PSH-24-0070

*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: March 1, 2024 ) Case No.: PSH-24-0070
)
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Issued: June 21, 2024
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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 by a DOE contractor in a position that requires him to hold an access
authorization. Exhibit (Ex.) 1. In October 2023, the Individual was arrested and charged with
driving while intoxicated (DWI). Id. at 5. As a result of this arrest, the local security office (LSO)
asked the Individual to complete a letter of interrogatory (LOI). Ex. 6. After the Individual
completed the LOI, the LSO asked him to undergo a psychological evaluation with a DOE
contract-psychologist (DOE Psychologist). Ex. 8.
The LSO subsequently issued the Individual a Notification Letter advising him that it possessed
reliable information that created substantial doubt regarding his eligibility for access authorization.
Ex. 1 at 6. In the 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 his 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 eleven exhibits (Ex. 1–11). The Individual did not submit any
exhibits. The Individual testified on his own behalf and offered the testimony of his father and
supervisor. Hearing Transcript, OHA Case No. PSH-24-0070 at 10, 17, 55 (Tr.). The LSO called
the DOE Psychologist to testify. Id. at 71.
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 conclusion that the Individual drinks habitually to the point of impaired judgment
and binge drinks on a regular basis. Ex. 1 at 5. The LSO also noted that the Individual has on two
occasions been charged with driving while intoxicated (DWI), most recently in October 2023. Id.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest”
standard for granting security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (strong
presumption against the issuance of a security clearance).
An individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). An individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
The Part 710 regulations are drafted to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id. at
§ 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
In January 2019, the Individual was arrested and charged with DWI - Drug Intoxication,
Possession of Drug Paraphernalia, Possession of Marijuana, Possession of an Open Container of
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Alcohol, No Seatbelt, Defective Taillight, Expired Plates, and Driver’s License Restrictions.2 Ex.
7 at 31–32. In October 2023, the Individual was arrested and charged with DWI. Ex. 6 at 27. In
the LOI, the Individual explained that while driving home from a social event, he saw his girlfriend
get into a car accident and pulled over. Ex. 7 at 27. At the social event, he consumed “three plastic
cups” of a mixed drink. Id. When law enforcement arrived, the Individual was not in his car but
was asked to perform field sobriety tests and complete a breathalyzer test, which registered a 0.10
reading. Id. at 28. As a result of this charge, the Individual went through a diversion program which
would cause the charge against him to be dismissed upon the successful completion of the state’s
substance awareness traffic offender program. Tr. at 24–25, 51. In his LOI, the Individual also
indicated that he had been drinking “half a pint” of “hard liquor” “once a weekend” since the
October 9 arrest. Ex. 7 at 33–34. Prior to the October 9, 2023, arrest, he was consuming “half a
pint” of “hard liquor” “once or twice on weekends.” Id. at 35.
The DOE Psychologist indicated that in his view, the Individual “drinks habitually and he binge
consumes alcohol to the point of impaired judgement on a regular basis.” Ex. 8 at 51. The report
indicated that the Individual told the DOE Psychologist that he consumed “half a pint” of liquor
once or twice a week, which would be considered “binge drinking.” Id. This pattern began when
the Individual was about 24 or 25 years old. Id. at 49. At the time of the interview, the Individual
was still drinking on a weekly basis. Tr. at 86.
A Phosphatidylethanol (PEth) blood test was performed in conjunction with the DOE
Psychologist’s evaluation. Ex. 8 at 50–51. PEth is a “direct alcohol biomarker which is found in
human blood following alcohol consumption.” Id. at 50. The Individual’s PEth test came back
with a value of 58 ng/ml, which the DOE Psychologist stated in the report “indicates he regularly
consumes alcohol.” Id. at 51.
In the report, the DOE Psychologist recommended that the Individual cease consuming alcohol.
Id. at 52. He also suggested that the Individual attend a weekly substance abuse treatment program
from a licensed provider for a period of twelve weeks, attend a relapse prevention group twice a
month for three months after completing the treatment program, and attend the same program
monthly for another six months. Id. The DOE Psychologist further recommended that the
Individual attend Alcoholics Anonymous (AA) or SMART Recovery3 and work to progress in one
of those programs. Id.
2 The DOE Psychologist’s report states that the Individual pleaded guilty to the DWI charge and was sentenced to two
years of probation, which he completed successfully. Ex. 8 at 48–49.
3 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
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The Individual testified that he has not consumed any alcohol since March 13, 2024. Tr. at 22. As
a result of his DWI, the Individual attended a required course about substance abuse designed for
people who received substance related traffic violations. Id. at 24. That class taught him about how
alcohol and intoxication affect a person’s brain. Id. He also testified that since he has stopped
consuming alcohol, he has been happier, and he can “feel the difference and see the difference in
[how] alcohol affects the body . . . once you’ve actually stopped.” Id. at 28. Instead of consuming
alcohol, the Individual has been working out and playing basketball at his local gym. Id. at 28–29.
The Individual has also been attending AA approximately twice a week since March of 2024. Id.
at 22. At the time of the hearing, he did not have a sponsor because the person he asked stopped
attending AA. Id. at 42. He has made connections with other people at meetings but has not asked
anyone else to be his sponsor yet. Id. at 42–43. The Individual was working on step seven of the
twelve steps of AA at the time of the hearing, and he explained that that step involved asking
forgiveness and learning to admit when you are wrong. Id. at 43.
The Individual has looked for substance abuse treatment programs to enroll in, but struggled to
find an appropriate program. Id. at 45–46. He eventually found a recommendation for a program
and made some phone calls about it, but the program did not work with his insurance, so he was
working on finding another way to attend. Id. at 47.
The Individual’s father testified that the Individual lived with him and his wife, the Individual’s
mother. Id. at 52. He has not seen the Individual drink since his DUI. Id. at 58, 64–65. He also
confirmed that the Individual has been attending AA meetings “a couple of times a week.” Id. at
63. The father asserted that the Individual has a strong and encouraging family around to support
him. Id. at 59.
The Individual’s supervisor testified the Individual performed his work appropriately and to her
knowledge has never been impaired at work. Id. at 11. However, she also stated that she had
concerns about his ability to keep national secrets because he has historically “had a hard time
following [] company policies and procedures.” Id. at 12.
At the hearing, the DOE Psychologist testified that he had not seen adequate evidence of
reformation or rehabilitation from the Individual. Id. at 76. He gave the Individual a prognosis of
fair on a scale of excellent, very good, good, average, fair, poor. Id. at 86. He explained that based
on his observation of the Individual’s testimony, he did not believe that the Individual had an
adequate understanding of the problems that alcohol had caused in his life. Id. at 75. The DOE
Psychologist was also concerned that the Individual had not put in more effort to seek treatment
prior to the hearing and felt that the Individual did not demonstrate good follow through. Id. at 75–
76. Finally, the DOE Psychologist explained that although the Individual does not meet the criteria
for a diagnosis under DSM-5-TR, a treatment program would help the Individual better understand
the effect that binge drinking has had on his life and provide him with skills to address those
impacts. Id. at 82–83.
What is SMART Recovery?, SMART Recovery, https://smartrecovery.org/what-is-smart-recovery (last visited Jun.
20, 2024).
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V. ANALYSIS
Conditions that could mitigate security concerns under Guideline G include:
(a) so much time has passed, or the behavior was so infrequent, or it happened under
such unusual circumstances that it is unlikely to recur or does not cast doubt on the
individual's current reliability, trustworthiness, or judgment;
(b) the individual acknowledges his or her pattern of maladaptive alcohol use,
provides evidence of actions taken to overcome this problem, and has demonstrated
a clear and established pattern of modified consumption or abstinence in
accordance with treatment recommendations;
(c) the individual is participating in counseling or a treatment program, has no
previous history of treatment and relapse, and is making satisfactory progress in a
treatment program; and
(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).
The Individual’s DUI was recent as it occurred less than a year prior to the hearing. The Individual
stated in the LOI and to the DOE Psychologist that he consumed alcohol excessively once or twice
a week and, at the time of the DUI, had done so at this level since he was 24 or 25 years old. This
pattern of alcohol consumption is both frequent and recent. The Individual did not provide any
evidence that the DUI or his alcohol misuse occurred under unusual circumstances. Thus,
mitigating factor (a) does not apply here. As to mitigating factor (b), at the time of the hearing, the
Individual had only been abstinent from alcohol for a little under three months. That is not
sufficient time to demonstrate a clear and established pattern of abstinence. Further, the Individual
has not provided any laboratory tests that support his testimony about his abstinence. As such,
mitigating factor (b) does not apply. The Individual is not currently participating in counseling or
a treatment program, nor has he previously completed such a program. Therefore, mitigating
factors (c) and (d) are inapplicable.
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