PSH-23-0035

*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 14, 2022 ) Case No.: PSH-23-0035
)
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Issued: May 19, 2023
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Administrative Judge Decision
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Richard A. Cronin, Jr., 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 security
clearance should be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. On March 26, 2022, the Individual was arrested and charged with driving while
intoxicated (DWI). Exhibit (Ex.) 6 at 3. As a result of this incident and two other past alcohol
related charges (both minor in possession of alcohol charges), the Individual was asked to complete
a letter of interrogatory (LOI) in May of 2022. Ex. 9. In July of 2022, the Individual was asked to
undergo an evaluation with a DOE contractor psychologist (DOE Psychologist). Ex. 10.
Due to unresolved security concerns, the LSO began the present administrative review proceeding
by issuing a letter (Notification Letter) to the Individual 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
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.
Consumption) and Guideline J (Criminal Conduct) of the Adjudicative Guidelines. Ex. 1. The
Notification Letter informed the Individual that he was entitled to a hearing before an
Administrative Judge to resolve the substantial doubt regarding his eligibility to hold a security
clearance. See 10 C.F.R. § 710.21.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. 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 Individual submitted three exhibits into the record (Ex. A through C) and presented
his own testimony as well as that of a friend, a temporary supervisor, a coworker, his spouse, and
a clinical director from an intensive outpatient program (IOP) he attended. The DOE Counsel
submitted twelve numbered exhibits (Ex. 1 through 12) into the record and presented the testimony
of the DOE Psychologist.
II. Notification Letter and Associated Security Concerns
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. Ex. 1. That information pertains to Guideline G and Guideline J of the Adjudicative
Guidelines. Id. Guideline G indicates that “[e]xcessive 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. Under Guideline
J, “[c]riminal 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.” Id. at ¶ 30.
As a basis for citing Guideline G, the LSO cited the Individual’s 2022 DWI charge, his minor in
possession of alcohol charges, and the DOE Psychologist’s diagnosis of the Individual as meeting
the criteria for Unspecified Alcohol-Related Disorder. Ex. 1 at 1. Specifically, in support of her
diagnosis, the DOE Psychologist noted that the Individual’s arrest for DWI occurred after an
episode of binge drinking, and her conclusion that the Individual has had frequent binge drinking
episodes. Ex. 10 at 5. Regarding Guideline J, the LSO cited the Individual’s 2022 DWI arrest and
his two-prior minor in possession of alcohol charges. Ex. 1 at 2. The derogatory information cited
by the LSO justifies the invocation of Guideline G and 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. 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 and Hearing Testimony
In August 2008 and July 2009, the Individual was charged with minor in possession of alcohol.
Ex. 3 at 1.
In March 2022, the Individual was charged with DWI. Id. As a result of this charge, DOE asked
the Individual to complete an LOI in May of 2022. Ex. 9. In the LOI, the Individual stated that
on the day of his arrest he had consumed one mimosa, four mixed bourbon drinks, and two beers
between 10:00 AM and his arrest at approximately 9:00 PM. Id. at 1.
After the Individual completed the LOI, he was asked to undergo an evaluation with the DOE
Psychologist. Ex. 10. After this evaluation, the DOE Psychologist diagnosed the Individual with
Unspecified Alcohol-Related Disorder and concluded that he binge consumed alcohol to the point
of impaired judgment. Id. at 5. The DOE Psychologist explained that the Individual could
demonstrate rehabilitation or reformation by completing an IOP program, continuing in aftercare
for a minimum of six months, and completing his already-planned program of monthly
Phosphatidylethanol (PEth) tests for 12 months to support an agreement he entered with his DOE
Contractor employer and the DOE facility requiring that he be abstinent for 12 months.2 Id. at 4–
6.
Exhibits submitted by the Individual established that he entered an IOP in October 2022 and
completed the program in December 2022. Ex. A, C. Further, the Individual submitted an exhibit
documenting his attendance in the IOP and his continuing attendance in the aftercare program of
the IOP. Ex. C. The Individual has also submitted records of monthly negative Peth tests from
May 2022 to February 2023.3 Ex. B.
The Individual’s friend, a former colleague, testified that he would usually be in contact with the
Individual once a week through text messages and phone calls. Tr. at 14. He found the Individual
to be a reliable person. Id. at 18. In talking to the Individual about his DWI arrest, he came to
2 The Phosphatidylethanol (PEth) test indicates whether an individual has engaged in any significant alcohol use over
the prior three or four weeks. Ex. 10 at 4-5.
3 The Individual also submitted a Peth test conducted in April 2022 that reported a marginal positive test result,
27ng/ml, which was above the standard for a positive test of 20ng/ml. Ex. B at 1.
believe that the Individual “was beating himself up pretty good about it,” especially since the
Individual had been employed in law enforcement. Id. at 15. The Individual informed him that his
intention was to be totally abstinent, since consuming alcohol would ruin the Individual’s life. Id.
at 23. The friend also stated he believes that when the Individual sets a course of action, he can be
trusted to carry it out. Id. at 16. Further, he stated, the Individual accepted full responsibility for
his actions resulting in the DWI arrest. Id. at 17. The friend also testified that he has attended many
social events with the Individual since his DWI, and although other people consumed alcohol at
these events, the Individual did not. Id. at 19.
The Individual’s temporary supervisor testified that he has worked with the Individual since the
Individual’s clearance was suspended as a result of the DWI. Id. at 29. When assigned to the
temporary supervisor, the Individual had a good attitude, was motivated, and sought out work
assignments. Id. at 31-32. The temporary supervisor also stated that the Individual took full
responsibility for the DWI; and, in the time he has worked with the Individual, he has had no
reason to question the Individual’s judgment, reliability, or trustworthiness. Id. at 34.
A coworker testified that the Individual helped him to cope with his own alcohol consumption
issues and the problems that those issues brought up at work. Id. at 38, 46. The coworker’s
participation in IOP and aftercare overlapped with the Individual’s, and he explained that from his
observations many of the younger members of those groups looked up to the Individual and saw
him as a role model. Id. at 39–42. In the coworker’s case, the Individual helped him accept the fact
that he needed to participate in IOP and had a positive effect on the coworker’s life. Id. at 38. The
Individual told the coworker that the problems arising from his DWI arrest were the Individual’s
own fault. Id. at 39. Despite this, the Individual maintained a positive attitude. Id. During the time
they both attended the IOP program, the Individual made himself available to new participants to
inform them about the program. Id. at 40–41.
The Individual’s spouse testified that she met her husband approximately five years ago and they
have been married for about three years. Id. at 49. On the day the Individual was arrested for DWI,
she observed the Individual feeling upset, disappointed, and especially disappointed that he had
let her down. Id. at 50. He immediately began to contact all the officials he was required to contact
regarding the DWI arrest, and she has not seen him consume any alcohol since that day. Id. at 51.
The Individual’s spouse testified that the Individual was very dedicated to his IOP classes. Id. at
51, 55–56. She believed that the Individual was learning something from each of his IOP classes
and that, as a result, their communication has improved, and the Individual is more attentive to her
and her needs. Id. at 56. The Individual’s spouse also explained that the Individual has a support
system and resources available to him if he has any future struggles with alcohol. Id. at 57. She
believes that she, his family, his friends, and the resources he’s learned about in IOP would be
available if he had a desire to consume alcohol. Id.
At the hearing, the Individual testified that because of his IOP classes he realized that he consumed
more alcohol than he believed. Id. at 67. The Individual also testified that one of the hardest things
that he has been forced to deal with is that he let down the people with whom he was closest. Id.
at 69. The Individual was extremely motivated to take any steps he could to reestablish trust with
the federal government so he can resume his job and rejoin his team. Id. at 70. He meets with the
Human Reliability Program psychologist regarding his alcohol use every month and finds these
meetings beneficial. Id.at 70-71.
The Individual also confirmed that he had completed his IOP in December of 2022 and has been
in aftercare since then. Id. at 71, 74; Ex. A, C. Through his IOP participation, he learned that his
main trigger for alcohol misuse was his going to bars to watch college football. Tr. at 84.
Consequently, he believes a way to avoid that trigger is to stay home and watch from his house.
Id. He verified that he had been completing monthly PEth tests since his arrest and that after a low
but positive result on the first test in April 2022, the rest had all been negative. Id. at 72; Ex. B.
The random breath alcohol tests that the Individual has been subject to while at work have all been
negative as well. Tr. at 73; Ex. D. The Individual testified that his last consumption of alcohol
was on the night of his DWI arrest in March 2022. Id. at 74. The Individual believes that as a result
of abstaining from alcohol he is a better person. Id. at 79.
The Individual also testified that he intends to continue attending aftercare indefinitely and remain
abstinent from consuming alcohol. Tr. at 78, 85–87. He stated that he felt like sobriety, along
with the IOP and aftercare, have made him a better husband and friend and that everyone in his
life supports his decision to remain abstinent from alcohol. Id. at 79–80.
The clinical director from the Individual’s IOP and aftercare programs testified that he conducted
an initial assessment of the Individual and worked with the Individual on at least a weekly basis
as part of the Individual’s IOP. Id. at 88–89. He stated that that the Individual “seems to be a rule-
based individual, so until he learns kind of what parameters are, he doesn’t really thrive. . . . [O]nce
[the Individual] figure[d] out the rules, he . . . [thrive[d] in the IOP].” Id. at 90–91. The clinical
director noted that the Individual would ensure that the Individual’s IOP group would stay on topic
and that the group members would challenge one another. Id. at 93. He also noted the Individual’s
efforts in the aftercare program went beyond expectations. Id. at 94. The clinical director explained
that in his professional opinion, the Individual’s period of sobriety, 12 months, is significant and
that there is a “greater than chance probability that [the Individual is] going to stay sober for a long
time.” Id. at 100–01.
The DOE Psychologist testified that based on her observations during the hearing, the Individual
no longer “warrants an alcohol-based diagnosis.” Id. at 104. The DOE Psychologist testified that
she believes that the Individual is reformed and rehabilitated from his alcohol-misuse problem. Id.
at 105. In making this finding she cited the Individual’s completion of the IOP as evidence of
rehabilitation. Id. Regarding reformation, the DOE Psychologist cited the Individual’s abstinence
from alcohol, his lifestyle changes, and his perception that abstinence from alcohol has made him
a better person. Id. She also noted the change in the Individual’s attitude from his initial
examination, where the Individual was still entertaining thoughts of continuing to consume
alcohol, to his present intention after 12 months of abstinence to remain abstinent. Id.; see Ex. 10
at 4 (describing the Individual’s then-stated intention during the DOE Psychologist’s examination
not to plan to “completely stop” his alcohol consumption).
V. Analysis
The adjudicative process is “an examination of a sufficient period and a careful weighing of several
variables of an individual’s life to make an affirmative determination that the individual is an
acceptable security risk. This is known as the whole-person concept.” Adjudicative Guidelines at
¶ 2(a). All available, reliable information about the person, past and present, favorable and
unfavorable, should be considered in reaching a national security eligibility determination. Id.
Each case must be judged on its own merits. Id. at ¶ 2(b).
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline G if:
(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.
Id. at ¶ 23.
After considering the record in this case, I find that the Individual has mitigated the stated
Guideline G concerns in this case. Mitigating factor (b) clearly applies here. The Individual has
acknowledged that his previous alcohol use was maladaptive. He has provided testimony from his
wife, friends, and medical professionals that he has taken steps to deal with his maladaptive alcohol
use and followed treatment recommendation. He has also provided multiple forms of laboratory
evidence to corroborate the testimony that he has refrained from alcohol consumption since his
DWI, a period of more than 12 months.
Mitigating condition (d) applies here as well. The Individual has successfully completed an IOP
program and continues to participate in the recommended aftercare. As noted previously, he has
provided significant laboratory test results that demonstrate he has not consumed alcohol for more
than 12 months, in accordance with treatment recommendations. Consequently, given the record
before me, I find that the Guideline G security concerns have been resolved.
The Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline J if:
(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
(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.
I find that the Individual has mitigated the Guideline J concerns in this case. The Individual’s
completion of the IOP and aftercare, as well as his continued sobriety, are evidence of successful
rehabilitation pursuant to mitigating factor (d). All the criminal acts cited as Guideline J security
concerns center around alcohol misuse. As discussed above, I find that the Individual has resolved
the Guideline G alcohol related security concerns. Consequently, I find that the probability of the
Individual reengaging in criminal activity is low. Accordingly, after reviewing the record in this
matter, I find that the Individual has mitigated the security concerns raised by the Guideline J
derogatory information.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G and
Guideline J 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 SSC. Accordingly, 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
security clearance should be restored. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals