PSH-24-0055

*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.
In the Matter of: Personnel Security Hearing )
)
Filing Date: January 30, 2024 ) Case No.: PSH-24-0055
)
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Issued: April 22, 2024
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Administrative Judge Decision
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Noorassa A. Rahimzadeh, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 is employed with a DOE contractor in a position that requires him to hold an access
authorization. As part of the clearance process, the Individual signed and submitted a
Questionnaire for National Security Positions (QNSP) in December 2021. Exhibit (Ex.) 12. The
Individual disclosed that he was charged with “[M]inor in [P]ossession of [A]lcohol” in 1985,
when he “was at a party with other underage kids drinking beer.” Id. at 75. He noted that the charge
was subsequently dismissed. Id. He also disclosed that had been “charged with [P]ublic
[I]ntoxication” in 1998. Id. at 76; Ex. 11 at 1; Ex. 10 at 4. The Individual stated that “someone
called police” after he left a bar, and that the matter was resolved after he paid a fine. Id. Finally,
the Individual disclosed that he was charged with Reckless Driving in 1999. Ex. 12 at 77; Ex. 11
at 2. He stated that he had consumed “a couple beers with dinner,” but passed field sobriety tests
after he was stopped by law enforcement. Id.
The Individual was charged with Driving While Intoxicated (DWI) and Open Container of an
Alcoholic Beverage (Open Container) in February 2023.2 Ex. 5 at 1; Ex. 10 at 2. The police report
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 police report indicates that the Individual was charged with DWI, and accordingly, the term DWI will be used
throughout this decision, even though the SSC indicates that the Individual was charged with Driving Under the
Influence (DUI). Ex. 5 at 1; Ex. 2 at 4.
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noted that the Individual failed field sobriety tests, and that law enforcement personnel observed
that the Individual had “glassy eyes[,]” “impaired [m]otor [c]oordination[,]” and “[i]mpaired
[s]peech[,]” and that they smelled the “[o]dor of [a]lcoholic [b]everage[.]” Id. at 1–3. The police
report also indicated that the Individual refused to submit to a breath alcohol test. Id. at 3.
The Individual appropriately reported the incident to DOE two days later. Ex. 4. He reported that
on the day of the incident, his spouse, who was upset with him, pulled the car over as she was
driving them both home following a party. Id. at 2. He stated that his wife then left their car, and
he made the “decision to get in the driver’s seat to try and resolve the issue.” Id. He also reported
that because he had inadvertently left an empty alcoholic seltzer can in the car, he was also
“charged with having an open container[.]” Id.
The Local Security Office (LSO) subsequently asked the Individual to complete two Letters of
Interrogatory (LOI), which he signed and submitted in March and April 2023. Ex. 7; Ex. 8.
Following the April LOI, the LSO asked the Individual to undergo a psychological evaluation,
which was conducted by a DOE-consultant psychologist (DOE Psychologist) in June 2023. Ex. 9.
In July 2023, the DOE Psychologist issued a report (the Report), which indicated that the
Individual consumes “more alcohol and more frequently than he reports, and at a level that could
result in impaired judgement, stability, reliability, or trustworthiness.” Id. at 5.
The LSO began the present administrative review proceeding by issuing a letter (Notification
Letter) to the Individual in which it notified him that it possessed reliable information that created
a substantial doubt regarding his continued eligibility for access authorization. In a Summary of
Security Concerns (SSC) attached to the Notification Letter, the LSO explained that the derogatory
information raised security concerns under Guidelines E (Personal Conduct), G (Alcohol
Consumption), and J (Criminal Conduct) of the Adjudicative Guidelines. Ex. 1. The Notification
Letter informed the Individual that he was entitled to a hearing before an Administrative Judge to
resolve the substantial doubt regarding his eligibility to hold 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 Administrative Judge in
this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the Individual
testified on his own behalf and presented the testimony of four other witnesses. See Transcript of
Hearing, Case No. PSH-24-0055 (hereinafter cited as “Tr.”). The Individual also submitted
thirteen exhibits, marked Exhibits A through M. The DOE Counsel submitted fourteen exhibits
marked as Exhibits 1 through 14 and presented the testimony of the DOE Psychologist.
II. Notification Letter
A. Guideline E
Under Guideline E, “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness, and ability to protect classified or sensitive information.” Adjudicative
Guidelines at ¶ 15. Among those conditions set forth in the Adjudicative Guidelines that could
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raise a disqualifying concern is the “[d]eliberate omission, concealment, or falsification of relevant
facts from any . . . personal history statement, or similar form used to conduct investigations, . . .
determine national security eligibility or trustworthiness, or award fiduciary responsibilities[,]”
and “[d]eliberately providing false or misleading information; or concealing or omitting
information, concerning relevant facts to a[] . . . competent . . . mental health professional involved
in making a recommendation relevant to a national security eligibility determination.” Id. at ¶ 16(a)
and (b). Under Guideline E, the LSO alleged that:
a) The Individual stated in the March LOI that he drinks four to six cans of beer or
alcoholic seltzer “each time, or sometimes a mixed drink or two, four to five times
per month.” Ex. 1 at 3. Based on the Phosphatidylethanol (PEth) test results of 168
ng/mL, the DOE Psychologist concluded that the Individual was “consuming an
average of four or more drinks a day.” Id. Accordingly, the Individual either
engages in periodic binge drinking episodes or consumes more alcohol than he
reported. Id.
b) When the Individual reported the 2023 incident, he also indicated that he had “been
intoxicated four to six times in the last [twelve] months.” Id. In the March LOI, the
Individual stated that he had “been intoxicated [fifteen to eighteen] times in the last
[twelve] months.” Id.
c) The Individual indicated in the March 2023 LOI that following his February 2023
arrest, he attempted to submit a blood alcohol content sample by blowing into a
breathalyzer. Id. at 4. However, the police report indicates that that the Individual
refused to provide a sample, “and would not take the test.” Id.
d) The Individual stated in the March LOI that during the February 2023 incident, he
moved into the driver’s seat to use the “hands-free” function to call his wife, but
the police report indicates that the Individual was “observed [by law enforcement
personnel] behind the steering wheel, with the vehicle in motion.” Id.
The LSO’s invocation of Guideline E is justified.
B. Guideline G
Under Guideline G, “[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. Among those conditions set forth in the
Adjudicative Guidelines that could raise a disqualifying security concern are “[a]lcohol-related
incidents away from work, such as driving while under the influence . . . regardless of frequency
of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use
disorder[,]” and “[h]abitual or binge consumption of alcohol to the point of impaired judgment,
regardless of whether the individual is diagnosed with alcohol use disorder[.]” Id. at ¶ 22(a), (d).
Under Guideline G, the LSO alleged that:
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a) The Individual stated in the March LOI that he usually consumes four to six cans
of alcoholic seltzer or beer four to five times per month, or “sometimes a mixed
drink or two.” Ex. 2 at 2. He estimated that he must consume five to six cans of
seltzer or beer “to become intoxicated” and that he “has been intoxicated [fifteen to
eighteen] times in the last [twelve] months.” Id.
b) The Individual reported that on the day of the February 2023 incident, he had
consumed “a few mixed drinks” and became more “inebriated than he intended”
after attending a party. Id. His wife, while driving them home that night, stopped
the car after she became upset and got out. Id. The Individual moved into the
driver’s seat, at which point, law enforcement personnel responded. Id. The
Individual told law enforcement personnel that he had consumed alcohol and he
submitted to and failed field sobriety tests. Id. The police report indicates an empty
can of alcohol was found in the car, that the Individual was “observed to be behind
the steering wheel with the vehicle in motion,” and that the Individual “refused a
breathalyzer.” Id.
c) The Individual disclosed in the QNSP that he had been charged with Public
Intoxication in January 1998, after he left a bar and realized “he should not drive[.]”
Id.
d) The Individual disclosed in the QNSP that he had been charged with Minor in
Possession of Alcohol in 1985, and that he was “drinking beer with others who
were also underage.” Id.
The LSO’s invocation of Guideline G is justified.
C. Guideline J
Guideline J states that “[c]riminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness” and that, “[b]y its very nature, it calls into question a person’s ability or
willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at ¶ 30.
Conditions that could raise a security concern under Guideline J include “[e]vidence . . . of criminal
conduct, regardless of whether the individual was formally charged, prosecuted, or convicted[.]”
Id. at ¶ 31(b). Under Guideline J, the LSO alleged that:
a) The Individual properly reported that he had been arrested and charged with DWI
in February 2023. Ex. 2 at 4. The police report indicates that law enforcement
personnel found an “open container” in the Individual’s car, that he “failed three
sobriety tests,” and that he did not submit to a breathalyzer test. Id. The Individual
was arrested. Id.
b) The Individual disclosed in the QNSP that he had been arrested and charged with
Reckless Driving in January 1999 when he exceeded the speed limit, following “a
couple of beers with dinner[.]” Id. The Individual passed field sobriety tests on that
occasion. Id.
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c) The Individual disclosed in the QNSP that he was charged with Public Intoxication
in January 1998. Id.
d) The Individual disclosed in the QNSP that he was charged with Minor in Possession
of Alcohol in May 1985. Id.
e) The Individual informed the DOE Psychologist that he consumed his first alcoholic
beverage at age sixteen and would “occasionally drink beer at parties with friends.”
Id.
The LSO’s invocation of Guideline J is 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 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
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. § 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 confirmed in his testimony that he was arrested and charged with Minor in
Possession of Alcohol decades ago, after he shared some beer behind a grocery store with some
friends. Tr. at 27, 29. The matter was dismissed following a court appearance. Id. at 27–28, 30.
Regarding the 1998 Public Intoxication charge, the Individual testified that he had enjoyed a meal
with some friends, and after having a few drinks, he left to go home. Id. at 31. While on his way
to his car, he realized that he did not feel comfortable driving in his condition and decided to turn
back around to try and secure a ride. Id. at 32, 34. At that point, he was stopped by law enforcement
personnel and was placed under arrest after answering their questions. Id. at 34, 155–56. The
Individual subsequently pleaded guilty and paid the accompanying fine. Id. at 36. Regarding the
1999 Reckless Driving charge, the Individual testified that he had consumed “two beers with
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dinner” and “felt comfortable” driving. Id. at 37–38, 40. While on his way home, he exceeded the
speed limit by approximately twenty miles per hour and was pulled over by law enforcement. Id.
at 37, 40. He passed the field sobriety tests but was issued a ticket for Reckless Driving. Id. at 38,
41. The matter was resolved following a court appearance and his compliance with the orders that
resulted. Id. at 42.
The Individual provided a narrative of the 2023 incident in the March 2023 LOI and in his
testimony. The Individual stated that on the day of the incident, he drank an alcoholic seltzer before
a party that was scheduled to begin that afternoon. Ex. 7 at 4; Tr. at 48–49, 54–55. As he was
working on his car at the time, he “placed the empty can in the passenger side door.” Ex. 7 at 4;
Tr. at 48–49, 54–55, 78–79. Later, while at the party with his spouse and family, the Individual
consumed approximately three mixed drinks consisting of twelve to sixteen ounces per drink, over
the span of “three and a half hours.” Ex. 7 at 4; Tr. at 44, 56–58. He testified that “[a]t that point,
[he] switched to beer[,]” and he consumed a couple pints of beers over the span of one and a half
hours.3 Tr. at 44, 60. The Individual decided he wanted to leave, and when he left the party
approximately five hours after arriving, the Individual “was more inebriated than [he] intended”
and his wife drove them home. Ex. 7 at 4; Tr. at 61–63. His wife was upset they were leaving
because she wanted to stay and enjoy the evening out. Tr. at 44–45, 63–64, 150. On the way home,
the Individual’s wife stopped the car on the side of the road in front of a car dealership and began
walking away, as she was still upset. Ex. 7 at 4; Tr. at 45–46, 66–68, 150. As she had taken the
keys with her, the car automatically beeped, at which point she walked back to the car to return
the keys and walked away again. Ex. 7 at 4; Tr. at 46, 69–70. The Individual was worried for her
safety, as it was dark and cold outside, so he moved into the driver’s seat and believed that he was
using “hands-free function” to call his wife to ask her to return to the car.4 Ex. 7 at 4; Tr. at 46–47,
65–66, 71–72, 74, 130. It was at this time that law enforcement approached the Individual’s car
and asked for his license and registration.5 Ex. 7 at 4; Tr. at 47, 72–74. The Individual stated that
he informed the officer that his wife had been driving them home, and law enforcement asked the
Individual to submit to field sobriety tests.6 Ex. 7 at 4; Tr. at 47–48, 74–75, 152. Following failed
field sobriety tests, the Individual was arrested. Ex. 7 at 4; Tr. at 76. The Individual was taken to
a local law enforcement location and asked to submit to a breath alcohol test. Ex. 7 at 4; Tr. at 49,
3 The Individual confirmed that he “just [was not] really tracking or planning [his] drinking then[,]”and that his failure
to track his consumption was characteristic of his drinking back then Tr. at 60–61.
4 The Individual also stated during his testimony that in order to use the “hands-free” function to call his wife, he had
to put his foot on the brake and start the car, but he never put the car in drive. Tr. at 47, 72, 126–27. When asked why
he did not use his cell phone to call his wife, the Individual stated that he felt the “hands-free” option “was a quick
way” to call his wife. Id. at 151.
5 The Police Incident Report indicates that the responding officer noted that the Individual was “behind the steering
wheel” with the “vehicle running, and vehicle in motion.” Ex. D at 3; Ex. 5 at 3; Tr. at 130. However, an email from
the Individual’s attorney in the underlying criminal matter indicates that the attorney viewed the camera footage taken
by law enforcement on that night and that the footage “show[s] the police pulling up to [the Individual] . . . in the
driver’s seat with the motor running[,]” as the Individual stated. Ex. 3 at 24. The attorney went on to state that the
police report indicates the car was in motion, but that the camera footage “[does not show] that [the officer] will testify
to what he wrote down[,]” and that there is “room for reasonable doubt[.]” Id.
6 The officer noted the odor of alcohol and that the Individual “admitted to having a few beers and a couple drinks.”
Ex. D at 3; Ex. 5 at 3.
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77. The Individual indicated in the LOI that although he attempted to provide a sample, the
machine “did not seem to be working.” Ex. 7 at 4; Tr. at 49, 80–81, 131. The Individual said that
he attempted to comply with the breathalyzer but indicated at one point that he “[was not] sure that
[he] wanted to try it again.”7 Tr. at 49–50, 82, 84–85. The Individual testified that he had already
told the officer that he had been drinking, so there was no benefit in refusing to submit to a breath
test and he did not know his statement indicating that he did not want to try to blow into the
machine again was tantamount to a refusal. Id. at 125–26, 128. He was issued a citation for DWI
and “consumption/open container.” Ex. 7 at 4; Tr. at 49, 85, 153–55. The Individual testified that
his wife had returned to the vehicle and expressed her confusion to a law enforcement officer
following the Individual’s arrest, as she was the person driving the vehicle. Tr. at 50, 153. His
wife, brother, and his sister-in-law retrieved him from the location he had been detained. Id. at 51,
85–87, 197.
The Individual called his manager the following day to notify her of the incident, and he reported
the incident upon his return to work. Id. at 51–52, 87. The Individual stated in the February 2023
incident report that he drinks between four to six beers when he does not have to work the next
day, and that he typically drinks one to two “days or night” per week. Ex. 4 at 2; Tr. at 122. Lastly,
he reported that including the February 2023 incident, he had been intoxicated four to six times
within the past year. Ex. 4 at 2; Tr. at 137–39.
Following his 2023 charge, the Individual attended a victim impact panel and was assessed by the
state Office of Alcoholism and Substance Abuse Services in February 2023. Ex. 7 at 4; Ex. 3 at 2;
Ex. E; Tr. at 93; Ex. 8 at 4. A Licensed Mental Health Counselor conducted an assessment and
concluded that the Individual “does not present with any clinical concerns in reference to his
alcohol use” and that the February 2023 incident was “an isolated incident as opposed to indication
of concern with his alcohol use.”8 Ex. E at 4; Ex. 8 at 7. Accordingly, no treatment was
recommended. Ex. E at 4; Ex. 8 at 7. The Individual also began the Impaired Driver Program in
July 2023, completing the program in September 2023. Ex. 3 at 11; Tr. at 93–94. The Individual
resolved the criminal matter in June 2023 and paid a fine. Ex. C; Ex. F; Ex. 6; Tr. at 87–93.
The Individual indicated in the March 2023 LOI that he typically consumes about four to six cans
of beer or alcoholic seltzers, and that occasionally, he consumes a “mixed drink or two instead.”
Ex. 7 at 5. He went on to state that he consumed alcohol on Friday and Saturday nights,
approximately four to five times in a month. Id. He also indicated that he must consume about five
to six cans of beer or seltzer to reach a state of intoxication, and that he typically becomes
intoxicated “[m]aybe twice a month.” Id. at 6. He estimated that he was intoxicated about fifteen
to eighteen times in the past twelve months. Id. At the hearing, he confirmed the characterization
that he is a “mostly . . . weekend drinker[,]” and acknowledged that his alcohol consumption had
increased in the “couple years leading up to the” 2023 incident. Tr. at 101–02. Regarding the
discrepancy in the amount he stated he was drinking between the LOI and the incident report, the
7 It also indicated that the Individual refused to submit to a breath test, and that the Individual “stated [that] he did not
trust [the device] and would not take the test.” Ex. D at 3; Ex. 5 at 3; Tr. at 131.
8 The Impaired Driver Clinical Assessment Form also notes that the Individual “complied with all of the field sobriety
tests[,]” and “complied with the breathalyzer at the station . . . which he attempted a few times.” Ex. 8 at 4.
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Individual testified that he clearly “[did not] understand what intoxicated mean[t].” Id. at 123. He
said that he thought “intoxicated means drunk,” but later decided that intoxication meant “feeling
the effects of alcohol.” Id. At the time of the hearing, he understood that intoxication meant a
“marked effect on physical or mental . . . ability or acuity,” so he felt that it was “more accurate
to say that he would become intoxicated four to six times in twelve months. Id. at 123–24.
During the psychological evaluation, the Individual told the DOE Psychologist that he first drank
alcohol at the age of sixteen. Ex. 9 at 2. The Report also indicates that the Individual “denied
drinking alcohol during the week, and he might drink four or five beers in the evening on the
weekend.” Id. The Individual also told the DOE Psychologist that “he might drink to the point of
intoxication once every two or three months.” Id. Two laboratory tests for alcohol use were
conducted in conjunction with the psychological evaluation, an Ethyl Glucoronide (EtG) test and
a PEth test. Id. at 3. The EtG test was negative, indicating it was “unlikely that [the Individual]
had consumed significant amounts of alcohol within the [ninety-six] hours prior to the test.” Id.
The PEth test was positive and registered at 168 ng/mL. Id. Based on these results, the DOE
Psychologist concluded that the Individual was drinking four “drinks or more per day.”9 Id. The
DOE Psychologist went on to opine that the Individual’s consumption is “excessive” and that he
is either “unaware of how much and how often he consumes alcohol, or that he is not forthcoming
about his alcohol intake.” Id. at 4. At the hearing, the DOE Psychologist stated that the Individual
was either drinking about four drinks per day, or “drinking episodically at a level that would” result
in PEth test values equivalent to consuming four drinks per day. Tr. at 235.
The Individual testified that at the time he met with the DOE Psychologist, he was consuming
alcohol on Friday and Saturday nights, drinking approximately “five to six seltzers or beers.” Id.
at 103. He said that about every other month, he “might have eight or ten [drinks] or have five or
six seltzers and then have a mixed drink[.]” Id. The Individual denied consuming alcohol on
weekdays. Id. at 104. He would make the mixed drinks himself and would approximate the amount
of alcohol he would pour into each glass. Id. at 105–06.
As indicated above, the DOE Psychologist concluded that the Individual consumes “more
frequently than he reports, and at a level that could result in impaired judgment, stability,
reliability, or trustworthiness.” Ex. 9 at 5. The DOE Psychologist opined that the Individual had
not shown adequate evidence of rehabilitation or reformation, and that in order to show adequate
evidence of such, the Individual should abstain from alcohol for six months. Id. The DOE
Psychologist also recommended that the Individual provide evidence of his abstinence by
submitting to PEth tests “every two months” and that he participate in an outpatient treatment
program (IOP) and complete the IOP recommended aftercare. Id. As an alternative to an IOP, he
stated that the Individual may participate in a program like Alcoholics Anonymous (AA) for a
minimum of six months. Id.
In his request for a hearing, the Individual indicated that he “did not intentionally mislead [the
DOE Psychologist]” as he “[did not] feel there was any need or advantage in misleading” him. Ex.
3 at 2. The Individual testified that he never tried to deceive the DOE Psychologist, and that he
9 There is no indication in the Report that the DOE Psychologist had the PEth test results interpreted by a medical
doctor or some other qualified professional. The DOE Psychologist’s curriculum vitae also does not indicate that he
is a medical doctor or otherwise specially qualified to interpret PEth test results. Ex. 14.
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simply was not in the habit of keeping track of how much he was drinking. Id. at 107, 109–110,
120–22. Further, he admitted during the hearing that he had engaged in habitual or binge drinking
in the past, but disagreed with the DOE Psychologist’s conclusion that he was drinking four drinks
per day, as he never drank on weekdays Id. at 108, 111, 120–21.
The Individual submitted to a biopsychosocial assessment in March 2024 with a provider.10 Ex.
B. The Individual recounted the events of February 2023 to the provider in a manner consistent
with what he disclosed in the March LOI. Id. at 1. He explained to the provider that “he realized
that he drank too much on occasion and was not really tracking his consumption.” Id. at 2.
Accordingly, the Individual developed a plan to track his alcohol consumption and noted reduced
drinking from August 2023 to December 2023 pursuant to the plan.11 Id. While the Individual
recounted a history of moderate alcohol consumption, he admitted that his consumption had
increased in the 2021 to 2023 period. Id. During this period, the Individual was consuming four to
six drinks on Fridays and Saturdays, and occasionally consuming up to eight “drinks in a setting.”12
Id. The Individual also told the provider that he had been abstaining from alcohol since February
2024. Id. The provider stated in the findings of the report that he produced in March 2024 that the
Individual’s “use shows no current patterns of alcohol abuse” and he opined that the Individual
suffers from AUD, Mild, in sustained remission. Id. at 6. The provider did not recommend
treatment but suggested continued one-on-one therapy. Id.
The Individual began seeking one-on-one therapy in late December 2023. Ex. 3 at 12–20; Tr. at
118. At the time of the hearing in March 2024, the Individual had attended five sessions. Tr. at
141. He testified that his therapist approved of the way he was approaching the matter of reduced
consumption and offered him some techniques he can use in social situations to resist peer
pressure. Tr. at 118–19, 142–43, 145–46, 163. He testified that his therapist, his mother, his son,
and brothers and sisters are all part of his support system. Id. at 165–66.
The Individual submitted to two PEth tests in addition to the one administered at the behest of the
DOE Psychologist, the first in January 2024 and the second in March 2024. Ex. 3 at 21; Ex. A.
The January PEth test indicated “moderate to heavy” alcohol consumption and the March PEth
test was negative. Ex. 3 at 21; Ex. A. He testified that he last consumed alcohol on February 6,
2024, and denied experiencing any withdrawal symptoms. Tr. at 111–12. He said that his therapist
feels that abstinence may be more difficult for him to maintain when compared to reduced
consumption, but the Individual did not endorse any difficulty remaining abstinent. Id. at 142–43.
He indicated that his overall health has improved since he stopped drinking. Id. at 112–13; Ex. G;
Ex. B at 2. He stated that it is his intention to continue abstaining from alcohol, as he does not
“have any intention to drink anytime in the near future.” Tr. at 113–14. He could not state with
10 The record does not contain this provider’s curriculum vitae, but the record indicates that the provider is a Licensed
Clinical Social Worker and Credentialed Alcoholism and Substance Abuse Counselor. Ex. B at 6. The record also
indicates that the provider administered an alcohol screening questionnaire, a substance abuse screening tool, and the
Michigan Alcoholism Screening Test. Id. at 7–11.
11 The Individual limited himself to consuming alcohol on weekends, and no more than four alcoholic drinks “on any
occasion.” Ex. B at 2.
12 At the hearing, the Individual testified that he would drink eight or more drinks “four to six times” per year, “maybe
once every other month.” Tr. at 140.
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certainty that he would remain abstinent for the rest of his life. Id. at 114. Prior to his abstinence,
he had reduced his alcohol consumption, and his wife helped keep him accountable in that respect.
Id. at 115–17. At the hearing, the DOE Psychologist acknowledged the changes that the Individual
had made, including his decision to stay abstinent, but he did not find that the Individual had shown
adequate evidence of rehabilitation or reformation. Id. at 240–42, 248–50, 252–54, 256–57. The
DOE Psychologist indicated that in order for the Individual to establish adequate evidence of
rehabilitation or reformation, the Individual would have to comply with his recommendations, in
that he would have to remain abstinent for six months, continue counseling, and submit to regular
PEth testing. Id. at 253–54.
The Individual’s wife testified that prior to reducing his consumption in August 2023, Individual
would drink between six to eight drinks on the weekends. Id. at 176. She was never concerned by
her husband’s alcohol consumption and said it was “a social thing.” Id. at 177. She confirmed in
her testimony that on the night of February 2023, she was “spitting fire” and was angry because
she wanted to stay out longer, and her husband wanted to leave. Id. at 178–80, 196. So, she was
complaining on the drive home, and decided to pull the car over because she “needed to take a few
minutes.” Id. at 180–82, 194–95. She threw the keys back in the car so the Individual could stay
warm. Id. at 181, 193. When she returned to the car after the Individual’s arrest and spoke to the
officer responsible for calling for a tow truck, he told her that the Individual was likely arrested
for DWI, to which she responded that was it impossible, “because [her] car [had not] moved.” Id.
at 183. She confirmed that the Individual had reduced his consumption and stopped drinking
altogether in February 2024. Id. at 183–84, 187–88, 196.
The Individual’s mother confirmed in her testimony that, regarding the Guideline E allegations, it
would be “out of character for her son to lie to the government[.]” Id. at 202, 204–05. The
Individual’s mother-in-law confirmed this belief in her testimony as well. Id. at 213–14. The
Individual’s mother, who was at the party the Individual attended on the night of the February
2024 incident, did state that she had seen him drink more than he should on that night but has not
seen him drink since then. Id. at 205–08. The Individual’s son testified that he never found the
Individual’s alcohol consumption to be problematic, and since February 2024, he has only seen
his father consume one drink. Id. at 222–23.
V. Analysis
A. Guideline E
The Adjudicative Guidelines provide that conditions that could mitigate security concerns under
Guideline E include:
(a) The individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) The refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
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(c) The offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual's reliability, trustworthiness, or good
judgment;
(d) The individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) The individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) The information was unsubstantiated or from a source of questionable reliability;
and
(g) Association with persons involved in criminal activities was unwitting, has ceased,
or occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules and
regulations.
Adjudicative Guidelines at ¶ 17.
Regarding the allegation that the Individual was not forthcoming during the psychological
evaluation, I cannot conclude that Guideline E applies to this specific allegation. First, the
allegation that the Individual deceived the DOE Psychologist rests on the assertion that he had
underreported the amount he consumed when compared to the DOE Psychologist’s interpretation
of the PEth test results. While I can accept that the PEth results reveal that the Individual consumed
alcohol, I cannot accept the DOE Psychologist’s interpretation of the results, as there is nothing in
the record that indicates that he is qualified to interpret PEth test results. For the previously stated
reasons, Guideline E is not applicable to this specific allegation.
As an initial matter, I believe that the Individual provided truthful and credible testimony.
Regarding the allegation in paragraphs (c) and (d) of the SSC, which pertain to the alleged
inconsistencies in his statements concerning his attempts to provide breath samples and whether
the car was moving at the time law enforcement responded to the scene in February 2023, the
Individual fully acknowledged that he had been intoxicated, that he moved into the driver’s seat,
that he turned the car on, and that he admitted as much to law enforcement. This version of events
was consistent throughout the record and was also corroborated by the emails he exchanged with
his attorney in the underlying criminal matter. He also explained that he attempted to submit a
breath test, as refusing to do so was pointless because he had already told law enforcement
personnel that he had been drinking and he had failed field sobriety tests. Regarding the allegations
in paragraph (b), which pertain to the statements he made in the incident report and the March LOI
regarding how frequently he becomes intoxicated, the Individual testified he had made those
estimates based on a change in his understanding of what it means to be intoxicated. I believe the
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Individual was attempting to be as precise as he possible could in the context of his understanding
of what it means to be intoxicated. There is no indication before me that the Individual presented
discrepant information with any intent to deceive.
Accordingly, I do not find that there was a “[d]eliberate omission, concealment, or falsification of
relevant facts” in the March 2023 LOI and incident report, or that the Individual “[d]eliberately
provided false or misleading information” to the DOE Psychologist. Adjudicative Guidelines at ¶
16 (a) and (b).
B. Guideline G
The Adjudicative Guidelines provide that 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
(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.
First, the Guideline G concerns include an allegation from approximately forty years ago when the
Individual was a minor. I have not considered the alleged behavior described in paragraph (d) of
the SSC as part of the Individual’s concerning alcohol-related behavior. See 10 C.F.R. § 710.7(c)
(requiring me to consider, among other factors, “the age and maturity of the individual at the time
of the conduct”).
Although the 2023 incident took place over a year ago, the Individual has a history of some
involvement with law enforcement following the consumption of alcohol. While it would have
prudent for the Individual to stop drinking immediately following the 2023 incident, as this was
the most severe incident and the Individual held an access authorization at the time of the incident,
he continued consuming alcohol until February 2024. Although the Individual has acknowledged
that he engaged in the habitual or binge consumption of alcohol in the past and started modified
consumption in an attempt to address the issue, the record reveals that he has only been abstinent
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since February 2024. While the provider the Individual engaged in March 2024 provided the
Individual with a diagnosis, AUD, Mild in sustained remission, he was not made available to
testify under oath and was not subject to cross examination. Additionally, as stated above, the
provider conducted several tests. Ex. B at 7–15. An examination of the Individual’s responses to
these various tests clearly indicates that the tests captured the nature of his consumption during the
August 2023 period and after, when he had reduced his consumption and started abstaining. Id.
His responses do not reflect how much he was consuming around the February 2023 period, which
naturally, would not present a complete picture to the provider. Id. As the provider diagnosed the
Individual with AUD, Mild in sustained remission, he did not recommend substance use treatment.
The DOE Psychologist also did not find any evidence of alcohol use disorder, but as the Individual
had a history of engaging in habitual or binge consumption of alcohol, the DOE Psychologist
recommended, among other things, six months of abstinence. While I cannot accept the DOE
Psychologist’s interpretation of the PEth test results, I can agree that because the Individual
admitted to the problematic consumption of alcohol and has experienced legal entanglements due
to his consumption, the Individual should remain abstinent for some period of time. I only have
evidence of almost two months abstinence before me. A more substantial period of abstinence,
like the recommended six months, along with the recommended AA or IOP participation, would
have strongly signaled a break in the pattern of problematic consumption and behavior that has
spanned years. Lastly, the DOE Psychologist testified that the Individual has not shown adequate
evidence of rehabilitation or reformation.
As the Individual’s consumption increased noticeably in the past few years and he only began
abstaining approximately two months prior to the hearing, I cannot conclude that enough 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 pursuant to mitigating factor (a).
While the Individual acknowledged that his past consumption was problematic, he has not fully
implemented the DOE Psychologist’s recommendations by remaining abstinent for at least six
months, participating in treatment or AA, and submitting to regular PEth testing. Accordingly, I
cannot conclude that the Individual has mitigated the stated concerns pursuant to mitigating factor
(b).
The Individual is not participating in a treatment program, and I have no evidence that he
completed a treatment program. Accordingly. I cannot conclude that the Individual has mitigated
the stated concerns pursuant to mitigating factor (d). Although I have evidence that the Individual
is participating in counseling and while he did testify that his therapist has provided some
appropriate feedback, I do not have any corroborating evidence or specific information regarding
the Individual’s progress. Accordingly, I cannot conclude that the Induvial has mitigated the stated
concerns pursuant to mitigating factor (c).
C. Guideline J
The Adjudicative Guidelines provide that conditions that can mitigate security concerns under
Guideline J include:
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(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(a)–(d).
The Guideline J concerns include an allegation from when the Individual was a minor. I have not
considered the criminal charge described in paragraph (d) of the SSC as part of the Individual’s
concerning criminal behavior. See 10 C.F.R. § 710.7(c) (requiring me to consider, among other
factors, “the age and maturity of the individual at the time of the conduct”).
The criminal acts alleged in the SSC are inextricably intertwined with the Individual’s alcohol
consumption. Although the Individual has remained abstinent since February 2024 and has been
to at least five sessions of one-on-one therapy, he has not taken enough action to resolve the
concerns associated with his habitual binge drinking, and accordingly, I do not have enough
information before me to allow me to conclude that he has remedied the alleged behavior that
resulted in the 2023 arrest and charge. As the last alleged act occurred in February 2023 and the
underlying behavior has not been resolved in a satisfactory manner, I cannot conclude that enough
time has passed or that it happened under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the Individual’s current reliability trustworthiness, or good judgment.
Therefore, the Individual has not mitigated the stated concerns pursuant to mitigating factor (a).
While the record indicates that the Individual has taken steps to bring the underlying legal concerns
to an appropriate conclusion, not enough time has passed since the last incident of criminal activity
when taken in the context of the years that passed between the 1999 incident and the 2023 incident.
I have no information before that indicates the Individual has participated in constructive
community involvement or continued job training or achieved higher education after the February
2023 incident. I have no specific information before me pertaining to the Individual’s employment
record. Accordingly, while the criminal matters have been resolved, I cannot conclude that the
Individual has shown adequate evidence of successful rehabilitation pursuant to mitigating factor
(d).
I have no information before me that the Individual was coerced into committing the act, and the
Individual never alleged that there was no reliable evidence to support that he committed the
offense. Accordingly, the mitigating factors at (b) and (c) are not applicable in this case.
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VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines G, E, and J
of the Adjudicative Guidelines. After considering all the evidence, both 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 concerns set forth in the SSC. Accordingly, the Individual has not
demonstrated that restoring his security clearance would not endanger the common defense and
security and would be clearly consistent with the national interest. Therefore, I find 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.
Noorassa A. Rahimzadeh
Administrative Judge
Office of Hearings and Appeals