PSH-25-0015

*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 30, 2024 ) Case No.: PSH-25-0015
)
__________________________________________)
Issued: May 19, 2025
____________________________
Administrative Judge Decision
________________________
James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 should not be granted access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires a security clearance.
The DOE Local Security Office (LSO) learned that the Individual had been tested for alcohol at
work in June 2023 and his breath alcohol content registered 0.225 g/210L. As a result, the LSO
requested that the Individual be evaluated by a DOE-consultant psychologist (DOE Psychologist).
Based on the information gathered by the LSO, including the DOE Psychologist’s report (Report),
the Individual’s history of alcohol use, and the Individual’s criminal history, 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, I, and J 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, and I subsequently conducted an administrative review
hearing. At the hearing, the Individual presented the testimony of five witness and testified on his
own behalf. The LSO presented the testimony of the DOE Psychologist. The Individual submitted
thirty exhibits, marked Exhibits A through DD.2 The LSO submitted twelve exhibits, marked
Exhibits 1 through 12.3
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline G (Alcohol Consumption), Guideline I
(Psychological Conditions), and Guideline J (Criminal Conduct) of the Adjudicative Guidelines
as the bases for concern regarding the Individual’s eligibility to possess a security clearance.
Exhibit (Ex.) 1 at 5–8.
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 “[a]lcohol-related incidents away from work, such as driving
while under the influence . . . or other incidents of concern, . . .”; “alcohol-related incidents at
work, such as reporting for work or duty in an intoxicated or impaired condition . . . ”; and
“diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical
psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder . . . .” Id. at
¶ 22(a)–(b), (d). The SSC cited that the DOE Psychologist concluded that the Individual meets the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, criteria for a
diagnosis of Unspecified Alcohol-Related Disorder (UARD) without evidence of rehabilitation or
reformation, the Individual tested positive for alcohol at work and admitted that he consumed up
to thirty-four alcohol beverages the night prior to reporting to work, and the Individual has a
criminal record that includes seven separate instances of alcohol-related criminal conduct from
1990 to 2017 that range from driving under the influence of alcohol or drugs (DUI) to speeding.
Ex. 1 at 5–6. The cited information justifies the LSO’s invocation of Guideline G.
Guideline I provides that “[c]ertain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 27. Conditions that could
raise a security concern include “[a]n opinion by a duly qualified mental health professional that
the individual has a condition that may impair judgment, stability, reliability, or trustworthiness . .
. .” Id. at ¶ 28(b). The SSC listed the DOE Psychologist’s opinion that the Individual’s “decisions
have shown a lack of regard for requirements, rules, and regulations, which is a personality
condition or trait that has impaired his judgment, stability, reliability, and trustworthiness.” Ex. 1
2 References to the Individual’s exhibits are to the exhibit letter and the page number of the combined .pdf of the
exhibit book.
3 References to the LSO exhibits are to the exhibit number and the page number of the combined .pdf of the exhibit
book.
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at 4. As explained in detail below in Section V, the information contained in the record does not
justify the LSO’s invocation of Guideline I.
Guideline J provides that “[c]riminal activity creates doubt about a person’s judgment, reliability,
and trustworthiness.” Adjudicative Guidelines at ¶ 30. “By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Id. Conditions that
could raise a security concern include “[e]vidence (including, but not limited to, a credible
allegation, an admission, and matters of official record) of criminal conduct, regardless of whether
the individual was formally charged, prosecuted, or convicted . . . .” Id. at ¶ 31(b). In addition to
citing the seven alcohol-related criminal charges referenced above under Guideline G, the SSC
cited a 2023 criminal charge for harassment, a June 2014 charge for unlawful hunting or fishing,
and six separate instances of motor vehicle-related criminal conduct unrelated to alcohol
consumption that occurred between 2003 and 2014. The fifteen separate instances of criminal
conduct justify the LSO’s invocation of Guideline J.
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).
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 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.
§ 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
The Individual has a history of alcohol-related criminal charges. In December 1990, he was
charged with minor procuring alcoholic beverages. Ex. 12 at 222. In January 2001, he was charged
with and convicted of DUI. Id. at 423. In June 2009, he was again charged with and pled guilty to
DUI. Id. at 194–95. In October 2010, he was charged with aggravated DUI. Id. at 195–96. In
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September 2015, he was charged with DUI for a fourth time, which the court ultimately dismissed.
Id. at 195. In May 2015, he was charged again with minor procuring alcohol. Id. at 222. And in
January 2017, he was arrested for aggravated DUI, which resulted in a court order for him to obtain
alcohol treatment, which he completed. Id. The record indicates that the treatment provider
diagnosed the Individual with Alcohol Use Disorder, moderate. Id. at 216.
The record also demonstrates that the Individual has a history of non-alcohol related criminal
charges, traffic citations, and warnings. He received a citation for unlawful hunting or fishing in
2014; a citation for speeding in 2014; a citation for no valid driver license in 2008; a warning for
speeding in August 2007; a citation for speeding, no registration, no valid driver’s license, and no
proof of insurance in 2007; a citation for driving on a suspended or revoked license in 2005; and
a citation for following too close in 2003. Id. at 220, 226, 425, 427.
The most recent allegation of criminal conduct cited in the SSC occurred in March 2023 when the
Individual allegedly sexually harassed his ex-girlfriend during a youth athletic competition. Id. at
197, 233. The details of the incident are contained in a report produced by an investigator who
conducted an investigation related to the Individual’s application for access authorization. Id. at
244. The incident occurred while the Individual was refereeing a girls’ middle school athletic
game. Id. at 245. A school principal told the investigator that he received a call from a female
coach who complained that the Individual “had been making inappropriate comments of a sexual
nature” and kissed her. Id. The complainant reported that she used to date the Individual, she was
seeing someone else romantically, and the kiss made her “uncomfortable and offended.” Id. The
incident was subsequently reported to the head of security by the school administration. Id. The
head of security, who was a police officer at the time, confirmed receiving the report from the
school administration, and he said that he advised the complainant at the time to contact the police.
Id. at 244. The head of security also stated that the Individual “had poor relationships with children
due to lacking social boundaries” and that the Individual invades personal space, detailing that the
Individual had once hugged him in an “inappropriate manner.” Id. According to the principal, the
Individual had consequently “retired and agreed not to referee anymore.” Id. at 245. The
investigator’s report does not provide a final disposition for this incident other than that the case
was forwarded to the district attorney’s office for review. Id. at 223.
The Individual tested positive for alcohol at work in early June 2023. Ex. 5 at 34. The following
month, an investigator interviewed the Individual. Ex. 12 at 193. During the interview, the
Individual disclosed that his employer tested him because another employee reported that he
smelled of alcohol. Id. He reported that he had previously undergone alcohol treatment in 2018
and had been sober since that year until the day before his positive workplace alcohol test. Id. at
193, 196. He also reported that, the day before his positive test, he had consumed one “shot” of
liquor and approximately fifteen beers throughout the day with family. Id. at 193. And he stated
that he “did not feel affected or intoxicated” at the time of the test. Id. As a result of the positive
test, the Individual’s employer required him to contact the employer’s alcohol awareness program
on June 12, 2023, and he thereafter began a six-week alcohol education class that met weekly and
required random alcohol breath tests. Id. He completed the alcohol education class on July 27,
2023. Ex. I. He also reported to the investigator that he had consumed two beers on July 1, 2023.
Ex. 12 at 193. He stated that he intended to remain sober going forward, in part, to keep his job.
Id.
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The record also includes the Report produced by the DOE Psychologist who evaluated the
Individual on June 17, 2024. Ex. 9. The DOE Psychologist reported that the Individual had
previously attended and completed two court-mandated alcohol treatment programs—one in 2009
and the other in approximately 2018. Id. at 52. During the evaluation, the Individual reported that,
prior to his 2017 DUI, he would typically consume six beers over the weekend. Ex. 9 at 51. He
also repeated his claim that he had been abstinent since completing the court-ordered alcohol
treatment program in 2018 up until the day before his positive alcohol test at work. Id. at 51.
However, the Individual estimated the number of alcoholic beverages he consumed that day to be
over thirty—instead of the sixteen he reported to the investigator. Id. at 50. The DOE Psychologist
noted that .225 g/210L is “nearly three times the .08 g/210L level considered to be intoxication[,]”
and at that level a person could expect to experience “impaired judgment, . . . risk of blackouts,
and often loss of consciousness.” Id. at 51–52.
The Individual established that he had since completed an outpatient alcohol treatment program
(IOP), which ran from July 2023 to January 2024. Id.; see also Ex. C (IOP certificate of
completion) and Ex. A (letter from the IOP indicating he attended the two-phase, twenty-four week
program from July 11, 2023, to January 3, 2024). However, he also reported that he had
subsequently consumed alcohol starting in May 2024 and ending in June 2024. Ex. 9 at 51.
According to the DOE Psychologist’s review of the Individual’s records, the IOP counselor
recommended that the Individual continue in an aftercare program. Id. The Individual, however,
told the DOE Psychologist that he did not attend it because it was “not mandatory” and he did not
think he could take the time off from work. Id.
As part of the psychological evaluation, the Individual underwent a Phosphatidyl Ethanol (PEth)
test, “which can detect any significant alcohol use over the past three to four weeks.” Id. at 52. The
result came back positive at the level of 56 ng/mL, over the 20 ng/mL threshold, which a reviewing
psychiatrist interpreted as evidence that the Individual had consumed alcohol in the month
preceding the test and was therefore “clearly inconsistent with [the Individual’s] self-reported
drinking history.” Id. at 53. Based on the Individual’s reported history of alcohol consumption,
including his reported pattern of consumption prior to 2018, his several DUI charges, the
circumstances of his positive test at work, his apparent development of alcohol tolerance based on
not feeling the impact of his blood alcohol content of .225 g/210L, his failure to enroll in the
aftercare treatment recommended by the IOP counselor, and his dishonesty regarding alcohol
consumption as demonstrated by his PEth result, the DOE Psychologist concluded that the
Individual met the criteria for a diagnosis of UARD. Id. at 54. The DOE Psychologist
recommended that, to demonstrate rehabilitation, the Individual should attend a treatment aftercare
program for at least six months while undergoing monthly PEth testing to demonstrate his
abstinence from alcohol. Id. Alternatively, to demonstrate reformation, the DOE Psychologist
recommended that the Individual engage in monthly PEth testing for twelve months. Id.
The DOE Psychologist also concluded that the Individual had a personality condition or trait that
“is impairing his judgment, reliability, and trustworthiness” based on the Individual’s history of
violating the law and his employer’s rules regarding alcohol consumption, including during the
employer-mandated alcohol education; his willingness to consume alcohol again once he was “no
longer being held accountable”; and his lack of candidness. Id. To address the personality
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condition, the DOE Psychologist again recommended that the Individual participate in the
aftercare program for six months because it “has elements to address co-occurring problems . . .
(i.e., . . . personality concerns), [and] has the potential to effectively treat these personality
traits/mental condition . . . .” Id.
Prior to the hearing, the Individual submitted a written statement on October 14, 2024, in which
he provided some updated information. Ex. 2. First, he acknowledged that he was an alcoholic. Id.
at 13. But, he asserted that he had last consumed alcohol on or around May 12, 2024, which is a
month earlier than the date he reported to the DOE Psychologist. Id. at 14. He also stated that he
did not initially enroll in aftercare because he and his IOP treatment team jointly decided it “was
not the best option” for him at the time, but, after receiving the DOE Psychologist’s Report, he
decided to enroll in aftercare and undergo the recommended PEth testing. Id. The record includes
five PEth test results, one for each month running from September 2024 to January 2025. Ex. O
(September); Ex. P (October); Ex. Q (November); Ex. R (December); Ex. S (January). Only the
September test had a positive result, which was slightly above the 20 ng/mL threshold. Ex. O.
The first witness to testify at the hearing was the Individual’s employee assistance program (EAP)
counselor. Transcript of Hearing, OHA Case No. PSH-25-0015 (Tr.) at 16. She first met with the
Individual in February 2024 to provide individual counseling. Id. at 16–19. She provided
counseling to the Individual a total of six times, the last session occurring January 22, 2025. Id. at
21. She described the Individual as “very expressive [and] honest” during the sessions. Id. at 22.
She testified that the Individual had acknowledged that it had been difficult to maintain his
progress in treatment, he realized he had been selfish, he wanted to turn his life around, and he
accepted responsibility for coming into work with alcohol in his system as opposed to blaming the
person who reported him. Id. at 24, 26. She testified that the Individual has demonstrated a sincere
effort, and while they do not have any future counseling sessions scheduled, he can always
schedule a session in the future. Id. at 26–27. She believed that he would be successful if he “stays
engaged in the resources that have helped him maintain his sobriety.” Id. at 27.
The IOP counselor testified the Individual successfully completed the IOP, which included
individual and group treatment sessions every week for twenty-four weeks. Id. at 36–37. The IOP
counselor confirmed that the Individual had not been recommended to participate in aftercare
based on his positive performance and active engagement throughout the program. Id. at 38–39.
The IOP counselor confirmed that the Individual later enrolled in the aftercare program in October
2024. Id. at 40. That program consists of one group session and one individual session once a
month. Id. at 42. She said that, to her knowledge, he had been able to maintain sobriety since
December 2023 except for “one or two occasions where he has drank moderately.” Id. at 46. She
also testified that the Individual had been participating in the aftercare program for four months.
Id. at 44. The Individual also disclosed that he intended to be sober most of the time but may
consume alcohol moderately on a holiday during a celebration. Id. at 45. The IOP counselor
testified that the Individual had been diagnosed by the aftercare program with alcohol abuse
uncomplicated, improved, which meant he had an alcohol problem but the “addiction to alcohol is
no longer serious.” Id. at 48.
The Individual’s work group foreman testified that the Individual is a great member of the work
group and extremely dependable. Id. at 56.
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The Individual’s girlfriend of seven years testified that the Individual is “a recovering alcoholic.”
Id. at 70. She testified that the Individual was only sober for approximately two years starting in
2017 and began consuming alcohol again socially around 2019. Id. at 71. After testing positive for
alcohol at work, she observed the Individual consume alcohol occasionally to treat alcohol
withdrawal symptoms such as tremors. Id. at 79. Since completing the IOP, he has been more open
and accountable regarding his alcohol use. Id. at 81. He also began focusing more on family. Id.
at 82. She confirmed that he had consumed alcohol in May and August 2024. Id. at 84, 90. For
example, he went to a three-day sporting event in May and was “drunk” one of those days after
consuming approximately twelve beers. Id. at 85–86. After that event, the Individual identified it
as a trigger and they decided to avoid the event in the future. Id. at 87. However, he consumed
alcohol again in August 2024 on several occasions, including consuming three beers while at a
sporting event on August 10 and then approximately eight alcohol beverages on the following day.
Id. at 87–88. She testified that he has been completely sober since August 11. Id. at 88–89. She
said that in the past he used to cover up his abstinence around others, but since August he has been
open and honest regarding his sobriety. Id. at 90. She testified that he no longer turns to alcohol to
deal with stressful situations. Id. at 96. She also described how his friends and family have shown
positive support by checking in on him and providing words of encouragement. Id. at 97.
The girlfriend lastly testified about the night of the alleged harassment incident. Id. at 99. She said
that she observed the Individual give both team coaches a “side hug” during the game, and he did
not engage in any other physical or inappropriate contact. Id. at 100–01, 110. She also testified
that he turned in his retirement paperwork in January 2023, a few months prior to the harassment
allegation. Id. at 111.
The Individual’s mother testified that she had seen the Individual change his behavior over the last
six months. Id. at 119. He is a lot more involved and supportive of family members. Id. The mother
also testified that he no longer associates with the people with whom he used to consume alcohol.
Id. at 126.
The Individual testified that on May 31, 2023, the day before his positive test at work, he was
helping his family set up for a graduation party and he consumed approximately eighteen beers
and “a few drinks” from a bottle of whiskey that night. Id. at 135–36 (stating he could not recall
the actual number). He drove home from the party at 2:00 a.m. and left his home for work a little
before 6:00 a.m. Id. at 137–39. He confirmed that he did not feel intoxicated on the drive to work
and “felt all right” once he arrived and started his workday. Id. at 139–40. He stated that he made
a “bad decision” that day, and, through the IOP, became grateful that his colleague reported him
for suspicion of alcohol use. Id. at 141–42 (acknowledging that he was first upset at his colleague).
The Individual admitted that his statements to the DOE Psychologist and the investigator that he
had been abstinent from 2018 until May 31, 2023, were incorrect. Id. at 142–43. He stated that he
had instead only been sober for approximately eighteen months after his January 2017 DUI. Id. at
144. Starting in April 2023, approximately five years after he began drinking alcohol again, he
regularly consumed up to twelve beers on the weekends and up to six beers after work during the
week every other day. Id. at 144–46.
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The Individual testified that his time in treatment through EAP and the IOP changed his view on
alcohol consumption. Id. at 150. He said that the treatment made him realize that he was on a path
to wind up like the people in the group sessions that he believed were “ten times worse off . . . .”
Id. at 150.
He testified that he did not accept the offer to continue with the IOP aftercare after initially
completing the IOP, but he later decided to do aftercare after he received the Report containing the
DOE Psychologist’s recommendation. Id. at 153, 158. He also reported that he had consumed
alcohol twice in 2024: on Mother’s Day and a week later at the sporting event described above by
his girlfriend. Id. at 154. He testified that at the latter event he consumed seven beers in one day
instead of the twelve described by his girlfriend. Id. at 155. He then contradicted himself by
testifying that he may have had a “beer or two” between May and July 2024 and confirmed his last
drink occurred in August 2024. Id. at 156–57. He testified that he now avoids situations that would
have previously triggered his alcohol use, like sporting events in particular cities. Id. at 163. He
confirmed that his relationships had improved since discontinuing alcohol use. Id. at 165. He also
disclosed that he has been speaking with an Alcoholics Anonymous sponsor weekly since August
2024, whom he developed a relationship with in 2017. Id. at 167, 193; see also id. at 83 (girlfriend
testifying that he speaks weekly with the sponsor). He testified that he intends to remain completely
abstinent into the future. Id. at 168.
Regarding the allegation of harassment, the Individual testified that he hugged both coaches and
stated a brief pleasantry prior to refereeing the game. Id. at 170. He testified that he could not recall
trying to kiss the coach. Id. at 171. The Individual opined that a jealous boyfriend or husband may
have been upset about the hug and forced the complainant to make a report. Id. at 173. The
Individual said that a police officer questioned him about an attempt to kiss the coach. Id. He also
said that the officer told him that they had reviewed videotape evidence that exonerated him. Id.
at 192. The Individual also denied the assertion that he invades personal space and said that people
mistake his kindness for weakness. Id. at 176. The Individual provided a written statement dated
January 3, 2025, from an Athletic Director who reported the following:
I am aware that a complaint was filed against [the Individual] during an elementary
[] game in March of 2023. These claims were investigated by district security
personnel and could not be corroborated. No evidence of wrong doing was
established and the investigation has been closed.
Ex. W at 78.
The Individual provided the following information regarding his past criminal charges. The 2014
hunting and fishing violation resulted from fishing in a lake that had restricted access. Tr. at 178.
He had three DUI convictions, the most recent in 2017. Id. at 180–81. He denied that he was
charged with minor procuring alcohol in May 2015. Id. at 181–82. He also testified that the 2015
DUI was ultimately dismissed. Id. at 180–83. He testified that, generally, he was young, careless,
and made mistakes in the past that resulted in his criminal history. Id. at 184. He believes he is
now a “[t]otally different person.” Id.
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The DOE Psychologist testified last. The DOE Psychologist concluded that, based on the number
of previous relapses after completing the IOP, she could not conclude that the Individual had been
rehabilitated from his UARD. Id. at 211. She opined that if the Individual continued aftercare and
consulting with his sponsor “his prognosis would be good.” Id. at 212. She recommended that the
Individual continue aftercare and abstinence for another six months to demonstrate rehabilitation.
Id. at 213.
Regarding the diagnosis of a mental condition, the DOE Psychologist testified that “a mental
condition . . . can be a pattern of behaviors and [the Individual] had a pattern of disregard for laws
and regulations, of lacking candor . . . .” Id. at 213. She further opined that the Individual’s
testimony was consistent with more “openness and candor” than in the past, and that the witnesses
had provided “a good deal of information” that supported his changed behavior. Id. at 214. She
therefore concluded that the Individual’s pattern of behaviors that had supported her conclusion
that he had a mental condition was currently under control or in remission with a low probability
of recurrence or exacerbation. Id. The DOE Psychologist also testified that the mental condition
and UARD were not necessarily distinct conditions because of the interrelation of the factors that
supported her opinion, including his lack of candidness and violations of laws and rules as a result
of his alcohol consumption. Id. at 216.
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;
(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.
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I conclude that none of the above mitigating conditions apply to resolve the Guideline G security
concerns.
Paragraph 23(a) is based on the passage of time, infrequency of the conduct, or unusual
circumstances under which the conduct occurred such that the concerning conduct is unlikely to
recur. None of the elements in ¶ 23(a) are met because I conclude, based on the record and DOE
Psychologist’s opinion, that the Individual has not yet resolved the concerns derived from his
problematic consumption of alcohol despite engaging in treatment—a point that I discuss in further
detail below. Given that those concerns remain unresolved, he is therefore at risk of relapse and
again engaging in concerning alcohol-related incidents. I therefore conclude that the passage of
time, the frequency of his conduct, and the circumstances around it do not establish that his conduct
is unlikely to recur. I do not find that ¶ 23(a) applies to resolve the concerns.
I further conclude that ¶ 23(c) does not apply to resolve the concerns because, while the Individual
has been participating in treatment recommended by the DOE Psychologist, he has a history of
relapse. The record establishes that the Individual underwent treatment twice previously: he
underwent alcohol-related treatment in 2009 and again in 2018 after his most recent DUI. Each
time, he returned to alcohol consumption.
Lastly, I conclude that ¶ 23(b) and ¶ 23(d) do not apply to resolve the concerns for the following
reasons. The record is clear that the Individual has not successfully completed a treatment program
or aftercare in accordance with the DOE Psychologist’s recommendations because the DOE
Psychologist recommended at the hearing that the Individual continue aftercare treatment for
longer than the four months he had so far completed, based in part on the Individual’s history of
relapse and his decision to continue to consume alcohol subsequent to the evaluation. The DOE
Psychologist concluded that the Individual had therefore not demonstrated rehabilitation of his
UARD. I agree. Furthermore, the Individual has a significant history of engaging in alcohol-related
incidents that often result in criminal charges every five or six years, and only approximately a
year and a half has passed since he drove home and then to work intoxicated on the day he tested
positive for alcohol. I therefore remain concerned that despite his almost six months of reported
abstinence he may again engage in problematic alcohol-related behavior. My conclusion is
supported by the fact that the Individual remained abstinent, by his own account, for eighteen
months before he relapsed after his last DUI in 2017. Eighteen months is significantly longer than
his current period of sobriety. Given my above findings and the DOE Psychologist’s opinion that
the Individual should continue his aftercare program and continue to abstain from alcohol for
another six months in order to rehabilitate his UARD, I conclude that the Individual has not
demonstrated clear and established pattern of abstinence in accordance with treatment
recommendations, nor has he successfully completed a recommended aftercare program.
Accordingly, I conclude that the Guideline G concerns are not resolved.
B. Guideline I Considerations
Under Guideline I, the following relevant conditions can mitigate security concerns associated
with a psychological condition:
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(a) The identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) The individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
(c) Recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government that an individual's previous
condition is under control or in remission, and has a low probability of recurrence
or exacerbation;
(d) The past psychological/psychiatric condition was temporary, the situation has been
resolved, and the individual no longer shows indications of emotional instability;
(e) There is no indication of a current problem.
Adjudicative Guidelines at ¶ 29.
I conclude that the record does not justify the LSO’s invocation of Guideline I. The allegation
contained in the SSC that the Individual had a personality condition or trait that has impaired his
judgment, stability, reliability, and trustworthiness was based on the DOE Psychologist’s opinion
of the same outlined in the Report, but the DOE Psychologist explained at the hearing that the
personality condition or trait is not distinct from UARD, and while the Report provides very little
explanation for the finding of a personality condition, there is significant evidence that indicates
the Individual’s UARD significantly impacted his willingness to violate law, rules, and
regulations. For example, he violated his employer’s rules by testing positive for alcohol at work.
He violated the criminal law when he drove himself to work while intoxicated the morning he
tested positive for alcohol at work. And he has a significant history of violating the law after
consuming alcohol. In other words, the information cited by the DOE Psychologist to support her
opinion regarding the Individual’s personality condition is the same evidence she used to conclude
that the Individual met the criteria for UARD: namely, his violations of laws and rules regarding
alcohol use, his lack of candidness around alcohol use, and his resumption of alcohol use after
treatment. I also find that the Individual’s progress in treatment to address his problematic alcohol
use led to the DOE Psychologist concluding that the Individual’s personality condition or trait had
resolved, but there is no direct evidence in the record that the UARD treatment focused on
addressing a particular personality condition or trait. His treatment focused on his problematic
alcohol use. I therefore conclude that there is insufficient information in the record to support the
conclusion that the Individual had a personality condition or trait distinct from UARD.4
Accordingly, I conclude that the record does not establish a security concern under Guideline I.
4 The SSC did not allege that the Individual’s UARD constituted a condition that may impair judgment, stability,
reliability, or trustworthiness under ¶ 28(b) of the Adjudicative Guidelines.
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C. Guideline J Considerations
Conditions that can mitigate security concerns based on criminal conduct include the following:
(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.
I conclude that the Guideline J concerns are not resolved. My reasoning follows.
There are fifteen separate instances of criminal conduct cited in the SSC. Seven of the instances
involve alcohol and the remaining eight do not. Of those remaining eight, five instances are
resolved under ¶ 32(a) and ¶ 32(c). The most recent of the five is the 2023 “charge” of harassment
that resulted from the Individual’s interaction with a coach. However, the record does not support
that the Individual was ever charged with a crime. Furthermore, the Individual’s girlfriend was
present and did not see the alleged harassing conduct. And a school representative provided a
written statement that the allegations were investigated and unsubstantiated. Therefore, I conclude
that the Individual has put forward sufficient evidence under ¶ 32(c) to demonstrate the allegation
was based on unreliable evidence. Regarding the remaining four instances, the most recent is the
2014 charge for unlawful hunting or fishing. That instance occurred over ten years prior to the
hearing date, the Individual acknowledged the conduct, and there is no evidence that he has been
involved in criminal conduct unrelated to alcohol use since then. I similarly conclude the following
three instances of criminal conduct are resolved by the passage of time: the 2008 charge for no
valid driver’s license; the 2007 charges5 for no registration, license, or insurance; and the 2005
charge for suspended license. These charges relate to operating a motor vehicle without proper
paperwork, and given the significant passage of time, I conclude that the conduct is unlikely to
recur and does not cast doubt on the Individual’s reliability, trustworthiness, or good judgment.
The following analysis addresses the seven alcohol-related criminal offenses and other three
remaining criminal offenses. I first note that ¶ 32(c) applies to resolve the 2015 minor procuring
alcohol charge. The record of the charge does not provide any detail and the Individual was beyond
5 This incident also included a charge of speeding; however, instead of addressing it separately, I will note here that
my rationale for it follows my rationale infra for the remaining criminal offenses related to the actual operation of a
motor vehicle, separate from licensing, insurance, or registration issues.
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the age of majority at that time. Moreover, the Individual denied that he was charged at all.
Therefore, the evidence underlying the allegation is unreliable. Turning to the remaining offenses,
neither ¶ 32(b) nor ¶ 32(c) applies to resolve them. There is no evidence that the Individual was
pressured or coerced into committing criminal conduct, and, aside from a few instances, the
Individual does not dispute that he committed the acts identified in the SSC. He does dispute the
2015 DUI, however, his dispute is based merely on the fact that the case was ultimately dismissed.
He did not explicitly assert that he was not driving under the influence. Thus, I find that the
Individual has not met his burden to demonstrate that the allegations related to his 2015 DUI were
based on unreliable evidence.
Regarding the remaining two factors, ¶ 32(a) and ¶ 32(d), the evidence in the record that the
Individual has not been charged with an alcohol-related crime since 2017 is offset by the fact that
the night before his positive alcohol test in June 2023, he drove home after consuming upwards of
thirty beers and then drove to work. Thus, he last engaged in criminal conduct approximately a
year and a half ago. Above, I found that the Individual has not yet resolved the concerns related to
his alcohol consumption and is at risk of relapse regarding his alcohol use. Accordingly, the
passage of time does not indicate the conduct is unlikely to recur. Additionally, the Individual has
a significant history of consuming alcohol and deciding to operate a motor vehicle, and the record
does not establish that any unusual circumstances contributed to his conduct. So long as the
concerns related to the Individual’s alcohol consumption remain unresolved, there is significant
risk that the Individual will operate a motor vehicle under the influence and violate traffic laws,
potentially including speeding and following too close. Given that risk, I conclude he has not
provided evidence of successful rehabilitation. Accordingly, ¶ 32(a) and ¶ 32(d) do not apply to
resolve the remaining Guideline J security 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 and Guideline J of the Adjudicative
Guidelines but not Guideline I. 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 conclude that the Individual has not brought forth
sufficient evidence to resolve the Guideline G and J security concerns. Accordingly, I have
determined that the Individual should not be granted access authorization.
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