PSH-23-0028

*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: November 22, 2022 ) Case No.: PSH-23-0028
)
__________________________________________)
Issued: February 13, 2023
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Administrative Judge Decision
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Brenda B. Balzon, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In November 2021, the Individual reported to the Local Security Office (LSO) that he
was arrested for operating a vehicle under the influence of alcohol or drugs (OVI) on November
6, 2021. Exhibit (Ex.) 6.2 The LSO subsequently issued the Individual a Letter of Interrogatory
(LOI) concerning the circumstances of his arrest and his alcohol use. Ex. 7. The LSO also
requested that the Individual be evaluated by a DOE consulting psychiatrist (DOE Psychiatrist),
who, after conducting a clinical interview with the Individual, issued a report of his findings. Ex.
12. After receiving the DOE Psychiatrist’s report, the LSO began the present administrative review
proceeding by issuing a Notification Letter to the Individual, informing him that his security
clearance had been suspended and that he was entitled to a hearing before an Administrative Judge
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 Numerous exhibits offered by DOE contain documents with printed page numbers that are inconsistent with the
pagination of the exhibits. This Decision cites to pages in the order in which they appear in exhibits without regard
for their internal pagination.
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in order to resolve the substantial doubt regarding his eligibility to hold a security clearance. See
10 C.F.R. § 710.21. In a Summary of Security Concerns (SSC) attached to the letter, the LSO
explained that it possessed derogatory information about the Individual that raised security
concerns under Guideline E (Personal Conduct), 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. 3. 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 review
hearing. The LSO submitted eighteen numbered exhibits (Ex. 1–18) into the record, and presented
the testimony of the DOE Psychiatrist at the hearing. The Individual submitted ten exhibits (Ex.
A–H, Ex. J, and Ex. K) into the record, and presented the testimony of three witnesses, including
his own testimony. See Transcript of Hearing, Case No. PSH-23-0028 (hereinafter cited as “Tr.”).
II. Notification letter and Associated Security Concerns
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the first
basis for its concerns regarding the Individual’s eligibility for access authorization. Ex. 2 at 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. In citing Guideline G, the LSO relied upon the DOE Psychiatrist’s
July 2022 conclusion that the Individual’s Phosphatidylethanol (PEth) test results of 458 ng/mL
indicate that he had “heavy alcohol use within the prior month and has binge consumed alcohol to
the point of impaired judgment.” Ex. 2 at 1. The LSO further cited that the PEth test results were
in contrast with the Individual’s claim that he had consumed one to two glasses of wine on 11
occasions in the month before testing, and that he consumes alcohol multiple times per week
consisting of one to two drinks per occasion. Id. The LSO also cited the DOE Psychiatrist’s
unfavorable prognosis for the Individual, as well as the DOE Psychiatrist’s treatment and
abstinence recommendations. Id. The LSO also relied upon the Individual’s December 2021 LOI
responses concerning his frequency of alcohol consumption. Id. at 2. Additionally, the LSO cited
the Individual’s November 9, 2021, Personnel Security Information Report (IR) in which he
reported his November 6, 2021, OVI arrest. Id. The LSO further cited that in the Individual’s
February 2019, Questionnaire for National Security Positions (QNSP), he reported his arrest,
charge, and sentence for driving while under the influence (DWUI) in April 1998. Id. The above
allegations justify the LSO’s invocation of Guideline G.
The LSO also cited Guideline E (Personal Conduct) as a basis for its concerns regarding the
Individual’s eligibility for access authorization. “Conduct involving questionable judgment, lack
of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions
about an Individual's reliability, trustworthiness, and ability to protect classified or sensitive
information. Of special interest is any failure to cooperate or provide truthful and candid answers
during national security investigative or adjudicative processes.” Adjudicative Guidelines at ¶ 15.
Regarding Guideline E, the LSO alleged that the DOE Psychiatrist opined in his July 2022 report
that the Individual’s PEth test results indicated heavy alcohol use within the prior month, which
contrasted with the Individual’s reported alcohol use during the psychiatric exam, and the DOE
Psychiatrist concluded that the Individual’s discrepant self-report of recent alcohol use was an
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indication of his lack of ability or willingness to be candid regarding his alcohol use. Ex. 2 at 4.
This information adequately justifies the LSO’s invocation of Guideline E.
The LSO also cited Guideline J (Criminal Conduct) as a basis for its concerns regarding the
Individual’s eligibility for access authorization. “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. With
respect to Guideline J, the LSO cited the Individual’s November 2021 arrest for OVI. Ex. 2 at 3.
The LSO also cited the Individual’s 1998 arrest, charge, and sentence for DWUI. Id. The above
criminal arrests justify the LSO’s invocation of Guideline J.
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 regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
The Individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is afforded a
full opportunity to present evidence supporting his 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. Id. at
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
IV. Findings of Fact and Hearing Testimony
On November 6, 2021, the Individual was arrested and charged with OVI, which he timely reported
to the LSO. Ex. 6. The LSO issued the Individual an LOI, which he submitted on December 10,
2021. Ex. 7; Ex. 8. In his LOI response he reported that in the 24 hours prior to his arrest, he
consumed two light beers around noon, and drank one martini and two glasses of wine during
dinner. Ex. 8 at 1. He reported that he chose to drive home because he did not feel impaired,
however, he was involved in a car accident. Id. at 1-2. He admitted that he failed the field sobriety
test, so the law enforcement officer took him to the local police station where he performed a
breathalyzer test, however, the breathalyzer test result showed “invalid test.” Id. He stated that
despite the fact that he complied with instructions to wait 20 minutes before repeating the test, his
second test showed the same “invalid test” result, which led the police to mark the test as “did not
comply.” Id.
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The Individual also provided details about his use of alcoholic beverages. Id. at 3. He estimated
that he drank alcohol to the point of intoxication a few times a year. Id. He further stated that he
drank alcohol socially without the intent to get intoxicated. Id. The Individual reported that if he
consumed four or five alcoholic drinks over several hours, he would consider himself intoxicated.
Id.
In July 2022, the Individual underwent a psychiatric evaluation including a clinical interview (CI)
with the DOE Psychiatrist. Ex. 12. During the CI, the Individual denied signs and symptoms of
alcohol use disorder. Id. at 6. He reported to the DOE Psychiatrist that within the prior month he
had consumed alcohol on eleven occasions, each in the quantity of one or two glasses of wine at
dinner. Id. at 6. As part of the evaluation, the Individual underwent a PEth test. Id. at 8. The PEth
test reflected a level of 458 ng/mL. Ex. 12 at 8-9; Ex. 13. The DOE Psychiatrist interpreted the
Individual’s PEth result and concluded that it indicated a heavy level of alcohol consumption
within the prior month.3 Ex. 12 at 8-9; Ex. 13; see Ex. 18 at 5. In his report (Report), the DOE
Psychiatrist opined that the Individual’s PEth test result contrasted with the Individual’s reported
alcohol use during the CI, and he concluded that based upon the PEth test result the Individual has
binged or habitually consumed alcohol to the point of impaired judgment. Ex. 12 at 9. The DOE
Psychiatrist further opined that the Individual’s “discrepant self-report of recent alcohol use is an
indication of his lack of ability or willingness to be candid at least with regard to his alcohol use.”
Id.
The DOE Psychiatrist also concluded that based on the Individual’s reported alcohol use, he could
not be diagnosed as having an alcohol use disorder (AUD) according to the Diagnostic and
Statistical Manual of Mental Disorders – Fifth Edition (DSM-5). Id. In order for the Individual to
show adequate evidence of rehabilitation or reformation, the DOE Psychiatrist recommended that
the Individual participate in alcohol treatment with a period of recovery. Id. He stated that the
Individual’s prognosis is unfavorable until he is willing to be truthful about his alcohol use, enter
an alcohol treatment program, and maintain abstinence from alcohol use for one year with
documented sobriety. Id.
At the hearing, the Individual’s Deputy General Manager (“Manager”) testified that he has known
the Individual for approximately 19 years, and during the majority of that time he has had regular
contact with him. Transcript (Tr.) at 22-23, 25-26. He stated that since May 2022, he has had
contact with the Individual multiple times per week, and although he is not the Individual’s direct
supervisor, he closely observes his work performance. Id. at 24-25. The Manager testified that the
Individual told him about the security concerns involving his driving under the influence (DUI)
charge.4 Id. at 32-33. He further testified that he has never observed the Individual exhibiting signs
that he was under the influence of alcohol while at work, nor has he had any complaints regarding
3 The DOE submitted an article on the PEth test written by a physician and a psychologist, and the article includes
guidelines for interpretation of PEth results: William Ulwelling & Kim Smith, The PEth Blood Test in the Security
Environment: What it is; Why it is Important; and Interpretative Guidelines, 63 J. FORENSIC SCI., 1634, 1638. Ex. 18
at 5. That article states that a PEth value greater than 200 ng/mL indicates “heavy consumption.” Id.
4 Although court records reflect that the Individual was found guilty of the charge of Operating a Vehicle Under the
Influence of Alcohol (OVI), some witnesses in the hearing referred to the charge specifically as a “DUI” charge. Ex.
10; Tr. at 32-33; 53, 130. Therefore, this decision uses the terms “OVI” and “DUI” interchangeably.
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the Individual’s work performance. Id. at 26, 37. He stated that he has only socialized with the
Individual on two occasions outside the workplace, and while alcohol was served at both events,
there was nothing that caused him concern regarding the Individual’s alcohol consumption. Id. at
27-28, 30. The manager asserted that he finds the Individual to be very reliable, and he has no
concerns about the Individual’s truthfulness or judgment. Id. at 26, 31-32, 34-35, 38-39; Ex. C.
The Individual’s former supervisor (“Supervisor”), testified that she worked with the Individual
for 14 years, and she directly supervised him beginning in 2015 for seven years. Id. at 44, 46. She
stated that during the time she supervised him she usually interacted with him multiple times per
week. Id. at 48. The Supervisor stated that she has never observed any indications that the
Individual might have a problem with alcohol, including at work-related events where alcohol was
served, or at dinners together on business trips. Id. at 49-52, 58-59. The Supervisor further asserted
that she never has had any reason to question the Individual’s truthfulness or candor. Id. at 48-50.
The Supervisor testified she was aware of the Individual’s November 2021 DUI arrest. She stated
that the Individual told her that he felt like he was “perfectly fine” to drive and did not think his
alcohol level was above the legal limit. Id. at 54-55. However, she testified that the Individual told
her that he failed the field sobriety test because the police officer was shining his flashlight in the
Individual’s eyes, and the Individual was extremely upset and shocked since he had just been
involved an accident and had a burn on his hand from the air bag which had deployed. Id. at 54.
She further stated that the Individual told her he had asked for a breathalyzer test, but they could
not get the breathalyzer machine to work properly so the Individual was charged with an OVI. Id.
at 54-55.
The Individual admitted to the SSC allegations regarding his 1998 DWUI arrest and charge. Id. at
75-76. He testified that his sentence included suspension of his license for either three or six
months (he couldn’t remember which), payment of fines, and attendance at a driver education
class. Id. at 76.
The Individual testified regarding his November 6, 2021, OVI arrest. He stated that he drank
approximately one-and-a-half or two beers while eating lunch at his house. Id. at 82-83. He
testified that approximately seven hours after he consumed the beers, his wife took him to dinner
at a restaurant for his birthday, and during their meal he drank approximately two glasses of wine
and a martini. Id. at 77-79, 86; Ex. E (Individual’s restaurant receipt dated November 6, 2021). He
asserted that some charts regarding alcohol consumption for certain body weights state that three
alcoholic drinks within a certain time period is “well under the legal limit.” Id. at 84; Ex. H (chart
of approximate blood alcohol content in one hour by National Highway Traffic Safety
Administration). Thus, he asserted that based on his body weight and over two hours of time he
spent at the restaurant before driving, he did not feel intoxicated nor believed that he was “going
to be a danger to anyone.” Id. at 78; 84. He stated that during his drive home, he got into an accident
and thought the other driver did not have his headlights on when he hit the other driver’s car. Id.
at 78. According to the police report, the Individual admitted to consuming alcohol prior to driving,
was involved in a car “crash,” had slurred speech, was unsteady on his feet, and failed the field
sobriety test. Id. at 85-86, Ex. 5. The Individual did not dispute the facts in the police report,
although he indicated he was not sure if he had slurred speech. Id. at 85-86. He testified that he
was pretty sure he was going to fail the field sobriety test since his “mind was spinning” due to
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being involved in an accident and because he got hit by the airbag that deployed. Id. at 78-79, 85.
He further testified that at the police station he tried to comply with the breathalyzer test by
providing multiple breathalyzer samples, but the breathalyzer machine did not give readings, and
the police told him he was going to be charged with failure to comply with the test. Id. at 79. The
police report stated that the Individual was provided with two “invalid sample[s]” and was arrested
for OVI with refusal to submit to a breathalyzer test. Ex. 5.
The Individual testified that the arresting officers told the prosecutor he was complying with the
breathalyzer test, but the breathalyzer was not working. The Individual submitted a letter from his
criminal defense attorney that corroborated this account. Id. at 80-81; Ex. F. The Individual
testified that he entered a plea of no contest and the judge found him guilty of a lesser alcohol-
related offense. Id. at 88. In support of his testimony, he submitted an audio recording of his
sentencing hearing which confirmed that the judge found him guilty of operating a vehicle under
the influence, a misdemeanor.5 Ex. D; Tr. at 233, 236; Ex. G; Ex. 10 (Court Disposition of Charges
dated February 2, 2022). The Individual testified that his sentencing terms included a one-year
license suspension with limited privileges, payment of fines, and attendance at a three-day driver
intervention program (DIP). Tr. at 88-89; Ex. 10. He stated that during the DIP he was required to
talk with a drug and alcohol counselor, who made a determination regarding whether he would
need future counseling or a court referral for a rehabilitation program. Id. at 89. The Individual
submitted written verification showing that he completed the DIP and was not referred for further
assessment. Ex. A. He also testified that his sentence did not include a prohibition on alcohol use.
Tr. at 90-91,228-239; Ex. D.
The Individual stated that after receiving the DOE Psychiatrist’s report, he had serious discussions
with his wife, his former supervisor, and his parents, and he asserted that he had never before had
anyone in his life express concerns about his alcohol consumption. Id. at 99-100. He testified that
he has never sought counseling for his alcohol use because he never felt that he needed counseling,
nor has any person suggested that he needed it. Id. at 107. He stated that when he asked his wife if
she wants him to stop consuming alcohol, she told him there is no reason to stop because it is not
a problem. Id. at 128. The Individual testified that he also asked one of his brothers whether he
believes the Individual has an alcohol problem of if he was worried when the Individual drove his
nine-year-old nephew to restaurants for meals together. Id. at 121-22, 126-27. The Individual
asserted that his brother did not believe that the Individual has an alcohol problem. Id. at 121-22,
126. The Individual stated that he and his brother regularly spend time together at each other’s
houses doing social activities and on some of those occasions they have consumed alcohol
together. Id. at 123-24. Upon questioning by the DOE Psychiatrist regarding whether doctors have
told him if he has any significant health problems related to alcohol use such as with his liver, high
blood pressure (HBP), or diabetes, he testified that no doctors have told him that he has any of
those health problems except HBP, and no doctor has ever suggested that his HBP was related to
his alcohol use. Id. at 112-15.
The Individual testified that in order for him to believe that he has an alcohol problem, he would
have to have problems connected to his alcohol use such as marital problems, family relationship
5 The hearing transcript also includes a transcript of Exhibit D, which is an audio recording of the Individual’s criminal
sentencing hearing regarding his November 2021 charge for OVI. Tr. at 228-39; Ex. D.
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problems, or problems with his job, but he asserted that he has none of those problems. Id. at 128-
130. He acknowledged that a DUI arrest could be an indication of an alcohol problem, however,
he indicated that he also sees his November 2021 DUI as an isolated incident because his two
DUIs are approximately 24 years apart, and he asserted that he was a different, immature person
at the time of his 1998 DUI arrest. Id. at 131. He admitted that between his 1998 DUI and his 2021
DUI he has had occasions where he drove after consuming alcohol, however, he asserted that he
never drove when he thought he was intoxicated. Id. at 132-33.
The Individual maintained that he did not lie about his alcohol consumption to the DOE
Psychiatrist, notwithstanding his July 2022 PEth test result. Id. at 100. He asserted that he obtained
his own PEth test because the July 2022 PEth result “seems so outrageous” when compared to the
amount of alcohol he knows that he consumes and the amount he reported to the DOE Psychiatrist.
Id. at 144. The Individual submitted a copy of his November 22, 2022, PEth test, which was
positive at 48 ng/mL. Ex. B. He stated that when he got his PEth test result he was satisfied because
the result seemed more in the expected range based on the amount of alcohol he consumes. Id. at
147. However, he also stated he was frustrated because he does not understand how he could have
got such a high PEth test result from the first test. Id. He did admit that in the last 30 days prior to
the hearing date, he engaged in ten to 15 occasions of alcohol consumption. Id. at 150-51.
Regarding his future plans with alcohol, the Individual stated that he “does not really have a plan
to change because [he] does not think there’s a problem.” Id. at 135. He clarified that the exception
is that since his 2021 OVI arrest, if he is the driver when he goes out to dinner at restaurants, he
drinks water and will not consume alcohol. Id. at 92, 134. He insisted that by keeping “his word”
that he will not consume alcohol when he is going to drive, he will not get another DUI arrest. Id.
at 133-34.
After observing the hearing, the DOE Psychiatrist testified that in his Report he did not diagnose
the Individual with AUD under the DSM-5 because the Individual denied having any of those
symptoms that met the criteria for AUD. Id. at 160-61. He stated that the testimony of the
Individual’s witnesses “back up or are consistent with [the Individual’s] claims that he does not
have alcohol use disorder [AUD] in terms of impairment at work related to alcohol use.” Id. at
171. However, the DOE Psychiatrist stated that the disparity between the Individual’s self-report
of his alcohol use as compared to the PEth test result caused him to question the Individual’s level
of candor regarding the accuracy of his self-report. Id. at 162. The DOE Psychiatrist stated that the
Individual told him he was consuming small amounts of alcohol three or four days a week. Id.
However, his PEth test result of 458 ng/mL was an indication of very high consumption in the
previous month. Id. at 161-62.
The DOE Psychiatrist acknowledged that his conclusions regarding the Individual’s alcohol use
are based primarily on his positive PEth test. Id. at 196. He testified that he does not question the
validity of the PEth test result. Id. at 163. The DOE Psychiatrist provided examples of medical
conditions that could potentially cause a falsely elevated PEth level, however, he stated that the
Individual did not have a history of any of those medical conditions.6 Id. at 163-64. He concluded,
6 The DOE Psychiatrist stated that “individuals who have alcoholic liver disease, cirrhosis, fibrosis, scarring…don’t
metabolize alcohol in the same way[,] [s]o you might get a falsely elevated level.” Tr. at 163-64. He also stated that
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“We don’t have an explanation from a medical standpoint as to why this this test would be falsely
elevated, so [he] do[es] trust the result.” Id. at 164. The DOE Psychiatrist stated that he has
experience with the particular laboratory that administered the PEth test and asserted he has no
reason to question the reliability of the lab or the processes used in administering the PEth test. Id.
The Individual questioned the DOE Psychiatrist regarding the correlation coefficient of the PEth
test cited in an article submitted by the DOE on interpretative guidelines of the PEth test.7 Tr. at
182-89; Ex. 18 at 3; Ex. K. The DOE Psychiatrist stated that the correlation concerns the
relationship between alcohol ingestion and the PEth result. Tr. at 175. In response to questioning,
the DOE Psychiatrist acknowledged that the correlation coefficient is less than .9 however, he
noted that “[t]here is a relationship.” Id. at 188. He explained:
It’s not an inverse relationship . . . or an absent relationship where it’s 0 or .2 or .3.
This is .6, .7 positive correlation. So, I don’t think I’m willing to abandon the 458
PEth result because the correlation is not 97 here. That’s just the way this is.
[W]e’re not doing nuclear engineering. I have to agree with that, yes. This is
laboratory science. [E]ven in [the individual’s] case if you . . . took off 20 percent
[off the 458 PEth result], you’d be at 350. It still would be very elevated. So I
acknowledge that this is not a perfect interpretation, but we’re still talking about a
very high level of alcohol use.
Id. at 188-89. The DOE Psychiatrist confirmed his conclusion that the Individual binge consumed
alcohol, which for a male individual means that he consumes five or more alcoholic drinks per
day.”8 Id. at 165. He testified that although the PEth test does not specifically tell him when the
Individual consumed alcohol or if he consumed alcohol in that manner, the PEth test research and
literature indicates that “a result of 458 comports with that kind of heavy and binge use.” Id. at
165-66. The DOE Psychiatrist noted that the Individual submitted to another PEth test in
November 2022, and that PEth result was one-tenth the PEth result from his July 2022 PEth test.
Id. at 168. He concluded that the November 2022 PEth result reflects that the Individual’s alcohol
consumption for the 30 days prior to the test was one tenth of his alcohol consumption that
occurred in July 2022. Id. at 168-69; Ex. B. The DOE Psychiatrist stated that the Individual has
admitted that he continues to consume alcohol several days a week in small quantities, which is
also shown by his November 2022 PEth test result of 48 ng/mL. Id. at 169; Ex. B.
The DOE Psychiatrist stated that his recommendations to show adequate evidence of rehabilitation
or reformation included that the Individual would first need to recognize the presence of an alcohol
problem, and then pursue a resolution by entering a treatment program such as attendance at AA
meetings and obtaining an alcohol sponsor or obtaining treatment from mental health and drug and
alcohol professionals. Tr. at 167-68. He further recommended that the Individual would need to
attempt to reduce or abstain from alcohol use as part of his recovery. Id. at 168. The DOE
“[i]n other [i]ndividuals who have gastric bypass procedures for morbid obesity, they have a different anatomy in their
stomachs and their alcohol absorption is abnormal. . . .” Id. at 164.
7 The article states, “There is a significant correlation between PEth values and the number of drinks consumed for
individuals with no liver disease. . . [t]he correlations are sizable (r= 0.57 and r=0.69).” Ex. 18 at 3.
8 The DOE Psychiatrist testified that “binge alcohol consumption has a specific government-defined definition” that
has been used for approximately 15 to 20 years. Id. at 165.
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Psychiatrist explained that sobriety is a necessary but insufficient element of recovery. Id. at 194.
He stated that recovery means that an individual adopts a lifestyle that is not only abstinence-
based, but that the people and activities in that individual’s life are no longer substance-based. Id.
at 194.
The DOE Psychiatrist concluded that at the time of the hearing his prognosis for the Individual
had not changed. Id. at 169. He explained that the Individual does not recognize the presence of
an alcohol problem, and has never indicated that he needs to pursue alcohol treatment. Id. at 166-
67. The DOE Psychiatrist opined that the Individual has shown “zero evidence” of rehabilitation
or reformation. Id. at 169-70.
V. Analysis
A. Guideline G
Conditions that could mitigate security concerns 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; and
(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.
I have carefully considered the record of his proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. The Individual asserts that
he is not a habitual or binge consumer of alcohol and that the July 2022 PEth test was inaccurate.
I note that the Individual’s witnesses asserted that they have never seen him consume alcohol in
excess nor have they observed that he has any impairment at work related to alcohol use. I believe
that the witnesses’ testimony supports the DOE Psychiatrist’s conclusion that the Individual does
not meet the DSM-5 criteria for AUD. However, I also agree with the DOE Psychiatrist’s
determination that the Individual habitually or binge consumes alcohol to the point of impaired
judgment. I base my conclusion on the evidence presented, including the July 2022 PEth result,
the DOE Psychiatrist’s expert testimony, and the article submitted by the DOE regarding the
interpretative guidelines of PEth tests. The DOE Psychiatrist is an expert and is qualified to
interpret PEth results. He provided rationale based on his knowledge, professional experience, and
review of the research-based literature on PEth tests. By contrast, the Individual did not present
any competing expert opinion to refute the opinions of the DOE Psychiatrist. Accordingly, on
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balance, I find that the evidence supports the finding that the Individual habitually or binge
consumes alcohol to the point of impaired judgment. I turn next to whether any of the mitigating
factors apply.
The first mitigating factor set forth at ¶ 23(a) is not present. The Individual continues to engage in
alcohol consumption and testified that he has no plans to modify his alcohol consumption patterns
because he does not believe that he has an alcohol problem. His failure to address this issue and
the fact that he continues to engage in maladaptive alcohol use without obtaining treatment for it
precludes me from finding that the behavior is unlikely to recur.
The second mitigating factor does not apply because the Individual does not recognize the presence
of an alcohol problem, so he has not acknowledged his pattern of maladaptive use. Moreover, he
has not presented any evidence of actions taken to overcome this problem. Nor are the third or
fourth mitigating conditions present, since the Individual has not enrolled in any treatment program
for his alcohol use nor has he presented evidence that he is abstaining from alcohol use, both of
which are part of the DOE Psychiatrist’s treatment recommendations.
B. Guideline E
Conditions that could mitigate security concerns under Guideline E include:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent,
or it happened under such unique circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability;
and,
(g) association with persons involved in criminal activities was unwitting, has ceased,
or occurs under circumstances that do not cast doubt upon the individual’s
reliability, trustworthiness, judgment, or willingness to comply with rules and
regulations.
Adjudicative Guidelines at ¶ 17.
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The Individual asserted that he did not lie to the DOE Psychiatrist during the CI about the amount
of his alcohol consumption despite the fact that his July 2022 PEth test indicated he engaged in
heavy alcohol consumption. He attempted to mitigate the Guideline E concerns by questioning the
value of the correlation coefficient which concerns the relationship between alcohol ingestion and
the PEth result. However, the Individual has not presented any evidence that would cause me to
question the validity of his July 2022 PEth result. The DOE Psychiatrist presented a well-reasoned
explanation as to why he finds the PEth result valid, and he showed that there is in fact a positive
relationship between alcohol ingestion and the PEth result as evidenced by a sufficiently positive
correlation. Moreover, as stated above, the DOE Psychiatrist’s expertise qualifies him to interpret
PEth results, whereas the Individual did not present any competing expert opinion to refute the
opinions of the DOE Psychiatrist. Furthermore, while the Individual submitted an additional, much
lower PEth test result from November 2022, he took that PEth test four months after the first PEth
test. Therefore, I do not find that it invalidates the Individual’s earlier July 2022 PEth test result.
As such, I am compelled to conclude that the Individual misrepresented his alcohol consumption
to the DOE Psychiatrist.
I find that the first mitigating factor does not apply because the Individual did not make efforts
to correct his misstatement. He maintains that he made truthful statements about his alcohol
consumption even after being confronted with results of his PEth test that indicate otherwise.
The second mitigating factor is inapplicable because the Individual did not assert that he was
advised by any person regarding what information to disclose to the DOE Psychiatrist about
his alcohol consumption.
Regarding the third mitigating factor, I do not find that so much time has passed since the
behavior occurred because the Individual’s lack of candor concerning his alcohol use occurred
in July 2022, and continued up to the date of the hearing,.
The fourth mitigating condition is inapplicable because the Individual has not identified any
underlying factors that contributed to his lack of candor about his alcohol use and he has not
pursued counseling. The fifth mitigating condition is inapplicable because the LSO did not allege
that the Individual had engaged in conduct that placed him at special risk of exploitation,
manipulation, or duress. The sixth mitigating condition does not apply because as discussed
above, the Individual has not presented evidence that his July 2022 PEth test result was from a
source of questionable reliability. The final mitigating condition is inapplicable because the LSO
has not alleged that the Individual associates with persons involved in criminal activities.
C. Guideline J
Conditions that could mitigate security concerns 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; and
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(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.
Adjudicative Guidelines at ¶ 32.
Regarding the first mitigating factor, in addressing the Individual’s two DUI arrests and charges,
I note that several years have passed since the Individual’s 1998 DUI. I also note that while the
Individual was charged in November 2021 with OVI Refusal, he was ultimately convicted of a
lesser alcohol-related charge of OVI. However, the Individual’s November 2021 arrest and charge
occurred just a little over one year before the hearing. Moreover, since the Individual
acknowledges that he continues to consume alcohol on a regular basis and he does not believe he
has a problem nor has he sought treatment for his alcohol use, 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.9 Moreover, the Individual’s criminal
activity concerns are inextricably linked to his problematic alcohol consumption. “Accordingly,
until this problem is adequately addressed, the root cause of his criminal activity remains
unaddressed” and is therefore unresolved. Personnel Security Decision, OHA Case No. PSH-20-
0068 at 11 (2020).
VI. Conclusion
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines G, E , and J 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.
Brenda B. Balzon
Administrative Judge
Office of Hearings and Appeals
9 The second and third mitigating factors do not apply because the Individual has not asserted that he was pressured
or coerced into committing the criminal behavior, and he admitted to both of the Guideline J allegations put forth by
the LSO. I also find that the fourth mitigating factor is not present because the Individual has not put forth any evidence
of successful rehabilitation from his problematic alcohol use, which is the primary cause of his criminal activity.