PSH-23-0122

*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: August 15, 2023 ) Case No.: PSH-23-0122
)
__________________________________________)
Issued: January 19, 2024
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Administrative Judge Decision
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Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) for 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 For the reasons set forth below, I conclude that
the Individual’s security clearance should not be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position which requires that she hold a
security clearance. Derogatory information was discovered about the Individual’s alcohol
consumption. She was evaluated by a DOE Contractor Psychologist (the Psychologist) and
diagnosed with an alcohol use disorder. The Local Security Office (LSO) began the present
administrative review proceeding by issuing a Notification Letter to the Individual informing her
that she was entitled to a hearing before an Administrative Judge in order to resolve the substantial
doubt regarding her eligibility to continue holding a security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing, and the LSO forwarded the Individual’s request 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), the
Individual presented the testimony of two witnesses—her former supervisor and her boyfriend—
and testified on her own behalf. The LSO presented the testimony of the Psychologist who had
evaluated the Individual. See Transcript of Hearing (hereinafter cited as “Tr.”). The LSO submitted
ten exhibits, marked as Exhibits 1 through 10 (hereinafter cited as “Ex.”). The Individual submitted
one exhibit, marked as Exhibit A.
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.
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II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning her eligibility for a security
clearance. That information pertains to Guideline G of the National Security Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold
a Sensitive Position, effective June 8, 2017 (Adjudicative Guidelines). These guidelines are not
inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines
are applied in conjunction with the factors listed in the adjudicative process. 10 C.F.R. § 710.7.
Guideline G states that excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about an individual’s reliability
and trustworthiness. Adjudicative Guidelines at ¶ 21. Conditions that could raise a security concern
include:
(a) Alcohol-related incidents away from work, such as driving while under the
influence, fighting, child or spouse abuse, disturbing the peace, or other incidents
of concern, regardless of the frequency of the individual’s alcohol use or whether
the individual has been diagnosed with alcohol use disorder;
(b) Alcohol-related incidents at work, such as reporting for work or duty in an
intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare
and safety of others, regardless of whether the individual is diagnosed with alcohol
use disorder;
(c) Habitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder;
(d) 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;
(e) The failure to follow treatment advice once diagnosed;
(f) Alcohol consumption, which is not in accordance with treatment
recommendations, after a diagnosis of alcohol use disorder; and
(g) Failure to follow any court order regarding alcohol education, evaluation,
treatment, or abstinence.
Id. at ¶ 22.
The LSO alleges that the Individual attended counseling and alcohol treatment in late 2016 during
which she was diagnosed first with Alcohol Use Disorder, Moderate to Severe, and then with
Alcohol Use Disorder, Severe. Ex. 1 at 1. The LSO further alleges that the Psychologist evaluated
the Individual in April 2023, and diagnosed her with Alcohol Use Disorder, Severe. Id. The LSO
alleges that the Individual had a positive result of 391 ng/mL2 on a blood test, administered directly
after the evaluation, to determine whether she had consumed alcohol in the preceding three or four
weeks, which indicated that the Individual was engaging in heavy alcohol consumption. Id.
Accordingly, the LSO’s security concerns under Guideline G are justified.
2 The detection cutoff for this test was 20 ng/mL. Ex. 7 at 13.
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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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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 her eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
In April 2023, prior to her security clearance suspension, the Individual underwent a psychological
evaluation with the Psychologist. Ex. 7. During the evaluation, the Individual told the Psychologist
that she had not consumed alcohol since December 2022. Id. at 5–6. Immediately after the
evaluation, the Individual submitted to a Phosphatidylethanol (PEth) blood test, which can detect
significant alcohol use over the preceding three to four weeks. Id. at 4. The Individual’s results
were positive at 391 ng/mL, almost 20 times greater than the test’s 20 ng/mL positivity threshold.
Id. at 5–6, 13. The medical doctor who interpreted the test results opined that the result was
consistent with daily consumption of multiple alcoholic drinks. Id. at 4–5. The Psychologist issued
a report later that month in which she diagnosed the Individual with Alcohol Use Disorder, Severe.
Id. at 6. The Psychologist recommended that, in order to show that she was rehabilitated, the
Individual should complete an intensive outpatient treatment program (IOP) followed by weekly
group and individual therapy sessions and participate in Alcoholics Anonymous (AA) meetings at
least three to four times per week. Id. Alternatively, she could provide evidence of two years of
abstinence. Id. For both options, the Psychologist recommended monthly PEth tests and lifelong
abstinence. Id.
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At the hearing, the Individual’s former supervisor testified that he supervised the Individual in
person four or five days per week from 2021 until late summer 2023. Tr. at 11, 13, 20. He was
aware that the Individual’s alcohol consumption was the reason she was going through
Administrative Review. Id. 15–16. He only saw her outside of work at work-related events,
including holiday and happy hour events where alcohol was served. Id. at 14. He had only seen
her consume alcohol once and testified that on that occasion she had only consumed one drink. Id.
at 14–15. He had never seen the Individual intoxicated. Id. at 15. The former supervisor testified
that the Individual had discussed the Psychologist’s report with him and had expressed
disagreement with the PEth test result. Id. at 16–17. He testified that she expressed remorse at that
time. Id. at 17. He testified that he had never seen the Individual intoxicated or in any way
incapacitated at work and stated that her performance was excellent. Id. at 18. The former
supervisor testified that the Individual was surprised to learn that she had an alcohol issue. Id. He
testified that he found her honest and trustworthy while she worked for him and that if her
clearance was restored, he would welcome her back to his office if given the opportunity to do so.
Id. at 19.
The Individual’s boyfriend testified that he had met her in July or August of 2022 and that they
began dating in November or December of that year. Tr. at 56–57. He testified that he consumed
alcohol at most once per year but generally did not consume any alcohol. Id. at 57. He testified
that they saw each other frequently, usually when they did not have their respective children, and
stayed at his house. Id. at 57–58. He had only observed her drinking alcohol on one occasion, at a
nice dinner, and recalled that she had only had one mixed drink on that occasion. Id. at 58–59.
However, the boyfriend was aware that the Individual consumed alcohol at other times and was
aware that the Individual had consumed alcohol during the week before the hearing. Id. at 60–61.
The Individual had not expressed to him any intentions about her future alcohol consumption;
however, due to past experiences with others, he had “zero tolerance” for habitual alcohol users
and would not have them in his life. Id. at 63. The Individual had told him the reasons she was
going though Administrative Review and had told him that her PEth test result was inaccurate. Id.
at 62. He had never observed the Individual hung over or having cravings for alcohol. Id. at 63–
64. The boyfriend described the Individual as reliable, predictable, and “good to the core.” Id. at
65.
The Individual testified that in July 2023, around the time she received the letter suspending her
clearance, she typically consumed about two shots of alcohol once per week in her home. Tr. at
23–24; Ex. 1 at 3. She admitted that she was not candid with the Psychologist when she told her
that she no longer consumed alcohol, stating that she had accidently mislead the Psychologist. Tr.
at 24–25. She admitted that she made the same abstinence claim on her response to the DOE’s
February 2023 Letter of Interrogatory (LOI). Id. at 25–26. She testified that she picked a December
2022 date as the date she claimed to have stopped drinking alcohol because that was when she
significantly decreased her alcohol intake, which had previously been about five shots of alcohol
per week, and that by Christmas, she was drinking less than once per week. Id. at 26–27. She stated
that she was not honest with the Psychologist or on the LOI because she was embarrassed that she
had consumed alcohol. Id. at 27. She testified that after the Psychologist’s evaluation, she
consumed about three shots of alcohol once every two weeks until the end of the first week of July
2023 when she received the Psychologist’s report. Id. at 28–29, 54. She testified that she decided
to abstain from alcohol at that time to show that she could do it and to prove that she did not have
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an alcohol problem. Id. at 29. The Individual testified that she did not consume alcohol from that
time until about a week before the hearing when she had two shots of alcohol to celebrate her
birthday. Id. at 30. She testified that she was at home by herself that night and “just felt like”
having the alcohol because it was her birthday. Id. at 44.
The Individual believed that she may have underestimated the amount of alcohol she was
consuming prior to being evaluated by the Psychologist, though she denied consuming four or five
servings of alcohol every day. Tr. at 28, 31–32. She also believed that one of her medications may
have caused her PEth level to be artificially high. Id. at 32. The Individual testified that she did not
undergo monthly PEth testing as recommended by the Psychologist because she had understood
the recommendation to be a recommendation for the Administrative Review judge as a possible
outcome of the hearing. Id. at 33. In the summer of 2023, she asked her nurse practitioner if she
could get PEth tests on her own and underwent one in October 2023. Id. at 32–34; Ex. A. The PEth
test’s result was negative, indicating that the Individual had not consumed alcohol during the three
or four weeks preceding the test. Id. at 1.
The Individual testified that she did not follow the Psychologist’s recommendations because “I
didn’t feel like I needed them, because I don’t feel like I have a problem with alcohol.” Id. at 37.
The Individual testified that she had not had any treatment for alcohol since February 2023, when
she had first learned that her alcohol use might cause problems for her security clearance. Tr. at
34. She had attended two AA meetings in that time period, once in April, the day before her
psychological evaluation, and once more in June. Id. at 34–35. She testified that she did not attend
more meetings because she felt at the time that she did not need it. Id. at 35. She attended weekly
phone counseling sessions for one month, in February 2023, for general counseling rather than
substance abuse, and stopped because she felt she was not getting a significant benefit from it. Id.
at 35–36.
The Individual voluntarily entered a 30-day inpatient alcohol treatment program in 2016. Tr. at
38; Ex. 7 at 6. She testified that prior to entering treatment, she consumed four to five shots about
three times per week. Tr. at 28, 38. She testified that she did have an alcohol problem at that time
but does not believe she currently has problems with alcohol. Id. at 37–38. Though the Individual’s
2016 substance use program recommended lifelong abstinence for her, the Individual only
abstained for about four-and-a-half years. Id. at 38. She testified that she was able to drink
occasionally without issue now. Id. She testified that she did not keep alcohol in the house. Id. a
39. She further testified that she had not had the desire to consume alcohol since July 2023 and did
not experience alcohol cravings. Id. 39–40. The Individual testified that she intended to abstain
from alcohol for the rest of her life so she could be healthier. Id. at 40. She was open to attending
alcohol treatment in the future if she felt she needed it. Id. at 43. She testified that her boyfriend
had been supportive of her abstinence. Id. at 42.
The Psychologist testified that a 2020 study had specifically shown that the Individual’s
medication was “readily discernable” from PEth when determining the results of a PEth test. Tr.
at 69–70. She also testified that the Individual’s medication does not bind to red blood cells and,
therefore, it would not have affected the Individual’s high result. Id. at 76. She testified that her
diagnosis of Alcohol Use Disorder, Severe, had not changed based on the information she heard
at the hearing. Id. at 70. She testified that, given the severity of the Individual’s alcohol history,
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she would have needed to see a return to alcohol treatment and evidence of abstinence from alcohol
use in order to change that diagnosis. Id. at 70–71. She also found it significant that the Individual
had consumed alcohol recently on her birthday. Id. at 71. She believed the Individual was still at
risk of alcohol use due to her recent alcohol consumption, her lack of honesty about her alcohol
use, her decision not to follow the recommendations from her previous alcohol treatment, and her
decision not to take substantial steps to address her current alcohol use. Id. at 71–72. She testified
that when someone is diagnosed with Alcohol Use Disorder, Severe, it is unsafe for them to
continue consuming alcohol at any level. Id. at 73–74. She cited a statement from the National
Institute of Alcoholism and Alcohol Abuse stating that someone who has been alcohol dependent
cannot be considered in remission without sustained abstinence. Id. at 74. The Psychologist
testified that the Individual was not in remission and was not rehabilitated or reformed from her
alcohol issues. Id. at 76. She gave the Individual a guarded prognosis. Id. at 76–77.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
government predicated upon trust and confidence. This relationship transcends normal duty hours
and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines at ¶ 2(b). In reaching this decision, I have drawn only those conclusions
that are reasonable, logical, and based on the evidence contained in the record. Because of the
strong presumption against granting or restoring security clearances, I must deny access
authorization if I am not convinced that the LSO’s security concerns have been mitigated such that
restoring the Individual’s clearance is not an unacceptable risk to national security.
Conditions that may mitigate Guideline G concerns 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 or her pattern of maladaptive alcohol use,
provides evidence of actions taken to overcome this problem, and has
demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations;
(c) The individual is participating in counseling or a treatment program, has no
previous history of treatment and relapse, and is making satisfactory progress in a
treatment program; or
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(d) The individual has successfully completed a treatment program along with any
required aftercare, and has demonstrated a clear and established pattern of
modified consumption or abstinence in accordance with treatment
recommendations.
Adjudicative Guidelines at ¶ 23. None of the conditions are applicable in this case.
Regarding condition (a), the Individual drank alcohol just days before the hearing, despite having
decided in July 2023 that she would abstain from alcohol in order to prove that she did not have
an alcohol issue. She stopped using alcohol less than six months before the hearing and used
alcohol regularly prior to abstaining. I cannot find that it is unlikely that she will consume alcohol
in the future. The Individual’s choice to consume alcohol days before the hearing, despite her
commitment to abstain, casts doubt on her judgment and reliability. Furthermore, she has not taken
steps to address her lack of candor with the Psychologist, which casts doubt on her trustworthiness.
Regarding conditions (b), (c), and (d), the Individual does not acknowledge that she has a current
problem with alcohol and, for that reason, she has not taken steps to overcome her alcohol problem.
She recently consumed alcohol, which precludes her from demonstrating a clear and established
pattern abstinence and directly contradicts the Psychologist’s recommendation of lifelong
abstinence. The Individual has not complied with the Psychologist’s recommendations of
substance abuse treatment, counselling, and AA attendance. She did not begin, let alone make
progress in or complete, any alcohol-related treatment. She has a history of relapse, as she resumed
consuming alcohol after four-and-a-half years of abstinence that began in 2016. Her decision to
consume alcohol just before the hearing can be seen as a relapse as well.
For the foregoing reasons, I cannot find that the Individual has mitigated the security concerns
raised under Guideline G.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for access authorization under Guideline G of the
Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving
those concerns. Therefore, I cannot conclude that restoring DOE access authorization to the
Individual “will not endanger the common defense and security and is clearly consistent with the
national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore access
authorization to the Individual.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals