PSH-23-0039

*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 23, 2022 ) Case No.: PSH-23-0039
)
__________________________________________)
Issued: May 24, 2023
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set forth
at 10 C.F.R. Part 710, entitled, “Procedures for Determining Eligibility for Access to Classified
Matter and Special Nuclear Material.”1 For the reasons set forth below, I conclude that the
Individual’s security clearance should not be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that he hold a security
clearance. The Local Security Office (LSO) began the present administrative review proceeding
by issuing a Notification Letter to the Individual informing him that he was entitled to a hearing
before an Administrative Judge in order to resolve the substantial doubt regarding his eligibility to
continue holding a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the
Individual presented himself as a witness. The LSO presented the testimony of the DOE
psychiatrist (“Psychiatrist”) who had evaluated the Individual. See Transcript of Hearing
(hereinafter cited as “Tr.”). The LSO submitted fourteen exhibits, marked as Exhibits 1 through 14
(hereinafter cited as “Ex.”). The Individual submitted five exhibits, marked as Exhibits A through
E, each with numbered subsections.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
1 Under the regulations, “‘[a]ccess authorization’ means 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).
Such authorization will also be referred to in this Decision as a security clearance.
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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.
According to the Summary of Security Concerns that accompanied the Notification Letter, that
information pertains to Guidelines G and J of the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines). These guidelines are not inflexible rules
of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in
conjunction with the factors listed in the adjudicative process. 10 C.F.R. § 710.7.
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
include:
(a) Alcohol-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;
(b) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated
or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others,
regardless of whether the individual is diagnosed with alcohol use disorder;
(c) Habitual or binge consumption of alcohol to the point of impaired judgment, regardless
of whether the individual is diagnosed with alcohol use disorder;
(d) Diagnosis by a duly qualified medical or mental health professional (e.g., physician,
clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use
disorder;
(e) The failure to follow treatment advice once diagnosed;
(f) Alcohol consumption, which is not in accordance with treatment recommendations,
after a diagnosis of alcohol use disorder; and
(g) Failure to follow any court order regarding alcohol education, evaluation, treatment, or
abstinence.
Id. at ¶ 22.
In the Summary of Security Concerns, the LSO alleges that:
1. In August 2022, the Psychiatrist diagnosed the Individual with Alcohol Use Disorder,
Moderate Severity, without adequate evidence of rehabilitation or reformation.
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2. On April 29, 2022, the Individual was arrested and charged with Driving Under the
Influence of Alcohol (DUI) and DUI based on Blood Alcohol Content (BAC) .08 percent
or greater (“DUI 0.08 percent”);
3. On August 16, 2014, the Individual was arrested and charged with DUI and DUI 0.08
percent;
4. On July 31, 2010, the Individual was arrested and charged with DUI and DUI 0.08 percent;
5. On May 25, 2010, the Individual was arrested and charged with DUI and DUI 0.08 percent;
6. On January 23, 2003, the Individual was arrested and charged with DUI;
7. On December 30, 2000, the Individual was charged with Possession of Open Container on
Streets/Public Place; and
8. On September 4, 1998, the was arrested and charged with DUI.
Ex. 1 at 1–2.
Guideline J states that criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness and that, 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. Conditions that could
raise a security concern include:
(a) A pattern of minor offenses, any one of which on its own would be unlikely to affect a
national security eligibility decision, but which in combination cast doubt on the
individual’s judgment, reliability, or trustworthiness;
(b) Evidence (including, but not limited to, a credible allegation, an admission, and matters
of official record) of criminal conduct, regardless of whether the individual was formally
charged, prosecuted, or convicted;
(c) Individual is currently on parole or probation;
(d) Violation or revocation of parole or probation, or failure to complete a court-mandated
rehabilitation program; and
(e) Discharge or dismissal from the Armed Forces for reasons less than “Honorable.”
Id. at ¶ 31.
The LSO alleges that:
1. On April 29, 2022, the Individual was arrested and charged with DUI;
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2. On August 16, 2014, the Individual was arrested and charged with DUI;
3. In his response to a letter of interrogatory (LOI) dated January 21, 2021, the Individual
admitted that in approximately 2010 or 2011, he cultivated marijuana and that from 2010
to 2011, he used marijuana twice a week;
4. On September 30, 2010, a warrant was issued for the Individual’s arrest for Failure to
Appear in Court for a July 31, 2010, arrest for DUI and Driving While License
Suspended;2 on December 3, 2010, he was taken into custody;
5. On July 31, 2010, the Individual was arrested and charged with DUI and Driving While
License Suspended;
6. On May 25, 2010, the Individual was arrested and charged with DUI;
7. On April 28, 2009, the Individual was charged with Driving while Using a Wire (driving
while using a cell phone);
8. On January 23, 2003, the Individual was arrested for DUI and Hit and Run;
9. On December 30, 2000, the Individual was charged with Possession of Open Container on
Streets/Public Place;
10. On October 21, 1999, The Individual was charged with Driving on Suspended License
and Failure to Use Seatbelt;
11. On May 9, 1999, the Individual was arrested and charged with Possession of a Controlled
Substance for Sale and Possession of Marijuana for Sale; and
12. On September 4, 1998, the Individual was arrested and charged with DUI.
Ex. 1 at 2–3. Accordingly, the LSO’s security concerns under Guidelines G and J 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 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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. The regulatory standard implies that there is a presumption against granting or
2 The warrant was issued on September 30, 2010, per the exhibits cited by the Summary of Security Concerns. In the
Summary of Security Concerns, the month was listed as “November,” which appears to be a typographic error.
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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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
On September 4, 1998, the Individual was arrested and charged with DUI. Ex. 7 at 3. The Individual
pled guilty pursuant to a plea agreement and was convicted; he served three days in jail and attended
court-mandated DUI classes. Id. at 4. The Individual was also arrested and charged with DUI in
January 2003, May 2010, July 2010, and August 2014.3 Ex. 3 at 1.
On May 9, 1999, the Individual was arrested and charged with possession of a controlled substance
and possession of marijuana. Id. at 4. This charge was eventually dismissed. Id.
On April 28, 2009, the Individual was charged with Driving While Using a Wire (using a phone
while driving). Ex. 10 at 31. He paid a fine and the matter was resolved. Id.
In May 2010, the Individual was arrested and charged with DUI. Ex. 14 at 84. He spent seven days
in jail and was required to complete DUI classes and pay fines. Id. Before finishing these
requirements, the Individual was arrested and charged with DUI again in July 2010. Id. His driver’s
license was suspended, and he was later arrested and charged with Driving With a Suspended
License in September 2010 and December 2010. Id. at 84–85.
3 The Individual’s January 2003 DUI charge resulted in a sentence of 30 days in jail and DUI school. Ex. 7 at 3. In lieu
of completing his jail sentence, he participated in an Alternative Work Program (AWP). Id.. The July 2010 DUI
resulted in a sentence of 150 days in jail and 36 months of probation. Id. at 3. The Individual served in the AWP in
lieu of serving the jail time. Id. at 2. He also completed “DUI School.” Id. As a result of the August 2014 DUI, the
Individual was sentenced to 120 days in jail and placed on probation for five years. Id. at 1. He completed another
AWP in lieu of jail time. Id. Additionally, the Individual was required to pay fines and enroll in an 18-month Drinking
Driver Offender Program. Id.
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On September 30, 2010, a warrant was issued for the Individual’s arrest due to his failure to appear
in court for his July 2010 DUI arrest. Ex. 14 at 92. The Individual had confused his court dates but
went to the courthouse and put himself on the calendar, which resolved the issue. Id.
In his January 2021 LOI response, the Individual admitted that from 2010 to 2011 he cultivated
marijuana at his home and consumed marijuana approximately twice a week. Ex. 10 at 3. The
Individual had been using the drug to alleviate back pain but after about six months discovered that
this use of the drug, while legal under the laws of his home state, was still federally illegal. Ex. 14
at 91. He discontinued his use at that time. Id.
On April 29, 2022, the Individual was arrested and charged with DUI. Ex. 9 at 1. On May 2, 2022,
the Individual self-reported to his employer that he had been arrested under suspicion of DUI. Ex.
8 at 1.
The Individual was asked to complete an LOI in July of 2022. Ex. 9. As a result of the answers he
provided, the Individual was referred to the Psychiatrist and underwent a psychological evaluation
in August 2022. Ex. 11. The Psychiatrist diagnosed the Individual with Alcohol Use Disorder,
Moderate Severity. Id. at 9. He recommended that the Individual “enroll in an intensive and highly
structured alcohol recovery treatment program” (IOP), attend daily meetings of a substance
recovery group for at least twelve months, and, for twelve months after, attend meetings at least
three times a week. Id. The Psychiatrist specified that the IOP should have a “minimum of nine
hours of therapeutic and educational meetings per week, usually in three-hour sessions, for between
12 to 16 weeks.” Id.
Approximately every three weeks from early February 2023 to the time of the hearing, the
Individual underwent a blood test that can show whether the subject has consumed alcohol in the
preceding month. Exs. C1–C3; Ex. E1. Each of these tests returned a negative result, showing the
Individual had not consumed alcohol. Id. Starting on February 4, 2023, he also underwent weekly
urine tests in conjunction with the IOP he began around the same time, which also all came back
showing no signs of alcohol consumption. Exs. D1–D9.
At the hearing, the Individual testified that the last time he had consumed any alcohol at all was in
January of 2023. Tr. at 11. He continued on to explain that on that date he only had a sip of beer
before he realized that it did not even taste good to him and stopped. Id. Prior to the sip of beer in
January 2023, the last time he consumed alcohol was in October of 2022. Id. The Individual
testified that he had poorly characterized his LOI response about his alcohol use prior to his 2022
DUI. He explained that when he wrote that he had been sober for the preceding five years, he meant
that he had consumed alcohol rarely during that time, and never to intoxication. Id. at 64–66. He
testified that prior to the 2022 DUI, he had not consumed any alcohol for about 18 months. Id.
The Individual stated that he began attending Alcoholics Anonymous (AA) in June of 2022. Tr. at
18. He felt “it would be helpful to get [his] mind right.” Id. at 19. He attended an in person meeting
every Saturday morning since June 2022 and participated in discussions. Id. at 20–21. The
Individual testified that AA had taught him about skills and tools people use to avoid consuming
alcohol, but he had not gotten a sponsor or worked on the Twelve Steps. Id. at 23. The Individual
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explained that he did not feel he had the time to attend the daily meetings recommended by the
Psychiatrist because his AA group did not have meetings that he was allowed to attend every day
and because of his long commute to and from work. Id. at 21.
The Individual completed his IOP in April of 2023. Tr. at 25, 41. In order to complete the ten-week
program, the Individual was required to attend twenty 90-minute group meetings. Id. at 35, 41. He
testified that he planned to begin attending the IOP’s weekly relapse prevention classes after he
had completed the DUI class that he was taking pursuant to his most recent DUI. Id. at 42. He had
not considered how long he will want to continue to attend the relapse prevention classes. Id. at 62.
The Individual testified that he has a strong support system from his family and coworkers. Tr. at
58. He also said that he would use his “self-discipline” to prevent himself from consuming alcohol
in the future. Id. at 60.
The Psychiatrist testified that, at the time of the hearing, he would still diagnose the Individual with
Alcohol Use Disorder, Moderate Severity but would add the modifier “in early remission,” because
the Individual has laboratory confirmation that he has not consumed alcohol since early January
2023. Id. at 95–96. However, he also stated that he did not believe that the Individual had displayed
adequate evidence of rehabilitation or reformation. Id. at 96–97, 109. The Psychiatrist explained
that while the Individual had attended weekly AA meetings and approximately twelve weeks of
IOP classes, the Individual did not meet the Psychiatrist’s recommendations, which were made
based on research into what gives a person the best chance of remaining sober over the long term.
Id. at 97. He further testified that the Individual’s prognosis is mixed or moderate because, while
the Individual has taken some steps to address his alcohol use, he has a long history of maladaptive
alcohol use that has not been solved by past DUI-related court-ordered classes and treatment
programs. Id. at 104–05.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 2(b). In reaching this decision, I have drawn only those conclusions that
are reasonable, logical, and based on the evidence contained in the record. Because of the strong
presumption against granting or restoring security clearances, I must deny access authorization if I
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am not convinced that the LSO’s security concerns have been mitigated such that restoring the
Individual’s clearance is not an unacceptable risk to national security.
Conditions that may 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; 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.
For the following reasons, I find that the Individual is neither rehabilitated nor reformed and that
none of the mitigating conditions described above apply here.
Regarding mitigating condition (a), the Individual has been arrested and charged with a DUI at
least six times in his life. The most recent arrest happened less than a year prior to the date of the
hearing. This behavior is too frequent and recent to be mitigated under mitigating condition (a).
Moreover, due to the Individual’s long history of DUI arrests, I cannot find that the situation is
unlikely to recur if the Individual is not rehabilitated or reformed from his alcohol use disorder,
which I find he is not, as described below. Mitigating condition (a) cannot be applied.
The Individual’s non-testimonial evidence showed only that he had been sober for a period of about
three months at the time of the hearing. Throughout the Administrative Review process, the
Individual has given a variety of responses about previous periods of sobriety, including that he
consumed alcohol during those periods but did not reset his sober date. As such, it is unclear
whether the time prior to the time covered by the testing included drinking alcohol. I conclude that
the Individual only proved his abstinence during times covered by PEth testing. Given the
Individual’s decades of maladaptive alcohol use, this three-month period is not sufficient to
demonstrate that a period of abstinence is a pattern at all. Furthermore, the Individual’s IOP did
not meet the standards for the treatment program recommended by the Psychiatrist, which
contributed to the Psychiatrist’s opinion that the Individual was not reformed or rehabilitated from
his alcohol use disorder. The mitigating conditions (b) and (d) cannot be applied.
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Regarding mitigating condition (c), although the Individual has completed an IOP and has been
attending AA meetings, he has a long history of treatment and relapse. The Individual has taken
court mandated DUI classes in the past and testified to remaining abstinent for periods of months
in the past, but nevertheless, he has returned to alcohol, and alcohol-related criminal activity.
Mitigating condition (c) cannot be applied.
Conditions that may 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
(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.
The LSO’s Guideline J concerns are inextricably tied to the Guideline G concerns about the
Individual’s alcohol consumption. The majority of the Individual’s criminal charges stemmed from
his alcohol use either directly—the DUIs—or indirectly—the citations for driving with a license
that was suspended pursuant to a DUI charge. The actions that give rise to the Guideline J concerns
are, for the most part, the very actions that gave rise to the Guideline G concerns, or at least a
consequence of them.
Mitigating factors (a)4 and (d) cannot be applied because as discussed above, there is not sufficient
evidence of the Individual’s rehabilitation or reformation from his alcohol use disorder, and I
cannot find that a future DUI charge is unlikely if the Individual is not rehabilitated or reformed
from his alcohol use disorder. Though slightly less proximate, if a DUI charge cannot be ruled out,
I cannot find that a charge for driving with a suspended license, or any of the other criminal
behavior related to the Individual’s alcohol consumption, is unlikely to recur either.
4 Mitigating factor (a) can be applied to the Guideline J concerns regarding marijuana. The Individual’s 1999 charge
occurred over 20 years ago and he has had no involvement with the sale of a controlled substance since then. He was
in his 20s at the time and has grown and changed over the years such that it is unlikely he would decide now to sell a
controlled substance. Regarding his use of marijuana in 2010 and 2011, the Individual believed that his marijuana use
was legal because his state had legalized cultivation and use of marijuana and he had complied with state law regarding
his activities. Upon learning that his activities were federally illegal, he immediately discontinued his use and destroyed
his plants, indicating that, in regard to marijuana, the Individual is a rule-follower and is unlikely to return to his
previous behavior.
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Mitigating factors (b) or (c) are not relevant in this case because no argument has been raised that
the Individual did not commit the crimes or that the Individual was coerced into committing the
crimes.
Having applied the Adjudicative Guidelines’ mitigating factors to the evidence presented, and
having considered such evidence in light of the whole person concept, I cannot find that the
Individual has mitigated the Guideline G or J concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for access authorization under Guidelines G and J of
the Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving
those concerns. Therefore, I cannot conclude that restoring DOE access authorization to the
Individual “will not endanger the common defense and security and is clearly consistent with the
national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore access
authorization to the Individual.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals