PSH-24-0017

*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: November 21, 2023 ) Case No.: PSH-24-0017
)
__________________________________________)
Issued: March 6, 2024
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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
The Individual has been employed by a DOE contractor in a position that requires her to
hold an access authorization. Exhibit (Ex.) 1. In June 2023, the Individual voluntarily
entered an in-patient treatment program (ITP) for alcohol use. Ex. 2 at 10. As a result of
her attendance at the ITP, the Local Security Office (LSO) sent the Individual for an
evaluation by a DOE-consultant Psychologist (DOE Psychologist). The DOE Psychologist
diagnosed the Individual with Alcohol Use Disorder (AUD), severe, without adequate
evidence of rehabilitation or reformation. Ex. 1 at 5; Ex. 6 at 29.
The LSO subsequently issued the Individual a Notification Letter advising her that it
possessed reliable information that created substantial doubt regarding her eligibility for
access authorization. Ex. 1 at 6. In a Summary of Security Concerns (SSC) attached to the
letter, the LSO explained that the derogatory information raised security concerns under
Guideline G of the Adjudicative Guidelines. Id. at 5.
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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The Individual exercised her right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2 at 10–12. 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 eight exhibits (Exs. 1–8). The Individual
submitted five exhibits (Exs. A–E). The Individual testified on her own behalf and offered
the testimony of her mother, her co-worker, and her two friends. Hearing Transcript, Case
No. PSH-24-0017 (Tr.) at 15, 26, 50, 68, 79. The LSO called the DOE Psychologist to
testify. Id. at 118.
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 August 2023 diagnosis that the Individual
suffered from AUD, severe. Ex. 1 at 5.
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 § 710.26(h). Hence, an individual is
afforded the utmost latitude in the presentation of evidence to mitigate the security
concerns at issue.
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IV. FINDINGS OF FACT
The Individual testified that prior to the COVID-19 pandemic, she was a “social drinker.”
Tr. at 81. She claimed that her alcohol consumption increased from drinking two to three
days a week and binging on the weekends to consuming alcohol most days2 during the
pandemic because she was suffering from stress due to her work situation while caring for
her son. Id. at 82. Her stress was worsened by moving back into her parents’ house. Id. at
82–83. The Individual claimed that she was “very good” at hiding her alcohol consumption
prior to entering the ITP, and that after her discharge, she showed her mother all the
locations where she could hide alcohol. Id. at 85. In fact, her mother testified that she never
saw the Individual consume more than one or two beers and never saw her intoxicated. Id.
at 54–55. The Individual and her friend (Friend One) testified that in June 2023 she had a
one-car automobile accident after consuming alcohol, which led her to voluntarily enter
the ITP. Id. at 38, 83. The Individual testified that she did not consume any alcohol while
she was in the ITP, but that she struggled once she was discharged in July 2023 and prior
to enrolling an Intensive Outpatient Program (IOP) in August 2023.3 Id. at 90–91. The
Individual testified, and her mother confirmed, that she graduated from the first 12-week
session of the IOP and was, at the time of the hearing, attending a second 12-week session.
Id. at 60, 91–92. The Individual asserted that she would only consume alcohol occasionally
after the ITP. Id. However, she also stated that she consumed a glass of wine at
Thanksgiving 2023 and two beers at Christmas 2023 with family, with Christmas being the
last time she consumed any alcohol. Id. at 98. Her mother’s testimony confirmed that she
consumed alcohol during those two holidays, but her mother did not specify the amount
she consumed. Id. at 58, 61–62.
The Individual testified that her long-term plan is remain sober, however, she understands
it is a struggle every day. Id. at 100. She also stated that, “I feel I did have a problem with
alcohol.” Id. at 80. She continued, “I know I did struggle like the first month after I got out
[of the ITP], but I also wasn’t set up with an IOP at that point and was kind of just trying
to get it all sorted myself.” Id. at 81. The day of the accident, the Individual testified, she
left work early, purchased alcohol, and consumed it prior to attempting to return home. Id.
at 83.
The Individual stated that her employer put her on a fitness for duty (FFD) after her return
from the ITP. Id. at 105. The FFD required that she remain abstinent, however, she admitted
that she consumed alcohol during this time. Id. The Individual claimed that she reported
her violative consumption every time to the doctor who oversaw the FFD program. Id. at
2 The Individual indicated that during the pandemic she was consuming two 1.7-ounce bottles of hard liquor
and three to four 12-ounce bottles of beer to the point of intoxication every day. Ex. 6 at 25.
3 The Individual testified that she finally arranged to enter the IOP in October 2023, but the DOE Psychologist
corrected her memory and confirmed that she actually enrolled in the IOP in August 2023, had an assessment
in early September 2023, and began the program three weeks after the assessment, also in September 2023.
Id. at 115–16.
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106–07. She stated that she currently attends IOP, which consists of SMART4 recovery,
group counseling, and individual therapy once a week. Id. at 108. The Individual claimed
that she attends Alcoholics Anonymous (AA) online and that her employer administers a
breathalyzer every day, at random times.5 Id. at 110–11, 104. The Individual’s exhibits
included two college transcripts, Ex. A and Ex. B; a letter from her supervisor, Ex. D; and
a letter from a co-worker, Ex. E.
The Individual’s co-worker testified that they shared an office for approximately six
months and that he has known her for a year and a half. Tr. at 16. He continued that he
never saw any signs of intoxication or the Individual being “hungover.” Id. at 19, 24–25.
Friend One testified that they have known each other for at least 10 years. Id. at 27. They
graduated from school together, and although they do not see each other frequently, they
communicate by texting regularly. Id. at 29–30. Friend One testified that she has never
seen the Individual consume more than two to three drinks during one evening. Id. at 32.
Friend One claimed that the Individual has not changed since she entered the ITP, but that
she appears to be remaining at home with her parents and son more than in the past. Id. at
44. The Individual’s second friend knows the Individual through his wife. Id. at 67. He
claimed that they see each other every few months, but that they communicate every day.
Id. at 70. He stated that he never saw a problem with her alcohol consumption. Id. at 71.
Finally, the Individual’s mother testified that they have lived together for two years. Id. at
51. She stated that she was unaware of the Individual’s overconsumption of alcohol prior
to her entering the ITP. Id. at 52. She clarified that they are a close family who celebrate
occasions together and she would see the Individual consume a “couple of beers.” Id. The
Individual’s mother stated that she last saw the Individual consume alcohol at Christmas,
which was approximately one month prior to the hearing. Id. at 58. She also saw the
Individual consume alcohol at Thanksgiving. Id. at 62.
The DOE Psychologist summarized his evaluative report, in which he diagnosed the
Individual with AUD, severe. Id. at 120. He met with the Individual approximately six
4 SMART stands for Self-Management and Recovery Training. 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 Mar. 5, 2024).
5 The Individual’s Exhibit C provides the negative results of 40 breathalyzer tests. Ex. C. Although the tests
are frequent, they do not appear to be daily. Id. The first few tests provided are dated July 25, 2023; July 31,
2023; August 8, 2023; and August 22, 2023. Id. at 1–4. The frequency of the tests appears to increase in
December. Id. at 23–31. However, there are three tests dated December 21, 2023, two of which state
“interferent detect.” Id. at 30–31.
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weeks after she was discharged from the ITP. Id. At the interview, the Individual stated
that she had consumed two 1.7-ounce bottles of liquor approximately two weeks prior. Ex.
6 at 26. The DOE Psychologist stated that he referred her for a Phosphatidylethanol (PEth)6
test to be administered immediately following the evaluative interview. Tr. at 120. That
PEth test was positive, which according to a psychiatrist who reviewed the laboratory
report indicated that the Individual had significantly underreported her alcohol
consumption to the DOE Psychologist. Ex. 6 at 28. In his report, the DOE Psychologist
recommended that to demonstrate rehabilitation or reformation from her AUD, severe, the
Individual continue with the IOP for 24 weeks, followed by aftercare. Tr. at 121. He also
recommended that she attend AA or SMART meetings, five times per week. Id. at 122;
Ex. 6 at 29. The DOE Psychologist recommended that the Individual remain abstinent for
one year and provide PEth tests monthly to demonstrate her abstinence.7 Ex. 6 at 29; Tr. at
122. According to the record, the Individual received a copy of the DOE Psychologist’s
report with the Notification Letter, which was dated November 10, 2023. Ex. 1 at 8.
At the hearing, the DOE Psychologist testified that they did not discuss her car accident at
the interview, even though it was a catalyst for her entering ITP. Tr. at 126–27. He
concluded that, as of the date of the hearing, the Individual was not reformed or
rehabilitated from her alcohol diagnosis. Id. at 127. The DOE Psychologist stressed that
the Individual has not remained abstinent, nor has she completed the recommendations he
made in his report. Id. at 127–28. He indicated that her attendance at the IOP and the fact
that she has signed up for an additional 12 weeks are both positive factors, however she is
still in the early stages of her treatment. Id. at 128–29. He emphasized that her psychiatric
history indicates that she seeks help when she needs it, which is very positive. Id. at 132.
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;
6 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. 6 at 41.
7 At the hearing, the DOE Psychologist asserted that if the Individual stays in treatment, she could be
considered rehabilitated or reformed from the date of her last alcoholic consumption, which was December
2023. Tr. at 131.
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(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.
Id. at ¶ 23(a)-(d).
Condition (a) does not apply to the Individual’s situation. She voluntarily entered the ITP
only six months prior to the hearing. Further, she admitted, which was confirmed by her
mother’s testimony and the PEth test results, that she consumed alcohol after being
discharged from the ITP and again only one month prior to the hearing. I cannot find that
so much time has passed, the behavior was so infrequent, or it happened under such unusual
circumstances that is unlikely to recur.
Condition (b) also does not apply. Although the Individual acknowledged her maladaptive
alcohol use, she equivocated on whether she presently has an alcohol problem, stating
rather that she “did struggle [with alcohol] the first month after [she] got out” of the ITP.
Tr. at 81. In addition, even though she has provided evidence of actions that she has taken
to overcome her problem, she has not yet demonstrated a clear and established pattern of
abstinence, which was recommended by the DOE Psychologist. The Individual admitted
that she consumed alcohol in violation of the FFD requirements. In the evaluative report,
the DOE Psychologist recommended abstinence, but the Individual testified that she
consumed alcohol at Thanksgiving and Christmas, after she had received his report.
Condition (c) does not apply. Although the Individual is participating in a treatment
program, her testimony indicated that she has had relapses during that treatment by
consuming alcohol. The DOE Psychologist testified the Individual is early in her treatment
program and that he was concerned that she does not believe she has a problem with alcohol
now.
Finally, condition (d) also does not apply. Although the Individual completed the ITP and
the first 12 weeks of the IOP, she has not demonstrated abstinence in accordance with the
DOE Psychologist’s recommendation.
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.
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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
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