PSH-24-0147

*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: June 27, 2024 ) Case No.: PSH-24-0147
)
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Issued: November 22, 2024
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Administrative Judge Decision
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James P. Thompson III, 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 or Eligibility to Hold a Sensitive Position.”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 be restored.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires possession of a security
clearance. In January 2024, the DOE Local Security Office (LSO) learned that the Individual had
been randomly selected by his employer for a random Breath Alcohol Test (BAT) and placed on
administrative leave due to the positive test results. Subsequently, the LSO asked the Individual to
complete a Letter of Interrogatory (LOI) regarding his alcohol use. After reviewing the
Individual’s responses in the LOI, the LSO requested that the Individual be evaluated by a DOE-
consultant psychologist (DOE Psychologist) regarding alcohol use. Thereafter, the LSO informed
the Individual by letter (Notification Letter) that it possessed reliable information that created
substantial doubt regarding his eligibility to possess a security clearance. In an attachment to the
Notification Letter, entitled Summary of Security Concerns (SSC), the LSO explained that the
derogatory information raised security concerns under Guidelines G of the Adjudicative
Guidelines.
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. The Director of the Office of Hearings and Appeals (OHA) appointed me as the
Administrative Judge in this matter. I subsequently conducted an administrative review hearing.
Transcript of Hearing, OHA Case No. PSH-24-0147 (Tr.). At the hearing, the Individual testified
on his own behalf and presented the testimony of his wife. The LSO presented the testimony of
the DOE Psychologist. The Individual submitted three exhibits, marked Exhibits A through C. The
LSO submitted twelve exhibits, marked Exhibits 1 through 12.2
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline G (Alcohol Consumption) of the Adjudicative
Guidelines as the basis for concern regarding the Individual’s eligibility to possess a security
clearance. Exhibit (Ex.) 1 at 5.
Guideline G provides that “[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. Conditions that
could raise a security concern include “alcohol-related incidents at work, such as reporting for
work or duty in an intoxicated or impaired condition . . . or jeopardizing the welfare and safety of
others,” “habitual or binge consumption of alcohol to the point of impaired judgment, regardless
of whether the individual is diagnosed with alcohol use disorder[,]” and “[d]iagnosis by a duly
qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist
. . .) of alcohol use disorder . . . .” Id. at ¶ 22(b)—(d). The SSC cited the following information.
The DOE Psychologist concluded in a March 2024 report (Report) that the Individual met
sufficient criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition,
Text Revision, for a diagnosis of Alcohol Use Disorder (AUD), Mild, without adequate evidence
of rehabilitation or reformation. Ex. 1 at 5. The DOE Psychologist also concluded that the
Individual is “a habitual and binge drinker . . . .” Id. And the Individual failed his employer’s
random BAT after consuming ten light beers the evening prior to the test. Id. The cited information
justifies the LSO’s invocation of Guideline G.
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 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).
2 References to the LSO 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 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 their 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. § 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
In the LOI, the Individual admitted that the night before the random BAT test he consumed ten
beers over five hours before going to bed. Ex. 9 at 44. He reported that he went to work early the
following morning “with no feelings of alcohol in [his] system.” Id. In providing his history of
alcohol use, he stated that he regularly consumed six light beers on Friday, Saturday, or both and
“occasionally” consumed two beers with dinner during the week. Id. at 45. He also stated that he
would need to consume twelve alcoholic beverages within a four-hour period to feel intoxicated,
and he only drank to intoxication twice a year. Id. at 46.
In the March 2024 Report, the DOE Psychologist opined that the Individual’s failure to feel
“alcohol in his system” at the time he tested positive on the BAT, along with the self-reported level
of consumption required for the Individual to feel intoxicated, indicated that the Individual had
developed tolerance to alcohol. Ex. 10 at 55. In reaching this conclusion, the DOE Psychologist
referenced the fact that the Individual tested positive on the BAT at the Breath Alcohol
Concentration (BAC) of 0.043 g/210L, which, based on the timing of the test, indicated the
Individual’s BAC was probably “near or above 0.05 g/210L” when he was notified of his selection
for testing, which is a level where judgment can be impaired. Id. at 54–55. The DOE Psychologist
also noted that, during his clinical interview with the Individual, the Individual offered a different
report of his alcohol consumption from what was stated in the LOI, reporting that he consumes
“eight to nine beers” on Friday or Saturday, but “rarely” on both nights. Id. The DOE Psychologist
also noted that, during the evaluation, the Individual estimated that he consumed twelve to fifteen
beers a month, which is not consistent with his reported weekly consumption. Id. at 55.
The Report also includes information the DOE Psychologist gathered from a Licensed Professional
Counselor (Counselor) who conducted a substance abuse evaluation of the Individual.3 Id. at 54,
56. The Counselor reported that the Individual had been vague in reporting his typical
consumption, but the Individual did estimate that it would take approximately eighteen beers
within five hours for him to feel “wasted.” Id. at 56. Based on the development of tolerance and
the Individual’s reported consumption, the Counselor concluded that the Individual engaged in the
binge consumption of alcohol and met the criteria for AUD, Mild. Id.
3 The Individual’s employer referred the Individual to the Counselor for the evaluation. Ex. 10 at 56.
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Lastly, the DOE Psychologist noted that the Individual reported during the evaluation that he had
not consumed alcohol within the preceding thirty days. Id. As part of the evaluation, the Individual
underwent a Phosphatidylethanol (PEth) test, which can provide laboratory evidence of recent
alcohol consumption. Id. at 57. The result was positive. Id. at 58. The Report includes the opinion
of a consultant psychiatrist who reviewed the results and concluded that “it is medically likely”
that the Individual’s self-reported abstinence over the preceding thirty days was “incorrect.” Id.
Based on the information gathered during the evaluation, the DOE Psychologist opined that the
Individual met sufficient criteria for a diagnosis of AUD, Mild, without adequate evidence of
rehabilitation or reformation. Id. at 59–60. The DOE Psychologist also concluded that the
Individual “can be considered a habitual drinker in that he drinks to intoxication at least four times
a month[,]” and he “can be considered a binge drinker in that he has episodic intoxication with
periods of high consumption followed by periods in which his intake is low.” Id. The DOE
Psychologist made several treatment recommendations for the Individual to demonstrate
rehabilitation or reformation of his AUD: (1) participate in a twelve-week intensive outpatient
treatment program (IOP) with individual and group therapy components, (2) continue with weekly
IOP aftercare for six months, and (3) remain abstinent for six months, evinced by monthly negative
PEth test results. Id. (noting that “these requirements are not absolute” and that, for example, a
“four-to-six-week program that meets four evenings” could meet the recommended IOP
treatment).
Prior to the hearing, the Individual submitted exhibit evidence to demonstrate his compliance with
the DOE Psychologist’s treatment recommendations. The Individual submitted the results of
several PEth tests administered from May to October 2024, spanning the six months leading up to
the hearing. Ex. A at 1–7. All results were negative. Id. He also submitted the records of treatment
attendance, which included an IOP and subsequent IOP aftercare that spanned from April 2024
through the end of September 2024. Ex. B at 1–3. The records also include an IOP certificate of
completion dated June 2024. Id. at 1. Additionally, the attendance records indicate that the IOP
lasted eight weeks, and he attended four classes per week. Id. at 1–3. Finally, he submitted a letter
from the Counselor referenced in the Report, dated October 21, 2024. Ex. C. That letter documents
that the Counselor conducted a follow-up evaluation of the Individual on that same date, during
which he gathered information from the Individual and the Individual’s IOP “treatment team.” Id.
Based on that information, the Counselor set forth his “clinical determination.” Id. The letter states
that the Individual “responded well to treatment”; he gained a “new awareness regarding his
maladaptive use of alcohol”; he is in “complete compliance” with the treatment plan; and “if he
adheres to his discharge plan and continues developing the skillset acquired during treatment, his
prognosis is considered good.” Id. The Counselor also reported that the treatment plan
recommended by the Individual’s IOP treatment team included continuing IOP weekly aftercare
meetings for six months. Id.
At the hearing, the Individual’s wife testified that, in the past, she had been concerned with the
Individual’s level of alcohol consumption. Tr. at 13. She testified that the Individual had been
attending his treatment classes regularly, he has a lot more energy, and his personality has
improved. Id. at 14. She testified that the Individual said he feels much better and “doesn’t want
to drink [alcohol] anymore.” Id. at 17–18. She testified that he now realizes that his alcohol
consumption had been problematic. Id. at 20.
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The Individual testified that he was placed on administrative leave as a result of his positive BAT.
Id. at 24. After returning from leave, he was evaluated by his employer’s physician and that
physician recommended that the Individual attend an IOP. Id. The Individual confirmed that while
he initially did not think he had a problem with alcohol, he realized during the IOP that he had
been abusing alcohol. Id. at 24, 33–34. He also acknowledged that he meets the criteria for AUD.
Id. at 26. He described his past “triggers” for alcohol consumption as working in his garage and
“boredom,” and he realized that he would “come up with” reasons to consume alcohol. Id. at 37.
He testified that it was initially difficult to maintain abstinence because his consumption of alcohol
“had become a lifestyle pattern . . . .” Id. at 34. He testified that during the IOP he “learned a lot
of tools to better focus and deal with alcohol abuse.” Id. at 25. He further testified that he intends
to remain abstinent indefinitely, and he believes that he will continue to be successful in his
sobriety because he has “the tools and support system around them.” Id. at 30. As an example, he
described successfully implementing a “stop and think” approach to evaluate situations where, in
the past, he would have consumed alcohol, and he provided an example of declining an invitation
to an event that would have challenged his sobriety. Id. at 35.
The Individual testified that he reviewed the Report and complied with the recommendations
therein. Id. at 27. In addition to completing an IOP, which included a group component, he has
been participating in weekly IOP aftercare meetings for four months, and he intends to continue
aftercare for as long as recommended by his treatment provider. Id. at 28–29. He testified that his
IOP aftercare attendance has been at the rate of “two nights a week” over the four months that
preceded the hearing date. Id. at 26, 29.
The DOE Psychologist testified that the Individual had followed the recommendations outlined in
the Report and that the Individual had, through presenting evidence of his progress in treatment
since the evaluation, demonstrated adequate rehabilitation and reformation from his AUD. Id. at
41. The DOE Psychologist also testified that the Individual’s AUD met the upgraded criteria of
“mild, in early remission” and that, based on the Individual’s abstinence and progress in
accordance with treatment recommendations, the DOE Psychologist concurred with the
Individual’s Counselor’s opinion that the Individual had “a good prognosis.” Id. at 40, 42.
V. ANALYSIS
A. Guideline G Considerations
Conditions that can mitigate security concerns based on alcohol consumption include the
following:
(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;
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(c) The individual is participating in counseling or a treatment program, has no
previous history of treatment and relapse, and is making satisfactory progress in a
treatment program; and
(d) The individual has successfully completed a treatment program along with any
required aftercare, and has demonstrated a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations.
Adjudicative Guidelines at ¶ 23.
I find that ¶ 23(b) applies to resolve the Guideline G concerns. The record establishes that the
Individual acknowledged his maladaptive alcohol use. He testified that by participating in the IOP
he realized that he had been abusing alcohol and needed to change his lifestyle pattern. The
Individual also provided evidence of the substantial actions taken to overcome his problem in
accordance with treatment recommendations. He followed the DOE Psychologist’s
recommendations by enrolling in and completing the recommended IOP, immediately enrolling in
IOP aftercare, and continuing to attend IOP aftercare in compliance with the recommendation of
his treatment provider. Furthermore, the Individual submitted clinical evidence through PEth test
results that he has been abstaining from alcohol for the last six months, and the frequency of testing
has been commensurate with the recommendation of the DOE Psychologist. As a result of his
actions, he received a positive prognosis from both the Counselor who initially diagnosed him with
AUD and the DOE Psychologist. In light of the above evidence, I find persuasive the Individual’s
testimony that he intends to remain abstinent. I also find persuasive the opinion of the DOE
Psychologist, as supported by the Counselor’s opinion, that the Individual has a good prognosis
and has rehabilitated and reformed from his AUD. I therefore conclude that the Individual
demonstrated a clear and established pattern of abstinence in accordance with treatment
recommendations. I further conclude that the Individual no longer binges or habitually consumes
alcohol to the point of impaired judgment. Accordingly, I find that the Individual has resolved the
Guideline G concerns.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline G of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
the hearing, I find that the Individual has brought forth sufficient evidence to resolve the security
concerns set forth in the SSC. Accordingly, I have determined that the Individual’s access
authorization should be restored.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals