PSH-22-0106

*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: June 28, 2022 ) Case No.: PSH-22-0106
)
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Issued: October 21, 2022
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 not be restored.
I. BACKGROUND
The Individual is employed by a DOE contractor and was previously granted access authorization.
On October 4, 2021, the Individual tested positive on a random workplace alcohol test and his
access authorization was suspended. Exhibit (Ex.) 7 at 3–7.2 On November 1, 2021, the local
security office (LSO) issued the Individual a letter of interrogatory (First LOI) concerning his
alcohol consumption. Ex. 9. In response to the First LOI, the Individual represented that, on
October 3, 2021, he “consumed a bottle of . . . red wine.” Id. at 1. However, in response to questions
posed to him during an investigation by the DOE contractor and by the LSO in a second letter of
interrogatory (Second LOI), the Individual disclosed that he had personally consumed two bottles
of wine on October 3, 2021. Ex. 6 at 3; Ex. 8 at 2. The DOE contractor issued the Individual a
reprimand and suspended him for one week without pay as a consequence for testing positive on
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
2 The internal pagination of numerous exhibits offered by the LSO does not correspond to the number of pages
included in the individual exhibits. The pagination of Exhibit 7, for example, begins at 55. This Decision cites to pages
in the order in which they appear in exhibits without regard for their internal pagination.
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the workplace alcohol test and for the discrepancies in the information he provided concerning his
alcohol consumption prior to the positive alcohol test. Ex. 6 at 3; Ex. 8 at 1.
A DOE-contracted psychologist (DOE Psychologist) conducted a clinical interview of the
Individual on February 9, 2022. Ex. 10 at 3. During the clinical interview, the Individual reported
at least weekly consumption of alcohol at a level which the DOE Psychologist calculated would
cause the Individual’s blood alcohol content to meet or exceed .08 g/210L. Id. at 5. On February
16, 2022, the DOE Psychologist issued a Psychological Assessment (Report) in which he opined
that the Individual binge consumed alcohol to the point of impaired judgment. Id. at 8.
The LSO issued the Individual a letter in which it notified him that it possessed reliable information
that created substantial doubt regarding his eligibility to hold a security clearance. In a Summary
of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory
information raised security concerns under Guideline G (Alcohol Consumption) of the
Adjudicative Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted twelve exhibits (Ex. 1–12). The Individual submitted six exhibits (Ex.
A–F). The Individual testified on his own behalf, and offered the testimony of four character
witnesses, a representative of the DOE contractor’s employee assistance program (EAP), and a
Licensed Professional Clinical Counselor (Individual’s Counselor). Hearing Transcript (Tr.) at 3,
10–11, 19–20, 26–27, 37–38, 48, 60, 128–29. The LSO offered the testimony of the DOE
Psychologist. Id. at 109–10.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) as the basis for its determination that the
Individual was ineligible for access authorization. Ex. 1. “Excessive alcohol consumption often
leads to the exercise of questionable judgment or the failure to control impulses, and can raise
questions about an individual’s reliability and trustworthiness.” Adjudicative Guidelines at ¶ 21.
The SSC cited the DOE Psychologist’s opinion that the Individual binge consumed alcohol to the
point of impaired judgment, the results of the random workplace alcohol test, and the DOE
contractor’s suspension of the Individual from work without pay following the positive workplace
alcohol test. Ex. 1. The LSO’s allegations that the Individual had alcohol-related incidents at work
and binge consumed alcohol to the point of impaired judgment justify its invocation of Guideline
G. Adjudicative Guidelines at ¶ 22(b)–(c).
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
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standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest”
standard for granting security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert.
denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The Part
710 regulations are drafted so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
IV. FINDINGS OF FACT
The Individual was first granted a DOE security clearance in 2009. Ex. 12 at 53–54. That same
year, he decided to stop consuming alcohol. Tr. at 90–91 (reflecting the testimony of the Individual
that he decided to abstain from alcohol because, after having previously “failed out of” college in
part due to alcohol consumption, he was “very cognizant” about the risks of alcohol consumption
while holding access authorization); see also Ex. 10 at 5, 7 (reflecting the opinion of the DOE
Psychologist that excessive alcohol consumption may have adversely affected the Individual’s
academic performance and led him to drop out of college). The Individual abstained from alcohol
for approximately three years before resuming alcohol consumption in 2012. Ex. 10 at 5; Tr. at 91
(indicating that the Individual resumed alcohol consumption because “everything [in his life] was
good” and “[i]t was fun to do”). The Individual was granted a security clearance by the Department
of Defense in 2015. Ex. 12 at 54.
In 2019, the Individual relocated to the state in which he currently resides to work for the DOE
contractor. Tr. at 61. The Individual was socially isolated, and experiencing feelings of boredom,
stress, and anxiety, which he used alcohol to suppress. Id. at 63–66. On weekends, he would binge
consume alcohol. Id. at 65.
On October 4, 2021, the Individual was selected for a random workplace breath alcohol test and,
at approximately 10:40 AM, tested positive at a level of 0.051 g/210L. Ex. 7 at 7; Ex. C at 2. The
results of this test implied that the Individual’s judgment and reasoning were impaired in the
workplace. Tr. at 113 (reflecting the opinion of the DOE Psychologist that judgment and reasoning
are impaired at BAC levels at or above .05 g/210L). The Individual’s access authorization was
subsequently suspended as a result of the positive workplace alcohol test. Ex. 7 at 3, 5. On
November 1, 2021, the LSO issued the Individual the First LOI concerning his conduct that led to
the positive workplace alcohol test and his alcohol consumption habits. Ex. 9. In his response, the
Individual represented that he usually consumed “1–2 drinks . . . on the weekend” but that on the
night before the positive workplace alcohol test he had consumed “an entire bottle of wine over 5–
5.5 hours.” Id. at 5–6. He denied having consumed any alcohol since the positive workplace
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alcohol test, and represented that his “future intent is to continue this, as alcohol just doesn’t fit
into [his] ‘five year plan’ both personally and professionally.” Id. at 4, 9.
The DOE contractor conducted an investigation of the Individual related to his positive workplace
alcohol test. Ex. 6 at 3. During the course of the investigation, the Individual disclosed that he had
personally consumed two bottles of wine the night before the workplace alcohol test.3 Id.; Ex. 8 at
2. The DOE contractor suspended the Individual from work without pay from December 7, 2021,
to December 14, 2021, as a consequence for testing positive on the workplace alcohol test and for
providing misleading information regarding his alcohol consumption prior to the workplace
alcohol test.4 Ex. 6 at 3; Ex. 8 at 1; Tr. at 105.
In October 2021, the Individual enrolled in an alcohol awareness and education class. Tr. at 48.
The EAP counselor who led the class found the Individual to be an active, positive contributor. Id.
at 49–50. On December 2, 2021, the EAP issued the Individual a certificate for successful
completion of the alcohol education class. Ex. 8 at 10. The Individual subsequently enrolled in a
program on maintaining changes related to alcohol through the EAP, which he attended through
September 2022. Tr. at 48. The Individual learned through the EAP program that he needed to
keep busy in order to avoid temptations to consume alcohol triggered by boredom. Id. at 74. The
Individual enrolled in a program with a local university to obtain an associate degree, in addition
to continuing his regular workout regimen, to occupy his time outside of work. Id. at 75; see also
Ex. E (reflecting the Individual’s transcript from the university).
On January 6, 2022, the LSO issued the Individual the Second LOI. Ex. 8. In his response, the
Individual represented that he had consumed alcohol on three occasions since the random
workplace alcohol test, and had not consumed more than five drinks in one sitting. Id. at 4. He
expressed the intention to only drink on weekends in the future and to have “a plan” for controlled
drinking on the occasions on which he does drink. Id. at 5.
On February 9, 2022, the DOE Psychologist conducted a clinical interview of the Individual. Ex.
10 at 3. During the clinical interview, the Individual reported that, prior to the positive workplace
3 In his Report, the DOE Psychologist suggested that the Individual probably consumed more alcohol than the two
bottles of wine he reported during the DOE contractor’s investigation based on the DOE Psychologist’s calculation of
the rate at which a male of the Individual’s stature likely would have metabolized alcohol between the night of October
3, 2021, and the time of the workplace alcohol test on the morning of October 4, 2021. Ex. 10 at 4. At the hearing, the
DOE Psychologist opined that, because the results of the workplace alcohol test showed that the Individual’s BAC
was rising rather than falling as would be expected if alcohol was being metabolized, the Individual may have also
consumed alcohol on the morning of the test. Tr. at 119; see also Ex. B at 1–2 (showing that the Individual’s BAC
increased from .038 g/210L when the test was first administered at 9:53 AM to .051 g/210L when the final test was
administered at 10:39 AM). The DOE Psychologist’s opinion and the test results strongly suggest that the Individual
did not fully reveal the extent of his alcohol consumption prior to the workplace alcohol test to the LSO, during the
DOE contractor’s investigation, or during the hearing.
4 The Individual purported that he had not intended to mislead the LSO and that his claim in the response to the First
LOI to have consumed one bottle of wine, rather than two, the night before the random workplace alcohol test was a
typographical error. Ex. 8 at 2. The Individual’s repeated description of his alcohol consumption prior to the workplace
alcohol test as “a bottle” or “an entire bottle” of wine in response to the First LOI makes it extremely unlikely that his
mischaracterization of his alcohol consumption was the product of a typographical error. Ex. 9 at 1, 5–6. I determined
that the Individual’s implausible explanation for the misleading information weighed against his credibility to honestly
describe his alcohol consumption.
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alcohol test, he consumed four “large pour” glasses of wine or three to four large margaritas per
sitting twice weekly.5 Id. at 5–6. The DOE Psychologist calculated that a man of the Individual’s
stature would reach a blood alcohol concentration of .08 g/210L to .16 g/210L consuming this
amount of alcohol over three hours. Id. The Individual reported having consumed comparable
levels of alcohol from February 2–5, 2022. Id. at 6.
Following the clinical interview, the Individual provided a sample for a phosphatidylethanol
(PEth) test.6 Id. The results of the PEth test were positive at 184 ng/mL. Id. at 24–25; see also Tr.
at 100–01 (testifying that, even though he anticipated that he would undergo an alcohol test
following the clinical interview and that he would suffer negative consequences if he tested
positive, the Individual consumed alcohol because “hey, you’re stuck at home, you’re not doing
anything, [] why not have a drink”). The DOE Psychologist referred the results of the PEth test to
a medical doctor (MD) for review, and the MD opined that the results of the PEth test were
congruent with the Individual’s self-reported alcohol consumption. Ex. 10 at 6–7.
On February 16, 2022, the DOE Psychologist issued his Report in which he opined that, based on
the Individual’s self-reported alcohol consumption and the results of the PEth test, the Individual
binge consumed alcohol to the point of impaired judgment. Id. at 7–8. The DOE Psychologist
recommended that the Individual demonstrate rehabilitation or reformation by abstaining from
alcohol for at least nine months, undergoing PEth testing at least every six weeks to confirm his
abstinence from alcohol, and completing an appropriately rigorous intensive outpatient program
(IOP) for alcohol treatment followed by aftercare for a total of one year of treatment. Id. at 8–9.
Beginning on February 18, 2022, the Individual met with the Individual’s Counselor for weekly
counseling. Ex. D; see also Ex. F (reflecting the Individual’s Counselor’s extensive experience
related to substance abuse counseling). The Individual’s Counselor diagnosed him with Alcohol
Use Disorder, Mild, under the Diagnostic and Statistical Manual of Mental Disorders – Fifth
Edition. Tr. at 130. The Individual’s Counselor focused the Individual’s treatment on managing
anxiety, which, the Individual’s Counselor believed was a contributor to the Individual’s alcohol
misuse, identifying triggers, and developing strategies for “managing high-risk situations where
triggers are going to occur . . . .” Id. at 131, 133.
The Individual’s Counselor testified at the hearing that the Individual’s prognosis for avoiding a
relapse into problematic alcohol consumption was very good. Id. at 132. The Individual testified
at the hearing that the counseling with the Individual’s Counselor had provided him with a
framework for processing events without creating unnecessary stress and anxiety, and tactics for
avoiding situations in which he might be tempted to drink, such as planning to arrive late to social
events so that alcoholic beverages would have been consumed by the time he arrives. Id. at 79–80,
86–88.
5 The Individual’s “large pour” glasses of wine contained six ounces of wine rather than the standard five ounces and
the large margaritas contained three ounces of tequila each rather than the standard one and one-half ounces. Ex. 10
at 5–6.
6 A PEth test measures the presence of the PEth biomarker, which is formed from a chemical reaction occurring in
blood when a person consumes alcohol, in a subject’s blood. See Personnel Security Hearing, OHA Case No. PSH-
21-0071 at 2, note 3 (2021) (summarizing information regarding alcohol testing performed on an individual).
Decisions issued by OHA are available on the OHA website located at http://www.energy.gov/OHA.
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The Individual acknowledged that he has a problem with alcohol and is focused on other solutions
to managing stress and anxiety. Tr. at 66. The Individual decided not to undergo PEth testing as
the DOE Psychologist recommended because he “didn’t have time to do that” and because he was
“afraid that if the only reason why [he] was [abstaining from alcohol] was for testing then he really
wasn't making any . . . change.” Id. at 70–72. The Individual did not participate in an IOP as
recommended by the DOE Psychologist because he found the required nine hours of weekly
attendance prohibitive in light of his schedule. Id. at 72.
The Individual testified that he last consumed alcohol while on vacation with his wife in September
2022 after a waiter brought an unrequested drink to their table while at a restaurant, but indicated
that he only consumed a small portion of the drink. Id. at 102–03. He denied having consumed
alcohol on any other occasion between the February 2022 clinical interview with the DOE
Psychologist and September 2022. Id. He indicated that he was unsure as to whether he would
consume alcohol in the future, but that alcohol does not fit into his current lifestyle, and he does
not intend to consume alcohol while attending college. Id. at 82–83.
The Individual’s former first-line manager, currently outside of his management chain as a result
of the suspension of his access authorization, testified at the hearing that she never had reason to
believe that he had reported to work under the influence of alcohol. Id. at 12, 14; see also Ex. A
(reflecting the manager’s opinion that the Individual is reliable). The Individual’s current
supervisor testified that he had never observed the Individual display evidence of being under the
influence of alcohol at work, and that the Individual was very reliable at work. Tr. at 20, 22–23.
Two coworkers of the Individual who participated in the EAP alcohol program with him testified
that he was an active and positive contributor in their group sessions. Id. at 27, 29–30, 39–40. Both
individuals indicated that they were part of the Individual’s recovery support system. Id. at 28, 30,
40–42. However, neither of them was aware of the Individual’s positive alcohol test following the
clinical interview with the DOE Psychologist or his consumption of alcohol in September 2022.
Id. at 31, 42.
The DOE Psychologist testified at the hearing that the Individual had not complied with his
recommendations because he had not undergone PEth testing or participated in an IOP. Id. at 115–
17. The DOE Psychologist indicated that the Individual’s counseling did not satisfy his treatment
recommendations because it was not as rigorous or therapeutic as an IOP. Id. at 115. He opined
that the Individual’s prognosis for avoiding a relapse into problematic drinking was “a little less
than average” and that the Individual had not demonstrated rehabilitation or reformation. Id. at
117–19.
V. ANALYSIS
A. Guideline G
The LSO’s allegations that the Individual experienced alcohol-related incidents at work and binge
consumed alcohol to the point of impaired judgment justify its invocation of Guideline G.
Adjudicative Guidelines at ¶ 22(b)–(c). Conditions that may mitigate security concerns under
Guideline G 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(a)–(d).
The Individual’s positive workplace alcohol test occurred approximately one year prior to the
hearing, and he admitted to having binge consumed alcohol as recently as February 2022. While
some time has passed since these incidents, it is not so much time that the incidents do not cast
doubt on the Individual’s reliability, trustworthiness, or judgment. In reaching this conclusion, I
have taken into account that the Individual is a mature adult with a history of holding DOD and
DOE security clearances, and the alleged misconduct is severe because his BAC was sufficiently
elevated at the time of the workplace alcohol test to indicate that his judgment and reasoning were
significantly impaired in the workplace. See 10 C.F.R. § 710.7(c) (reflecting factors an
Administrative Judge is to consider in applying the Adjudicative Guidelines). Moreover, in light
of the Individual’s binge drinking over several periods of his adult life, and his abstinence from
alcohol from 2009 to 2012 before returning to problematic alcohol consumption, the passage of
approximately eight months since his last admitted binge-drinking episode is insufficient to infer
that the behavior will not recur. The Individual does not assert that his alcohol misuse was
infrequent or occurred under unusual circumstances. Therefore, the first mitigating condition under
Guideline G is inapplicable. Adjudicative Guidelines at ¶ 23(a).
The Individual has acknowledged his pattern of maladaptive alcohol use and pursued counseling
to address the problem. However, the Individual did not undergo the alcohol testing recommended
by the DOE Psychologist which might have corroborated his claimed abstinence from alcohol.
The record reflects that the Individual has provided false information to minimize the severity of
his alcohol misuse in the past and, in light of his limited credibility on the subject of his alcohol
use, his testimony is not sufficient evidence of his abstinence from alcohol in the absence of
alcohol testing. Accordingly, I cannot conclude that he has demonstrated a clear and established
pattern of modified consumption or abstinence in accordance with treatment recommendations.
Therefore, the second mitigating condition under Guideline G is inapplicable. Id. at ¶ 23(b).
The Individual’s counseling with the Individual’s Counselor and the EAP, as well as the
Individual’s Counselor’s positive prognosis for the Individual’s avoidance of binge consumption
of alcohol in the future, potentially implicate the third and fourth mitigating conditions under
Guideline G. However, the weight of this mitigating evidence is tempered by the opinion of the
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DOE Psychologist that the Individual’s counseling was not as rigorous or efficacious as the IOP
that he recommended, and the Individual’s failure to comply with the DOE Psychologist’s
recommendation that he corroborate his abstinence from alcohol with laboratory testing. In light
of the concerns expressed by the DOE Psychologist as to the rigor of the of Individual’s
counseling, and the Individual’s failure to comply with the DOE Psychologist’s recommendations
for treatment and alcohol testing, I find the third and fourth mitigating conditions under Guideline
G inapplicable. Id. at ¶ 23(c)–(d).
The Individual’s decision to enter a DOE site while under the influence of alcohol at a level that
impaired his judgment and reasoning presented an unacceptable risk to national security. In light
of the Individual’s failure to adhere to the DOE Psychologist’s recommendations for treatment and
alcohol testing, I cannot determine that the Individual is unlikely to return to problematic alcohol
consumption in the future. Therefore, I find that the Individual has not resolved the security
concerns asserted by the LSO under Guideline G.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline G of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
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’s access authorization should not be restored. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals