PSH-23-0075

*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: April 19, 2023 ) Case No.: PSH-23-0075
)
__________________________________________)
Issued: July 24, 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 should not be
granted an access authorization.
I. BACKGROUND
The Individual is the Chairman of the Board of a subcontractor at a DOE facility and is required
to possess a security clearance. Transcript of Hearing (Tr.) at 56–57. On July 15, 2021, The
Individual completed an SF-86 form “Questionnaire for National Security Positions” (QNSP).
Exhibit (Ex.) 3 at 138.2 In the QNSP, the Individual admitted having used marijuana during the
prior seven years and to having been charged in July 1984 with Driving While Impaired (DWI).
Id. at 127, 129. The Defense Counterintelligence and Security Agency (DCSA) conducted a further
investigation of the Individual and completed its investigation on October 16, 2021. Id. at 60.
Subsequently, the Local Security Office (LSO) sent the Individual a Letter of Interrogatory (LOI)
asking him, among other things, about his alcohol and drug consumption. Ex. 4. In his response to
the LOI, the Individual admitted to past cocaine, psilocybin, and peyote use in the 1970s and
ending in 1980. Ex. 5 at 180. The Individual also admitted having used marijuana intermittently,
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.
2 All DOE Exhibit page numbers referenced in this Decision refer to the Bates page number assigned to each page of
the entire collection of DOE Exhibits and not to any individual page numbers contained in the separate exhibits.
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beginning in the 1970s, and escalating his use to a regular basis in 2017 until he stopped his use in
April 2021. Id.
The Individual was later referred for an examination to a DOE-contractor psychologist (DOE
Psychologist). Ex. 6. As part of his examination, the DOE Psychologist had a urine test for Ethyl
Glucoronide (EtG) and a blood test for Phosphatidylethanol (PEth) conducted on the Individual.
Id. at 186. The EtG test indicated that the Individual had consumed a significant amount of alcohol
in the prior 96 hours and the PEth test indicated that the Individual had been consuming alcohol
on a regular, heavy basis within a few weeks of the test. Id.; Ex. 7, 8. Additionally, the DOE
Psychologist administered a psychometric test, the Personality Assessment Inventory (PAI). Ex. 6
at 186. The PAI indicated that the Individual saw little need to change his behavior and that he
may not be willing to make a commitment to therapy. Id. at 186–87.
In his December 2, 2022, report (Report), the DOE Psychologist found that the Individual’s EtG
and PEth test results, along with the Individual’s self-reported alcohol consumption of “2 drinks
at dinner time 4-5 times per week,” indicated that the Individual “habitually or binge consume[d]
alcohol to the point of impaired judgment.” Id. at 187. To demonstrate adequate evidence of
rehabilitation or reformation, the DOE Psychologist recommended “weekly counseling to address
his denial and precontemplative stage of change regarding alcohol use for a period chosen by a
therapist skilled in substance use treatment, of no less than 20 sessions.” Id. at 188. The DOE
Psychologist noted that “[m]ost of [the Individual’s] free time is spent socializing with friends,
exercising, playing music, and having dinner. The therapy would need to center on [the Individual]
letting in . . . difficult information about himself and the corresponding emotion [evoked by
discussion of such emotions].” Id.
The DOE Psychologist’s Report also found that the Individual had “an emotional, mental, or
personality condition or conditions that can impair judgment, stability, reliability, or
trustworthiness.” Id. During the DOE Psychologist’s examination, the Individual reported that he
and his current wife had relationship problems and contemplated separating, and currently have
not engaged in sexual activity since 2016. Id. The DOE Psychologist noted that the Individual had
two extramarital affairs while married to his first and current wife.3 Id. at 184, 186. In this regard,
the DOE Psychologist found:
[The Individual] also has a general dissatisfaction with the mundane, in and out of
everyday life and needs stimulation to stay engaged. This aspect of his personality
has influenced him to have multiple affairs, at least one of which he has the
intelligence, planning, and foresight to keep completely hidden from his spouse
over the course of two years, meeting at least twice weekly for sex. This aspect of
his personality poses the willingness to engage in calculated risky behavior. This
together with excessive drinking may influence him to make impulsive,
opportunistic decisions at times that could compromise his closest relationships. He
may be especially impulsive if sexual pleasure presents opportunistically.
3 The Report notes that the second affair occurred in 2018 which would have occurred during his current marriage.
Ex. 6 at 184. However, the next sentence of the Report states that the Individual had no extramarital affairs during his
current marriage. Id. At the hearing, the DOE Psychologist testified that he may have given the incorrect date for the
second affair. Tr. at 184–85; see supra.
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Id.
The LSO issued the Individual a letter notifying him that it possessed reliable information that
created substantial doubt regarding his eligibility to possess an access authorization. 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), Guideline H
(Drug Involvement and Substance Misuse) and Guideline I (Psychological Conditions) of the
Adjudicative Guidelines. Ex. 2.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 5. 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
hearing. The LSO submitted 9 exhibits (Exs. 1–9) and presented the testimony the DOE
Psychologist. Tr. at 158. The Individual submitted four exhibits (Exs. A–D). The Individual
testified on his own behalf and offered the testimony of his wife, a counselor (Counselor), and the
Chief Executive Officer (CEO) of his employer. Tr. at 15, 54, 86.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guidelines G, H, and I of the Adjudicative Guidelines as the basis of its concerns
about granting an access authorization for the Individual. Ex. 1. Regarding Guideline G, the
Adjudicative Guidelines note 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. The SSC cited the
DOE Psychologist’s Report opining that the Individual habitually or binge consumed alcohol to
the point of impaired judgment based upon the Individual’s report of his alcohol consumption, the
results of the Individual’s EtG and PEth tests, and his July 1984 arrest for DWI. Adjudicative
Guidelines at ¶ 22(a) (alcohol-related incidents away from work, such as driving while under the
influence); ¶ 22(c) (habitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder); Ex. 2 at 53–54. Given
this information, the LSO was justified in invoking Guideline G.
Adjudicative Guideline H states:
The illegal use of controlled substances . . . and the use of other substances that cause
physical or mental impairment or are used in a manner inconsistent with their
intended purpose can raise questions about an individual's reliability and
trustworthiness, both because such behavior may lead to physical or psychological
impairment and because it raises questions about a person's ability or willingness to
comply with laws, rules, and regulations.
Adjudicative Guidelines at ¶ 24.
The LSO cited as derogatory information under Guideline H the Individual’s admission in his
response to the LOI that he had used marijuana regularly from April 2017 to March 2021. Ex. 2 at
55. Also cited were the Individual’s admissions in his LOI response that he had used marijuana
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beginning in 1973, cocaine in 1976, psilocybin in 1976 and peyote in 1979. Id. In light of the
Individual’s admitted illegal drug use, the LSO had sufficient grounds to invoke Guideline H.
The LSO also cited derogatory information falling under Guideline I. Id. at 55–56. Cited under
this concern was the DOE Psychologist’s determination that the Individual had a mental,
emotional, or personality condition which could impair his judgment and trustworthiness. Id. at
55; Adjudicative Guidelines at ¶ 28(b) (opinion by a duly qualified mental health professional that
the individual has a condition that may impair judgment, stability, reliability, or trustworthiness).
The LSO cited the DOE Psychologist’s Report’s finding that the Individual had a dissatisfaction
with the mundane and needed stimulation to stay engaged and that this aspect of his personality
influenced him to have two affairs, one of which he kept hidden from his then spouse for two
years. Id. Also cited was the Report’s finding that the Individual’s personality contained the
willingness to engage in risky behaviors and that, combined with his excessive alcohol
consumption, may influence him to make impulsive, opportunistic decisions, especially ones that
involve sexual pleasure. Adjudicative Guidelines at ¶ 28(a) (behavior that casts doubt on an
individual's judgment, stability, reliability, or trustworthiness, not covered under any other
guideline and that may indicate an emotional, mental. or personality condition, including. but not
limited to, irresponsible, violent, self-harm, suicidal, paranoid, manipulative, impulsive, chronic
lying, deceitful, exploitative, or bizarre behaviors); Ex. 2 at 55. Given the DOE Psychologist’s
Report, I find that the LSO had adequate grounds to invoke Guideline I.
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
Dep’t 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).
An 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). An 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 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
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The Individual’s Wife testified that she met the Individual in 2010 and married him in 2011. Tr.
at 17. When she first met him, she did not observe the Individual consume alcoholic drinks. Id. at
19. When he resumed consuming alcohol in 2011, the Individual told her it was for a concern over
his weight and for “weight management.” Id. She confirmed the Individual’s response to the LOI
that he would consume two to three drinks on four or five days of the week during social events.
Id. at 20. She had rarely seen the Individual intoxicated, and if he was intoxicated it would usually
occur during a family event. Id.
The Individual’s Wife stated that the Individual stopped consuming alcohol in April 2023. Id. at
22. The Individual’s expressed motivation was that he was seeking a healthier lifestyle. Id. at 23.
The Individual asked her for support in pursuing abstinence and she has been supportive of his
decision. Id. at 26. While their house has alcohol on the premises, it is used for when a musical
group the Individual belongs to practices at their house. Id. The members of the group will
consume alcohol, but the Individual does not. Id.
When she first met the Individual, she had not observed him using illegal drugs. Id. at 28.
Eventually, she became aware that he was using marijuana when he went on extended bike rides
with his friends approximately three times a week. Id. at 28–29. She testified that the Individual
would use the marijuana for pain relief during the ride. Id. at 35–36. However, she has not observed
him use marijuana in approximately two years prior to the hearing. Id. at 29. She also testified that
he had told her about his experimental drug use while as a youth and has never seen the Individual
use illegal drugs other than marijuana. Id. at 29–30, 35. She is also unaware of any of the
Individual’s friends being users of illegal drugs. Id. at 36–37. She believes that the Individual is
reliable and trustworthy and has not demonstrated any instances of poor judgment. Id. at 30. She
has no doubts regarding the fidelity of the Individual within their marriage. Id. at 39. When asked
about the Individual’s life while home, the Individual’s wife described the Individual as living a
structured life with a set routine which ends with them going to bed at 10:30 p.m. Id.
The CEO testified that he first met the Individual in 2007. Id. at 56. The Individual has been
Chairman of the Board for their company since they first met. Id. The CEO has observed the
Individual at a number of business and social events and has observed the Individual consuming
alcoholic beverages. Id. at 64. However, when the CEO observed the Individual consuming
alcohol, it was usually just one glass of wine. Id. at 64. Given their interactions in managing the
company, he has a great deal of trust in the Individual. Id. at 73. He has a high opinion of the
Individual’s trustworthiness, reliability and judgment. Id. at 77–81.
The Individual submitted into the record a written report from his Counselor which states that the
Counselor has seen the Individual for 8 sessions and has scheduled 5 additional sessions. Ex. A.
The report states that the Individual informed him that he stopped consuming alcohol on April 8,
2023, prior to receiving the DOE Psychologist’s Report on April 12, 2023. Id. at 1. The Counselor
states in his report that the Individual has made significant gains in working with the Counselor
and that he has committed to have one year of abstinence from alcohol. Id. Additionally, the
Individual submitted into the record negative PEth test results from May 8, May 26, and June 12,
2023. Ex. B, C, D.
At the hearing, the Individual’s Counselor testified that he is currently treating the Individual for
alcohol misuse. Tr. at 91–92. The Individual informed the Counselor about the DOE
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Psychologist’s Report and that he wanted to address his issues with alcohol. Id. at 91. He also
informed the Counselor that he had stopped consuming alcohol prior to their first session. Id. at
91–92. The Individual shared a copy of the Report with the Counselor. Id. at 94. When asked if he
agreed with the DOE Psychologist’s evaluation of the Individual’s alcohol consumption as
excessive or binge drinking, he replied “ I think it’s fair to say that he was drinking more than
would be considered the standard prior to his discontinuing.” Id. He went on to testify that the
Individual, at the time of their first sessions, stated that his prior consumption of alcohol was
having minimal impact on his daily functioning, and that he thought that his consumption had been
“normal” despite the fact that his consumption exceeded the standards for nonproblematic alcohol
consumption. Id. at 95. The Counselor believes that the Individual now sincerely believes that he
has an alcohol problem. Id.
The Counselor believes that, in determining whether the Individual has shown adequate evidence
of rehabilitation or reformation, “there is no substitute for the test of time.” Id. at 97. The Counselor
testified that the Individual is committed to objective testing for alcohol consumption and that he
has reviewed the Individual’s the positive PEth and EtG conducted at the time of the DOE
Psychologist’s evaluation and the Individual’s negative PEth performed after this evaluation. Id.
at 94; see Ex. B, C, D (Individual’s PEth test results). Further, the Counselor’s own approach to
therapy is to make recommendations only if warranted and that given the Individual’s progress in
abstaining from alcohol, he has not made specific recommendations to the Individual. Id. at 99.
When asked as to how long the Individual needs to continue with his current program to increase
the likelihood of success in resolving his alcohol problem, the Counselor answered, “[w]ell, always
the longer the better, but, you know, I think we'll know a lot . . . in three months times, in six
months’ time. I think our rough plan is to continue for about six months.” Id. at 99–100. He also
opined that the Individual’s abstinence during the month after the hearing would “be material.” Id.
at 124. As for the Individual’s prior use of illegal drugs, the Counselor has not seen anything that
suggests that the Individual is currently using such substances. Id. at 101.
When asked about whether the Individual’s extramarital affairs cause him concern about the
Individual’s alcohol problem, the Counselor noted that he has seen such behavior occurring
increasingly among individuals but that it did not cause him concern regarding the Individual’s
alcohol misuse. Id. at 104. With regard to the issue as to whether the Individual’s two instances of
infidelity would cause him to have concerns about the Individual’s trustworthiness and judgment,
the Counselor testified “I think those are real and significant things in his past and I think, you
know, we shouldn't overlook any person's past, but I don't believe that these things are going to
prevent him from being a reliable and trustworthy person moving forward.” Id. at 107. The
Counselor also found that the Individual did not have “a general dissatisfaction with the mundane”
and that he did not view the Individual as “dissatisfied with the day-to-day vicissitudes of life and
I don’t see you -- I see you pursuing things that are of a more assertive, common, and rhythmic
variety.” Id. at 111.
The Individual confirmed in his testimony that his response to the LOI accurately described his
prior alcohol consumption pattern as two to three drinks four to five days a week and that he would
become intoxicated approximately once a month. Id. at 134–35. He testified that in his sessions
with the Counselor, he initially believed that his alcohol consumption may have been “excessive,”
but he learned from his Counselor that the only healthy amount of alcohol to consume was “zero”
and that he eventually realized his alcohol consumption was “problematic.” Id. at 137–38. The
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Individual testified that after consulting with his Counselor he made plans to abstain from alcohol
for at least one year and to continue with their sessions for a period of six months “or so.” Id. at
140. The frequency of the Individual’s sessions with the Counselor would depend on his progress.
Id.
The Individual also testified that he has not used any illegal substance other than marijuana since
1985. Id. at 144. As for marijuana, his initial period of use ended in 1988 and afterwards he would
use it on rare occasions. Id. In 2017, he began to use marijuana on a regular basis when he
participated in group bike rides or races two or three times a week. Id. at 145. His use was prompted
by the pain and discomfort he experienced on these bike rides as a result of several surgeries to his
back. Id. The Individual further elaborated “I found the marijuana kind of diminished the pain and,
you know, it maybe [sic] helped with the monotony of a long bike ride.” Id. The last time the
Individual used marijuana was in April 2021. Id. at 146. When asked if he knew whether marijuana
was a controlled substance under federal law, the Individual testified “I guess it's, you know, it’s
hard to have a real clear perspective because it has been decriminalized or legalized in so many
states and I probably don't consider it at a federal level so much as a state level, but I guess for the
most part it seems to have an increased acceptance nationally.” Id. The Individual did acknowledge
that he knew marijuana was illegal in the state of his residency. Id. at 147.
Regarding some of the information the DOE Psychologist cited in his diagnosing the Individual
as suffering from a mental, emotional, or personality condition which can impair his judgment and
trustworthiness, the Individual stated that the DOE Psychologist had made a number of factual
errors in the Report, such as stating that the Individual had multiple affairs when in reality he had
only two, both of which occurred during the marriage to his first wife. Id. at 153. The Report stated
that the second affair occurred in 2018 (during his current marriage) when in reality it occurred in
2008 or 2009. Id. If the Individual was presented with the opportunity for a sexual relationship
outside his current marriage, he would decline. Id. at 155.
The DOE Psychologist testified to the nature of the examination he performed on the Individual
which involved a clinical interview, psychometric testing, and an assessment of the Individual’s
alcohol use. Id. at 161. He testified that the Individual’s PAI results indicated that he might be
hesitant or have difficulty receiving treatment. Id. at 163. After considering all the information
before him, the DOE Psychologist did not find that the Individual had a diagnosable alcohol use
disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition.
However, based upon data from the Centers for Disease Control (CDC) definition of excessive,
heavy, and binge drinking, along with the Individual’s positive PEth and EtG tests, he found that
the Individual engaged in habitual or binge consumption of alcohol to the point of impaired
judgment. Id. at 165; Ex. 6 at 187 (DOE Psychologist citing CDC definition of "excessive",
"heavy" and "binge" drinking for men as consuming five or more standard drinks per occasion or
more than two standard drinks per day averaged over a 30-day month). Regarding the Report’s
recommendation for rehabilitation or reformation, he noted that at the time of the examination the
Individual did not see his alcohol consumption as a problem and it was not negatively affecting
his relationships or work, therefore he concluded that the prognosis for changing his behavior was
poor. Id. at 171.
Based upon hearing all of the testimony at the hearing, the DOE Psychologist opined that he
thought that the Individual had not shown adequate evidence of rehabilitation or reformation. Id.
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After hearing the Individual’s testimony, the DOE Psychologist noted his belief that the Individual
still had not fully accepted his alcohol consumption as a problem and does not believe that it is
negatively affecting his life. Id. at 173. Because the Individual does not see his alcohol
consumption as a problem, it would be easy for the Individual to resume consuming alcohol “once
people are off his back.” Id. The DOE Psychologist concluded that for the Individual to
demonstrate adequate evidence of rehabilitation or reformation, the Individual would have to
demonstrate abstinence for an entire year along with regular EtG and PEth testing. Id. at 173–76.
As for his diagnosis of the Individual as having a “mental condition,” the DOE Psychologist
pointed out that the Individual was able to hide his first affair from his family for two years due in
part to his superior intelligence. Id. at 178. This indicates an ability to hide derogatory information
about himself from others. Id. at 178–79. Further, his second affair involved a brief impulsive
decision to have a sexual liaison.4 Id. at 179. Given that the Individual does not have much sexual
satisfaction in his life other than pornography and self-gratification this raises the possibility of an
impulsive act. Id. The DOE Psychologist also noted that the Individual expressed irritation with
having to answer intrusive questions about himself and his “challenge” (delays) in getting the PEth
and EtG test requested by the DOE Psychologist at the time of his examination. Id. at 181. He also
noted the Individual’s hesitancy at the hearing to fully acknowledge that he violated the law when
he used marijuana. Id. at 182. The DOE Psychologist affirmed his belief that these factors support
his determination that the Individual had an emotional, mental, and personality condition that could
impair his judgment, reliability, or trustworthiness. Id. at 181–84.
V . ANALYSIS
A. Guideline G
The Guideline G security concerns center on the Individual’s misuse of alcohol. 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
4 The Individual reported to the DOE Psychologist that he “took the opportunity to sleep with an old friend in [town
and state] . . . .” Ex. 6 at 184.
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(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. After reviewing the exhibits and testimony, I find that the
Individual has failed to resolve the concerns raised in the SSC.
The Individual’s concerning drinking pattern continued until April 2023, just two months prior to
the hearing. Consequently, given the recency and frequency of the Individual’s concerning alcohol
use, I cannot conclude that the mitigating factor described in ¶ 23(a) is applicable in this case.
Similarly, I find that mitigating factor ¶ 23(b) is inapplicable because with only approximately two
months of abstinence, the Individual has not demonstrated “a clear and established pattern of
modified consumption or abstinence in accordance with treatment recommendations.” Both the
DOE Psychologist and the Counselor’s testified that the Individual needed a longer period of
abstinence in order to demonstrate rehabilitation or reformation.
With respect to mitigating factor ¶ 23(c), I note that the Individual is participating in a treatment
program with his Counselor. Further, there is no evidence before me which suggests that the
Individual has a previous history of treatment and relapse. The last requirement contained in
¶ 23(c) is that the Individual is making satisfactory progress in his treatment program. Based upon
the evidence before me, I cannot make this finding because I cannot conclude that the Individual
is making satisfactory progress in his treatment program given the recency of the Individual’s
abstinence. I note the Counselor testified that, as of the date of the hearing, the ability of the
Individual to remain abstinent “would be material” and that he would be able to provide more
insight as to the Individual’s condition in three to six months from the date of his abstinence. Tr.
at 99–100, 124. In the present case, the Individual, as of the date of the hearing, has only been
abstinent for approximately two months. Consequently, I do not find that the mitigating factor
described under ¶ 23(c) is applicable in this case.
Mitigating factor ¶ 23(d) is not applicable since the Individual has not completed a treatment
program with the Counselor nor as discussed above, has he demonstrated a clear and established
pattern of modified consumption or abstinence in accordance with treatment recommendations.
In summary, after reviewing the exhibits and the testimony presented in this matter, I do not find
that the Individual has presented sufficient evidence to fully resolve the Guideline G security
concerns raised in the SSC.
B. Guideline H
The Guideline H security concern arise from the Individual’s past intermittent use of cocaine,
psilocybin, and peyote beginning in the 1970s and ending in 1980 along with his recent period of
regular marijuana use which ended in April 2021. Security concerns raised by Guideline H
derogatory information may be mitigated if:
(a) the behavior happened so long ago, was so infrequent, or happened under such
circumstances that it is unlikely to recur or does not cast doubt on the individual's
current reliability, trustworthiness. or good judgment;
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(b) the individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used: and
(3) providing a signed statement of intent to abstain from all drug
involvement and substance misuse, acknowledging that any future
involvement or misuse is grounds for revocation of national security
eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which
these drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, inducting, but
not limited to, rehabilitation and aftercare requirements, without recurrence of
abuse, and a favorable prognosis by a duly qualified medical professional.
Adjudicative Guidelines ¶ 26.
I do not find that mitigating factor ¶ 26(a) is applicable in this case. The Individual’s last use of
marijuana occurred relatively recently in April 2021 and his use of marijuana was not an infrequent
event, occurring two or three times a week during his bicycle outings. I also cannot find that the
Individual’s marijuana use is unlikely to recur. The Individual has not sought any specific
treatment program for his marijuana use and unfortunately, the pain from the Individual’s back
may provide incentive for resumed marijuana use. I also note that the Individual was willing to
use marijuana as a mature adult past retirement age and having knowledge that such use was illegal
in his state of residence. See 10 C.F.R. § 710.7(c) (noting that an individual’s “knowledgeable
participation” in derogatory conduct and “age and maturity” at the time of the derogatory conduct
must be considered in applying the Adjudicative Guidelines). In this regard, I find that the
Individual’s own testimony concerning his uncertainty as to the legality of marijuana indicates a
lack of appreciation that marijuana use is inconsistent with possession of a security clearance.
As for mitigating factor ¶ 26(b), I note that the Individual has admitted his prior illegal drug use.
Most of the illegal drugs the Individual used, as cited in the SSC, cocaine, psilocybin, and peyote,
were used several decades in the past and there is no evidence of any additional use since 1980.
As such, I find that given the extended period of abstinence from these drugs, the Individual has
established a pattern of abstinence sufficient to invoke mitigating factor ¶ 26(b). However, I do
not believe that the Individual has established an adequate pattern of abstinence from his prior
marijuana use sufficient to invoke ¶ 26(b). Specifically, the Individual has not demonstrated that
he has disassociated himself from his friends with whom he obtained or used marijuana.
Adjudicative Guidelines at ¶ 26(b)(1). Nor is there evidence indicating that the Individual has
changed the environment where he used marijuana or provided “a signed statement of intent to
abstain from all drug involvement and substance misuse, acknowledging that any future
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involvement or misuse is grounds for revocation of national security eligibility.” Adjudicative
Guidelines at ¶ 26(b)(2)–(3). While there is no evidence that the Individual has used marijuana
since April 2021, he has not engaged in any treatment or educational program that could increase
the probability that he would not resume marijuana use. His current treatment program centers
primarily on his alcohol use problem. Consequently, for these reasons and the reasons discussed
in my discussion of ¶ 26(a), I do not find that mitigating factor ¶ 26(b) is applicable to the
Individual regarding his prior use of marijuana.
I further find that neither of the mitigating factors described in ¶¶ 26(c) and (d) are applicable in
this case. The Individual’s illegal drug involvement did not originate from abuse of prescription
drugs thus negating the applicability of ¶ 26(c). Regarding ¶ 26(d), there is no evidence that the
Individual has engaged in a drug treatment program thus making this mitigating factor inapplicable
in this case.
I find that the Individual has not submitted sufficient evidence to fully resolve the security concerns
raised by the Guideline H derogatory information described in the SSC.
C. Guideline I
The Guideline I security concerns described in the SSC involve the DOE Psychologist’s finding
in his Report that the Individual has an emotional, mental, or personality condition that could
impair judgment, stability, reliability or trustworthiness. An individual may mitigate security
concerns under Guideline I if:
(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan:
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
(c) recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government that an individual's previous
condition is under control or in remission, and has a low probability of reoccurrence
or exacerbation;
(d) the past psychological/psychiatric condition was temporary, the situation has
been resolved, and the individual no longer shows indications of emotional
instability;
(e) there is no indication of a current problem.
Adjudicative Guideline at ¶ 29.
The DOE Psychologist’s determination regarding the existence of a mental condition was initially
based upon his belief that the Individual had two extramarital affairs, a two-year affair in 2005 and
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a brief affair in 2018 during the Individual’s current marriage. As indicated in the Report, the DOE
Psychologist found that this indicated a willingness to engage in risky behavior. Ex. 6 at 188. The
DOE Psychologist believed that this indicated a “dissatisfaction with the mundane” and that
combined with his then alcohol consumption might lead him to make opportunistic decisions that
could compromise his closest relationships especially if these opportunities involve sexual
pleasure. Id. As noted above, the DOE Psychologist testified as to other factors such as a lack of
opportunities for sexual gratification and his reluctance to fully admit at the hearing that he had
violated laws concerning possession of marijuana as additional factors supporting his
determination. Additionally, at the hearing the DOE Psychologist cited the Individual’s
“challenges” in getting the requested PEth and EtG tests as supporting this conclusion.
The Counselor did not find any condition in the Individual that would prevent him from being
trustworthy. Further, I find that the Individual has presented believable testimony that indicates
his last affair actually occurred in 2008 or 2009. Significantly, the DOE Psychologist conceded
that he probably erred when he noted in the Report that the second affair occurred in 2018.
The primary factor in the DOE Psychologist’s opinion regarding the existence of a mental
condition centered on the Individual having been unfaithful to both of his wives. Because I believe
that the Individual only had affairs during his first marriage, and that this occurred some 14 years
in the past, I find that the DOE Psychologist’s opinion is less than convincing. The Individual has
presented testimony from his current wife and the CEO indicating that the Individual has
consistently demonstrated reliability and trustworthiness. Further, I find nothing in the record
before me that indicates that the Individual has exhibited conduct that indicates that he has acted
in an untrustworthy manner to others since 2009. Given these considerations, I find that mitigating
factor ¶ 29(e) is applicable in this matter and that there is no indication that the Individual has a
current mental condition. Consequently, I find that the Individual has resolved the Guideline I
security concerns as described in the SSC.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines G, H, and I of the Adjudicative Guidelines. After
considering all the relevant information, 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 Guideline I concerns.
However, I also find that the Individual has not brought sufficient evidence to resolve the Guideline
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G and H security concerns. Accordingly, I have determined that the Individual should not be
granted an access authorization. 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