PSH-24-0045

*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: January 18, 2024 ) Case No.: PSH-24-0045
)
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Issued: May 1, 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 be restored.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires a security clearance.
Derogatory information was discovered regarding the Individual’s alcohol use and criminal
conduct. The Local Security Office (LSO) began the present administrative review proceeding by
issuing a Notification Letter to the Individual informing him that he was entitled to a hearing before
an Administrative Judge in order to resolve the substantial doubt regarding his 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 four witnesses—his therapist, his treatment program
counselor, his friend, and his wife—and testified on his own behalf. The LSO presented the
testimony of the DOE psychologist who had evaluated the Individual. See Transcript of Hearing,
Case No. PSH-24-0045 (hereinafter cited as “Tr.”). The LSO submitted eleven exhibits, marked
as Exhibits 1 through 11 (hereinafter cited as “Ex.”). The Individual submitted ten exhibits, marked
as Exhibits A through J.
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 his eligibility for a security
clearance. That information pertains to Guidelines G and J 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.
Guideline J states that criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness and that, by its very nature, it calls into question a person’s ability or willingness
to comply with laws, rules, and regulations. Id. at ¶ 30. Conditions that could raise a security
concern include:
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(a) A pattern of minor offenses, any one of which on its own would be unlikely to affect
a national security eligibility decision, but which in combination cast doubt on the
individual’s judgment, reliability, or trustworthiness;
(b) Evidence (including, but not limited to, a credible allegation, an admission, and matters
of official record) of criminal conduct, regardless of whether the individual was
formally charged, prosecuted, or convicted;
(c) Individual is currently on parole or probation;
(d) Violation or revocation of parole or probation, or failure to complete a court-mandated
rehabilitation program; and
(e) Discharge or dismissal from the Armed Forces for reasons less than “Honorable.”
Id. at ¶ 31.
The LSO alleges that in June 2023, the Individual was arrested and charged with Driving Under
the Influence of Liquor (Impairment) (DUI) and Reckless Driving and that he admitted to
consuming two sixteen-ounce mixed liquor drinks and two Benadryl pills prior to driving. The
LSO also alleges that in August 2023, a DOE-Contractor Psychologist (the Psychologist)
diagnosed the Individual with Unspecified Alcohol Related Disorder without evidence of
rehabilitation or reformation. Accordingly, the LSO’s security concerns under Guidelines G and J
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 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 his 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.
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§ 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
On June 1, 2023, the Individual was arrested and charged with DUI and Reckless Driving, both
misdemeanors. Ex. 6 at 1; Ex. 4 at 3. The Individual suffered from insomnia and had been awake
for three days working on personal project while on vacation. Ex. 6 at 1. He did not eat breakfast
before beginning to drink two Gatorades and two sixteen-ounce vodka mixed drinks at 9:00 a.m.
while doing yard work. Id. He also took two Benadryl pills for his allergies at that time. Id. He
began driving to his family’s lake property with a trailer in tow around 11:20 a.m. Id. at 1–2; Ex.
9 at 3. He contacted his wife while on the road and she expressed concern about his driving with
so little sleep. Ex. 6 at 2. Around 1:00 p.m., the Individual stopped for gas and walked around to
wake himself up. Id.
About forty minutes later, the Individual fell asleep at the wheel while driving on the highway. Ex.
4 at 2–3. He hit a guard rail and rolled his vehicle. Id. at 2. The Individual was disoriented after
the accident and refused to submit to a breathalyzer test. Id. at 3. He was arrested and released the
following day. Ex. 7 at 2.
The LSO referred the Individual to the Psychologist for a substance abuse evaluation, which
occurred on August 4, 2023. Ex. 9. The Individual told the Psychologist he had not consumed
alcohol since his DUI, which was supported by the negative result of a Phosphatidylethanol (PEth)
blood test administered on the day of his evaluation.2 Id. at 4, 6. The Individual reported that before
2019, he had consumed alcohol frequently and in large amounts, but had abstained or consumed
alcohol socially since 2019. Id. at 5. He reported having consumed alcohol five times in the year
prior to his DUI, all at social events. Id. He told the Psychologist he intended to abstain from
alcohol permanently. Id. The Psychologist diagnosed the Individual with Unspecified Alcohol-
Related Disorder due to his past heavy alcohol use, his recent DUI, and his combining alcohol
with Benadryl—which has a warning against taking it if consuming alcohol. Id. She described
these factors as “a constellation of symptoms, risky behavior, . . . and alcohol-related poor
judgment . . . .” Id. She recommended that for the Individual to demonstrate rehabilitation, he
should enter an alcohol awareness and education program, participate in at least twelve weeks of
therapy with a substance abuse therapist, and undergo monthly PEth tests. Id. at 6. Alternatively,
she recommended that for the Individual to show reformation, he should abstain from alcohol for
at least six months and undergo monthly PEth tests. Id.
The Individual enrolled in an Intensive Outpatient Program (IOP) for substance abuse in December
2023, from which he graduated in February 2024. Ex. B at 4; Ex. I. At the hearing, his IOP
counselor testified that she believed the Individual had no intention of returning to alcohol. Tr. at
63. She testified that the Individual submitted to a urine test to screen for alcohol every week that
he attended the IOP and that all of the tests returned a negative result. Id. at 66–67.
2 PEth tests can indicate whether the subject has consumed alcohol in the prior three to four weeks. Ex. 9 at 6.
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The Individual began going to therapy in August 2023. Tr. at 14. The Individual’s therapist initially
worked with the Individual on substance abuse issues. Id. at 14–15. He diagnosed the Individual
with alcohol dependence. Id. at 23. When the Individual enrolled in the IOP, they pivoted to
working on other issues. Id. at 15. At the hearing, the therapist testified that the Individual was
very open and willing to engage in difficult conversations. Id. at 16. The therapist’s methodology
for substance abuse counseling involves completing assignments and doing tasks, which helps
ensure that his clients are engaged in a process of real change. Id. at 17–18. The therapist testified
that Individual completed his assignments and engaged with the program appropriately. Id. at 18.
Even after the pivot to broader issues, the therapist and the Individual worked on identifying
triggers that could make the Individual want to drink alcohol. Id. at 19–20, 30–31. The therapist
believed the Individual intended to continue with therapy in the future. Id. at 19, 32. He believed
that the Individual had accepted responsibility for his alcohol abuse and the actions that had led
him to treatment. Id. at 22. He believed that the Individual had not consumed alcohol since his
DUI. Id. at 30. The Individual had told him that he did not intend to consume alcohol in the future.
Id. at 32.
Regarding his diagnosis of the Individual, the therapist testified that he now believes the
Individual’s alcohol dependence is in remission. Id. at 35. He gave the Individual a good prognosis
for maintaining abstinence from alcohol. Id. at 36. He testified that the Individual was rehabilitated
and reformed. Id. at 39.
The Individual’s friend also worked at the DOE facility. Tr. at 41. He met the Individual about 12
years ago through their wives. Id. at 42. He had been a source of support for the Individual after
his DUI and had seen the Individual change for the better in the time since he started abstaining
from alcohol. Id. at 45, 47, 52. He had last seen the Individual consume alcohol before the
Individual received his DUI. Id. at 49. He testified that the Individual did not appear to struggle to
abstain from alcohol. Id. at 51. The friend testified that he and his wife would continue to support
the Individual in his sobriety and “keep him on track.” Id.
The Individual’s wife testified that she does not drink alcohol. Tr. at 89. She testified that she had
not seen the Individual drink alcohol in several years because he did not drink around her. Id. at
91–92. She believed that the Individual’s therapy had been a positive experience for the Individual.
Id. at 94. She had witnessed positive changes in the Individual’s communication and behavior
since he began treatment. Id. at 95. The Individual had told her that he intended to abstain from
alcohol indefinitely and that he intended to continue attending therapy. Id. at 95–96. She testified
that their friends and family members were supportive of the Individual’s sobriety and that he
would be able to reach someone for help at any time of the day or night if he felt like he was about
to relapse. Id. at 97–99, 103.
The Individual admitted that he had an alcohol problem and stated that he was responsible for his
recovery. Tr. at 108. He testified that he had learned that addiction and substance abuse can take
many forms beyond drinking. Id. at 114. He also testified that he had learned skills to deal with
triggers in a variety of settings, including when with spending time with friends or at the lake. Id.
He stated that the IOP provided the foundation for his new choices and responses to triggers. Id.
He had started journaling every day, which he found helpful, and was working on avoiding
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complacency in his recovery. Id. at 115–16. He was also focused on recognizing the root causes
of his alcohol abuse. Id. at 116. The Individual testified that he had a close group of friends and
that there were at least four or five people on his speed dial that would drop everything to help him
if he needed them. Id. at 117–18.
The Individual committed to remaining abstinent indefinitely. Tr. at 119. He submitted into
evidence the result of a urine drug screening taken shortly before the hearing, which was negative
for alcohol use. Ex. C. Supplement. He testified that he was sleeping well since abstaining. Tr. at
142. He further testified that he had lost weight and his sleep apnea had resolved itself. Id.
The Individual testified that he had no prior arrests and had only received a speeding ticket once
when he was about eighteen years old. Tr. at 106. He testified that he was, under the legal
definition, impaired during the incident leading to his DUI. Id. at 123. His case was still pending,
and he had entered a not guilty plea on the advice of counsel because he did not believe the state
had met its burden of proof. Id. at 123–24, 149, 166. The case had gone to trial which resulted in
a hung jury, and the case was being retried. Id. at 145. The Individual testified that he did not
remember if he drove recklessly on the day of his DUI because he lost his memory after the airbags
deployed during the crash. Id. at 146–47. He testified that when he entered his not guilty plea, he
did not remember having fallen asleep at the wheel but did remember consuming alcohol before
driving. Id. at 152. The Individual admitted that driving after having not slept for three days was a
“terrible lack of judgment.” Id. at 147.
The Psychologist opined that the Individual was rehabilitated and reformed because he had gone
above and beyond her recommendations. Tr. at 158–59. She was particularly impressed that he
had entered an IOP even though it wasn’t a part of her recommendations and that he was able to
articulate what he had learned there. Id. She gave him a good prognosis. Id. at 160. The
Psychologist testified that though she did not diagnose any memory problems for the Individual,
when she performed the evaluation, he had not been able to describe his driving during the incident.
Id. at 162–63.
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
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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.
A. Guideline G
Conditions that could mitigate a Guideline G security concern 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
(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. Conditions (b), (c), and (d) apply in this case.
Regarding condition (b), the Individual acknowledges that he has an alcohol problem and should
remain abstinent indefinitely. He also submitted evidence of actions he took to overcome this
problem—including the IOP, and therapy—and is still undergoing long-term treatment for
substance abuse and general life stress. He has not consumed alcohol since his DUI, as
demonstrated by the PEth test ordered by the Psychologist, the urine screenings he underwent for
the IOP and at his own request, and the testimony provided by himself and his witnesses. This
demonstrates a pattern of abstinence that goes beyond the Psychologist’s treatment
recommendations.
The Individual’s demonstrated pattern of abstinence is also a requirement of condition (d).
Moreover, he submitted testimonial and documentary evidence that he substantially completed an
IOP and continues to pursue counseling. This evidence shows that he has completed a treatment
program and is attending aftercare.
Regarding condition (c), the Individual has not previously participated in alcohol or substance
abuse counseling and has not relapsed since abstaining from alcohol. His therapist and IOP
counselor both testified that he was making satisfactory progress in his treatment.
The Psychologist and the Individual’s therapist testified that the Individual was rehabilitated and
reformed. Both gave him a good prognosis. The Individual has learned to identify and cope with
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triggers that could cause him to crave alcohol. He also has a strong support system, including his
spouse who abstains from alcohol. The Individual has also committed to lifelong abstinence and
demonstrated his ability to abstain for a significant amount of time.
For the foregoing reasons, I find that the Individual has mitigated the Guideline G concerns.
B. Guideline J
Conditions that could mitigate a Guideline J security concern include:
(a) So much time has elapsed since the criminal behavior happened, or it happened under
such unusual circumstances, that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment;
(b) The individual was pressured or coerced into committing the act and those pressures
are no longer present in the person’s life;
(c) No reliable evidence to support that the individual committed the offense; and
(d) There is evidence of successful rehabilitation; including, but not limited to, the passage
of time without recurrence of criminal activity, restitution, compliance with the terms
of parole or probation, job training or higher education, good employment record, or
constructive community involvement.
Adjudicative Guidelines at ¶ 32. Condition (d) applies in this case.
The DUI incident is the Individual’s only criminal charge. Because that charge is inextricably
linked to alcohol consumption, the Guideline J concerns can be mitigated if the Guideline G
concerns have been mitigated. In this case, the Guideline G concerns have been mitigated. The
Guideline G nexus with Guideline J even extends to the factors that exacerbated his dangerous
driving, namely his sleep deprivation and his use of Benadryl with alcohol. The Individual’s
commitment to abstinence and demonstrated pattern of abstinence make it unlikely that he will
combine alcohol and drugs with drowsiness side effects in the future. Moreover, the Individual’s
sleep difficulties have resolved since abstaining from alcohol, making it unlikely that he will drive
after being awake for multiple days in the future.
The Individual’s successful Guideline G mitigation is evidence of successful Guideline J
mitigation in this case. He has no history of criminal behavior that was not caused by alcohol or
cannot be resolved through abstinence. Accordingly, I find that the Individual has mitigated the
Guideline J concerns.
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 Guidelines G and J
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of the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving
those concerns. Therefore, I 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 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