PSH-24-0007

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: October 17, 2023 ) Case No.: PSH-24-0007
)
__________________________________________)
Issued: February 9, 2024
____________________________
Administrative Judge Decision
____________________________
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’s access
authorization should be granted.
I. BACKGROUND
The Individual has been employed by a DOE contractor in a position that requires him to hold an
access authorization. Exhibit (Ex.) 1. In August 2022, the Individual was charged with Battery
Upon a Peace Officer after consuming four to six beers and a shot of whiskey. Ex. 1 at 5. As a
result of the August 2022 criminal charge, the Local Security Office (LSO) issued the Individual
a Letter of Interrogatory (LOI) on May 10, 2023, concerning the incident. Ex. 6.2 In his response,
the Individual represented that he had not consumed alcohol since August 5, 2022. Ex. 6 at 45. In
June 2023, the Individual was evaluated by a DOE-consultant Psychologist (DOE Psychologist),
which resulted in him diagnosing the Individual with Alcohol Use Disorder (AUD), moderate in
early remission, without adequate evidence of rehabilitation or reformation. Ex. 1 at 5; Ex. 7 at 72.
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 In the LOI, the Individual stated that the incident occurred on July 5, 2022, not August 8, 2022. Ex. 6 at 29.
- 2 -
The LSO subsequently issued the Individual a Notification Letter advising him that it possessed
reliable information that created substantial doubt regarding his eligibility for access authorization.
Ex. 1 at 5. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guidelines G of the Adjudicative
Guidelines. Id.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2 at 10–32. The Director of the Office of Hearings and Appeals (OHA)
appointed me as the Administrative Judge in this matter, and I conducted an administrative
hearing. The LSO submitted ten exhibits (Exs. 1–10). The Individual submitted five exhibits (Exs.
A–E). The Individual testified on his own behalf and offered the testimony of his counselor,
mother, sister, and aunt. Hearing Transcript, Case No. PSH-24-0007 (Tr.) at 10, 26, 42, 52, 71.
The LSO called the DOE Psychologist to testify. Id. at 107.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As previously mentioned, the Notification Letter included the SSC, which sets forth the derogatory
information that raised concerns about the Individual’s eligibility for access authorization.
Guideline G relates to security risks arising from excessive alcohol consumption. “Excessive
alcohol consumption often leads to the exercise of questionable judgment or the failure to control
impulses and can raise questions about an individual’s reliability and trustworthiness.”
Adjudicative Guidelines at ¶ 21. In citing Guideline G, the LSO relied upon the DOE
Psychologist’s June 2023 diagnosis that the Individual suffered from AUD, moderate. Ex. 1 at 5.
It also cited the Individual’s August 2022 alcohol-related charge and his admission that he
consumed alcohol to intoxication three to four times a week between September 2020 and January
2021. Id.
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
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
- 3 -
§ 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
The Individual was charged with Battery Upon a Peace Officer in August 2022, after consuming
four to six beers and a shot of whiskey. Ex. 9 at 134. The Individual admitted his misuse of alcohol.
Tr. at 72. In August 2022, he went to a fair, where someone gave him a political sign. Id. at 73. A
police officer saw him with the sign and thought he had stolen it. Id. at 74. The Individual claimed
that eventually the police officer believed him, but the Individual proceeded to touch the police
officer, after which he was charged with battery. Id. In December 2022, the charges were
dismissed. Id. However, after his arrest, the Individual was on probation and given weekly urine
tests, which were always negative. Id. at 84.
The Individual testified that he misused alcohol prior to that incident because he had depressive
thoughts. Id. at 76. He was diagnosed with attention deficit hyperactivity disorder when he was
younger and was tested for autism. Id. He claimed that his mind was “constantly going” and he
used alcohol to get sleep. Id. He indicated that when the pandemic began, he was isolated, and
began to consume more alcohol in order to “get a good night rest.” Id. He started taking prescribed
anti-depressants in the beginning of 2021 until August 2022. Id. at 80. The Individual asserted that
he worked with his doctor to wean himself off the medications. Id. at 81. August 5, 2022, was the
last day he consumed alcohol. Id.
The Individual claimed that he stopped drinking because he let himself down. Id. at 82. He
testified, that “when the incident happened . . . there was a lot of guilt . . . and I wasn’t proud of
myself. . . . I let myself down.” Id. He believes he took charge of his life and matured since his
arrest. Id. at 83. He attends the Employee Assistance Program (EAP) classes. Id. at 86. He stopped
attending Alcoholics Anonymous (AA) after four months, because he prefers to go to therapy led
by professionals that is scenario based. Id. at 86–87. The Individual indicated that he no longer
associates with his friends with whom he consumed alcohol. Id. at 92. He relies on a co-worker,
who has been sober for ten years, who helps him stay sober. Id. The Individual claimed that he
keeps himself busy by working on his truck, watching a funny movie, or taking a ride in his truck.
Id. at 93. He stated that he has been living with his girlfriend, who does not drink, for about four
months and they keep no alcohol in their home. Id. at 94. He asserted that he has not struggled
with his sobriety and does not have an issue being with people who are consuming alcohol. Id. at
95. He stated that he does not ever intend to consume alcohol again. Id.
The Individual’s aunt testified that she sees him once or twice a month and speaks with him more
frequently by telephone. Id. at 27. She did not believe that he had a problem with his alcohol
consumption, but she did see him drink. Id. at 30–31. She claimed that the arrest was a good
learning experience for the Individual and that it scared him. Id. at 33. The aunt testified that, to
her knowledge, he has not had any alcohol since his arrest. Id. at 32. She indicated that she works
for the LSO, and her endorsement of her nephew is significant because she is committed to her
work and the mission of the LSO. Id. at 37.
- 4 -
The Individual’s sister testified that she sees him once or twice a week and texts him every day.
Id. at 42. She had seen him consume alcohol in the past prior to his arrest, but never saw him
consume alcohol excessively. Id. at 43. His sister claimed that the last time she saw the Individual
consume alcohol was in May or June 2022. Id. at 44. Like his aunt, his sister claimed that his arrest
“shook him to his core” and to her knowledge, he has been abstinent since August 2022. Id. at 44,
46. She stated that he has a “strong family unit” and talks to them frequently. Id. at 49.
The Individual’s mother testified that she talks to him and sees him twice a week. Id. at 52–53.
She indicated that he began consuming more alcohol because he was struggling with what he was
going to do with his life. Id. at 55. He was staying with her and began consuming more alcohol,
but his level of consumption was never concerning to her. Id. His mother indicated that he was
struggling because of his lack of a relationship with his father and grandfather. Id. at 57. She
claimed that he started anti-depression medication, and she saw a decline in him. Id. His mother
stated that:
when he went on depression meds, I saw a real steep decline in his just overall
wellbeing. He was vacant. He just – he didn’t respond well to depression meds, in
my opinion. I honestly, as weird as it sounds, the minute he got off of them is kind
of when [he] was coming back, he had like life in his eyes again.
Id. She asserted that although it is sad that the Individual was arrested because it really devastated
him, he will never do anything similar again. Id. at 60. His mother testified that she had not seen
the Individual consume alcohol since the incident. Id. at 61. She stated that there was a family
celebration the week before the hearing and, although many people were drinking, the Individual
did not consume alcohol. Id. at 62. She also stated that he did not consume alcohol at the family
Thanksgiving celebration. Id. She asserted that he has matured during the past year. Id. at 65. She
said that he was more open, committed to making changes, and coping better. Id. She confirmed
that the Individual consulted with his doctor to cease taking the anti-depressants, in late summer
2022. Id. at 66.
The Individual’s EAP counselor testified that she met him when he started the six-week alcohol
awareness and education group class in October 2023. Id. at 12. She said that the class is workbook
based and includes journaling at home. Id. The Individual chose to attend the twelve-week follow-
up class entitled “Maintaining Changes,” which is specifically focused on alcohol related issues..
Id. at 13. The only requirement of the Maintaining Changes class is that the Individual remains
abstinent, unlike the six-week class, which does not require abstinence. Id. The EAP counselor
stated that the Individual has been very open and honest in the group, which allowed the other
attendees to be more comfortable. Id. at 14. The EAP counselor confirmed the Individual’s claim
that he likes to go driving to fill his time. Id. at 15. She asserted that his mother and aunt are very
supportive of him. Id. at 15, 16. The EAP counselor testified that the Individual has maintained his
sobriety for over a year and that he is proud of his accomplishment. Id. at 21. She stated that he
has shown honesty and courage in the group. Id. at 22. Finally, she stated that she believes that the
Individual was honest about his alcohol use and depression issues when he applied for his access
authorization. Id. at 14.
- 5 -
The DOE Psychologist testified that he evaluated the Individual and administered psychological
tests. Id. at 111. Following the evaluation, the Individual underwent a phosphatidylethanol (PEth)
test,3 which detects any significant alcohol use over the past three to four weeks. Ex. 7 at 71. The
DOE Psychologist stated that the PEth test was negative, confirming the Individual’s self-report
of abstinence during the evaluation. Id.; Tr. at 108. He stated that, at the time of the Individual’s
June 2023 evaluation, he had recommended that the Individual reengage with AA or some other
type of recovery group and engage in testing to confirm his abstinence. Tr. at 111. The DOE
Psychologist testified that the Individual has tried to comply with his recommendations by
engaging with the EAP, which indicates that he is attempting to manage his sobriety and engage
in treatment efforts. Id. “It’s obvious that he has sought out treatment on his own, and that’s
proactive. I think that’s a positive – that’s a positive thing, again, that lends well towards his ability
to maintain sobriety.” Id. at 116. He asserted that it would have been “nice” if the Individual had
undertaken additional testing, but the DOE Psychologist opined that the testing done while the
Individual was on probation, along with the negative PEth test done after the evaluation and the
testimony of his family is adequate to show reformation. Id. at 113. He opined the Individual was
showing adequate evidence of rehabilitation and reformation. Id. at 113–14.
The DOE Psychologist testified that the Individual no longer carries the diagnosis of AUD,
because he has not met the criteria for the disorder for a period of sixteen months. Id. at 119–20.
Prior to concluding that the Individual no longer carries the AUD diagnosis, the DOE Psychologist
stated that the Individual’s prognosis is between fair and good, with the terms poor, fair, and good
being the terms he uses to indicate someone’s prognosis. Id. at 115. He opined that continuing with
the twelve-week EAP class would be useful to the Individual maintaining his sobriety and would
satisfy the DOE Psychologist’s recommendation that the Individual pursue aftercare. Id. at 116..
The DOE Psychologist concluded that the Individual’s risk of relapse is low. Id. at 120.
V. ANALYSIS
Conditions that could mitigate security concerns under Guideline G include:
(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; [and]
(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;
Id. at ¶ 23(b), (c).
The Individual acknowledged his maladaptive alcohol use. In addition, he provided persuasive
testimony from his aunt, his sister, and his mother, along with his own testimony, that he has been
3 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). Ex. 7 at 71.
- 6 -
abstinent since August 2022. His relatives all testified that he sees them regularly and that they
have not seen him consume any alcohol, even at family functions where alcohol is present. The
DOE Psychologist testified that the Individual’s negative PEth test after the evaluation, which
confirmed his self-report of abstinence, along with the testing required by his probation is adequate
to show evidence of his abstinence. Therefore, I find that the Individual has mitigated the Guideline
G concern under paragraph (b) of the mitigating factors.
The Individual has completed the six-week EAP class. He has enrolled in the twelve-week
Maintaining Changes class. The Individual has no history of treatment prior to August 2022, nor
does he have a history of relapse following treatment. His EAP counselor testified that he has been
open, honest, attentive, and focused in the group. Finally, the DOE Psychologist testified that the
Individual’s twelve-week Maintaining Changes program is sufficient to be considered aftercare.
Therefore, I find that the Individual has mitigated the Guideline G concern under paragraph (c) of
the mitigating factors.
On a final note, the DOE Psychologist asserted that he would no longer diagnose the Individual
with AUD, and even if he did still carry the diagnosis, the Individual was rehabilitated and
reformed.
Accordingly, I find that two of the mitigating conditions have been satisfied, and that the Individual
has 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 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 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