PSH-23-0110

*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 17, 2023 ) Case No.: PSH-23-0110
)
__________________________________________)
Issued: November 7. 2023
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, entitled “Procedures for Determining Eligibility for Access to
Classified Matter and Special Nuclear Material.”1 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 has a history of three arrests, two of which were alcohol-related. On September
10, 2022, police arrested and charged him with Driving Under the Influence (DUI).2 Exhibit (Ex.)
10 at 1; Ex. 9 at 5. A blood test administered to him after this arrest indicated that he had a blood
alcohol level (BAL) of .24 g/210L. Ex. 8 at 6; Ex. 16 at 3. On June 17, 2018, police arrested and
charged the Individual with DUI. Ex. 11 at 2–4. A breath test administered to the Individual at
the time of this arrest indicated that his BAL was .13 g/210L. Ex. 16 at 3. On June 31, 2018,
police charged the Individual with Negligent Use of a Deadly Weapon (Discharge).3 Ex. 12 at 1.
After his third arrest, a Local Security Office (LSO) issued a Letter of Interrogatory (LOI) to the
Individual. Ex. 15 at 17. The Individual submitted his response to the LOI on November 22, 2022.
Ex. 15 at 17. In his responses to the LOI, the Individual admitted that his bail agreement arising
from his September 10, 2022, DUI arrest required that he abstain from alcohol use. Ex. 15 at 14–
1 Under the regulations, “[a]ccess authorization means an administrative determination that an individual is eligible
for access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). Such authorization will also be referred to in this Decision as a security clearance.
2 The Individual pled “no contest” to this charge on February 23, 2023. Ex. 8 at 3.
3 The Individual pled “no contest” to this charge on August 20, 2018. Ex. 12 at 3.
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15. The Individual further admitted that he had violated the terms of this bail agreement by
engaging in heavy alcohol consumption on October 11, 2022. Ex. 15 at 14–15. The Individual
further stated that he no longer consumed alcohol and that his last use of alcohol occurred on
October 11, 2022. Ex. 15 at 15–16. The Individual further reported that he had been prescribed
Naltrexone for alcohol cravings. Ex. 15 at 16
After receiving the Individual’s response to the LOI, the LSO requested that he undergo an
evaluation by a DOE-contracted psychologist (Psychologist), who conducted a clinical interview
(CI) of the Individual on January 25, 2023. Ex. 16 at 1. In addition to conducting the CI, the
Psychologist had him undergo a Phosphatidylethanol (PEth) laboratory test to detect alcohol
consumption. Ex. 16 at 2. The Individual’s PEth test result was negative, indicating that he had
not recently used alcohol. Ex. 16 at 5. The Psychologist further noted that this negative PEth test
result was “consistent with the negative findings in his random breath and urine tests” conducted
by the [Individual’s employer’s Occupational Health Department (OM)].” Ex. 16 at 5.
The Psychologist reported that she had obtained the Individual’s treatment records from an
intensive outpatient treatment program (IOP) that the Individual was attending at the time of the
CI. Ex. 16 at 5. Those IOP records indicate that the Individual reported that he was consuming
eight drinks a day. Ex. 16 at 31. These treatment records further indicated that the Individual was
doing well in the IOP and was expected to complete it in the near future. Ex. 16 at 5. The
Psychologist’s report also indicated that she had contacted the Individual’s case manager (Case
Manager) at OM. 16 at 4. The Case Manager reported that she had received very positive
comments about the Individual from his treatment providers at the IOP, who indicated the
Individual was highly motivated and very honest. Ex. 16 at 4. The Psychologist noted that the
Individual reported to her that he had stopped consuming alcohol after his September 10, 2022,
DUI arrest, but then consumed alcohol again on October 11, 2022, despite being subject to frequent
alcohol testing by his employer. Ex. 16 at 6. The Psychologist noted that the Individual “reported
that incident to . . . OM, but it speaks to the difficulty [the Individual] has had controlling his
drinking.” Ex. 16 at 6. The Psychologist further reported that, prior to attending the IOP, the
Individual had attended a six-week education program conducted by a Licensed Professional
Clinical Counselor (the LPCC). Ex. 16 at 6.
After considering all the information available to her, the Psychologist issued a report (the Report)
on February 4, 2023, in which she concluded that the Individual met the criteria set forth in the
Diagnostic and Statistical Manual 5-Text Revision (DSM-5-TR) for Alcohol Use Disorder, Severe
(AUD) in Early Remission.4 Ex. 16 at 6. The Psychologist further noted that the Individual
“appears to be making good efforts toward rehabilitation, but as of this date, given the relatively
brief period of abstinence he has, and the severity of his drinking, there is not yet adequate evidence
of rehabilitation or reformation.”5 Ex. 16 at 6. In order to treat his AUD, the Psychologist
4 The Psychologist found that the Individual met nine of the 11 criteria for AUD set forth in the DSM-5-TR. Ex. 16
at 6. Under the DSM-5-TR, the presence of six or more of the AUD criteria indicates that an individual’s AUD
severity is “Severe.” Ex. 16 at 8.
5 The Psychologist noted that the Individual readily acknowledged his history of heavy alcohol consumption and
reported at least one incidence of alcoholic blackout. Ex. 16 at 6. The Case Manager reported that the Individual
reported “symptoms of blackouts,” “drinking in the mornings to ease the symptoms of hangovers,” and “the complete
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recommended that the Individual: complete his IOP; attend the IOP’s Aftercare program for eight
months; abstain from using alcohol for at least one year; attend three Alcoholics Anonymous (AA)
meetings a week for one year; and participate in AA’s Twelve-Step Program with a Sponsor for
one year. Ex. 16 at 6–7.
After receiving the Report, the LSO began the present administrative review proceeding by issuing
a Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge to resolve the substantial doubt regarding his eligibility to hold a security
clearance. See 10 C.F.R. § 710.21.
The Individual submitted a response to the Notification Letter in which he requested a hearing.
The LSO forwarded his response to the Office of Hearings and Appeals (OHA). The Director of
OHA appointed me as the Administrative Judge in this matter. At the hearing I convened pursuant
to 10 C.F.R. § 710.25(d), (e), and (g), I heard testimony from three witnesses: the Individual, the
LPCC, and the Psychologist. See Transcript of Hearing, Case No. PSH-23-0110 (hereinafter cited
as “Tr.”). The LSO submitted 19 exhibits, marked as Exhibits 1 through 19. The Individual
submitted 12 exhibits, marked as Exhibits A1 through D3.
Exhibit A1 is a letter, dated June 12, 2023, to Whom It May Concern from the Case Manager
indicating that the Individual had successfully completed his Fitness for Duty Evaluation. The
letter indicates that, since October 5, 2022, the Individual had been “placed on routine alcohol
testing.” Ex. A1 at 1. The letter further states: “All alcohol tests were negative and [the Individual]
denied using alcohol for the remainder of his evaluation.” Ex. A1 at 1. The letter further indicated
that the Individual had successfully completed the IOP on February 27, 2023. Ex. A1 at 1.
Exhibit A2 is a letter, dated June 13, 2023, to Whom It May Concern from the LPCC, indicating
that the Individual had successfully completed a six-week Alcohol Education and Awareness class
(AEAC). Ex. A 2 at 1. The letter also states that the Individual had been attending a 12-week
Maintaining Changes in Substance Abuse class (MCSAC). The letter further states that the
Individual “demonstrated excellent attendance, initiated conversations, participated, and appeared
to benefit from the discussion and materials presented in class.” Ex. A2 at 1.
Exhibit A3 is a Certificate of Completion, dated July 27, 2023, for the 12-week MCSAC.
Exhibit A4 is a Certificate of Completion, dated December 8, 2022, for the AEAC.
Exhibit B1 is a Certificate of Completion, dated February 24, 2023, for the IOP.
Exhibit C1 is a laboratory report indicating that a PEth test specimen collected from the Individual
on February 5, 2023, was invalid.
Exhibit C2 is a laboratory report indicating that a PEth test specimen collected from the Individual
on August 3, 2023, was negative.
lack of memory on the morning of his arrest.” Ex. 16 at 4. The Case Manager further reported that the Individual
“was an outlier in the range of severity of alcohol use seen at OM—“a more acute case”-- and it was determined it
would be in his best interest to begin treatment as soon as possible.” Ex. 16 at 4.
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Exhibit C3 is a letter from a certified nurse practitioner reporting that a PEth test specimen
collected from the Individual on August 29, 2023, “was incorrect and not resulted.”
Exhibit C4 is a laboratory report indicating that a PEth test specimen collected from the Individual
on September 21, 2023, was negative.
Exhibit D1 is a Case Docket from a state court indicating that Individual received a suspended
sentence of 5 months and 30 days and a fine of $250 after pleading No Contest to the Negligent
Use of a Deadly Weapon (Discharge) charge.
Exhibit D2 is a Nolle Prosequi, dated October 10, 2018, issued by an Assistant District Attorney
dismissing an unknown case filed against the Individual without prejudice.
Exhibit D3 is a Notice of Appeal Filed by the Individual on March 7, 2023, in a criminal
proceeding in which the Individual had entered a “GUILTY PLEA CONDITIONED ON THE
RIGHT TO APPEAL VERDICT/FINAL ORDER” on February 23, 2023. It is not clear whether
this document pertains to the September 10, 2022, DUI charge or the No Contest to the Negligent
Use of a Deadly Weapon Charge.
The Individual also submitted test results from urine testing of the Individual conducted by OM as
part of the Fitness for Duty Program (FDP) with his hearing request. These test results appear in
the Record as DOE’s Exhibit 2. These test results indicate that urine samples submitted by the
Individual on October 24, 2022; November 14, 2022; November 21, 2022; November 28, 2022;
December 5, 2022: December 14, 2022; December 19, 2022; January 12, 2023; January 23, 2023;
January 30, 2023; February 9, 2023; February 16, 2023; and February 23, 2023, each tested
negative for alcohol use.
II. The Notification Letter and the Associated Security Concerns
The Summary of Security Concerns (SSC) attached to the Notification Letter informed the
Individual that information in the possession of the DOE created substantial doubt concerning his
eligibility for a security clearance under Guidelines G (Alcohol Consumption), and J (Criminal
Activity) of the Adjudicative Guidelines.
Under Guideline G, the LSO cites the Individual’s two DUI arrests, his use of alcohol in violation
of the terms of his bail agreement, and the Psychologist’s conclusion that the Individual meets the
DSM-5-TR’s criteria for AUD, Severe. This information adequately justifies the LSO’s
invocation of Guideline G. Under Guideline G, “[e]xcessive alcohol consumption often leads to
the exercise of questionable judgment or the failure to control impulses, and can raise questions
about an individual’s reliability and trustworthiness.” Adjudicative Guidelines at ¶ 21. Among
those conditions set forth in the Adjudicative Guidelines that could raise a disqualifying security
concern are “alcohol-related incidents away from work, such as driving while under the influence,
fighting, . . . 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;”
a “diagnosis by a duly qualified . . . clinical psychologist . . . of alcohol disorder;” and “failure to
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follow any court order regarding alcohol . . . abstinence.” Adjudicative Guidelines at ¶ 22(a), (d),
and (g).
Under Guideline J, the LSO cites the Individual’s two DUI arrests, his arrest for Negligent Use of
a Deadly Weapon (Discharge), and his use of alcohol in violation of the terms of his bail
agreement. These allegations adequately justify the LSO’s invocation of Guideline J. The
Adjudicative Guidelines state: “[c]riminal activity creates doubt about a person’s judgment,
reliability, and trustworthiness.” Adjudicative Guidelines at ¶ 30. Among those conditions set
forth in the Guidelines that could raise a disqualifying security concern is “[e]vidence (including,
but not limited to, a credible allegation, an admission, and matters of official record) of criminal
conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.”
Adjudicative Guidelines at ¶ 31(b).
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The 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. 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. Hearing Testimony
At the hearing, the LPCC testified on the Individual’s behalf. She testified that she had provided
the Individual with individual counseling and taught the AAEC and MCSAC attended by the
Individual. Tr. at 10, 13. The Individual has received individual counseling from her for personal
and alcohol issues on five occasions since August 27, 2020. Tr. at 11. On October 6, 2022, as a
result of a DUI, the Individual was referred to the FDP and began attending the AEAC, which he
completed on December 8, 2022. Tr. at 12. The Individual began attending the MCSAC on March
29, 2023, and completed it on July 27, 2023. Tr. at 12–13. The LPCC reported that the Individual
has always been attentive and focused when attending these classes and has been open with his
classmates. Tr. at 17. The LPCC testified that the Individual informed her that his sobriety date
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is October 11, 2022. Tr. at 18. She is aware that the Individual had attended the IOP. Tr. at19.
The Individual has expressed his intention to abstain from alcohol use to her. Tr. at 20. She
testified that the Individual knows he can reach out to the Employee Assistance Program (EAP) or
his primary care physician if he were to experience cravings for alcohol. Tr. at 20. The Individual
is no longer attending the AAEC or MCSAC. Tr. at 21. When the LPCC was asked about “her
confidence level for the Individual’s continuing sobriety she stated:
I would -- you know I don't know all of the details because I have not done
individual work with him for a long period of time. I would recommend, you know,
that he maintain his sobriety and his abstinence. He did express that he does not
want to drink anymore, at all, and that he knows now that he can reach out to the
EAP and a primary care physician if he finds that he is starting to slip or has
cravings. And I would recommend that he, you know, continue the [MCSAC], if
he would like to, to come back at any time, and any of the resources that he has
established outside of [his employer]. And any recommendations of the Fitness for
Duty psychologist and/or case manager, . . . recommended, because . . . the Fitness
for Duty case manager/social worker, she also plays a role in recommendations, I
just don't know what they are.
Tr. at 19–20.
The Individual testified that, right after he was released from police custody, he reported his
September 10, 2022, DUI arrest to his employer who instructed him to contact the FDP at OM.
Tr. at 25. The FDP required him to abstain from alcohol use, take weekly drug and alcohol tests,
and attend the AAEC and MCSAC. Tr. at 25–27. The Individual testified that he stopped using
alcohol after the September 10, 2023, DUI until October 11, 2022, when he consumed alcohol.
Tr. at 29. The Individual testified that his last use of alcohol occurred on October 11, 2022. Tr.
at 33. The Individual opined that he had a “medium level” alcohol problem but does not believe
that he currently has an alcohol problem. Tr. at 32, 57. He recognizes that alcohol has caused him
problems in the past. Tr. at 44. The Individual testified that now that he is sober, he feels happier
and healthier, has lost weight, and gained strength, stamina, and energy. Tr. at 35, 44–45. He
further testified that exercise helps him remain sober. Tr. at 34. The Individual testified that he
has no urges or desires to use alcohol and that, as time goes by, he finds it easier to abstain from
using alcohol. Tr. at 35–36, 53. He further claimed that he has lost interest in alcohol. Tr. at 42.
The Individual testified that he intends to permanently abstain from alcohol use. Tr. at 44, 57.
The Individual testified that the laboratory he used for his PEth tests mishandled his blood samples
which caused the test to be invalidated on two occasions. Tr. at 45–46. His last PEth test occurred
on September 21, 2023. Tr. at 46. The Individual did not attend any Aftercare program. Tr. at 58.
The Individual tried attending a few AA meetings but did not find them to be helpful. Tr. at 48–
49, 57. He has no plans for further treatment, testifying that he is tired of talking about alcohol.
Tr. at 49. He did not form friendships with any of the other participants in the AAEC, MCSAC,
or IOP. Tr. at 39. He does not keep alcohol in his home. Tr. at 43.
The Individual testified that his Negligent Use of a Deadly Weapon conviction “sounds so much
worse that what it actually is.” Tr. at 53. According to the Individual’s testimony, he was at home
in his yard shooting towards a mountain when police arrived. Tr. at 54. He testified that he had
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been shooting too close to his house. Tr. at 54. He claimed he was not arrested, but rather, received
“a citation and that was pretty much it.” Tr. at 54. He testified that he paid a fine and received 90
days of probation for this offence. Tr. at 55. He claimed that alcohol was not involved in this
incident. Tr. at 54.
The Psychologist testified at the hearing after observing the testimony of the LPCC and the
Individual. She testified that, if the Individual has abstained from alcohol for a full year as he
claims, his AUD would be in “sustained remission” and that he would have demonstrated
“adequate rehabilitation and reformation.” Tr. at 64–66. She testified that she is concerned about
the Individual’s failure to attend Aftercare, as she had recommended. Tr. at 64. She further
expressed her concern that the Individual’s sobriety was not sufficiently verified, since he only
had three valid PEth tests to document his abstinence from alcohol during the past year. Tr. at 63–
64. She also expressed her concern that his “history with alcohol is significant.” Tr. at 68.
V. Analysis
A. Guideline G
In assessing whether the Individual has mitigated the security concerns arising from his two DUI
arrests, his AUD diagnosis, and his use of alcohol in violation of the terms of his bail agreement,
I must consider the credibility of his testimony that his last use of alcohol occurred on October 11,
2022. I note that this testimony is partially corroborated by objective evidence in the record. The
record includes five PEth test results from blood samples collected from the Individual. Each of
the samples obtained from the Individual on January 23, 2023, August 3, 2023, and September 21,
2023, were negative. The samples obtained from the Individual on February 5, 2023, and August
29, 2023, were invalidated due to laboratory error. However, I find that the Individual’s
willingness to undergo these two inconclusive PEth tests is evidence of his expectation that they
would be negative, therefore providing some corroboration of the Individual’s testimony that he
has remained sober for the approximately one-month periods preceding February 5, 2023, and
August 29, 2023. The record also includes the results of 13 urine samples collected from the
Individual between October 24, 2022, and February 23, 2023, each of which tested negative for
alcohol use, thereby corroborating the Individual’s claim of sobriety for the period beginning on
October 11, 2022, and concluding on February 23, 2023. Accordingly, the laboratory test results
submitted by the Individual provide objective evidence that the Individual abstained from alcohol
use from October 11, 2022, to February 23, 2023, and from July 1, 2023, to the hearing.6 However,
the Individual’s assertion that he abstained from alcohol use since October 11, 2022, is
uncorroborated for the four-month period from March 2023 through June 2023.7 Other than his
test reports, the Individual offered no other evidence corroborating his testimony that he has
abstained from alcohol use during the period from March 2023 through June 2023. Since I did not
6 Based on the assumption that a negative PEth test result is evidence that the Individual did not consume alcohol
during the previous month.
7 Unexplained intervals in tests results raise concerns about the possibility that positive tests results have been omitted
from the record or that the Individual refrained from being tested because of an expectation of positive test results. Of
course, it is possible that other, more innocent reasons may exist for unexplained intervals in test results. In the present
case, no such explanation by the Individual has been provided.
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find the Individual’s testimony sufficiently credible to convince me that he has abstained from
alcohol use since October 11, 2022, I find that the Individual has only shown that he has been
sober since the beginning of July 2023, a period of four months.
Moreover, the Individual’s testimony indicates that he has declined to participate in any Aftercare
program, a standard practice for graduates of IOPs, that was specifically recommended by the
Psychologist.8 Nor has the Individual become involved in AA and worked the AA’s Twelve-Step
Program as recommended by the Psychologist. In fact, the Individual has not been engaged in any
organized sobriety support activities or therapy since July 27, 2023, when he completed the
MCSAC.9 Moreover, the Individual testified that he has not developed any friendships with sober
peers. Building a sobriety support network is customarily highly encouraged by IOPs and the
Individual’s failure to do so brings into question either his commitment to his long-term sobriety
or his understanding of the challenges he faces in maintaining his sobriety over the long haul. I
am concerned that without the continuing support of professionals or other individuals maintaining
their sobriety, the Individual may not be able to maintain his sobriety.
The Adjudicative Guidelines set forth four factors that may mitigate security concerns under
Guideline G. First, the Adjudicative Guidelines provide that an individual may mitigate security
concerns under Guideline G if they can show “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.” Adjudicative
Guidelines at ¶ 23(a). In the present case, the Individual has only shown that he has abstained
from alcohol use for four months which is not a sufficient period to demonstrate that his AUD has
been resolved and that his alcohol consumption is unlikely to recur, especially in light of his
decision to forego Aftercare, AA, or continuing participation in the MCSAC. Accordingly, I find
that the Individual has not satisfied the mitigating condition set forth at ¶ 23(a).
Second, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline G if “[t]he 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.” Adjudicative Guidelines at ¶ 23(b). In the present case, the Individual has
acknowledged has AUD and has provided evidence of actions taken to overcome this problem.
However, a four-month period of abstinence is not sufficient for the Individual to have
demonstrated a clear and established pattern of abstinence from alcohol. Accordingly, I find that
the Individual has not satisfied the mitigating condition set forth at ¶ 23(b).
Third, the Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline G if “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
8 The Individual did testify that he attended the MCSAC as a replacement for an Aftercare program. Tr. at 58. He
claimed that his IOP did not offer Aftercare. Tr. at 58. The Psychologist had recommended that he attend Aftercare
for at least eight months. The MCSAC was a 12-week program.
9 I note that even though he was welcome to continue attending MCSAC meetings, and was encouraged by the LPCC
to do so, he testified that he discontinued attending the MCSAC after July 27, 2023, because it would be too difficult
for him to get away from his work to do so. Tr. at 49–50.
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program.” Adjudicative Guidelines at ¶ 23(c). In the present case, the Individual is no longer
participating in counseling or a treatment program to address his AUD, as recommended by the
Psychologist and the LPCC. Accordingly, I find that the Individual has not satisfied the mitigating
condition set forth at ¶ 23(c).
Fourth, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline G if “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(d). As noted above, while the Individual has successfully completed the IOP,
he has not participated in Aftercare, and he has stopped attending the MCSAC after three months,
despite the Psychologist’s recommendation that he attend Aftercare for at least eight months.
Moreover, he has not yet sufficiently established a pattern of abstinence from alcohol, given that
he has only shown that he been abstaining from alcohol use for four months. Accordingly, I find
that the Individual has not satisfied the mitigating condition set forth at ¶ 23(d).
I therefore find that the security concerns raised by the LSO under Guideline G have not been
resolved.
B. Guideline J
Some of the Individual’s criminal activity is clearly symptomatic of his AUD, specifically his two
DUIs and his use of alcohol in violation of the terms of his bail agreement. Because the Individual
has not yet shown that his recovery from his AUD can be sustained, I remain concerned that there
is an unacceptable risk that the Individual will engage in future alcohol-related criminal activity.
One instance of the Individual’s criminal activity is not related to his AUD, specifically his
Negligent Use of a Deadly Weapon Charge (Discharge) conviction.10
The Adjudicative Guidelines set forth four conditions that can mitigate security concerns arising
under Guideline J, two of which are relevant to the present case.11 First, an individual may mitigate
security concerns under Guideline J if they can show that “so much time has elapsed since the
criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely
to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment.”
Adjudicative Guidelines at ¶ 32(a). In the present case, the Individual has not yet shown that the
conditions which are the root causes of his alcohol-related criminal activity are permanently
resolved, therefore I cannot find that his alcohol-related criminal activity is unlikely to recur.
10 While the Individual testified that he paid a fine and received 90 days probation for this offence, the Record indicates
that he received a suspended sentence of 5 months and 30 days and a fine of $250 for this offence. Tr. at 55; Ex. D1.
11 Two of the conditions do not apply to the present case. Adjudicative Guideline ¶ 32(b) provides for mitigation
when an individual can show that they were “pressured or coerced into committing the act and those pressures are no
longer present in the person’s life.” Adjudicative Guidelines at ¶ 32(b). In the present case, the Individual does not
contend that he was pressured or coerced into engaging in his criminal activity. Adjudicative Guidelines ¶ 32(c)
provides for mitigation when an individual is able to show that no reliable evidence shows that they engaged in the
alleged criminal activity. In the present case, the Individual does not deny the criminal activity cited in the SSC.
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Accordingly, I find that the Individual has not satisfied the mitigating condition set forth at ¶ 32(a).
However, there is no evidence in the record indicating that the Individual has engaged in non-
alcohol-related criminal activity since 2018. I am therefore convinced that since so much time has
elapsed since he has engaged in non-alcohol-related criminal behavior and since there is only one
instance of non-alcohol related criminal activity in the record, his non-alcoholic criminal activity
happened under such unusual circumstances that it is unlikely to recur.
Second, an individual may also mitigate security concerns under Guideline J if “[t]here is evidence
of successful rehabilitation; including, but not limited to, the passage of time without recurrence
of criminal activity, restitution, compliance with the terms of parole or probation, job training or
higher education, good employment record, or constructive community involvement.”
Adjudicative Guidelines at ¶ 32(d). In the present case, rehabilitation from the Individual’s
alcohol-related criminal activity would need to be in the form of rehabilitation from the
Individual’s AUD. As discussed above, the Individual has not yet shown that he is rehabilitated
from this disorder. Accordingly, the Individual has not shown that the mitigating conditions set
forth in ¶ 32(d) are present. I note, however, that the passage of five years with any recurrence of
the Individual’s non-alcohol-related criminal activity has mitigated the security concerns raised by
his Negligent Use of a Deadly Weapon Charge (Discharge) conviction.
I therefore find that the security concerns raised under Guideline J by the Individual’s criminal
activity have not been resolved.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G and J.
After considering all of the evidence, both favorable and unfavorable, in a commonsense manner,
I find that the Individual has not mitigated the security concerns raised under Guidelines G and J.
Accordingly, 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, the Individual’s security clearance should not be restored. This Decision may be
appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals