PSH-23-0129

*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 17, 2023 ) Case No.: PSH-23-0129
)
__________________________________________)
Issued: December 21, 2023
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual should not be
granted access authorization.
I. BACKGROUND
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. In November 2022, the Individual completed a Questionnaire for National Security
Positions (QNSP) on which he admitted that he was hospitalized for issues related to alcohol
misuse in May 2021 and October 2021. Exhibit (Ex.) 1 at 5.2 Due to the derogatory information,
the LSO requested that the Individual be evaluated by a DOE-contracted psychiatrist (DOE
Psychiatrist) for a psychiatric assessment. Ex. 5. In April 2023, the DOE Psychiatrist issued the
results of the assessment (Report) in which he opined that the Individual had an Alcohol Use
Disorder (AUD), severe, in partial remission. Id. at 32. He continued that the Individual had not
demonstrated adequate evidence of rehabilitation or reformation. Id.
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
2 The exhibits submitted by DOE were Bates numbered in the upper right corner of each page. This Decision will refer
to the Bates numbering when citing to exhibits submitted by DOE but will not use the word “Bates.”
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The LSO issued the Individual a letter notifying him that it possessed reliable information that
created substantial doubt regarding his eligibility for access authorization. In a Summary of
Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory information
raised security concerns under Guideline G (Alcohol Consumption) of the Adjudicative
Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted eight exhibits (Exs. 1–8). The Individual submitted nineteen exhibits
(Exs. A–R).3 The Individual testified on his own behalf. Hearing Transcript, Case No. PSH-23-
0129 (Tr.) at 13–130. The LSO offered the testimony of the DOE Psychiatrist. Id. at 141–220.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G of the Adjudicative Guidelines as the basis for its substantial doubt
regarding the Individual’s eligibility for access authorization. Ex. 1. Guideline G indicates that
“[e]xcessive alcohol consumption often leads to the exercise of questionable judgment or the
failure to control impulses and can raise questions about an individual’s reliability and
trustworthiness.” Adjudicative Guidelines at ¶ 21. In addition to the DOE Psychiatrist’s diagnosis
of AUD, severe, in partial remission, the LSO cited the Individual’s positive Phosphatidylethanol
(PEth)4 test results on April 5, 2023, which indicated that he was consuming four or more drinks
per day. Ex. 1 at 5. The LSO also relied upon the Individual’s admission on his November 2022
QNSP that he was hospitalized for substance abuse issues related to alcohol in May 2021 and
October 2021. Id. In addition, the LSO relied upon his claim that his alcohol consumption
increased due to the pandemic and social isolation from between four or five beers daily to a peak
of ten drinks a day. Id. Finally, the LSO cited the Individual’s assertion that between 2008 and
June 2020 he consumed four to five drinks of liquor or beer on the weekends. Id. The LSO’s
reliance on the DOE Psychiatrist’s opinion, the PEth test results, and the Individual’s reporting of
his alcohol-related hospitalizations and alcohol consumption justifies its invocation of Guideline
G. Adjudicative Guidelines at ¶ 22(a), (d).
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
3 The Individual’s exhibits contained two exhibits lettered “Q.” I have designated them as Q1 and Q2 to differentiate
them. Exhibit Q1 is the results of the Individual’s PEth test dated October 20, 2023. Ex. Q1 at 8. Exhibit Q2 is the
Individual’s SMART program attendance verification sheets dated October 28, 2023; October 29, 2023; November 4,
2023; and November 5, 2023. Ex. Q2 at 3–10.
4 PEth can only be made when consumed ethyl alcohol reacts with a compound in the Red Blood Cell (RBC)
membrane. PEth builds up in the RBC with repeated drinking episodes, and a parallel process slowly eliminates the
accumulated PEth (with an elimination half-life of about 6 days). PEth can still be detected in the blood for about 28
days after alcohol consumption has ceased. MedTox Laboratories uses a cutoff of 20 ng/mL to detect “moderate to
heavy” ethanol consumption. Ex. 5 at 28.
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or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest”
standard for granting security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (strong
presumption against the issuance of a security clearance).
An individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). An individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
The Part 710 regulations are drafted to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. at
§ 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
The Individual was hospitalized for suicidal ideation from June 27 through July 3, 2018. Ex. I at
46. At the time of his release from the hospital, he was diagnosed with alcohol abuse. Id. In his
November 2022 QNSP, the Individual reported that he had been hospitalized for issues related to
alcohol misuse in May 2021 and October 2021. Ex. 7 at 65–66.
During the April 2023 psychiatric evaluation, the Individual told the DOE Psychiatrist that he
began drinking at age 12 and continued through college consuming approximately four to five
drinks at weekly parties. Ex. 5 at 22. The Individual testified that, during the pandemic, while
studying for his Ph.D., he began consuming alcohol more heavily. Tr. at 24–25. He explained that
his alcohol consumption increased for several reasons, including that his mentor for his Ph.D. was
abusive and ended up being fired by the university and his roommate moved out during the
beginning of the pandemic, which greatly isolated the Individual. Id. at 24. He continued that, due
to his isolation, he was depressed and self-medicated with alcohol. Id. The Individual asserted that,
during this time, while he was always able to complete his schoolwork, he was not eating regularly,
leading him to be frequently sick, weak, and tired. Id. at 26. The Individual asserted that, in May
2021, realizing he had an alcohol problem, he attempted to quit alcohol “cold turkey” by spending
two days in his room “drinking water and sweating through the bedsheets.” Id. at 25–26. He
claimed that he researched alcohol withdrawal, determined it was more dangerous than he realized,
and decided to admit himself to the hospital, on the advice of a physician friend and his mother,
who is a nurse practitioner. Id. at 25–27. The Individual claimed that the May 2021 stay at the
hospital was purely for medical monitoring to control the withdrawal symptoms. Id. at 27. He
continued that he completed a two-week Intensive Outpatient Treatment Program (IOP) following
the May 2021 hospitalization and was sober for a time. Id. at 28. The Individual maintained that
the IOP was primarily educational videos about addiction. Id. He maintained that the program was
not individualized and did not include counseling or any education on coping mechanisms. Id.
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By October 2021, the Individual had begun overconsuming alcohol again. Id. at 29, 31. He realized
that he was consuming alcohol at the same level he was consuming prior to his May 2021
hospitalization and went to the hospital emergency room, where a social worker located an
inpatient rehabilitation program (IRP) for him. Id. at 31. Although the IRP began with medical
monitoring, after he was medically cleared, the Individual began one-on-one counseling, group
counseling, and seminars to help with abstinence. Id. He was in the IRP for two weeks prior to
discharge. Id. After discharge, he was linked with outpatient group therapy and one-on-one
counseling with an alcohol therapist recommended by the IRP (IRP-recommended therapist). Id.
The Individual began seeing the IRP-recommended therapist in November 2021, and continued
seeing her until June 2022, when he was discharged. Ex. I at 46; Ex. H at 38, 40. At discharge, the
IRP-recommended therapist told the Individual that he could consume alcohol again in
moderation. Id.
The Individual was evaluated by the DOE Psychiatrist in April 2023. During the evaluation, the
Individual told the DOE Psychiatrist that he had begun consuming alcohol again in August 2022.
Ex. 5 at 25. He also told the DOE Psychiatrist that since August 2022, he had been consuming
alcohol only on the weekends and did not keep alcohol in his house. Id. As part of his evaluation
of the Individual, the DOE Psychiatrist had the Individual undergo a PEth test, which showed
alcohol use higher than the Individual’s reported consumption of two beers approximately two
weeks prior to the evaluation. Id. at 29, 30, 32. The DOE Psychiatrist noted that the Individual’s
positive PEth test result measured at 157 ng/ml, which would indicate that the Individual was
consuming approximately four or more drinks per day. Id. at 29. In his Report, the DOE
Psychiatrist opined that the Individual was suffering from AUD, severe, in partial remission. Id. at
32. He recommended that the Individual abstain from alcohol for a full twelve months to
demonstrate rehabilitation or reformation. Id. at 33. He also recommended that the Individual
attend Alcoholics Anonymous or SMART program at least once a week, along with individual
counseling. Id. He asserted that the Individual is “not a good candidate to attempt drinking in
moderation,” “given his past history of two severe episodes of alcohol dependence with
withdrawal symptoms.” Id. at 33.
The Individual testified that he received the DOE Psychiatrist’s Report in July 2023,
approximately three months prior to the hearing date. Id. at 228. Following his receipt, he
immediately began abstaining from alcohol. Id. at 49.
The Individual submitted into the record letters from four different medical professionals: a
psychiatrist, a psychologist, the IRP-recommended therapist, and his current therapist. Ex. E at
22–26; Ex. G at 35–36; Ex. H at 38–40; Ex. I at 42–51. None of these individuals testified at the
hearing. The psychiatrist, who evaluated the Individual but is not the Individual’s treating
psychiatrist, opined, in her October 10, 2023, written report, that the Individual had an AUD, in
full remission, because he had not had a loss of control within two years. Ex. E at 25. The
psychologist, who also is not treating the Individual but evaluated him prior to the hearing, stated
in his October 10, 2023, written report that:
[T]hough he once met diagnostic criteria for an alcohol use disorder, he no longer
does. While some may formally label this as Alcohol Use Disorder, in full
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remission, I would no longer carry this diagnosis for [the Individual] given the
amount of time that has passed since he last exhibited symptoms.
Ex. I at 50. The IRP-recommended therapist stated in her letter that, at the time the Individual
completed treatment with her in June 2022,5 his diagnosis was substance use disorder, in early
remission. Ex. H. at 40. She claimed that the Individual was abstinent from alcohol during the
November 2021 through June 2022 timeframe in which she was treating him. Id. Further, she
indicated that she had informed the Individual that he “may opt to drink in moderation in the future
and that he has the skills and knowledge to avoid a relapse.” Id. Finally, the Individual’s current
therapist stated that she began weekly psychotherapy with the Individual in August 2023. Ex. G at
36. She opined that the Individual has a history of AUD, but no longer meets the criteria. Id. Like
the IRP-recommended therapist, she asserted that the Individual could continue to consume
alcohol in moderation. Id. In addition to the opinions of these individuals, the Individual submitted
into the record six negative PEth tests covering the time from September through October 2023.6
Ex. A at 5–8; Ex. Q1 at 8; Ex. R at 12. The Individual also submitted as exhibits sixteen attendance
verifications from Self-Management and Recovery Training (SMART)7 meetings dated
September through November 2023.8 Ex. J at 53–74; P at 3–6; Q2 at 3–10. The Individual also
submitted thirteen support letters, from his mother, his father, his brother, four co-workers, two
previous roommates in college, a graduate school professor, and four friends. Ex. K at 76–91.
At the hearing, the DOE Psychiatrist opined that the Individual was not rehabilitated or reformed
from the AUD diagnosis, because he only had three months in recovery at the time of the hearing.
Tr. at 172–73. The DOE Psychiatrist confirmed his opinion that the Individual should not consume
alcohol in the future. Id. at 147. He explained that “it’s a fairly good consensus that once you get
to the point that you are physically dependent on alcohol, with alcohol dependence, it generally
5 According to the IRP-recommended therapist’s letter, they ceased a therapy relationship in June 2022 because the
IRP-recommended therapist was moving to a new practice, and they agreed that the Individual was prepared to
discharge from the program. Ex. H at 38.
6 Those tests were dated September 7, 2023; September 15, 2023; September 29, 2023; October 5, 2023; October 20,
2023; and October 30, 2023. Ex. A at 5; Ex. Q1 at 8; Ex. R at 11.
7 According to its website,
SMART [program] is an evidenced-based recovery method grounded in Rational Emotive
Behavioral Therapy (REBT) and Cognitive Behavioral Therapy (CBT), that supports people with
substance dependencies or problem behaviors to:
1. Build and maintain motivation
2. Cope with urges and cravings
3. Manage thoughts, feelings and behaviors
4. Lead a balanced life
What is SMART Recovery?, SMART Recovery, https://smartrecovery.org/what-is-smart-recovery (last visited Dec.
7, 2023).
8 The dates of his SMART program attendance were September 6, 2023; September 7, 2023; September 16, 2023;
September 17, 2023; September 24, 2023; September 28, 2023; October 1, 2023; October 7, 2023; October 8, 2023;
October 12, 2023; October 15, 2023; October 23, 2023; October 28, 2023; October 29, 2023; November 4, 2023; and
November 5, 2023. Ex. J; Ex. P; Ex. Q2.
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indicates you’re not a good candidate to attempt drinking in moderation in the future.” Id. The
DOE Psychiatrist stated that “the best predictor of risk of relapse is the particular person’s own
history.” Id. at 157. He then outlined that the Individual was diagnosed with alcohol dependence
and attempted to consume alcohol in moderation again and failed. Id. The DOE Psychiatrist
indicated that this pattern was repeated again, which is not a “good prognosis.” Id. at 158. He
disputed the written opinions set forth by the psychiatrist, psychologist, and the two therapists who
evaluated the Individual. Id. at 160–70. However, he did admit that the psychologist had more
information than he did regarding the Individual’s past alcohol use, including information that the
Individual was diagnosed with alcohol abuse in June 2018, after a hospitalization for suicidal
ideation. Id. at 149–50. The DOE Psychiatrist explained that the Individual’s relapse following his
May 2021 hospitalization was a deciding factor in his determination that the Individual should
abstain from future alcohol use. Id. The DOE Psychiatrist stated:
[The Individual] had an episode of alcohol dependence in 2018, and then he
attempted to drink in moderation, and it didn’t work. And in May of 2021, he had
a relapse with alcohol dependence. And then he tried to drink in moderation again,
and it didn't work. And he had a relapse into alcohol dependence in October of
2021.
So he’s got two, I would say two significant failures of attempting to drink in
moderation. So to come back for a third strike, I think it makes it even stronger that
it’s not recommended that he attempt to drink in moderation.
Id. He concluded that the Individual had demonstrated three months of sobriety and two months
of attending the SMART program, which was insufficient to show rehabilitation or reformation
from his AUD, severe, diagnosis. Id. at 172–73.
V. ANALYSIS
Conditions that could mitigate security concerns under Guideline G 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; and
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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.
Id. at ¶ 23.
The Individual had two alcohol-related hospitalizations in 2021, after being diagnosed with alcohol
dependence in 2018. Then, after ten months of sobriety, he began consuming alcohol again in 2022
after being told by his IRP-recommended therapist that he could drink in moderation. At the time
of the hearing, he had only been abstinent for three months. The DOE Psychiatrist opined that the
Individual has relapsed previously and, in light of the severity of his AUD, he should not consume
alcohol again. Although the psychiatrist, psychologist, and therapists whose written opinions the
Individual submitted into the record offered opinions that diverged from the DOE Psychiatrist,
they were not called to testify. I find the DOE Psychiatrist’s assessment to be credible and
persuasive because his opinion that the Individual should be abstinent aligns with his diagnosis of
AUD, severe. In addition to having only three months of abstinence, the Individual began attending
the SMART program and weekly psychotherapy sessions only two months prior to the hearing.
Considering the Individual’s short period of recent treatment and abstinence, I cannot find that so
much time has passed that the Individual’s problematic alcohol-related behavior is unlikely to
recur. In addition, the Individual’s two alcohol-related hospitalizations point toward the behavior
not happening under unusual circumstances. Accordingly, I find the alcohol-related concerns are
not mitigated by the first mitigating condition. Id. at ¶ 23(a).
The Individual has admitted to his maladaptive alcohol use and provided evidence of steps he has
taken to overcome his problematic use. He has also offered evidence of abstinence, by way of his
testimony and PEth tests. In addition, the Individual has begun the treatment recommended by the
DOE Psychiatrist. But the Individual has been abstinent from alcohol use for only three months,
and such a short period of abstinence is not sufficient to establish a pattern, particularly in light of
his prior relapses. The DOE Psychiatrist testified that the Individual has “two significant failures
of attempting to drink in moderation.” Tr. at 149. Although the Individual claimed to have been
consuming alcohol in moderation since August 2022, a full 14 months prior to the hearing, the
PEth test results April 2023 indicate that he underreported his use to the DOE Psychiatrist. In fact,
according to the DOE Psychiatrist, those PEth test results indicate that he was drinking four or
more drinks per day. This is significantly more than he reported to the DOE Psychiatrist, and
significantly more than would be considered moderate consumption. With the AUD, severe,
diagnosis and the underreporting of his alcohol consumption, I cannot trust the Individual’s claim
that he has consumed alcohol only moderately since August 2022. Thus, the security concerns are
not mitigated by the second mitigating condition. Id. at ¶ 23(b).
While the Individual previously completed counseling and two treatment programs, the IOP after
his May 2021 hospitalization and the IRP after his October 2021 hospitalization, he began
consuming alcohol again in August 2022, after a 10-month period of abstinence. As stated above,
I am persuaded by the DOE Psychiatrist’s opinion that the Individual should remain abstinent from
alcohol, given his diagnosis of AUD, severe, and his history of multiple relapses. The concerns he
raised in his Report and during the hearing were based on the Individual’s history of relapse
followed by problematic alcohol consumption. At the time of the hearing, the Individual had not
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demonstrated a clear and established pattern of abstinence since he had only been abstinent for
three months as of the hearing. Therefore, the security concerns are not mitigated by either the
third or fourth mitigating condition. Id. at ¶ 23(c)–(d).
The DOE Psychiatrist opined at the hearing that the Individual’s prognosis would not be “good”
because he was diagnosed with AUD and previously attempted to consume alcohol in moderation
and failed. The Individual’s recent three-month period of abstinence from alcohol consumption is
simply not enough for me to find that his problematic alcohol use is unlikely to recur, in light of
his history. Accordingly, I find that none of the mitigating conditions have been satisfied, and that
the Individual has not resolved the security concerns asserted by the LSO under Guideline G.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline G of the Adjudicative Guidelines. After
considering all the relevant information, favorable and unfavorable, in a comprehensive, common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
find that the Individual has not brought forth sufficient evidence to resolve the security concerns
set forth in the Summary of Security Concerns. Accordingly, I have determined that the
Individual’s access authorization should not be granted. 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