PSH-23-0045

*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: January 11, 2023 ) Case No.: PSH-23-0045
)
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Issued: June 6, 2023
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Administrative Judge Decision
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Noorassa A. Rahimzadeh, 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 be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. In June 2022, the Individual properly reported that he had been charged with
Aggravated Driving While Under the Influence of Intoxicating Liquor or Drugs (ADWI) after he
was involved in a single car accident. Exhibit (Ex.) 10 at 1; Ex. 9 at 1, 3; Ex. 8 at 2, 7. As a result
of his disclosure, the local security office (LSO) requested that the Individual complete a Letter of
Interrogatory (LOI), which the Individual signed and submitted in October 2022. Ex. 11. The LSO
subsequently asked the Individual to undergo a psychological evaluation conducted by a DOE-
consultant psychologist (DOE Psychologist) in November 2022. Ex. 12. The DOE Psychologist
relied on the information he obtained in the clinical interview with the Individual, as well as his
review of the Individual’s Personnel Security File and the Diagnostic Statistical Manual of Mental
Disorders, 5th Edition (DSM-V). Ex. 12 at 3–4. In November 2022, the DOE Psychologist issued
a report (the Report) containing his assessments and conclusions, which included the conclusion
that the Individual had been a binge consumer of alcohol to an extent that had been found to impair
judgment. Ex. 12 at 7.
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.
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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 continued eligibility for access
authorization, and accordingly, his access authorization had been suspended. In a Summary of
Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory information
raised security concerns under Guideline G (Alcohol Consumption) of the Adjudicative
Guidelines. Ex. 1. The 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 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 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 supervisor, his employer’s Employee
Assistance Program (EAP) counselor, his one-on-one therapist, and his wife. See Transcript of
Hearing, Case No. PSH-23-0045 (hereinafter cited as “Tr.”). He also submitted eight exhibits,
marked as Exhibit A–H. The DOE Counsel presented the testimony of one witness, the DOE
Psychologist, and submitted fourteen exhibits marked as Exhibits 1–14.
II. Notification Letter and Associated Concerns
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline G of the Adjudicative Guidelines. Ex. 1. Under Guideline
G, “[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. Among those conditions set forth in the
Adjudicative Guidelines that could raise a disqualifying security concern are “[a]lcohol-related
incidents away from work, such as driving while under the influence . . . regardless of frequency
of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use
disorder[,]” and “[h]abitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder[.]” Id. at ¶ 22(a) and
(c).
With respect to Guideline G, the LSO alleged that the DOE Psychologist determined that the
Individual “habitually or binge consumes alcohol to the point of impaired judgment,” that the
Individual “has been a binge consumer of alcohol multiple times a month to an extent considerably
past the level found to impair judgement,” and that the Individual had not shown adequate evidence
of rehabilitation or reformation. Ex. 1 at 1. The LSO further alleged that in June 2022, the
Individual was arrested and charged with ADWI and Fail to Maintain Traffic Lane and that the
Individual indicated that he had consumed five beers and became intoxicated prior to the arrest.
Ex. 1 at 1. Based on the foregoing, the LSO’s invocation of Guideline G is justified.
III. Regulatory Standards
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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 or her 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.
§ 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
The Individual was arrested for ADWI in June 2022.2 Ex. 9 at 1. In his LOI, the Individual stated
that he had been attempting to plug his phone into his car’s auxiliary cord when he swerved off of
the road, crashing his vehicle. Ex. 11 at 1; Ex. 9 at 1; Ex. 8 at 3, 7; Ex. 12 at 3. Another person
who happened to be passing by called law enforcement. Ex. 11 at 1; Ex. 9 at 1; Ex. 12 at 3. The
Individual reported that when law enforcement personnel arrived, he refused a breathalyzer test
and did not pass the field sobriety tests that were administered, and as a result, he was subsequently
arrested and charged. Ex. 9 at 3; Ex 10 at 1; Ex. 12 at 3. The Individual stated in the LOI that he
had consumed approximately five beers in the span of three and a half hours prior to the accident
and arrest. Ex. 11 at 1, 4–5; Ex. 8 at 7.
The Individual also stated in the LOI that he had abstained from consuming alcohol after his June
2022 arrest, he had voluntarily installed an interlock device in his vehicle, as he felt this would
likely be a condition associated with the resolution of the criminal matter. Ex. A at 8; Ex. B; Tr. at
81–82; Ex. 11 at 4. He also disclosed in the LOI that prior to abstaining from alcohol, he would
consume alcohol to intoxication approximately “four to six times a year[.]” Ex. 11 at 4.
Following the June 2022 incident and the subsequent self-report, the Individual was placed in the
Fitness for Duty (FFD) program following an evaluation conducted by his employer’s Occupation
Medicine (OM). Ex. 11 at 2; Ex. 6 at 1–2; Ex. 7 at 1. Pursuant to the requirements of the program,
2 At the time of the hearing, the Individual was on unsupervised probation for the underlying criminal matter. Tr. at
83. He testified that he has been compliant with all of the terms of his probation. Id. at 84.
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the Individual was required to abstain from alcohol, and was subject to a total of approximately
thirty-one breath alcohol tests and eight urine tests from July 2022 to September 2022. Ex. 12 at
3; Tr. at 64, 79–80; Ex. E. All of the aforementioned tests were negative for alcohol. Ex. E. The
Individual was compliant with the program, and accordingly, he was released in September 2022.
Ex. 12 at 3.
The Individual began attending a six-week alcohol awareness class offered by his employer’s EAP
in August 2022, after first meeting with the EAP counselor who conducts the program in late June
2022. Ex. 12 at 3; Tr. at 21–22, 25–26, 63–64; Ex. H. The Individual ultimately progressed to a
sobriety maintenance group, another EAP program, in late August 2022. Ex. 12 at 3; Ex. H. At the
time of the hearing, the Individual had attended twenty-four sessions of the sobriety maintenance
group.3 Ex. H. The EAP counselor stated in her testimony that when she first met with the
Individual, “[h]e was willing to do whatever the [FFD] team suggested and recommended that he
do[,]” and further, the Individual has since expressed to her his desire to abstain from alcohol. Tr.
at 23. She also testified that the Individual “interacts with others in group[,]” and that “[h]e listens,
he shares,” and “[he is] attentive.” Id. at 24. During the sobriety maintenance group, participants
discuss “high risk situations where others are drinking” and what they should do in such situations.
Id. at 30. The EAP counselor testified that she is aware that the Individual has been in such
situations, but that “[he is] very committed to his goals right now[]” in terms of remaining
abstinent. Id. The Individual testified that since attending EAP group sessions, he has learned a
great deal about himself, “about triggers, situational awareness, anger management, [and] positive
thinking.” Id. at 64–65. He also learned that social drinking was his trigger. Id. at 66.
During the November 2022 clinical interview, the Individual informed the DOE Psychologist of
the June 2022 incident and how much alcohol he had consumed that night. Ex. 12 at 3. The
Individual told the DOE Psychologist that his alcohol consumption had increased in the year prior
to his arrest, and that he would consume approximately “five to six beers on most Saturdays and
Sundays” over the span of three to four hours. Ex. 12 at 4; Tr. at 96–97. Based on this information,
the DOE Psychologist concluded that the Individual was likely reaching intoxication “multiple
times a month.” Ex. 12 at 4; Tr. at 97. At the time of the clinical interview, the Individual did not
state with certainty that he intended to continue abstaining from alcohol in the future. Ex. 12 at 4.
A Phosphatidylethanol (PEth) blood test was performed in conjunction with the DOE
Psychologist’s evaluation. Id. at 5. A PEth test “detects any significant alcohol use of the past three
to four weeks.” Id. The DOE Psychologist opined that the Individual’s PEth test results indicated
that the Individual had consumed “little or no alcohol . . . over the last three or four weeks.” Id.
In the Report, the DOE Psychologist stated that the Individual “has been a binge consumer of
alcohol multiple times a month and to an extent considerably past the .05 g/210L found to impair
judgment.” Id. at 6. The DOE Psychologist explained that he could not find adequate evidence of
rehabilitation because the Individual had only been abstinent from alcohol consumption for a
3 Although this group is designed to require twelve weeks of attendance, individuals are permitted to continue
attending if they so desire. Tr. at 27. At the time of the hearing, the Individual had completed the twelve weeks of
group and continued to attend weekly sessions. Id. at 27, 64. The Individual testified that he continues attending the
group because he is surrounded by people in a similar situation and because “[it is] a pleasant atmosphere to be in[.]”
Id. at 67.
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period of four-and-a-half months prior to the evaluation and at the time of the evaluation was
unsure whether he would consume alcohol in the future. Id. He recommended that to show
evidence of rehabilitation, the Individual should commit to permanent abstinence from alcohol
consumption and provide nine months of PEth tests evidencing continued abstinence. Id. The DOE
Psychologist also suggested that the Individual should continue to attend his sobriety maintenance
group for at least another nine months in addition to either joining and meaningfully participating
in Alcoholics Anonymous (AA) or attending alcohol counseling at least biweekly for a period of
nine months. Id.
In February 2023, the Individual began attending a twelve-week intensive outpatient treatment
program (IOP), consisting of three group meetings and one session of one-on-one therapy every
week. Ex. A at 1–2, 7; Tr. at 40, 44, 67–68, 73. The Individual’s one-on-one therapist also
facilitates the group that meets twice per week, during which topics related to alcohol consumption
are discussed. Tr. at 42–43. The Individual’s therapist testified that during the one-on-one therapy
sessions with the Individual, they discuss such matters as cravings for alcohol, triggers, or any
other topic the Individual wishes to discuss. Id. at 43–44. She also confirmed that the Individual
attended every group meeting and one-on-one therapy session required by the IOP, and that he has
been “110 percent” compliant with program requirements. Id. at 44–45, 47. She described the
Individual as “encouraging and uplifting” as well as “vulnerable” and “genuine” during group. Id.
at 45. The Individual’s therapist also stated that the Individual has remained abstinent from alcohol
for as long as she has “known him[,]” and that he has “embraced” his sobriety. Id. at 46. The
Individual testified that the IOP allowed him to “see the broad spectrum of what people go
through” and he described the program as “much more intensive[,]” requiring hours of his
participation three days per week.4 Id. at 69, 74–75.
The Individual also attended a victim impact panel in December 2022 and took and completed a
twelve-hour driving-under-the-influence education course in March 2023. Ex. A at 3–6; Tr. at 71–
72. The Individual testified that he last consumed alcohol on the night of the ADWI incident, and
submitted to a total of six PEth tests from November 2022 to May 2023. Exs. C, D, F, G; Tr. at
62, 78–79, 81. In his testimony, the Individual acknowledged that he realized that his alcohol
consumption had become problematic, and that at the time of the hearing, “[he] seem[ed] to be
doing well[,]” as he had no desire to drink alcohol. Tr. at 63, 75.
The Individual’s current supervisor testified that he had never been concerned that the Individual
could be under the influence of alcohol while on duty. Tr. at 33–34. He also stated that he allows
the Individual to end some workdays early to attend rehabilitative groups and classes. Id. at 34–
35. The Individual’s supervisor indicated that the Individual is known to be dependable,
hardworking, and trustworthy in the workplace. Id. at 35–36.
4 The Individual estimated that between the EAP class, one-on-one therapy, and the IOP, he is attending approximately
eight hours of group/treatment every week. Id. at 60–70, 89–90. Due to other ongoing obligations, including work,
the Individual testified that he will likely reduce the number of hours of group/treatment he attends every week, and
further, he expected to complete the IOP the day after the hearing. Id. at 70–71, 91.
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The Individual’s wife testified that she was surprised to learn that the Individual had been arrested
and charged with ADWI. Id. at 52–53. Although she had observed the Individual consume
increasing amounts of alcohol in the year prior to his arrest, she had not found this behavior
concerning. Id. at 54. The Individual’s wife testified that although the couple continues to keep
alcohol in the home, as she is an occasional drinker, the Individual has not consumed alcohol and
has not expressed having any cravings for alcohol. Id. at 55, 58–59. She also stated that since
abstaining from alcohol, the Individual appears to be happier, and that he has told her that he finds
the classes and groups he attends to be helpful. Id. at 55–56. She also stated that the Individual has
told her that he intends to remain abstinent from alcohol, and that he was “fine” in social situations
where alcohol had been consumed. Id. at 56–57. The Individual confirmed in his testimony that
he has not craved alcohol, that he has been taught several methods to deal with the urge to consume
alcohol, and that he is “fine” telling others that he no longer consumes alcohol. Id. at 76–77, 98.
He also stated that he has a strong support system in his family, “everybody at work[,]” and the
EAP counselor. Id. at 77–78. The Individual also testified that he would like to “just abstain from
using alcohol, maybe forever.” Id. at 85.
Concluding the witness testimony, the DOE Psychologist testified that the Individual had shown
adequate evidence of rehabilitation and reformation. Id. at 102. In forming his opinion, the DOE
Psychologist considered the Individual’s commitment to remaining abstinent, the EAP counselor’s
favorable opinion of the Individual’s participation in group, the fact that the Individual continues
to attend a sobriety maintenance group, and the fact that the Individual has been able to navigate
social situations where alcohol is customarily consumed. Id. at 102–03. He concluded that the
Individual’s prognosis is very good. Id. at 103.
V. Analysis
The Adjudicative Guidelines provide that 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.
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Adjudicative Guidelines at ¶ 23.
Based on the evidence before me, it is clear that following the June 2022 incident, the Individual
was proactive about changing his relationship with alcohol. Although he did not unequivocally
state to the DOE Psychologist that he intended to remain abstinent from alcohol, the Individual
voiced this decision during the hearing, and the record indicates that the Individual had taken
significant steps to achieve that end. Although it was not recommended by the DOE Psychologist,
the Individual enrolled in and earnestly participated in an IOP that had a one-on-one therapy
component. He also completed an EAP alcohol awareness program and continued to attend a
sobriety maintenance group. Further, I have no evidence before me that indicates the Individual
had previously completed a treatment program followed by a subsequent relapse. The record also
indicates that the Individual submitted to consistent urine and breath alcohol tests during the FFD
program that spanned from July 2022 to September 2022, and submitted to a total of six PEth tests
from November 2022 to May 2022, the results of which corroborated the Individual’s assertions
and witness testimony that the Individual has been abstinent from alcohol since the incident.
Lastly, the DOE Psychologist opined that the Individual had shown adequate evidence of
rehabilitation and reformation and that his prognosis was good.
In light of the positive prognosis from the DOE Psychologist, the Individual’s abstinence of nearly
one year, as evidenced by the test results and witness testimony, his participation in treatment and
the support system he has established, the Individual has resolved the security concerns related to
his maladaptive alcohol use, and I feel confident he is unlikely to engage in problematic alcohol
consumption in the future. 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).
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 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 access authorization
should be restored. This Decision may be appealed in accordance with the procedures set forth at
10 C.F.R. § 710.28.
Noorassa A. Rahimzadeh
Administrative Judge
Office of Hearings and Appeals