PSH-23-0048

*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 10, 2023 ) Case No.: PSH-23-0048
)
__________________________________________)
Issued: May 26, 2023
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access
authorization should not be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. In June 2022, the Individual was arrested and charged with Driving While
Intoxicated (DWI)/Open Alcohol Container after consuming “a few drinks with dinner.” Exhibit
(Ex.) 6; Ex. 7 at 3. The Local Security Office (LSO) subsequently issued a Letter of Interrogatory
(LOI) to the Individual, which sought additional information related to the Individual’s arrest. Ex.
8. The Individual responded to the LOI in August 2022. Id. at 8.
In the August 2022 LOI, the Individual reported that before his June 2022 arrest, he consumed two
to four mixed drinks about once a week. Ex. 8 at 9. He also reported his last consumption of
alcohol was on August 20, 2022, when he consumed “3 beers, 2 shots of tequila and 1 mixed drink
of vodka cranberry sprite.” Id. at 9–10. He also reported that he did not feel like he had a problem
with alcohol and had never sought alcohol-related counseling or treatment. Id. at 13–14.
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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In October 2022, the Individual underwent an evaluation by a DOE-consultant Psychologist (DOE
Psychologist). Ex. 9. In conducting the evaluation, the DOE Psychologist conducted a clinical
interview of the Individual, reviewed the Individual’s personnel security file, and had the
Individual undergo a Phosphatidylethanol (PEth) laboratory test to detect recent alcohol
consumption. Id. at 2–3.
On October 14, 2022, the DOE Psychologist issued a report (Report) explaining the results of the
Individual’s evaluation. Id. In the Report, the DOE Psychologist wrote that the Individual reported
that, prior to his arrest, he consumed “two Yuengling Flight 16-ounce beers and one Long Island
Iced Tea” while at a bar with friends. Id. at 2–3. The DOE Psychologist also wrote that after the
Individual’s arrest, he was transported to a hospital and required to undergo a “blood draw to test
for alcohol levels.” Id. at 3. At the time of the DOE Psychologist’s Report, the results of the
Individual’s blood test were not available. Id. The DOE Psychologist compared the Individual’s
report of his alcohol consumption to his height and weight and estimated that the Individual’s
blood alcohol level was .09 g/210L when he was stopped. Id. at 5.
During his clinical interview, the Individual reported to the DOE Psychologist that since 2018, he
had consumed alcohol on Saturdays, but “not every Saturday.” Id. at 4. He also reported that for
three months, from his alcohol-related arrest in June 2022 until his birthday in August 2022, he
did not drink. Id. He also reported that the last time he consumed alcohol was on August 20, 2022.
Id. He did not report undergoing any alcohol treatment. Id. However, the results of the Individual’s
October 2022, PEth test were positive at a level of 109 ng/mL, which, according to the Report, is
consistent with “significant alcohol consumption.” Id. at 5. The DOE Psychologist articulated that
there was “considerable difference” between what the Individual reported and the level of alcohol
consumption indicated by his PEth test results, which “contradicts [the Individual’s] self-report
that he had not had any alcohol before the test since his birthday” and raised “questions about the
lack of candor in [the Individual’s] self-reports of his alcohol consumption.” Id.
The DOE Psychologist opined that the Individual had an Unspecified Alcohol-Related Disorder
and “has been consuming alcohol at a significant level, either by binging or drinking significant
amounts of alcohol on a frequent basis (habitually).” Id. at 6. The DOE Psychologist also opined
that the Individual did not demonstrate adequate evidence of rehabilitation. Id. The DOE
Psychologist recommended that the Individual “abstain from alcohol for a period of not less than
six months and attend alcohol rehabilitation counseling which has both individual and group
components.” Id. As an alternative, the DOE Psychologist recommended that the Individual
“attend Alcoholics Anonymous [(AA)] meetings at least three times weekly, obtain the support of
a sponsor to work through the 12 steps, and document his attendance and participation.” Id. Lastly,
the DOE Psychologist recommended the Individual undergo “at least three PEth tests” to provide
evidence of abstinence from alcohol. 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.
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In December 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), I took testimony from the Individual, as well as two additional witnesses
that he presented: the Individual’s wife, and one of the Individual’s co-workers. See Transcript of
Hearing, Case No. PSH-23-0048 (Tr.). The Individual did not submit any exhibits. Counsel for the
DOE submitted 11 exhibits, marked as Exhibits 1 through 11, 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 DOE Psychologist, psychiatrist, or licensed clinical social worker) of
alcohol use disorder.” Id. at ¶ 22(a), (c), and (d).
In citing Guideline G, the LSO cited the Individual’s June 2022 arrest for DWI and Open Container
and the opinion of the DOE Psychologist that the Individual has Unspecified Alcohol-Related
Disorder and has been “consuming alcohol at a significant level, either by binging or drinking
significant amounts of alcohol on a frequent basis (habitually).” Ex. 1 at 1. Based on these
allegations, 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
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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
At the hearing, the Individual’s wife testified that she and the Individual have been together for 15
years. Tr. at 11. She explained that in June 2022, she got a new job and she and the Individual
went to a bar to celebrate. Id. She stated that at some point, she left the Individual at the bar, went
home, and later found out the Individual was stopped by a police officer while driving. Id. at 12–
13. She stated that she drove to the location where the Individual had been stopped and saw he
was under arrest. Id. at 13. She further testified that the Individual was concerned about his job
after his arrest because he heard from other people that once you have a “drinking-related incident
. . . it doesn’t usually turn out very well.” Id. at 14.
The Individual’s wife further testified that the Individual still drinks. Id. at 14. She stated the
Individual drinks at home, two times a month, and on a Saturday, when he doesn’t have to work
the next day. Id. at 14. She stated the Individual also drinks when they have family and friends
over. Id. She stated she usually prepares a cocktail of “one-ounce to an ounce-and-a-half of tequila,
and then [she’ll] fill the cup up with [soda], pineapple juice, and then ice” for the Individual. Id. at
16. She stated the Individual drinks “[m]aybe two[, or t]hree, [at] the most” of these cocktails a
couple of times per month. Id. at 16–17. She stated that the Saturday before the hearing, she
prepared “two mixed drinks of tequila with [soda]” for the Individual, and the Individual also had
“three [gelatin] shots that a friend made.” Id. at 22. She also stated the last time she saw the
Individual intoxicated was on his birthday, August 20, 2022. Id. at 21–22. She stated the Individual
has taken this process seriously but has not gone to AA or participated in any other type of alcohol
treatment or counseling. Id. at 19, 23.
The Individual’s co-worker testified that he and the Individual have been friends for over ten years.
Tr. at 26. He stated he and the Individual see each other four to five times a year at children’s
events and picnics. Id. at 27. He claimed that during these events, the Individual drinks alcohol,
but the Individual does not get drunk. Id. at 28. He stated the last time he saw the Individual drink
was at the Individual’s house at a crawfish boil, but he did not see how many drinks the Individual
consumed. Id. at 33. He said the Individual told him he does not drink “outside the house” and that
he is going to make smarter decisions overall. Id. at 29–30. He stated that the Individual, as an
employee, is reliable, and he has never had a reason to question the Individual’s judgment or
honesty. Id. at 30–31. He also specified that he does not know if the Individual ever went to work
drunk or hungover. Id. at 33.
The Individual testified that after he met with the DOE Psychologist, he made an appointment to
see a counselor to discuss participating an intensive outpatient program (IOP); he stated that
initially the counselor did not recommend an IOP for him. Id. at 40–41. But later, in February
2023, after the counselor received a copy of the DOE Psychologist’s Report, the counselor did
recommend that he enroll in an IOP, but the Individual declined to do so, because he believed “it
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would look like [he] pushed it off just to the last minute.” Id. at 41. He stated that since his DWI
arrest, he has modified his drinking habits to show he could control his drinking. Id. at 42, 48. He
stated his wife always made his drinks, so they decided together that she would make the drinks
with less alcohol, “You know, two or three . . . just have a couple . . . while I’m cooking outside.”
Id. On cross examination, the Individual admitted that he was drinking as much alcohol as he was
before his DWI arrest “at the house.” Id. at 48. He stated he does not intend to increase the amount
he drinks or the frequency with which in drinks. Id. Regarding his DWI, the Individual stated he
refused to take a Breathalyzer test when requested by a police officer because he does not trust the
test. Id. at 53. He initially refused to take a field sobriety test, but then agreed. Id. at 54; Ex. 9 at 3.
The Individual stated he is required to appear in court once every week and he is not under a court-
ordered restriction to abstain from drinking alcohol. Tr. at 44.
The Individual further testified that he read the DOE Psychologist’s treatment recommendations
in the Report, but he did not follow the recommendations. Id. at 49. He stated he did not plan to
enroll in an IOP because, “[t]he class is four nights a week, three hours, [which] would put me
back home by 10:30 or 11:00 four nights out of the week. . . . Now I’m limiting myself to maybe
three, four hours a night, of sleep . . . and I just thought that that was a drastic no go[.]” Id. He
stated he chose not to attend AA for the same reasons. Id. He stated he intends to continue drinking
in the “controlled” manner he described earlier. Id. at 50.
When questioned by the DOE Psychologist, the Individual testified that when he met with the
counselor, she told him he did not have “a problem.” Id. at 51. However, he stated that when he
provided the counselor with a copy of the DOE Psychologist’s Report, the counselor changed her
opinion. Id. at 51–52.
The DOE Psychologist testified that after her evaluation, she determined the Individual had an
Alcohol-Related Disorder and she recommended the Individual abstain from alcohol for “a period
of not less than six months,” attend alcohol rehabilitation counseling, and undergo three additional
PEth tests. Id. at 58–59. She stated when people are trying to change their habits around alcohol
consumption, research shows that the “most effective way for them to make those kinds of changes
is to abstain for a period of time and then if they are going to reintroduce alcohol, they have a
better probability of being able to do that in a controlled manner.” Id. at 59. The DOE Psychologist
also testified that after hearing the Individual’s testimony, she did not believe the Individual was
rehabilitated or reformed from his alcohol disorder. Id. at 59–60. She stated that for evidence of
reformation, “what you want to see are cognitive and lifestyle changes,” and she had concerns
because the Individual “drank in what would be considered a binge episode” two days before the
hearing. Id. at 64. She stated that behavior is contradictory to reformation. Id. at 65.
V. Analysis
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;
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(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.
Regarding factor (a) above, the Individual’s June 2022 DWI arrest occurred after he consumed
alcohol during dinner; the arrest did not occur under unusual or unique circumstances. Further, the
Individual admitted he continues to consume alcohol, and did so as recently as a few days before
the hearing, and at the same frequency as before his DWI arrest. Lastly, the Individual was
diagnosed with AUD seven months before the hearing, and he has not taken any actions to satisfy
the DOE Psychologist’s treatment recommendations to resolve his AUD or history of binge or
habitual consumption of significant amounts of alcohol. Therefore, I find the Individual has not
shown that his behavior is unlikely to recur, and he has not mitigated the security concerns under
¶ 23(a).
Regarding factor (b), the Individual does not believe his alcohol consumption is a problem: he sees
his DWI arrest as a lapse in judgment, which he characterized as a mistake, rather than evidence
that he should seek treatment for his alcohol consumption. The Individual admitted he consumes
as much alcohol now as he did before his DWI arrest, just only while at home. After his DWI
arrest, the Individual continued to consume alcohol and testified to doing so as recently as a few
days before the hearing. The Individual also failed to enroll in an alcohol treatment program after
being advised to do so by both his counselor and the DOE Psychologist. Lastly, the Individual
failed to undergo three PEth tests and, in fact, admitted his alcohol consumption has not changed.
Therefore, the Individual has not mitigated the security concerns under ¶ 23(b).
Regarding factor (c), the Individual has not dedicated the time necessary to enroll in an IOP.
Instead, the Individual asserts he can control his alcohol consumption. Also, the Individual did not
follow the DOE Psychologist’s recommendations to participate in an alcohol treatment program
or undergo PEth testing to provide reliable evidence of his alcohol consumption. Therefore, the
Individual has not mitigated the security concerns under ¶ 23(c).
Regarding factor (d), as discussed above, the Individual has not participated in an alcohol treatment
program, as recommended by the DOE Psychologist, and as discussed above, the Individual
continued consumption of alcohol at the same level as prior to his DWI. This is sufficient to
preclude the application of factor (d). Therefore, the Individual has not mitigated the security
concerns under ¶ 23(d).
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For the reasons stated above, I cannot 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 not brought forth sufficient evidence to
resolve the security concerns set forth in the Notification Letter. Accordingly, I find the Individual
has not 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 not 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