PSH-23-0034

*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: December 13, 2022 ) Case No.: PSH-23-0034
)
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Issued: May 23, 2023
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXXXX (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 be restored.
I. Background
The Individual is employed in a position that requires him to hold an access authorization. On
February 16, 2022, the Individual was cited and charged with Criminal Mischief after he was
removed from a bar and punched and broke a glass door on the premises. Exhibit (Ex.) 1 at 1. In
October 2020, the Individual was arrested and charged with Battery Against a Household Member
after he punched his stepfather. Id. at 2. In June 2012, police cited and charged him with Wrongful
Use of Public Property. Id. The Individual admitted to consuming alcohol prior to all three
incidents. Id. at 1–2. The Individual self-reported both most recent incidents to the LSO. Ex. 13;
Ex. 16.
The Local Security Office (LSO) learned of the above information and asked the Individual to
undergo a psychological evaluation by a DOE-consultant Psychologist (DOE Psychologist), which
occurred in July 2022. Ex. 19. In completing his evaluation of the Individual, the DOE
Psychologist conducted a clinical interview, spoke with two of the Individual’s healthcare
providers, reviewed the Individual’s personnel security file, and had the Individual complete the
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
Minnesota Multiphasic Personality Inventory-Second Edition along with a phosphatidylethanol
(PEth) laboratory blood test to detect recent alcohol consumption. Id. at 2–3.
On July 13, 2022, the DOE Psychologist issued a report (Report) explaining the results of the
Individual’s evaluation. Id. In the Report, the DOE Psychologist diagnosed the Individual with
Alcohol Use Disorder (AUD), mild, in early remission. Id. at 9. The DOE Psychologist based this
diagnosis on the Individual’s pattern of binge consumption of alcohol and significant levels of
intoxication. Id.
The DOE Psychologist recommended that the Individual abstain for alcohol consumption, enroll
in an Intensive Outpatient Program (IOP), and actively participate in in-person Alcoholics
Anonymous (AA) for at least six months and select a sponsor. Id. at 10.
The DOE Psychologist also concluded that the Individual suffers from a Neurocognitive Disorder,
which can impair his judgment when he consumes alcohol. Id. He opined that the disorder would
not impair his judgment, reliability, stability, or trustworthiness if the Individual is alcohol
abstinent. Id.
Due to the unresolved security concerns related to the Individual’s alcohol consumption, the LSO
informed the Individual, in a Notification Letter, 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 Notification Letter, the LSO explained that the derogatory
information raised security concerns under Guideline G (Alcohol Consumption) of the
Adjudicative Guidelines. Ex. 1.
In November 2022, the Individual requested an administrative hearing, and the LSO forwarded the
Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed
me as Administrative Judge in this matter. At the hearing I convened pursuant to 10 C.F.R.
§ 710.25(d), (e), and (g), the Individual testified on his own behalf and presented the testimony of
his current supervisor, his girlfriend, his previous supervisor, and his mother. See Transcript of
Hearing, Case No. PSH-23-0034 (hereinafter cited as “Tr.”). The Individual submitted 4 exhibits,
marked as Exhibits A through D. Counsel for the DOE submitted 23 exhibits, marked as Exhibits
1 through 23, and presented the testimony of the DOE Psychologist.
II. The Summary of Security Concerns
Guideline G states that excessive alcohol consumption often leads to the exercise of questionable
judgment, or the failure to control impulses, and can raise questions about an individual’s
reliability and trustworthiness. Adjudicative Guidelines at ¶ 21. Conditions that could raise a
security concern under Guideline G include “[a]lcohol-related incidents away from work, such as
driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other
incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the
individual has been diagnosed with alcohol use disorder”; “[h]abitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with
alcohol use disorder”; and a “[d]iagnosis by a duly qualified medical or mental health professional
(e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol
use disorder.” Id. at ¶ 22(a), (c), and (d). In citing Guideline G, the LSO relied upon the DOE
Psychologist’s evaluation and diagnosis of the Individual as suffering from AUD, mild, and
Neurocognitive Disorder. Ex. 1 at 1. The LSO also relied upon the Individual’s three alcohol-
related charges. Id. at 1–2. Based on the conduct noted above, I find the LSO’s security concerns
under Guideline G are justified.
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 so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. § 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
In October 2018, the Individual had a motorcycle accident in which he suffered a traumatic brain
injury (TBI), dislocated both shoulders, and broke his leg. Ex. 19 at 3; Tr. at 62. He testified that
he does not have any memory of the accident. Tr. at 62. Since the accident, the Individual has had
two alcohol-related incidents.2 Ex. 1 at 1–2. In October 2020, he had a physical altercation with
his stepfather, which included the Individual throwing punches, after consuming eight to nine
beers. Ex. 1 at 2; Ex. 17 at 4; Ex. 15 at 7; Tr. at 74, 75. The charges were dismissed, but the
Individual was held in custody ten to twelve hours. Ex. 17 at 4. On February 16, 2022, the
Individual was cited and charged with Criminal Mischief after he was removed from a bar and
damaged property. Ex. 1 at 1; Tr. at 77, 80. He admitted to consuming seven or eight alcoholic
drinks prior to the incident. Ex. 17 at 2.
2 The Individual’s other arrest occurred in 2012 for misuse of public property at his college. Ex. 1 at 2. The Individual
characterized this arrest as a youthful indiscretion that happened while he was attending college. Ex. 17 at 4. He
testified that he and his friends were “just being dumb,” which resulted in his arrest. Tr. at 72. He stated that the police
officer told them that he was going to just yell at them for trying to touch a low-hanging roof, but since one of the
Individual’s friends gave the officer a false name, he decided to ticket him instead. Id. at 72. He did consume alcohol
prior to the incident. Ex. 1 at 2.
The Individual asserted that he has not consumed alcohol since February 16, 2022, because after
the February 2022 incident, he realized he had a problem with his alcohol consumption. Tr. at 80.
After his October 2020 altercation with his stepfather, the Individual was mandated to see a
counselor for his fitness for duty (FFD) evaluation that occurred because of the arrest. Id. at 79.
Although he attended counseling for a few months in 2020 and into 2021, he eventually stopped
attending due to both the counselor’s schedule and his own. Id. He had not been attending
counseling for approximately six to eight months prior to the February 16, 2022, incident. Id. The
Individual testified that since the February 2022 incident he has been going to the counselor he
saw after the October 2020 incident, and he has been attending AA online since March 2022. Id.
at 81, 83. He affirmed that his counselor agreed that he should abstain from alcohol and that he
should attend AA. Id. at 81; Ex. D. He testified that he does not have a sponsor because he tried
with two individuals but had a scheduling problem with both. Id. at 93. He stated that they both
wanted to “rigidly meet on certain days at certain times” and his schedule does not allow that type
of meeting. Id. at 94. He indicated that he is working the AA steps on his own and is presently
working on step three. Id. The Individual testified that he has had to change his lifestyle and
friends. Id. at 90. He stressed that:
I love my job, and that’s about as simple as it is for me. You know, I mean, I will
admit that the harder part is not being able to hang out with some of my friends, . .
. especially [my] former roommate Tyler. I mean, I love the guy, he’s like a brother
to me, but especially right now, in the early stages of sobriety, I just know I can’t
hang out with him. He’ll want to go to a bar. He’ll want to go party, and I know I
can’t do that. I know that I can’t put myself in that position where, you know,
there’s necessarily going to be peer pressure to drink, and the opportunity, not
because, you know, oh, God, there’s alcohol and I have to drink it because it’s in
front of me, but just that environment, I don’t think that right now where I’m at in
my journey of sobriety, that I could navigate that as properly as I would need to.
Id. at 90–91. Finally, he concluded that his support system is his girlfriend, parents, and work
colleagues. Id. at 106.
The Individual submitted several negative PEth tests into the record. Ex. A. The first two PEth
tests on May 17, 2022, and June 22, 2022, were “required” by the LSO after his February 16, 2022,
arrest. Tr. at 86. Then he had a third test on July 7, 2022, after seeing the DOE Psychologist. Id.
He continued testing in January 2023, February 2023, March 2023, and April 2023, and all of these
results were negative. After the hearing, the Individual provided the negative results of a final test
taken in April the day before the hearing. Ex. A at 11–12 (comprising January 25, 2023, February
27, 2023, March 10, 2023, and April 5, 2023, tests).3
The Individual provided a letter from his counselor, indicating that he has been attending
counseling sessions consistently since March 10, 2022. Ex. D. In addition, the counselor indicated
in her letter that the counseling has been affective for the Individual. Id. They focus on his ability
to recognize his stress tolerance and healthy ways to cope, along with relationship processing and
3 I am accepting and considering the PEth test report from the test taken the day before the hearing, even though it
was filed after the hearing date.
time management. Id. In addition to the letter from his counselor, the Individual submitted emails
he sent to the online AA sessions that he attends asking for attendance reports. Ex. C. The
Individual indicated that he received no response from one group that he attends regularly, and the
other said attendance reports would have to be requested at the time of the meeting. Tr. at 88.
The Individual’s mother testified that he is attending AA and going to counseling. Id. at 55. She
also confirmed that the Individual has not consumed alcohol since his February 2022 arrest. Id. at
54. She asserted that he has expressed to her that he does not intend to consume alcohol again. Id.
at 56.
The Individual’s girlfriend testified that they have been dating for six months. Id. at 21. She stated
that they see each other almost every day. Id. She has never seen him consume alcohol and stated
that he was very upfront with her regarding his TBI and alcohol-related arrests. Id. at 22. She also
confirmed that the Individual does not keep alcohol in his house. Id. at 23. The girlfriend stated
that she does consume alcohol around the Individual, but usually only one drink. Id. In fact, she
indicated that she does not consume much alcohol. Id. She asserted that if he started consuming
alcohol again, she would know because he would act differently. Id. at 27. She testified that the
Individual only mentioned having a craving for alcohol on one occasion. Id. at 26.
The Individual’s current and past supervisors both testified. Id. at 11, 30. Both witnesses indicated
that they do not currently socialize with the Individual and do not know whether he consumes
alcohol. Id. at 12, 33. His previous supervisor indicated that they had socialized prior to the
February 2022 incident, and he did not recall the Individual over-imbibing. Id. at 34. Both
supervisors indicated that they never received reports about the Individual nor seen the Individual
“hungover” or exhibiting inappropriate behavior. Id. 14–15, 36.
All four of the Individual’s witnesses asserted that he is honest, trustworthy, and reliable. Id. at 16,
28, 38, 50. The current supervisor testified that total honesty is necessary for their work. Id. at 16.
His previous supervisor testified that, in his opinion, by coming forward promptly to the LSO
about both his arrests, the Individual displayed honesty. Id. at 38.
The hearing testimony concluded with the DOE Psychologist. Id. at 96. He confirmed his AUD,
mild, diagnosis. Id. at 97. He opined that the Individual has demonstrated rehabilitation. Id. at 104.
He continued that, although it does not strictly satisfy the recommendations he made in his Report,
the Individual’s current treatment is adequate. Id. The DOE Psychologist asserted that he was
impressed with the Individual’s counselor and that she is a good counselor for him. Id.
The DOE Psychologist claimed that the Individual’s TBI caused a frontal lobe impairment and
resulted in:
a kind of a lessening of a buffer between having an emotional . . . feeling and acting
on it. And the frontal lobe puts us into that position of having more of a buffer for
that. His memory issues are also, even though memory is a multi-lobe function, it
is something that really does involve frontal lobe, as well as primarily, some other
areas. So I think he has that and it can make him more impulsive than usual. And
so if you give alcohol -- if he drinks a fair amount of alcohol, you’re going to see
events like that that happened, sudden eruptions.
Id. at 103.
In addition, the DOE Psychologist understood, with the Individual’s time constraints, why the
Individual was attending online AA and does not have a sponsor. Id. at 100–02. He continued that
the Individual’s testimony showed an honesty and vulnerability that was not apparent when he
evaluated the Individual. Id. at 98. The DOE Psychologist stressed that, during the evaluation, the
Individual did not “really get that he really had a problem,” which is why he recommended an
IOP. Id. at 98–99. He was impressed that the Individual did not claim that he had completed all
twelve steps but rather acknowledged that he was on step three, especially since step three is
difficult. Id. at 102. He also found the Individual’s girlfriend’s testimony persuasive in that she
does not consume much alcohol and claimed that she would know if he started consuming alcohol.
Id. at 105. Finally, he opined that the Individual’s support system of his girlfriend, parents, and
current work colleagues is excellent. Id. at 107.
V. Analysis
Guideline G
The Adjudicative Guidelines set forth four factors that may mitigate security concerns under
Guideline G:
(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.
I found the Individual and his witnesses to be honest and forthright in their testimony. The
Individual has acknowledged his problematic alcohol consumption and has brought forth
documentation and testimonial evidence establishing that he has taken significant steps to
overcome his problem. He is in counseling and attends AA. He asserted that he has been abstinent
since his last alcohol-related arrest in February 2022, and he provided evidence through negative
PEth tests and the testimony of his girlfriend and mother to establish that he has not consumed
alcohol since February 2022. There is no evidence in the record indicating that he has a history of
treatment and relapse. And the DOE Psychologist opined that the Individual’s efforts were
sufficient to establish rehabilitation. For these reasons, I find that the Individual has satisfied the
second and third mitigating conditions under Guideline G. Id. at ¶ 23(b) and (c).
In light of the positive prognosis from the DOE Psychologist, the Individual’s support network to
aid his in his recovery, the Individual’s abstinence from alcohol for more than a year, as evidenced
by the PEth test results and his witnesses’ testimony, and the Individual’s positive participation in
his treatment program as evidenced by the submission of the letter from his counselor and lifestyle
changes, he has resolved the security concerns related to his maladaptive pattern of alcohol use,
and I feel confident he is unlikely to engage in problematic alcohol consumption in the future. The
DOE Psychologist accepted the Individual’s treatment plan, which included AA, without a
sponsor, and individual counseling, as sufficient due to the Individual’s erratic work schedule.
Further, he found the Individual to be sincere in his testimony regarding his alcohol use, whereas
during the evaluation, the DOE Psychologist found that the Individual understood the severity of
his maladaptive alcohol use. For the reasons stated above, I find that the Individual has mitigated
the security concerns raised by the LSO under Guideline G.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G of the
Adjudicative Guidelines. After considering all the evidence, both 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 brought forth sufficient evidence to resolve
the security concerns set forth in the Notification Letter. Accordingly, I find the Individual has
demonstrated that restoring his security clearance would not endanger the common defense and
would be clearly consistent with the national interest. Therefore, I find that the Individual’s access
authorization should be restored. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals