PSH-23-0112

*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 19, 2023 ) Case No.: PSH-23-0112
)
__________________________________________)
Issued: October 10, 2023
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Administrative Judge Decision
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Janet R. H. Fishman, 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’s access
authorization should not be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. On October 10, 2022, at 7:43 a.m., the Individual was selected for a random breath
alcohol test (BAT) by his employer, and the Individual tested positive for alcohol consumption at
a level of 0.037 g/210L. Exhibit (Ex.) 6 at 19; Ex. 8 at 42. The Individual admitted to his employer
that, the night before the test, he consumed “3.5 cans of 12 oz. [sic] beers” between 5:00 p.m. and
9:30 p.m. Ex. 5 at 16. Following the positive BAT, the Individual’s employer referred him to a
Substance Abuse Professional (SAP), to undergo an assessment and evaluation of his alcohol
consumption. Ex. 6 at 21. In March 2023, the Local Security Office (LSO) issued a Letter of
Interrogatory (LOI) to the Individual, which sought additional information related to the
Individual’s alcohol consumption. Ex. 7. Because of security concerns identified in the
Individual’s LOI responses, the LSO referred the Individual for a psychological evaluation. Ex. 3
at 10.
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
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In April 2023, the Individual underwent an evaluation by a DOE consultant psychologist (DOE
Psychologist), who issued a report of her findings (the Report). Ex. 8. Based on the evaluation, the
DOE Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate. Ex. 8 at 46.
The DOE Psychologist also opined the Individual did not demonstrate adequate evidence of
rehabilitation or reformation. Id. at 47.
Due to the unresolved security concerns related to the Individual’s alcohol consumption, the LSO
informed the Individual, in a Notification Letter, that it possessed reliable information that created
substantial doubt regarding his eligibility to hold a security clearance. In a Summary of Security
Concerns (SSC) attached to the Notification Letter, the LSO explained that the derogatory
information raised security concerns under Guideline G (Alcohol Consumption) of the
Adjudicative Guidelines. Ex. 1.
In June 2023, the Individual requested an administrative hearing, and the LSO forwarded the
Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed
me as Administrative Judge in this matter. At the hearing I convened pursuant to 10 C.F.R.
§ 710.25(d), (e), and (g), I took testimony from five witnesses: the Individual, his brother, his
sponsor, his counselor, and the DOE Psychologist. See Transcript of Hearing, Case No. PSH-23-
0112 (Tr.). The Individual submitted 33 exhibits, marked as Exhibits A through GG. Counsel for
the DOE submitted ten exhibits, marked as Exhibits 1 through 10.
II. The Summary of 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 informed the Individual that information in the possession of the DOE created substantial
doubt concerning his eligibility for a security clearance under Guideline G (Alcohol Consumption)
of the Adjudicative Guidelines. Ex. 1. Conditions that could raise a security concern under
Guideline G include: “alcohol-related incidents at work, such as reporting for work or duty in an
intoxicated or impaired condition” and a diagnosis by a duly qualified medical or mental health
professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker)
of alcohol use disorder.” Adjudicative Guidelines at ¶ 22(b) and (d). In citing Guideline G, the
LSO relied upon the opinion of DOE Psychologist that the Individual has Alcohol Use Disorder
Moderate, without adequate evidence of rehabilitation or reformation.” Ex. 1 at 5. The LSO also
relied upon the Individual’s positive BAT, at a level of .037 at 7:30 am, while at work, and the
Individual’s admission in the LOI that he consumed four 12-ounce beers and was intoxicated the
night before the BAT. Id.; Ex. 7 at 29. Based on the conduct noted above, I find the LSO’s security
concerns under Guideline G are justified.
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
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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.
IV. Findings of Fact and Hearing Testimony
A. Findings of Fact
As a result of his positive BAT on October 10, 2022, the Individual was placed on administrative
leave by his employer. Ex. 5. On October 12, 2022, the Individual was evaluated by the SAP. Ex.
6 at 19. After the evaluation, the SAP issued a report of his findings (the SAP Report), which
indicated that, the night before the BAT, the Individual consumed “3.5 cans of 12 oz [sic] beers”
between 5:00 p.m. and 9:30 p.m. Id. at 21. The Individual went to bed at 10:15 p.m. and arrived at
work the next day, at 5:20 a.m. to start his day. Id. The Individual told the SAP that, on average,
he consumes “maybe one or two 12 oz. beers a week” and that “having beer in the house can be
tempting for [him] to drink more, so [he doesn’t] usually keep it in the house.” Id. at 22. The SAP
diagnosed the Individual with Alcohol Intoxication, Without Use Disorder, and recommended the
Individual complete a 20-hour online drug and alcohol education course and successfully pass the
course examination. Id. at 19, 22. The SAP also recommended the Individual “provide verification
of the course completion and passing of the examination.” Id. at 22.
On October 27, 2022, the Individual underwent a follow-up evaluation by the SAP, during which
the SAP determined the Individual “successfully complied” with his recommendations, as the
Individual completed the drug and alcohol education course and passed the course examination.
Ex. 6 at 22. The SAP Report indicates the SAP recommended to the Individual’s employer that,
as it considered the Individual’s fitness for duty, the Individual must “first produce a negative DOE
level Return-To-Duty drug test and breathalyzer prior to returning to a safety-sensitive position.”
Id. at 23. The SAP also recommended to the DOE that the Individual be subjected to a “Testing
Plan” of “at least six unannounced and observed DOE level drug tests and breathalyzers per year,
and over the next year; and with negative testing results on each separate specimen.” Id.
In the March 2023 LOI, the Individual reported that, before the October 2022 BAT, he consumed
“about four 12 oz. beers” at home, from about 4:30 p.m. to “almost 11pm.” Ex. 7 at 29. The
Individual reported that, the day before the test, he “had been on vacation,” “wasn’t really thinking
about going to work,” and did not think he would test positive for alcohol the next day. Id. The
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Individual also reported that he understands his employer’s policy regarding reporting to work
under the influence of alcohol and that his employer requires that he does not consume alcohol
eight hours before reporting to work. Id. at 30. The Individual reported that the last time he
consumed alcohol was during the Christmas holiday weekend in 2022, during which he consumed
two beers on Friday, one beer and “one glass of wine (about 8 ounces)” on both Saturday and
Sunday, and one beer on Monday. Id. at 33.
During the April 2023 psychological evaluation, the Individual told the DOE Psychologist that,
the night before the BAT, he consumed “four to five 12-ounce beers . . . between 4:30 and 11 PM
(a span of 6.5 hours).” Ex. 8 at 44. The DOE Psychologist told the Individual that, “based on his
stature and the amount of alcohol he reported drinking over the course of more than six hours, his
[Blood Alcohol Content (BAC)] was likely 0.0g/210L at the time he stopped drinking, more than
eight hours prior to his alcohol level being measured at 0.037 g/210L.” Id. at 44. The DOE
Psychologist also told the Individual that “the chances of [his BAT results] resulting from his
reported consumption pattern was nearly impossible.” Id. The Individual explained the
discrepancy by stating he “consumed four light beers prior to 11:00 the night prior” to the BAT
and “did not eat much that day.” Id. The Individual told the DOE Psychologist that the last time
he consumed alcohol was December 2022, during which he consumed “a moderate amount of
alcohol several consecutive days while visiting family during Christmastime.” Id.
After the evaluation, the Individual underwent a PEth laboratory test to detect recent alcohol
consumption. Ex. 8 at 44. The results of the Individual’s PEth test were positive at a level of 1004
ng/mL, which the DOE Psychologist determined was “highly inconsistent with [the Individual’s]
report that he has not consumed any alcohol in more than three months,” and were “indicative of
excessive alcohol use in the month leading up to this evaluation.” Id. at 45. The DOE Psychologist
diagnosed the Individual with Alcohol Use Disorder (AUD), Moderate, without adequate evidence
of rehabilitation or reformation. Id. at 46–47. The DOE Psychologist recommended that the
Individual abstain from alcohol for at least 12 months. Id. at 47. The DOE Psychologist also
recommended that the Individual participate in Alcoholics Anonymous (AA) at least once per
week, or an alternative to AA, such as “SMART, Motivation-Enhanced Therapy, or 12-step
Facilitation Therapy. Strictly online programs are not acceptable.” Id. The DOE Psychologist also
recommended that the Individual undergo, “breathalyzer tests conducted at random . . . supported
by at least two PEth tests over a 12-month period.” Id.
B. Hearing Testimony
The Individual’s sponsor testified that he met the Individual during an AA group meeting at an
inpatient alcohol treatment program two months prior to the hearing. Tr. at 12. He stated the
Individual attends the group meetings every Wednesday. Id. He testified that he became the
Individual’s sponsor about a month before the hearing. Id. at 13. He stated the Individual attended
all his meetings, except one, during which he was sick. Id. at 15. He stated the Individual actively
participates in the group meetings. Id. at 34. He stated the Individual is currently on step four, or
step five, of the AA program. Id. at 17. He stated that he meets with the Individual weekly and
sends him daily text messages using a phone app that tracks a person’s sobriety. Id. at 27–28. He
also stated the Individual recently received his 60-day sobriety chip. Id. at 34.
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The Individual’s therapist testified that he had two sessions with the Individual in June 2023,
before the Individual started treatment at an inpatient alcohol treatment program. Tr. at 39. He
stated he is scheduled to meet with the Individual again in October, when the Individual completes
his Aftercare at the inpatient alcohol treatment program. Id. He stated that the Individual
minimized his level of alcohol consumption to the DOE Psychologist, as the results of his April
2023 PEth test revealed he had consumed more than he reported. Id. at 39–40. He stated the
Individual has “a very typical alcoholic story,” in that he never had severe consequences or issues
at work; he did not have any problems in his social life; and he kept his drinking secret from his
church community. Id. at 40. He stated that when the Individual came to see him, the Individual
“recognized that he was an alcoholic and needed help.” Id. at 43.
He stated that, after he assessed the Individual, the “main thing” that showed up was alcoholism.
Tr. at 42. He stated the Individual believes he has been successful in his sobriety. He detailed that,
because the Individual’s alcohol consumption did not cause “problems in his life” and occurred at
home when he was alone, it is possible that the Individual’s opinion about alcohol consumption
could change again. Id. at 43–44The Individual did not drink with other people, so he does not
have to avoid situations where he is around others who are drinking. Id. at 44. He stated that a
“positive prognostic factor” is that the Individual has a supportive family, which will act as a
“barrier to relapse,” and he does not have to hide his drinking, which he was doing in the past. Id.
at 44–45. He stated that, if the Individual continues what he is currently doing, i.e., attending AA
and being involved with the steps, working with a sponsor, engaging in individual therapy, and
talking at meetings, he is doing all the things that promote recovery. Id. at 47. He stated that,
assuming the Individual goes back to work, he would be subject to further testing, which would
help him stay sober. Id. at 51.
The Individual’s brother testified he did not know the Individual consumed, or had a problem with
alcohol, until the Individual told him during a family dinner in early July 2023. Tr. at 64. He stated
the Individual explained that for the past 13 years, when he could not sleep at night, he was using
alcohol to sleep. Id. at 69, 74. The brother stated he has been supporting the Individual through
the process of abstaining from alcohol. Id. at 65. He stated he attended one of the Individual’s
meetings at the inpatient alcohol treatment program and has been able to communicate with him
three to four times a week. Id. He stated he calls the Individual on the phone to see if he needs
anything as he wants to make sure the Individual knows he cares for him and supports him. Id. at
68. He said he has never known the Individual to drink and drive, and the Individual has always
been a responsible person and a provider to his family. Id. at 73. He also said that he thinks the
Individual’s plans are to accept the help he is receiving now and maintain his sobriety. Id. at 78.
The Individual testified that, since he started treatment at the inpatient alcohol treatment program,
in July 2023, he has not consumed any alcohol, and he has been sober for 65 days. Tr. at 82–83.
He stated he was in treatment at the inpatient alcohol treatment program for 22 days. Id. at 151–
152. He stated the DOE Psychologist’s diagnosis of AUD was “spot on.” Id. at 84. The Individual
testified he started residential, inpatient treatment at the inpatient alcohol treatment program on
July 10, 2023. Id. at 84–85. He stated that, as part of the program, he met with a counselor one to
two times a day and took classes on various topics, like relapse recovery and the effects of alcohol.
Id. at 88–89. He stated he also took a class called “your first step,” during which participants
explained their stories to their peers. Id. at 88. Every day concluded with an AA meeting. Id. He
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stated that the Wednesday AA meeting he attends, which is open to the public, is where the
Individual met his sponsor. Id. at 90. He also stated that he learned about AA’s 12-step program
the first day he attended an AA meeting, and as of the date of the hearing, he was on his third step.
Id. at 91. He stated the AA meetings he attended are documented on his attendance sheet. Tr. at
93–94; Ex. U.
The Individual asserted that, now that he is back home from the inpatient alcohol treatment
program, but still attending Aftercare, it is going to be a challenge because he lives alone. Tr. at
101. He must “find things to keep [him] occupied for not wanting to dwell on wanting to drink.”
Id. The Individual testified that he is starting to renovate his house and get rid of furniture, and he
has thought about other projects to keep him busy at night. Id. at 101–02. He stated that he attends
AA meetings at 12 noon, and then, he attends his Aftercare from 5:00 p.m. to 8:00 p.m. Id. at 102.
He said that although he presently attends AA meetings at 12 noon, when he goes back to work,
he will attend the 5:30 p.m. AA meetings. Id. at 102–03.
The Individual asserted that he will complete his Aftercare on October 5, 2023, and he will return
to work one week later. Tr. at 105. He stated he will continue to attend AA meetings and work
with his sponsor after he completes the Aftercare. Id. at 106. He also specified that he intends to
see his therapist at least once per month. Id. at 107. Regarding testing for alcohol consumption, he
claimed his primary care physician ordered tests for him every two weeks leading up to the hearing;
however, he only provided two test results. Id. at 108-09; Ex. T; Ex. CC.2 Both of these test results
were negative. Ex. T; Ex. CC. The Individual continued that when he returns to work, he will be
subject to random drug and alcohol tests. Id. at 109.
The DOE Psychologist testified that the Individual’s reported alcohol consumption that he
provided during the evaluation was not accurate. Id. at 136. She also testified that, after listening
to the Individual’s testimony, she amends her diagnosis to be AUD, Severe, in early remission,
“because [the Individual] has been sober for three months.” Id. at 136, 142. She also stated that
the Individual’s acknowledgement of his problem, his willingness to go to inpatient treatment, his
participation in AA, and his use of a sponsor, are all positive factors toward his recovery. Id. at
142–43, 147–48. She stated the Individual is “doing all of the things that I’ve recommended for
him to do.” Id. at 143. She stated the Individual successfully completed the inpatient alcohol
treatment program, and he is currently participating in Aftercare. Id. at 146–47. She also said that
she believed the Individual’s testimony that he will continue to see his therapist. Id. at 147. She
also stated she did not know of the Individual undergoing any previous treatment, so he would not
have had a history of relapse. Id. at 146.
The DOE Psychologist stated the Individual has shown evidence that he has begun rehabilitation.
Tr. at 145. She stated, “[t]here’s not anything else I would recommend for him to do except to do
it longer, do it more, keep going.” Id. She stated that whether the Individual’s diagnosis was AUD,
Moderate or Severe, she would recommend 12 months of abstinence as a way of “gauging a
person’ ability to sustain these changes.” Id. at 145. She maintained that continuing AA “would
be a full demonstration of rehabilitation and reformation. But I think he’s well on his way.” Id. at
2 The Individual claimed he requested PEth tests; however, the results are labeled as “ethanol” tests. Ex. T; Ex. CC.
Whether they are PEth tests or not does not affect the outcome of my decision.
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145–46. As to a prognosis, the DOE Psychologist stated that “if [the Individual] continues to do
[what he’s been doing], his prognosis is really good.” Id. at 146.
V. Analysis
A. Guideline G
An individual may be able to mitigate security concerns under Guideline G though the following
conditions:
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.
Adjudicative Guidelines at ¶ 23.
Regarding condition (a), the Individual used alcohol regularly as a sleep aid, while at home alone,
over a period of 13 years. Only four months have elapsed since the Individual was diagnosed with
AUD, Moderate, in April 2023.3 The Individual submitted evidence that he has abstained from
alcohol for two months, but two months is not a sufficient amount of time to demonstrate that his
AUD has been resolved and his prior level of alcohol consumption is unlikely to recur. Therefore,
I am unable to find that so much time has passed, the behavior was so infrequent, or it happened
under such unusual circumstances that it is unlikely to recur or does not case doubt on his current
reliability, trustworthiness, or judgment. As such, the Individual has not mitigated the security
concerns under ¶ 23(a).
Regarding factor (b), the Individual has acknowledged his pattern of maladaptive alcohol use and
has provided evidence he is taking actions to resolve his AUD, Severe, diagnosis.4 Furthermore,
3 The DOE Psychologist testified that she would have changed the severity of the AUD diagnosis from moderate to
severe had the Individual reported his alcohol consumption correctly. Tr. at 136.
4 As stated in the footnote above, the DOE Psychologist testified that if she had a correct report of the Individual’s
actual alcohol consumption during the evaluation, she would have diagnosed him with AUD Severe.
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the Individual provided evidence he has abstained from alcohol for the past two months. However,
the DOE Psychologist opined that the Individual should remain abstinent for twelve months to
show evidence of rehabilitation and reformation from his AUD. A two-month period of abstinence
from alcohol is not a sufficient period of time to demonstrate a clear and established pattern of
modified alcohol consumption or abstinence in accordance with the DOE Psychologist’s treatment
recommendations. Therefore, I find that the Individual has not mitigated the security concerns
under ¶ 23(b).
Regarding factor (c), the Individual is making some progress in his treatment. He provided
evidence that he participated in, and completed, one month of a residential inpatient treatment
program; he has actively participated in AA for the past three months; he has obtained a sponsor;
he is participating in AA’s 12-step program and is currently on step three of the program; and he
is currently participating in Aftercare. However, the Individual has been abstinent for two months,
not the twelve months recommended by the DOE Psychologist. Further, he has only been meeting
with his sponsor for one month, after having only met him two months prior to the hearing. As the
DOE Psychologist opined, despite the Individual’s participation in treatment with no history of
previous treatment or relapse, the relatively short time that has passed since he acknowledged his
alcohol misuse, began treatment, and began abstaining from alcohol is insufficient to establish that
he is making satisfactory progress. Therefore, I find the Individual has not mitigated the security
concerns under ¶ 23(c).
Regarding factor (d), as noted above, the Individual provided evidence he has abstained from
alcohol for two months. However, a two-month period of abstinence is not sufficient to establish
a pattern of modified consumption or abstinence in accordance with treatment recommendations.
In addition, he has not yet completed Aftercare. Therefore, I find that the Individual has not
mitigated the security concerns under ¶ 23(d).
For the reasons stated above, I cannot find that the Individual has mitigated the security concerns
raised under Guideline G of the Adjudicative Guidelines.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guideline G of the
Adjudicative Guidelines. After considering all the evidence, both favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I find that the Individual has not brought forth sufficient evidence to
resolve the security concerns set forth in the Notification Letter. Accordingly, I find the Individual
has not demonstrated that restoring his security clearance would not endanger the common defense
and would be clearly consistent with the national interest. Therefore, I find that the Individual’s
access authorization should not be restored. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals