PSH-23-0105

*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: July 12, 2023 ) Case No.: PSH-23-0105
)
______________________________________)
Issued: October 6, 2023
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States Department of Energy’s
(DOE) regulations, as 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
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In May 2022, the Individual completed a Questionnaire for National Security Positions
(QNSP). Exhibit (Ex.) 10. In the section entitled “Police Record,” the Individual answered “no”
in response to the question asking whether he had “EVER been charged with an offense involving
alcohol or drugs.” Id. at 77 (emphasis in original). However, DOE discovered that, in April 2021,
the Individual was arrested and charged with Use/Possession of Drug Paraphernalia and Felony
Possession of Schedule I, II Controlled Substances less than 14 grams. Ex. 1, 7. Subsequently, the
Individual underwent a psychological evaluation with a DOE consultant psychiatrist (DOE
Psychiatrist) in April 2023. Ex. 8. After evaluating the Individual, the DOE Psychiatrist diagnosed
the Individual with Alcohol Use Disorder, Moderate, and he determined that the Individual had
not shown adequate evidence of rehabilitation or reformation. Id. at 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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Due to unresolved security concerns, the Local Security Office (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 the Summary of Security Concerns (SSC) attached
to the Notification Letter, the LSO explained that the derogatory information raised security
concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and
Guideline H (Drug Involvement) of the Adjudicative Guidelines. Ex. 2.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. Id. The Director of the Office of Hearings
and Appeals (OHA) appointed me the Administrative Judge in the case, and I subsequently
conducted an administrative hearing in the matter. At the hearing, the DOE Counsel submitted
eleven numbered exhibits (Ex. 1–11) into the record and presented the testimony of the DOE
Psychiatrist. The Individual submitted two exhibits (Ex. A–B) into the record, and he presented
the testimony of four witnesses, including his own testimony.2 The hearing transcript in the case
will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d
1399, 1403 (9th Cir. 1990) (strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. § 710.26(h).
Hence, an individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included the SSC, which sets forth the derogatory
information that raised concerns about the Individual’s eligibility for access authorization. The
SSC specifically cites Guidelines G, H, and E of the Adjudicative Guidelines. Ex. 1. Guideline G
2 The Individual sought to submit an additional exhibit after the submission deadline had passed. As such, this third
exhibit was not accepted into the record in this case, and I did not consider it in my decision.
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relates to security risks arising from excessive alcohol consumption. “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. In citing Guideline G, the LSO relied upon the DOE Psychiatrist’s April 2023
determination that the Individual met the Diagnostic and Statistical Manual of Mental Disorders,
Fifth Edition (DSM-5) criteria for Alcohol Use Disorder, Moderate, without adequate evidence of
rehabilitation or reformation. Ex. 1 at 19. It additionally cited that, during the Individual’s
evaluation with the DOE Psychiatrist, the Individual indicated that he had not consumed alcohol
since May 2022; however, when the DOE Psychiatrist informed the Individual that he would be
subject to laboratory testing in the form of a Phosphatidyl Ethanol (PEth) test, the Individual
disclosed that he had consumed alcohol approximately once per month since his April 2021 arrest.
Id. The LSO also cited the Individual’s PEth test results, which were positive at a level of 133
ng/mL, which the DOE Psychiatrist found was congruent with moderate to heavy alcohol
consumption. Id. Lastly, the LSO cited the Individual’s disclosure in a February 2023 Letter of
Interrogatory (LOI) that, on the day of the April 2021 arrest, he consumed six or seven alcoholic
drinks, became intoxicated, and passed out at a slot machine. Id. at 20.
Guideline H relates to security risks arising from drug involvement and substance misuse. “The
illegal use of controlled substances, to include the misuse of prescription and non-prescription
drugs . . . 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. In citing Guideline H, the LSO relied upon the Individual’s April 2021 arrest
and charge with Use/Possession of Drug Paraphernalia and Felony Possession of Schedule I, II
Control Substances less than 14 grams. Id. at 20. The LSO additionally cited the criminal
complaint, which indicated that the Individual “unlawfully [had] in his possession drug
paraphernalia . . . a white powdery substance consistent with cocaine, with the intent to inject,
ingest, inhale or otherwise introduce into the human body.” Id.
Guideline E addresses conduct involving questionable judgment, lack of candor, dishonesty, or an
unwillingness to comply with rules and regulations. Adjudicative Guidelines at ¶ 15. Such conduct
“can raise questions about an individual’s reliability, trustworthiness, and ability to protect
classified or sensitive information. Of special interest is any failure to cooperate or provide truthful
and candid answers during national security investigative or adjudicative processes.” Id. In citing
Guideline E, the LSO relied upon the Individual’s failure to disclose on the May 2022 QNSP that
he had been arrested and charged with a drug offense in April 2021. Id. at 19. The LSO additionally
cited that the Individual had failed to report his April 2021 arrest3 to DOE as required by DOE
Order 472.2. Id.
IV. Findings of Fact
3 In addition to the drug related charge, the Individual was also charged with Trespassing in connection with the April
2021 arrest at the casino. Ex. 1 at 19.
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As stated above, in April 2021, the Individual was arrested and charged with Trespassing and
Use/Possession of Drug Paraphernalia. Ex. 7. There is nothing in the record indicating that the
Individual reported this arrest to DOE. Further, in completing a May 2022 QNSP, the Individual
answered “no” in response to the question as to whether he had “EVER been charged with an
offense involving alcohol or drugs.” Ex. 10 at 77 (emphasis in original). On a February 2023 LOI,
the Individual reported that, in April 2021, he had checked into a hotel room and went to the hotel
casino where he “played slots” and consumed alcohol, when “before [he] realized it, [he] was
intoxicated and fell asleep at a slot machine.” Ex. 6 at 12. He stated that he was unsure how much
alcohol he consumed but estimated that he had been consuming alcohol for four hours. Id. The
Individual stated that he did not buy or use any drugs prior to the arrest and asserted that the police
told him that the hotel security was “notorious for treating people unfairly.” Id. at 14. He further
stated that he does not use illegal drugs. Id. at 15. Regarding his alcohol use, the Individual stated
that, as of the time he was responding to the February 2023 LOI, he “no longer consume[s]
alcohol” and indicated that he last consumed alcohol in May 2022 when he consumed three drinks
in approximately five hours. Id. at 13.
In April 2023, the Individual underwent a psychological evaluation with the DOE Psychiatrist,
after which the DOE Psychiatrist issued a report of his findings (Report). Ex. 8. According to the
Report, the Individual stated that, in April 2021, he was arrested at a casino after he “had too much
alcohol to drink and passed out on a slot machine. Id. at 8. The Individual reported to the DOE
Psychiatrist that he had consumed approximately six or seven mixed drinks prior to the arrest and
denied that he had used or purchased drugs prior to the arrest. Id. The DOE Psychiatrist noted that
the Individual argued that he had “never been charged with possession of drug paraphernalia . . .
because it was never proven that he was using drugs and the drug related charge was later
dismissed.” Id.
The Individual told the DOE Psychiatrist that he no longer consumes alcohol as his doctors had
discovered that he had liver disease. Id. According to the Report, the Individual had suffered from
liver problems since 2013 and had since been diagnosed with cirrhosis of the liver; however, the
Individual denied that alcohol use caused his liver disease. Id. at 10–11. In addition to the liver
problems, the DOE Psychiatrist noted that the Individual “reported a history of negative
consequences to his alcohol use consisting of relationship conflicts, [a] DUI arrest, and current
clearance status issues.” Id. at 9.
The Individual reported to the DOE Psychiatrist that he last consumed alcohol in May 2022 when
he consumed approximately three drinks in five hours. Id. at 8. However, according to the Report,
when the DOE Psychiatrist informed the Individual that he would be undergoing laboratory testing
that would detect alcohol use in the preceding 30 days, the Individual stated that “he needed to
update his previous statement regarding his last alcohol use.” Id. The Individual then told the DOE
Psychiatrist that he “drank ‘randomly’ or approximately once per month since his arrest in 2021.”
Id. He estimated that he last consumed alcohol two weeks prior to the evaluation. Id. The DOE
Psychiatrist noted that, following the evaluation, the Individual left a voicemail stating that “he
wanted to change his statement regarding his last alcohol use stating that he does not know when
he last drank alcohol or how much.” Id. According to the Psychiatrist, the Individual stated, “It’s
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not illegal to drink alcohol. If DOE is going to tell me I can’t drink, that’s unconstitutional.” Id. at
9.
The DOE Psychiatrist noted that the established threshold for a positive PEth test is 20 ng/mL, and
he reported that the Individual’s PEth test was positive at a level of 113 ng/mL.4 Id. at 12. He stated
that the positive PEth test indicated that the Individual was consuming more alcohol than he was
reporting. Id. at 13. The DOE Psychiatrist also ordered a drug toxicology screen, which he
indicated “was negative for common substances of abuse[,]” including cocaine. Id. at 12.
Ultimately, the DOE Psychiatrist diagnosed the Individual with Alcohol Use Disorder, Moderate
Severity, without adequate evidence of rehabilitation or reformation. Id. at 14. In order to establish
adequate evidence of rehabilitation or reformation, the DOE Psychiatrist recommended that the
Individual enroll in an “intensive and highly structured alcohol recovery treatment program.” such
as an Intensive Outpatient Program (IOP), consisting of both individual and group therapy
components. Id. at 14–15. Additionally, the DOE Psychiatrist recommended that the Individual
attend “meetings of substance recovery activities on at least a three times per week basis for a
minimum of 12 months.” Id. at 14. He noted that this treatment should involve obtaining a sponsor
and actively working on the steps of recovery. Id. The DOE Psychiatrist also recommended that
the Individual “submit to PEth or other reliable screening for alcohol use in order to monitor
abstinence[,]” which should be for a period of one year. Id.
A. Hearing Testimony
At the hearing, a nurse practitioner (PNP) from the Individual’s worksite testified on his behalf.
Tr. at 14–23. The PNP testified that she has known the Individual for approximately three years.
Id. at 15. She testified that, in treating the Individual, she has never conducted any substance
testing, nor has she ever prescribed any. Id. She stated that she became aware that the Individual’s
personal health providers diagnosed “problems with his liver” that required hospitalization;
however, she was never “told of an actual diagnosis.” Id. at 16, 22. The PNP testified that she was
aware that the Individual’s providers had advised him to decrease his alcohol consumption. Id. at
17. She stated that she provided the Individual with “general advice,” including “what is
considered acceptable alcohol use.” Id. at 17. She also noted that the Individual indicated that he
stopped consuming alcohol in approximately May 2023. Id. at 18. The PNP testified that the
Individual has never arrived at the clinic with “any kind of alcohol substance on his breath or not
been able to perform his job.” Id. at 16.
The PNP testified that she feels that the Individual is “willing to discuss his downfalls and consider
what he needs to do to improve[,]” a quality that she does not often see in her patients. Id. at 18–
19. She felt that the characteristic that stands out the most regarding the Individual is his
willingness to take responsibility for his behavior. Id. at 18. When asked to provide an example of
how the Individual takes responsibility for his behavior, she stated that the Individual keeps his
medication record updated. Id. at 22.
4 The DOE Psychiatrist noted that “in one small study[,]” 100 ng/mL “was the threshold that distinguished ‘currently
drinking’ alcohol dependent subjects from people who ‘did not drink.’” Ex. 8 at 12.
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The Individual’s daughter (Daughter) also testified on his behalf. Id. at 24–32. When asked
whether she ever had concerns regarding the Individual’s alcohol use, the Daughter stated, “[a]
little, but I know we’ve talked about it and he’s wanted to quit for quite a while.” Id. at 24–25. She
stated that she had talked to the Individual about her concerns regarding his alcohol consumption
“at least a couple times a week” going back “a little less than a year.” Id. at 25. The Daughter noted
that the Individual’s son, who lived with him, also had concerns about the Individual’s alcohol
consumption. Id. at 26. She testified that she knew that the Individual had health problems related
to his liver, and she believed those problems were attributable to alcohol. Id. at 27. The Daughter
stated that the Individual stopped consuming alcohol approximately “four or five months ago.” Id.
at 25. She testified that the Individual told her that it has been difficult for him to stop consuming
alcohol as he wants to have a drink, “but he knows that he can’t have one.” Id. at 29.
The Individual’s older brother (Brother) testified that the Individual did not tell him about the
specific security concerns raised by the DOE, and he was unaware as to whether the Individual
had ever had an encounter with law enforcement or involvement with drugs. Id. at 35–36; see id.
at 71. The Brother stated that he was aware that the Individual consumed alcohol as they had
consumed “a couple of beers together”; however, he stated that he had not consumed alcohol with
the Individual in a number of years. Id. at 36–37. He testified that the Individual has not discussed
with him any issues related to alcohol use, and he had never had concerns regarding the
Individual’s alcohol use. Id. at 38.
The Individual testified on his own behalf and began by discussing his arrest at the casino. Id. at
41. He stated that he felt cooped up in his house, so he decided to drive to the casino by himself to
gamble. Id. The Individual testified, “I drank too much, and I guess, fell asleep. Next thing you
know, security is harassing me.” Id. He stated that, when law enforcement arrived, the “police told
[him] not to worry about – anything [be]cause . . . these guys are notorious for this.” Id. at 43. The
Individual testified, “[t]hey said I had paraphernalia on me, which I don’t do drugs . . . and they
had no actual – they didn’t do an alcohol blood test or anything. So there was no evidence of
anything.” Id. at 44. When asked specifically about his possession of a white powder, consistent
with cocaine, he stated, “I don’t know where that came from, but like I said, the police said that
casino . . . security is notorious for messing with people.”5 Id.
The Individual explained that he did not report the arrest to DOE because law enforcement told
him “it was nothing” and “when an officer tells you something, you try to believe him.” Id. at 43,
45. He acknowledged that failing to report the arrest to DOE was a mistake. Id. at 45. He stated
that, in the future, he would “report whatever, anything, even if I stub my toe on a cop’s foot.” Id.
Turning to his omission of the drug charge from his QNSP, the Individual stated that he did not
know why he answered “no” when asked if he had ever been charged with an offense involving
drugs or alcohol. Id. at 44–45.
The Individual testified that he never told the DOE Psychiatrist that he had been abstinent from
alcohol for five months, but only that he had been “trying to quit” and had “cut back quite a bit.”
Id. at 46. He then testified, “I actually called him back and said, ‘I can’t recall how much I’ve had
5 The Individual submitted a Declaration stating that he believed hotel security planted the drug “paraphernalia in [his]
baggage.” Ex. B at 2.
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to drink, but I have been trying to quit.’” Id. The Individual stated that he was honest with the DOE
Psychiatrist throughout the entire evaluation and only altered his reported alcohol consumption
after he learned he would be undergoing the PEth test “because [he] wasn’t sure exactly how
much” he had been consuming. Id. at 47–48. The Individual also denied telling the DOE
Psychiatrist that it was unconstitutional for DOE to tell him that he could not consume alcohol. Id.
at 70.
The Individual testified that he has “known for a while [he] should stop drinking[,]” but he was
“[k]ind of” surprised by the level of alcohol consumption described in the Report as he “had been
trying to . . . wean [him]self off, slowly.” Id. at 48. The Individual was unable to estimate how
much he was drinking prior to the evaluation, but he stated that he was trying to “cut down”
because of the concerns regarding his children, concerns for his health, and concerns regarding a
younger brother with whom he would consume alcohol. Id. at 49–50. He explained that,
approximately a year prior to the hearing, the Individual was diagnosed with a fatty liver,6 and his
medical providers advised him to “cut way back or quit” consuming alcohol. Id. at 50. The
Individual testified that although it was not easy for him to become abstinent from alcohol, he has.
Id.
The Individual stated that he sought help from the Employee Assistance Program (EAP) but
clarified that he had not completed a program as he was “just talking” with EAP. Id. at 52. He
testified that he started seeing an EAP counselor “a couple months ago,” and he liked the EAP
counselor he “talk[s] to now.” Id. at 58–59. He elaborated, stating, “I’ve been staying busy, and
he’s been helping me with ways to stay busy and not, you know, drink.” Id. at 58. The Individual
testified that he had participated in four meetings with the EAP counselor and had another meeting
scheduled following the hearing. Id. at 60.
The Individual testified that he stopped consuming alcohol after he met with the DOE Psychiatrist
because he realized “how bad [he] had been.” Id. at 53. When asked if he could remember when
he last consumed alcohol, he stated, “I mean, I made – I made more of an effort, let’s just say that
. . . since I met” the DOE Psychiatrist. Id. The Individual ultimately testified that he could not
recall when he last consumed alcohol, and it is unclear from his testimony whether he stopped
consuming alcohol before or after he met with the DOE Psychiatrist. Id. The Individual stated that,
“a few days” before the hearing, he underwent a hair follicle test, but he had not yet received the
results of the test.7 Id. at 54. When asked if he had completed any of the recommendations of the
DOE Psychiatrist specified within the Report, the Individual stated, “[t]hat’s why I’m going to
EAP and talking to them about it.” Id. at 58. The Individual testified that, although he looked into
6 The Individual asserted that a fatty liver is congruent with cirrhosis of the liver, which he stated was caused by
medication that he was taking. Tr. at 50.
7 When asked whether he had any documentation to support his contention that he completed a hair follicle test, the
Individual stated that he would “have to look for” it, and he stated that the laboratory indicated that the results would
be returned in five to seven days. Tr. at 56. I informed the Individual that I would keep the record open for two weeks
to allow him to submit those results; however, the only laboratory documentation the Individual submitted within that
two-week deadline was a document entitled “Donor Pass,” which appears to be an order for hair follicle testing that
expires on October 12, 2023. Id. at 80; Ex. A. In the email he sent containing the exhibit, the Individual asserted that
the laboratory was unable to perform the hair follicle test as it “did not have enough of a sample.” Id.
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an IOP, he did not enroll in one because “[i]t just seems a lot like they focus a lot on the drinking.
And, to me, it’s not that, it’s more focusing on other ways to avoid it.” Id. at 61–62.
The DOE Psychiatrist testified after hearing all of the testimony presented at the hearing. The DOE
Psychiatrist reaffirmed that, during the evaluation, the Individual initially stated he was no longer
consuming alcohol but later revised this statement. Id. at 75. The DOE Psychiatrist went on to state
that, following the evaluation, the Individual then called and revised the statement once more. Id.
He stated that the Individual appeared to be taking positive steps toward rehabilitation and
reformation in the form of “expressing a verbal interest in remaining sober,” meeting with a
counselor, and “trying to be conscious of his alcohol use and . . . taking measures to try to avoid
it.” Id. at 76. However, he also stated that the Individual’s “current recovery specific treatment . . .
and the lack of engagement in that treatment” was not a positive step toward rehabilitation or
reformation. Id. at 77. As such, the DOE Psychologist opined that the Individual had not
demonstrated adequate evidence of rehabilitation or reformation. Id.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the witnesses during the hearing. In resolving the question of the
Individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual has not sufficiently mitigated the security concerns cited by the
LSO under Guidelines E, G, or H of the Adjudicative Guidelines. Therefore, I find that the
Individual’s access authorization should not be restored. The specific findings that I make in
support of this decision are discussed below.
At the outset, I note that I am unable to fully trust the credibility of the Individual’s testimony. The
record is replete with inconsistencies and mistruths put forward by the Individual. The Individual
stated on his QNSP that he had never been charged with a drug or alcohol related offense when
the Individual had been arrested for such an offense less than a year prior to completing the
document. Further, when asked about the arrest during the psychological evaluation, the Individual
continued to deny that he was ever charged with a drug offense. The Individual misrepresented his
alcohol consumption on both the LOI and in his evaluation with the DOE Psychiatrist and
subsequently changed his statement to the DOE Psychiatrist twice once he learned that he would
be subjected to laboratory testing. During the hearing, the Individual asserted that he never made
certain statements to the DOE Psychologist despite there being specific details and quotes within
the Report that confirmed he made those statements.
A. Guideline E
Factors that may mitigate Guideline E security concerns include:
a) The individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
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b) The refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
c) The offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual's reliability, trustworthiness, or good
judgment;
d) The individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
e) The individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
f) The information was unsubstantiated or from a source of questionable reliability;
and,
g) Association with persons involved in criminal activities was unwitting, has ceased,
or occurs under circumstances that do not cast doubt upon the individual’s
reliability, trustworthiness, judgment, or willingness to comply with rules and
regulations.
Adjudicative Guidelines at ¶ 17.
The Individual failed to report his April 2021 drug charge and arrest to DOE and made no effort
to correct the omission. In fact, the Individual continued to conceal the incident by specifically
denying that he had ever been charged with a drug offense when he completed the May 2022
QNSP. Further, when confronted with the charge during the psychological evaluation, the
Individual continued to deny that he had been charged with the drug offense. As such, I cannot
find that the Individual made a prompt, good-faith effort to correct the omission, concealment, or
falsification. Id. at ¶ 17(a).
Furthermore, I cannot find that this offense was so minor or occurred under such circumstances
that it is unlikely to recur. Id. at ¶17(c). The Individual twice concealed the charge and arrest from
DOE, first in failing to report it and then, in denying it on the QNSP. Although the Individual
acknowledged that he made a mistake in failing to report, see id. at ¶ 17(d), the Individual did not
assure me that he takes the reporting requirements seriously. When asked how he would prevent a
similar issue in the future, the Individual provided a flippant response, saying he would report
“whatever,” including stubbing his toe. Tr. at 45.
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Although the Individual testified that he failed to report the arrest to DOE because law enforcement
informed him that he should not worry and “it was nothing,” the Individual has a responsibility as
a clearance holder to know and understand the reporting requirements. A law enforcement officer
cannot provide legal advice and is not a person with professional responsibilities for advising or
instructing the Individual specifically concerning security processes. As such, I cannot find that
the Individual has satisfied mitigating factor (b).8 Id. at ¶ 17(b). Ultimately, I cannot find that the
Individual has adequately mitigated the Guideline E security concerns.
B. Guideline G
Conditions that may mitigate a Guideline G security concern 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 maladaptive alcohol use, provides evidence of actions
taken to overcome this problem, and has demonstrated a clear and established pattern of
modified alcohol consumption or abstinence in accordance with treatment
recommendations;
c) The individual is participating in counseling or a treatment program, has no previous
history of treatment and relapse, and is making satisfactory progress in a treatment
program; and
d) The individual has successfully completed a treatment program along with any required
aftercare, and has demonstrated a clear and established pattern of modified consumption
or abstinence in accordance with treatment recommendations.
Id. at ¶ 23.
In this case, the DOE Psychiatrist diagnosed the Individual with Alcohol Use Disorder, Moderate,
and provided a number of recommendations to the Individual in order for him to be able to
establish rehabilitation and reformation. Although the Individual appears to acknowledge his
maladaptive alcohol use and claims that he has been abstinent for a number of months, he has not
provided sufficient evidence of actions taken to overcome this problem and has not demonstrated
a clear and established pattern of modified alcohol consumption or abstinence in accordance with
treatment recommendations. Id. at ¶ 23(b). At the hearing, the Individual was not able to
definitively state when he became abstinent from alcohol, stating only that, after seeing the DOE
Psychiatrist, he “made more of an effort” to stop consuming alcohol. Tr. at 53. The Individual has
not enrolled in an IOP, participated in a recovery program, or established a year of abstinence
through laboratory testing. Although he claims to be working with an EAP counselor, there is
nothing in the record to support his contention. As recognized by the DOE Psychiatrist, the
8 I do not analyze the applicability of mitigating factors (e), (f), or (g) as they are not relevant to the circumstances of
this case. Id. at ¶ 17(e)–(g).
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Individual appears to have a long history of negative consequences related to his alcohol use, and
per his own admission, he has been aware for some time that he needed to address his problematic
consumption. For this reason, and because he has yet to adequately address the issue, I cannot find
that that the Individual’s problematic alcohol consumption occurred under such unusual
circumstances that it is unlikely to recur or does not cast doubt on the Individual’s current
reliability, trustworthiness, or judgment. Adjudicative Guidelines at ¶ 23(a). Because the
Individual is not participating in treatment program, I cannot find that mitigating factors (c) or (d)
apply. Id. at ¶ 23(b)–(c). As such, I find that the Individual has not mitigated the Guideline G
security concerns.
C. Guideline H
Factors that may mitigate a Guideline H security concern include:
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;
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, including, but not limited
to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable
prognosis by a duly qualified medical professional.
Adjudicative Guidelines at ¶ 26.
Here, the Individual was arrested and charged with Use/Possession of Drug Paraphernalia. Ex. 7
at 4. The criminal complaint specifically states that the Individual had in his possession “a white
powdery substance consistent with cocaine.” Id. at 5. The Individual has not acknowledged his
possession of the drugs; to the contrary, he claimed that he does not know the source of the drugs
and believes the hotel security planted the drugs in his belongings. As such, I cannot find that he
has satisfied mitigating factor (b). Adjudicative Guidelines at ¶ 26(b). Although the record is
devoid of any evidence of a previous history with drug use, as I stated above, I am unable to fully
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trust the credibility of the Individual’s testimony, including his assertion that he did not know the
source of the powder and it did not belong to him. Because the Individual has not submitted any
evidence to support these contentions, I cannot find his use/possession of drug paraphernalia, as
alleged in the criminal complaint, occurred under such circumstances that it is unlikely to recur or
does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment. Id.
at ¶ 26(a).9 As such, I cannot find that the Individual has mitigated the Guideline H security
concerns.
VI. Conclusion
After considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guidelines E, G, or H. Accordingly, I have determined that
the Individual’s access authorization should not be restored. This Decision may be appealed in
accordance with the procedures set forth in 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals
9 I do not analyze the applicability of mitigating factors (c) and (d) as they are not relevant to the circumstances of
this case. Id. at ¶ 26(c)–(d).