinking, their judgment is
impaired and so they don’t know how impaired they are.” She stated: “I think it’s probably genuine
that he doesn’t know how much he drank and doesn’t know how impaired he is when he consumes
six drinks of alcohol.” Id. at 65.
The Psychologist stated that, based upon the Individual’s testimony, she “heard several
things…that actually ma[de her] think that [the Individual] does meet the diagnostic criteria for an
alcohol use disorder,” and she recommended that the Individual abstain from alcohol for at least
12 months. Id. at 60. The Psychologist supported this opinion by pointing to a few concerning
portions of the Individual’s testimony. See id. at 60-65. She explained that she found the
Individual’s testimony regarding his history with hangovers “concerning.” Id. The Psychologist
also noted that the Individual’s description of his finances in relation to his alcohol consumption
indicated that “he was spending a lot of money on alcohol.” Id. She explained that the Individual
testified to engaging in “risky behavior,” such as consuming approximately six alcoholic beverages
at a pool party where children are swimming. Id. Furthermore, she felt that it was problematic that
the Individual chose to “not cut down on his drinking despite being advised to do so,” not only by
his health providers, but also by DOE, through the course of applying for his security clearance.
Id. Finally, the Psychologist noted that, based on the Individual’s reports, she was unclear about
the frequency and amount of the Individual’s alcohol consumption as the Individual’s testimony
regarding his recent consumption was discrepant. Id. at 60-61. She testified that that she felt the
Individual was minimizing his alcohol consumption, which “is commonly seen in alcohol use
disorder where a person is in denial about how much they’re drinking and how much it’s impacting
them.”6 Id. at 65.
6 When asked to explain her opinion regarding minimization in consideration of the February 2022 PEth test, which
produced results that “were approximately consistent with [the Individual’s] reported drinking behavior, if not a little
lower,” the Psychologist testified that the PEth test is “not a snapshot in time.” Ex. 7 at 5; Tr. at 70. She stated that the
PEth test cannot reveal “the maximum amount that a person drank. It ends up being kind of averaged over three weeks.”
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V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual has not sufficiently mitigated the security concerns noted by the
LSO regarding Guideline G. I cannot find that granting the Individual’s DOE security clearance
will not endanger the common defense and security and is clearly consistent with the national
interest. 10 C.F.R. § 710.27(a). Therefore, I have determined that the Individual’s security
clearance should not be granted. The specific findings that I make in support of this Decision are
discussed below.
Guideline G
Habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether
the individual is diagnosed with an alcohol use disorder, may disqualify an individual from holding
a security clearance. Adjudicative Guidelines at ¶ 22(c). Additionally, alcohol-related incidents
away from work could raise a disqualifying security concern. Id. at ¶ 22(a). If an individual
acknowledges the pattern of maladaptive alcohol use, provides evidence of actions taken to
overcome this problem, and demonstrates a clear and established pattern of modified consumption
or abstinence in accordance with treatment recommendations, the individual may be able to
mitigate the security concern. Id. at ¶ 23(b).
In this case, the Psychologist initially concluded in her Report that the Individual was habitually
binge consuming alcohol to the point of impaired judgment without showing adequate evidence of
rehabilitation. See Adjudicative Guidelines at ¶ 22(d). As a result of that opinion that the Individual
habitually engaged in binge consumption of alcohol, the Psychologist recommended the Individual
undergo monthly PEth tests; however, the Individual underwent only one PEth test. The
Psychologist additionally recommended that the Individual refrain from consuming more than four
alcoholic beverages in one sitting. However, the Individual testified that, since receiving that
recommendation, he has not only exceeded that limit, but he does not keep an accurate count of the
number of drinks he consumes.
As noted by the Psychologist, I find the Individual’s reports of his recent alcohol consumption to
be discrepant. The Individual initially testified that, over the course of the summer of 2022, he
consumed four to five drinks on two or three occasions. However, he later stated that he consumed
up to five drinks one to two times per month over the course of three months. I cannot find the
Individual’s testimony to be credible as it is unclear as to whether the Individual himself knows
how much alcohol he is consuming. Furthermore, the Individual did not present any witnesses that
might be able to corroborate or clarify his testimony.7 As such, I cannot find that the Individual has
Tr. at 70. As such, she noted that the results of the May 2022 PEth test could indicate that the Individual was consuming
four drinks a day or that he was engaging in binge drinking. Id.
7 Although I recognize that the Individual submitted four letters of recommendation and a Declaration from his wife,
none of the documents provide insight into the frequency or degree of the Individual’s alcohol consumption. Exs. C-
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demonstrated a clear and established pattern of modified consumption in accordance with treatment
recommendations. Id. at ¶ 23(b).
In addressing the two incidents where law enforcement was called in response to the Individual’s
alcohol consumption, I note that several years have passed since the Individual’s alcohol
consumption has prompted a response from law enforcement. See id. at ¶ 23(a). However, being
that the frequency and degree of the Individual’s alcohol consumption is unclear, I cannot find that
the Individual’s alcohol consumption to a degree that necessitates the intervention of law
enforcement 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. Id.
For the foregoing reasons, I cannot find that the Individual has sufficiently mitigated the security
concerns raised pursuant to Guideline G.
VI. Conclusion
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 have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guideline G. Accordingly, the Individual has not
demonstrated that granting his security clearance would not endanger the common defense and
would be clearly consistent with the national interest. Therefore, I have determined that the
Individual’s access authorization should not be granted. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals
D. The only information that can be garnered from these statements is the Individual’s wife’s assessment that the
Individual “has modified his drinking habits, drinking only in a responsible manner.” Ex. C.