PSH-25-0009

*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: October 15, 2024 ) Case No.: PSH-25-0009
)
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Issued: February 19, 2025
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Administrative Judge Decision
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Erin C. Weinstock, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 at 5.2 In May 2024, the Individual tested positive for alcohol on a
random Blood Alcohol Test (BAT) conducted at his place of work. Ex. 6. As a result of the
Individual’s positive BAT and a January 2019 Driving While Intoxicated (DWI) arrest, the Local
Security Office (LSO) issued the Individual a Letter of Interrogatory (LOI), which the Individual
completed in June 2024. Ex. 8. After receipt of his responses, the LSO requested that the Individual
undergo a psychological evaluation in July 2024, by a DOE-consultant psychologist (DOE
Psychologist), 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), mild, in early remission, without adequate evidence of rehabilitation or
reformation. Ex. 9 at 62. The DOE Psychologist also concluded that the Individual habitually binge
drank. Id.
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 References to the Local Security Office’s (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 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 eleven exhibits (Ex. 1–11). The Individual submitted four exhibits (Ex. A–D). The
Individual testified on his own behalf. Hearing Transcript, OHA Case No. PSH-25-0009 (Tr.). The
LSO called the DOE Psychologist to testify. Id.
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 Psychologist’s July 2024 diagnosis that the Individual suffered
from AUD, mild, and his opinion that the Individual binge consumed alcohol. Ex. 1 at 5. It also
cited the Individual’s positive random BAT in May 2024 and his January 2019 arrest for DWI. Id.
The information cited by the LSO justifies its invocation of Guideline G. See Adjudicative
Guidelines at ¶ 22(a)‒(d) (indicating that alcohol-related incidents away from and at work, binge
consumption of alcohol to the point of impaired judgment, and a diagnosis of AUD by a duly
qualified mental health professional may raise security concerns under 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 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 their eligibility for an access authorization. The
Part 710 regulations are drafted to permit the introduction of a very broad range of evidence at
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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. Ex. 8 at 50. Prior to his arrest,
the Individual had gone to a bar with friends where he stated that he consumed five or six mixed
drinks over the course of four hours. Id. After leaving the bar, he went to a friend’s house and had
one to two shots of liquor. Id. The Individual left his friend’s home about six and a half hours after
he started consuming alcohol and was arrested while driving home. Id. As a result of his arrest, the
Individual completed a six-week intensive outpatient program (IOP) to address his problematic
alcohol use. Id. He also completed a one-year probation, and he took some court-ordered classes
related to alcohol use. Tr. at 13. After completing the IOP, the Individual completed six months of
aftercare and had weekly one on one meetings with a therapist. Id. at 14–15. At that time, he
intended to continue to remain abstinent from consuming alcohol. Id. After a period of sobriety,
the Individual resumed associating with people who he had consumed alcohol with in the past and
going to places that had been problematic for him in the past. Id. at 16. At first, he only consumed
alcohol on date nights with his now-wife. Id. Eventually, he began consuming alcohol in greater
quantities and more regularly. Id. at 18.
On May 24, 2024, the Individual was at his home, and, at around 4:00 PM, he began to consume
several alcohol beverages. Ex. 8 at 50. He stated that between 4:00 PM and 9:00 PM, he consumed
“three glasses of whiskey and [six] beers.” Id. The following morning, the Individual reported to
work and was asked to undergo a random BAT. Ex. 6 at 26. At 7:08 AM, the Individual underwent
a BAT that registered at 0.037. Id. at 25. At 7:25 AM, he underwent a second test that registered
at 0.035. Id.
As a result of his positive BAT, January 2019 DWI, and LOI responses, the Individual underwent
a psychological evaluation in July 2024. Ex. 9. At the evaluation, the Individual told the DOE
Psychologist that prior to his positive BAT test, he would drink two to three times weekly, but he
would try not to have “more than a six-pack.”3 Id. at 58. He also told the DOE Psychologist that
he had six or more drinks on an occasion “[m]aybe three times a month.” Id.
As part of his evaluation, the Individual underwent a Phosphatidylethanol (PEth) test4 in July 2024.
Id. at 63. The PEth test came back negative for alcohol use, meaning that the Individual had not
consumed a measurable amount of alcohol in the twenty-eight days prior to the testing, which was
consistent with his self-report. Id. at 60.
After the Individual completed the evaluation, the DOE Psychologist concluded that the Individual
met sufficient DSM-5 criteria for a diagnosis of AUD, mild. Id. at 62. He also determined that the
3 At the hearing, the Individual clarified that he had not consumed any alcohol since his positive BAT test in May
2024. Tr. at 33.
4 “PEth levels in excess of 20 ng/mL are considered evidence of moderate to heavy ethanol consumption.” Ex. 9 at
63.
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Individual habitually binge drank. Id. In order for the Individual to show rehabilitation, the DOE
Psychologist stated that the Individual should: (1) enroll in and complete an IOP; (2) engage in a
weekly accountability group and/or seek treatment with a licensed substance abuse counselor; and
(3) submit monthly negative PEth test results. Id. The DOE Psychologist recommended that these
treatments last a year. Id. If the Individual chose to pursue a path of reformation in lieu of treatment,
the DOE Psychologist recommended that he submit monthly negative PEth tests for a period of
eighteen months. Id.
The Individual testified that he has not consumed any alcohol since the May 2024 positive BAT
test. Tr. at 33. To support his testimony, he provided three negative PEth tests dated September
27, 2024, October 24, 2024, and February 3, 2025. Ex. D. The Individual also submitted two
negative blood ethanol tests dated December 31, 2024, and January 13, 2025.5 Id. He completed
an eight-week IOP in October 2024. Id. at 21; Ex. A. The Individual’s treatment team said that the
Individual “gave good effort over the entire course of treatment” and described his prognosis as
“good to excellent” if he complies with his post-IOP “discharge plan.” Ex. B. The treatment team
described the Individual’s “discharge plan” as attending aftercare or a comparable support group
once a week for 180 days following his discharge from IOP. Id. He had decided to re-enroll in the
IOP prior to meeting with the DOE Psychologist or seeing the DOE Psychologist’s
recommendations. Tr. at 34. The Individual also testified that in his IOP he learned that he needed
to communicate better with his wife and other family members because it helps him to handle
stress better. Id. at 28. Since completing the IOP, the Individual attended aftercare meetings
approximately once a week through the date of the hearing. Id. at 21; Ex. C. When he has
completed the aftercare program, the Individual intends to go to meetings with a local recovery
group. Tr. at 22.
The Individual testified that his recovery is different this time from when he returned to misusing
alcohol after his 2019 IOP because he is older and more mature. Tr. at 19–20. He also explained
that after his first period of treatment, he thought that he “was in control of how much [he] was
drinking.” Id. at 19. He has now realized that he has a problem with alcohol and likely needs to
abstain from consuming alcohol forever. Id. He feels that his recovery plan is more stable after
this round of treatment as well. Id. Now that he does not consume alcohol, the Individual is very
involved in his children’s after school activities. Id. at 29. He also started woodworking as a hobby
that allows him to take time for himself. Id.
The DOE Psychologist testified that after being present for the hearing and reviewing the exhibits
submitted by the Individual, his diagnosis of the Individual was unchanged. Id. at 40–41. He
explained that the three PEth tests and two ethanol tests that the Individual submitted did not
sufficiently prove that the Individual had been abstinent from alcohol use because the ethanol tests
only proved that the Individual had not consumed alcohol for the twelve hours prior to the test. Id.
at 40. Therefore, the Individual did not show that he had been abstinent from alcohol in the months
prior to the two ethanol tests. Id. The DOE Psychologist further testified that, even if he accepted
5 Due to insurance issues, the Individual attempted to undergo alcohol testing with a different provider in December
and January. Tr. at 25. Due to a miscommunication with the new provider, his blood samples were sent for ethanol
testing rather than PEth testing. Id. Ethanol tests can find alcohol in a person’s blood for up to twelve hours after
consuming alcohol. Blood Alcohol Level, MEDLINE PLUS, https://medlineplus.gov/lab-tests/blood-alcohol-level/ (last
visited Feb. 19, 2025).
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the Individual’s ethanol tests as proof of abstinence from alcohol, the Individual’s period of
abstinence from alcohol fell short of his recommendations and was insufficient evidence of a
change in the Individual’s status for the DOE Psychologist to provide an updated prognosis. Id. at
40‒41.
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.
Here, the Individual’s most recent alcohol-related incident occurred less than a year ago, and he
did not describe any unusual circumstances that led up to that behavior. Further, the Individual
admitted that prior to the May 2024 incident, he consumed six or more alcoholic beverages in a
sitting around three times a month. Therefore, I cannot say that so much time has passed, the
behavior leading to the concerns was infrequent, or that it occurred under unusual circumstances.
As such, the Individual has not mitigated the security concerns pursuant to mitigating factor (a).
The Individual did acknowledge his maladaptive alcohol use and demonstrated several actions that
he has taken to overcome his problem. However, he has not established a clear pattern of modified
consumption or abstinence. He underwent four negative PEth tests that established he likely did
not consume alcohol in July 2024, September 2024, October 2024, and January 2024, but he was
only able to provide two ethanol tests in December 2024 and did not provide any testing in
November 2024. Regardless of the reason for these omissions, without any additional evidence to
corroborate the Individual’s testimony that he has been abstinent throughout this period, I cannot
find that the Individual has demonstrated a clear and established pattern of abstinence based on
the record before me. This is particularly true since the Individual had previously committed to
abstinence in 2019, after completing an IOP, only to later resume his problematic pattern of alcohol
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consumption. Therefore, the Individual has not mitigated the security concerns pursuant to factor
(b).
As to factor (c), the Individual has previously undergone treatment and relapsed. Therefore, I
cannot find he mitigated the security concerns pursuant to factor (c).
The Individual has successfully completed an eight-week IOP and was, at the time of the hearing,
involved in the aftercare program. However, at the time of the hearing, he had not completed the
aftercare program, and, as I described above, he has not demonstrated a clear and established
pattern of abstinence. Without the completion of aftercare or long-term documentation of
abstinence, I have not been convinced that the Individual’s second attempt at abstinence from
alcohol is different from his first. As such, the Individual has not mitigated the security concerns
pursuant to factor (d).
Accordingly, I find 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, 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.
Erin C. Weinstock
Administrative Judge
Office of Hearings and Appeals