PSH-24-0108

*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: April 17, 2024 ) Case No.: PSH-24-0108
)
__________________________________________)
Issued: August 19, 2024
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX, (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 June 2023, the Individual was charged with Aggravated Driving
While Intoxicated (DWI) and Open Container. Id. at 5.2 As a result of the June 2023 criminal
charge, the Local Security Office (LSO) issued the Individual a Letter of Interrogatory (LOI)
concerning the incident, which the Individual answered in September 2023. Ex. 9. After receipt of
his responses, the LSO requested that the Individual undergo a psychiatric evaluation in December
2023, by a DOE-consultant Psychiatrist (DOE Psychiatrist), which resulted in a finding that the
Individual met sufficient Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition
(DSM-5) criteria for a diagnosis of Alcohol Use Disorder (AUD), moderate, without adequate
evidence of rehabilitation or reformation. Ex. 11 at 79.
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 Local Security Office’s (LSO) exhibits were combined and submitted in a single, 288-page PDF workbook.
References to the LSO’s exhibits are to the exhibit number and the Bates number located in the top right corner of
each exhibit page.
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The LSO subsequently issued the Individual a Notification Letter advising him that it possessed
reliable information that created substantial doubt regarding his eligibility for access authorization.
Ex. 1 at 5. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guideline G of the Adjudicative
Guidelines. Id.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. 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 thirteen exhibits (Ex. 1–13). The Individual submitted six exhibits (Ex. A–F). The
Individual testified on his own behalf and offered the testimony of two additional witnesses.
Hearing Transcript, OHA Case No. PSH-24-0108 (Tr.) at 12–74. The LSO called the DOE
Psychiatrist to testify. Id. at 77–86.
II. THE SECURITY CONCERNS
Guideline G, under which the LSO raised the security concerns, 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 Psychiatrist’s December 2023 diagnosis that the Individual
suffered from AUD, moderate. Ex. 1 at 5. The LSO also cited the Individual’s June 2023 arrest for
DWI and Open Container. 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
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In June 2023, the Individual was arrested for DWI and Open Container. Ex. 8 at 48. In his LOI,
the Individual stated that he had consumed between six and eight beers in the eight hours prior to
his arrest at a barbecue. Ex. 9 at 53; Ex. 11 at 75. However, the police report said that at the time
of his arrest, the Individual told law enforcement that he had consumed “6 beers approximately 2
hours ago.” Ex. 6 at 30. The Individual also claimed that he was unaware of the open Twisted Tea
that law enforcement found in his vehicle and that he had not purchased or consumed it. Ex. 9 at
52. The Individual refused a breathalyzer test. Ex. 6 at 30. As a result of this arrest, the Individual
was asked to undergo an evaluation with the DOE Psychiatrist. Ex. 4.
In the psychiatric report (Report) issued after the evaluation, the DOE Psychiatrist stated that the
Individual had informed him that after his arrest, the Individual had completed his employer’s
fitness for duty (FFD) alcohol and drug treatment program.3 Ex. 11 at 74. While in the FFD
program, the Individual did not use alcohol, but he admitted to the DOE Psychiatrist that, after
completing the program, he resumed some alcohol consumption. Id. at 75. The DOE Psychiatrist
diagnosed the Individual with AUD, moderate. Id. at 79. The DOE Psychiatrist indicated that the
Individual met four diagnostic criteria for AUD and cited the following factors: (1) “alcohol often
taken in larger amounts than intended”; (2) “unsuccessful efforts to cut down or control alcohol
use”; (3) “failure to fulfill major role obligations”; and (4) “tolerance.” Id.
The Individual also underwent a Phosphatidylethanol (PEth)4 test as a part of the DOE
Psychiatrist’s evaluation. Id. at 76. The Individual’s PEth test was positive at 96 ng/mL, indicating
that the Individual was consuming a “medium” amount of alcohol. Id. The DOE Psychiatrist
estimated the result of 96 ng/mL indicated usage of approximately four drinks per day. Id.
The DOE Psychiatrist recommended that to demonstrate rehabilitation or reformation of AUD, the
Individual should restart his employer’s FFD program,5 demonstrate alcohol abstinence for twelve
months, participate in Alcoholics Anonymous (AA), SMART Recovery,6 or another relapse
3 The Individual told the DOE Psychiatrist that he consumed 6–8 12-ounce Coors light beers in 8–10 hours prior to
his DWI. Ex. 11 at 75.
4 According to the Report,
PEth is a marker of alcohol exposure to the body. PEth does not occur naturally in the body so
elevated PEth levels are evidence of alcohol exposure. Alcohol binds to the red blood cell membrane
creating PEth. PEth declines as red blood cells degrade and by enzymatic action, so PEth reflects
the average use of alcohol over the previous 28-30 days. The PEth assay relies on a liquid
chromatography assessment followed by two independent mass spectrometry assessments that must
agree within 20%. A MedTox, PEth result exceeding 20 ng/mL is evidence of “moderate to heavy
ethanol consumption.”
Ex. 11 at 76.
5 At the hearing, the DOE Psychiatrist explained that at time he was writing his Report, he was unaware that an
employee could not request to be enrolled in the FFD program. Tr. at 87
6 SMART stands for Self-Management and Recovery Training. According to its website,
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prevention program for one year by attending three meetings per week while showing progress in
the program, and provide monthly PEth tests. Id. at 80. The DOE Psychiatrist also recommended
that if the Individual cannot maintain sobriety while in the recommended FFD program or receives
a positive PEth test, he should complete a twelve-to-sixteen-week intensive outpatient program
(IOP). Id.
The Individual provided six letters of recommendation from current and former coworkers and
supervisors that offered their view that the Individual is trustworthy and a hard worker. Ex. A. The
Individual also submitted a single test result that showed his urine had tested negative for alcohol
in April 2024. Ex. B. The Individual included in his exhibits documentation that he had completed
his Employee Assistance Program’s (EAP) alcohol awareness and education program in August
2023 and a class about maintaining the changes made in alcohol use course in May 2024. Ex. C;
Ex. D. He also provided attendance records showing that he had attended twelve SMART
Recovery meetings between April 2024 and July 2024.7 Ex. E.
The Individual’s significant other testified that she has known the Individual for around ten years.
Tr. at 13. They have lived together for the majority of that time period, except for a period from
April 2023 to April 2024 when they took a break from their relationship. Id. She stated that in the
time she has known the Individual, she has never had any concerns about his alcohol use, and she
cannot recall the last time that she saw him consume alcohol. Id. at 14. She also said that there is
not any alcohol currently in their home. Id. at 15. The significant other testified that since she and
the Individual resumed their relationship, she has not seen him under the influence of alcohol. Id.
at 18. Since the Individual began attending therapy and classes regarding his alcohol use, the
significant other testified that he is an “amazing father, an amazing spouse, an amazing provider,
a very hard worker.”8 Id. at 15. She continued that they “try to stay active with our kids, . . . so our
free time when we’re not working is usually with our kids doing stuff.” Id. at 16. She believes that
the perspective that the Individual gained from counseling was a factor in the two of them working
things out in their relationship and getting back together. Id. at 17.
The Individual’s EAP counselor testified that she met the Individual when he joined the alcohol
awareness and education group that she runs. Id. at 21–22. She also met with him three times for
individual counseling, and he later joined the maintaining changes group that she runs. Id. The
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 Jun.
20, 2024).
7 The dates he attended were April 8 and 9, 2024; June 6, 19, 19, 20, and 26, 2024; and July 10, 13, 23, and 24, 2024.
Ex. E.
8 The significant other testified that the Individual was her spouse, but she admitted that they are not legally married.
Tr. at 13.
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alcohol awareness and education group that he attended was a six-week program, and the
maintaining changes group is a twelve-week program with the option to continue attending. Id. at
22–23. At some point during his treatment with the EAP counselor, the Individual told her that he
enjoyed sobriety and “he would like to be sober.” Id. at 23, 25. From her conversations with the
Individual, she believes that in the course of his treatment he went from wanting to be a “low-risk”
drinker to wanting to achieve sobriety. Id. at 25. She felt that the Individual put in good effort in
both the group sessions and individual counseling sessions. Id. at 31.
The EAP counselor also testified about the Individual’s counseling sessions. Id. at 27–29. At the
first session in March 2024, they discussed the Individual’s DWI and the suspension of his
clearance. Id. at 27. At the next session in May 2024, the Individual told the EAP counselor about
his attendance at SMART Recovery and explained that he had taken two PEth tests.9 Id. at 28. He
also told her that he was enjoying the dynamic of attending the EAP group and that being sober
was contributing to many positive things in his life. Id. The EAP counselor testified that the
Individual increased his alcohol consumption following his father’s death, partially because he
blamed himself for that death, because the Individual drove his father to the hospital for a
procedure following which he died. Id. At the final EAP session in July 2024, the Individual told
the EAP counselor that he had last consumed alcohol in November 2023, after he had already
completed the alcohol awareness and education group. Id. at 28–29.
At the hearing, the Individual testified that he did not feel that he has an issue with alcohol. Id. at
44. He went on to say that he did not consume any alcohol from June 2023 to November 2023. Id.
at 46. On November 11, 2023, the Individual consumed “three beers.” Id. at 45–46. He said that
he has not consumed any alcohol since November 11, 2023. Id. at 46. The Individual stated that
he had been attending SMART Recovery meetings in line with the DOE Psychiatrist’s
recommendations even though the documentation that he provided did not show he was attending
enough meetings each week to satisfy the DOE Psychiatrist’s recommendation. Id. at 51. He also
testified that in the alcohol awareness and education group, he learned that he wanted to stop
consuming alcohol and he expressed that “it is nice to talk. If . . . something is going on, personal
issues, something at work . . . it’s better to get it off your chest. It’s like a relief.” Id. at 60. The
Individual does not intend to consume alcohol again and said that he does not ever crave alcohol.
Id. at 63–64.
When asked why his December 2023 PEth test showed that he was drinking despite his testimony
that he had not consumed any alcohol that month, the Individual posited that it was possible his
test was positive because he had consumed a large amount of Nyquil in the days prior to his
evaluation.10 Id. at 56.
The DOE Psychiatrist testified that he evaluated the Individual on December 8, 2023. Id.at 77. The
DOE Psychiatrist stated that the Individual had partially complied with the recommendations that
9 The Individual later clarified in his testimony that he had completed “drug and alcohol testing.” Tr. at 48. He did
not complete any PEth tests other than the one given to him at the time of his psychiatric evaluation. Id. at 48–49.
10 The DOE Psychiatrist testified that the amount of Nyquil that the Individual testified he consumed, i.e., a bottle-
and-a-half in the three days prior to his evaluation, would be the equivalent of consuming approximately one beer
each of the three days before the evaluation. Tr. at 57, 82. He went on to explain consuming that much Nyquil alone
would not cause a positive PEth test. Id. at 82.
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he provided in his Report. Id. at 83. He stated that he felt that the Individual’s involvement with
the alcohol education and maintaining changes courses showed positive effort that was in line with
his treatment recommendations. Id. He also said that he believes that combining those classes with
the Individual’s self-reported attendance at SMART Recovery meetings met the treatment
recommendation of three sessions per week. Id. However, despite the DOE Psychiatrist’s treatment
recommendations, the Individual had not undergone any additional PEth tests to provide laboratory
proof of his abstinence from alcohol. Id. He also claimed that the laboratory tests that the Individual
submitted do not cover alcohol use11 and, therefore, are not a sufficient substitute for PEth tests.
Id. The DOE Psychiatrist gave the Individual a “cautiously positive” prognosis, saying that he felt
the Individual was putting in good effort and his voluntary participation in treatment was favorable,
but the Individual’s failure to attempt to obtain objective data like a PEth test was unfavorable. Id.
at 85.
V. ANALYSIS
An individual may be able to mitigate security concerns under Guideline G though the following
conditions:
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 maladaptive alcohol use, provides evidence of
actions taken to overcome this problem, and has demonstrated a clear and
established pattern of modified alcohol 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.
Regarding factor (a), the Individual’s behavior, his alcohol consumption prior to the DWI charge
occurred at a party, which would not be considered an unusual event. I cannot say the behavior
regarding his DWI was unusual or happened under circumstances that it is unlikely to recur. As
such, I find that the Individual has not mitigated the security concerns under factor (a).
11 The one test that the Individual did submit, dated April 8, 2024, does appear to test for alcohol use. Ex. B. The DOE
Psychiatrist was not questioned about his claim that it does not cover alcohol use, because the Individual only
submitted one test result, and that test result was not a PEth test, and as such it would not have been sufficient to
satisfy the DOE Psychiatrist’s recommendation even supposing it did test for alcohol.
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Regarding factor (b), the Individual testified that he did not believe that he had an issue with
alcohol. Further, the single negative urinalysis from April 2024 is insufficient to show he has
abstained from consuming alcohol in accordance with treatment recommendations. Without
evidence beyond his own testimony and that of his significant other, the Individual cannot
demonstrate a clear and established pattern of abstinence. Even if I believe that he has been
abstinent since November 2023, he has only been abstinent for 9 months, less than the 12 months
the DOE Psychiatrist recommended. Therefore, I find that the Individual has not mitigated the
security concerns under factor (b).
Regarding factor (c), the Individual testified at the hearing that he relapsed in November of 2023
after completing his EAP program in August of 2023. Because he has a history of relapse,
including after he completed the FFD, I cannot find that the Individual has mitigated the security
concerns under factor (c).
Regarding factor (d), while the Individual has completed two EAP programs related to alcohol use
and attended 12 SMART Recovery sessions, as noted above, he has not provided sufficient
objective evidence that shows he has abstained from consuming alcohol in accordance with
treatment recommendations. I find the Individual has not mitigated the security concerns under
factor (d).
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.
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, 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 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