PSH-25-0020

*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 31, 2024 ) Case No.: PSH-25-0020
)
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Issued: April 8, 2025
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (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 be restored.
I. BACKGROUND
On April 28, 2023, at which time he possessed access authorization, the Individual submitted a
personnel security information report (PSIR) to the local security office (LSO) disclosing that he
had been charged with Battery Against a Household Member after an altercation with his ex-
girlfriend. Exhibit (Ex.) 10 at 43‒44.2 The Individual appended to the PSIR documentation
prepared by a law enforcement officer indicating that the Individual and his ex-girlfriend had
consumed alcohol prior to the altercation. Id. at 47. The LSO issued the Individual a letter of
interrogatory (First LOI) concerning the incident and his alcohol consumption practices. Ex. 12.
On February 20, 2024, the Individual submitted a PSIR indicating that he had been arrested and
charged with Driving Under the Influence (DUI) of alcohol. Ex. 8 at 33‒34. The LSO issued the
Individual an LOI in June 2024 (Second LOI). Ex. 11. The Individual was subsequently evaluated
by a DOE-contracted psychologist (DOE Psychologist) who issued a report (Report) on August 5,
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
2 The exhibits submitted by DOE were compiled in a single PDF exhibit notebook. This Decision will cite to pages
within the exhibit notebook in the order in which they appear regardless of their internal pagination.
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2024, in which she opined that the Individual did not meet sufficient diagnostic criteria for a
diagnosis of alcohol use disorder or habitually or binge consume alcohol to the point of impaired
judgment. Ex. 15 at 124‒25.
The LSO 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 7‒9. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guideline J of the Adjudicative
Guidelines. Id. at 6.
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 seventeen exhibits (Ex. 1–17). The Individual submitted fourteen exhibits (Ex. A‒N).3
The Individual testified on his own behalf and offered the testimony of his therapist (Therapist),
his supervisor,4 and his girlfriend. Hearing Transcript, OHA Case No. PSH-25-0020 (Tr.), at 3,
10, 32, 42, 58. The LSO did not call any witnesses to testify.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the basis for its
substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1 at 6.
“Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its
very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and
regulations.” Adjudicative Guidelines at ¶ 30. The SSC cited the Individual having been charged
with Battery Against a Household Member and DUI. Ex. 1 at 6. The LSO’s citation to the
Individual having been charged with criminal conduct justifies its invocation of Guideline J.
Adjudicative Guidelines at ¶ 31(b).
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
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
3 The Individual’s exhibits were submitted via three separate PDFs. This Decision cites to exhibits based on the order
in which pages appear in each PDF.
4 The supervisor testified to the Individual’s positive employment record, reliability, and trustworthiness, both before
and after the alleged criminal conduct, but did not possess knowledge of the specific circumstances of the Individual’s
alleged criminal conduct or the criminal proceedings associated with each alleged offense. Tr. at 35‒36, 38‒39.
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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 so as 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.
IV. FINDINGS OF FACT
In 2019, the Individual suffered a serious medical incident. Tr. at 61; Ex. 15 at 121; Ex. M at 2
(sworn affidavit from the Individual’s father). Subsequent deterioration of the Individual’s health
left him unable to walk or speak and resulted in medical practitioners prognosticating that the
Individual would die within two years, causing him substantial anxiety and fear. Tr. at 61‒64; Ex.
15 at 121. The Individual eventually recovered from the medical incident after a lengthy period
during which he received speech and physical therapy. Tr. at 64. In 2020, a relative of the
Individual with whom the Individual had a close relationship and spoke nearly daily died by
suicide. Id. at 65; Ex. 15 at 121; Ex. M at 2. In 2022, another relative to whom the Individual was
very close died suddenly. Tr. at 65‒66; Ex. 15 at 121; Ex. M at 2. At some point during this three-
year period, the Individual began coping with his negative emotions through binge drinking. Tr.
at 68; Ex. 15 at 124.
The Individual began meeting with the Therapist on a biweekly basis in August 2021 to address
emotional issues related to his medical incident and the deaths of his relatives. Tr. at 11, 19, 66‒
67. The Therapist provided the Individual with cognitive behavioral therapy to “help him with his
cognitions, thoughts, and behaviors . . . seeing how the behavioral rewards accompany that . . .
[and] reinforce[] the behaviors” as well as therapy focused on the stages of bereavement. Id. at 27‒
28. During the course of therapy, the Individual came to believe that his relationship with the ex-
girlfriend was unhealthy and in mid-January 2023 he broke up with the ex-girlfriend. Id. at 15, 69‒
70; see also Ex. M at 3 (affidavit from the Individual’s father confirming that the Individual and
ex-girlfriend broke up prior to the altercation).
On January 30, 2023, a law enforcement officer interviewed the Individual and his ex-girlfriend
concerning allegations by the ex-girlfriend that the Individual had engaged in domestic violence
the previous day. Ex. 10 at 46. Information collected by the officer indicated that the Individual’s
ex-girlfriend had taken the Individual’s cellphone during an argument at the Individual’s father’s
house. Id. at 46‒47. The Individual’s ex-girlfriend claimed that the Individual pushed her to the
ground and slapped her cheek during the argument. Id. at 46. The Individual denied having pushed
her to the ground or having slapped her and represented that she fell to the ground while he was
trying to wrestle the cellphone from her hand. Id. at 47. Both the Individual and his ex-girlfriend
consumed alcohol prior to the altercation, and in his response to the First LOI the Individual
admitted that he was intoxicated during the dispute. Id.; Ex. 12 at 78; see also Tr. at 70‒71, 80‒81
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(testimony of the Individual that the ex-girlfriend was intoxicated when she drove to his father’s
home uninvited and that he was intoxicated when she arrived). On April 18, 2023, the Individual
was charged with Battery Against a Household Member based on the ex-girlfriend’s allegations.
Ex. 10 at 46.
On February 16, 2024, the Individual consumed approximately eight alcoholic drinks while out
with friends. Ex. 11 at 49, 55. In the early morning hours of February 17, 2024, a law enforcement
officer observed the Individual failing to maintain his lane while driving his vehicle. Ex. 7 at 30‒
31. The law enforcement officer pulled the Individual over and administered a field sobriety test,
which the Individual failed. Id. at 30. The Individual was administered Breathalyzer tests which
estimated the Individual’s blood alcohol concentration at .12 and .11. Id. The Individual was
subsequently arrested and charged with DUI. Ex. 8 at 34.
The DOE contractor employing the Individual placed him on a fitness for duty evaluation program
beginning on February 21, 2024. Ex. A at 3. As part of the fitness for duty evaluation, the
Individual provided urine samples for ethyl glucuronide (EtG) testing. Id. at 4. Each of the tests
was negative for traces of alcohol. Id.
The Individual enrolled in several alcohol-related classes through his employer’s employee
assistance program (EAP). Ex. 15 at 122. The Individual completed an alcohol education class
through the EAP on May 16, 2024, and a class related to supporting abstinence from alcohol
through the EAP on September 19, 2024.5 Ex. C; Ex. D.
The Individual began dating his current girlfriend, with whom he currently resides, in March 2024.
Tr. at 42. The girlfriend does not consume alcohol due to a health issue and has not observed the
Individual consume alcohol. Id. at 43, 51. The Individual and his girlfriend participate in alcohol-
free dates, physical fitness activities, and events through their church together in their free time.
Id. at 49‒50, 52, 74.
On August 1, 2024, the Individual met with the DOE Psychologist for a psychological assessment.
Ex. 15 at 120. During the assessment, the Individual described his participation in the EAP classes
and explained that he had learned that he had binge consumed alcohol as a coping mechanism to
deal with the traumas he had experienced in his personal life. Id. at 121. The Individual indicated
that he had not consumed alcohol since his arrest for DUI and expressed the intention to perhaps
consume “a drink here or there [in the future] but not like [he] did before.” Id. at 122. The
Individual provided a sample for Phosphatidylethanol (PEth)6 testing the results of which were
negative for traces of alcohol consumption. Id. at 128. The Individual also provided the DOE
Psychologist with the results of a PEth test that he had voluntarily taken on July 15, 2024, prior to
the psychological assessment, which was also negative for traces of alcohol consumption. Id. at
123; Ex. B at 6.
5 In an undated, unsigned letter purportedly authored by a counselor with the EAP, the counselor indicated that the
Individual continued to attend the support class after completing it on September 19, 2024, and expressed that he
had learned that he used alcohol to cope with loss and grief. Ex. L at 13.
6 PEth, a compound produced in the presence of ethanol, is a biomarker for alcohol consumption that can be used to
detect whether a subject consumed alcohol within three to four weeks of sample collection. Ex. 15 at 123, 128‒29.
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The DOE Psychologist indicated in her Report that the Individual had a history of extended periods
of abstinence from alcohol “punctuated by episodes of binge drinking . . . .” Ex. 15 at 124. Based
on the Individual’s self-described recognition of his problematic alcohol consumption,
participation in EAP classes, the evidence of his abstinence from alcohol, and the infrequency of
the Individual’s historic episodes of binge drinking, the DOE Psychologist concluded that the
Individual did not meet sufficient criteria for a diagnosis of AUD and that he did not habitually or
binge consume alcohol to the point of impaired judgment. Id. at 124‒25. She provided no
recommendation for further treatment for the Individual. Id.
Following the psychological evaluation, the Individual provided samples for PEth testing in
September 2024, November 2024, and January 2025, all of which were negative for traces of
alcohol consumption. Ex. B at 7‒9. In September 2024, the DUI charge against the Individual was
dismissed nolle prosequi. Ex. J at 8.
The Individual continued attending sessions with the Therapist in the aftermath of his DUI arrest.
Tr. at 15‒16. According to the Therapist, the Individual came to understand that he was using
alcohol maladaptively as a coping mechanism and “really realize[d] the seriousness of what he
needed to do to repair his choices” after his DUI arrest. Id. at 14‒16. In addition to cognitive
behavioral therapy, the Therapist helped the Individual to develop a relapse prevention plan to
support his abstinence from alcohol. Id. at 27‒28. The Therapist perceived that the Individual’s
decision making and emotional regulation improved following his DUI arrest, based both on the
Individual’s clinical presentation and the collateral reports of members of the Individual’s family
who also regularly met with the Therapist. Id. at 16‒17. Following the Individual’s improvement,
the Individual’s sessions with the Therapist decreased in frequency and, as of the date of the
hearing, he was only in contact with the Therapist once monthly for telephonic check-in sessions.
Id. at 19‒20. According to the Therapist, the Individual’s prognosis is excellent, and he does not
require any further treatment. Id.
On March 20, 2025, the Battery Against a Household Member charge against the Individual was
dismissed for lack of prosecution. Ex. N at 16. In a sworn affidavit, the Individual’s counsel in
connection with the criminal proceedings stated that the charges were “functionally dismissed” in
September 2023 when a court granted the Individual’s counsel’s motion to exclude all witnesses
and testimony after the prosecuting agency refused to provide required discovery. Id. at 7.
The Individual testified at the hearing that he had not consumed alcohol since his arrest for DUI
and intended to permanently abstain from alcohol going forward. Tr. at 68‒69, 86. According to
the Individual, therapy and the “humbling” experience of the adjudication of his eligibility for
access authorization had led him to conclude that he should not consume alcohol again. Id. at 86.
He expressed the intent to continue attending classes through the EAP and meeting with the
Therapist as necessary to support his abstinence from alcohol. Id. at 76.
V. ANALYSIS
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Guideline J
Conditions that could mitigate security concerns under Guideline J include:
(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.
Id. at ¶ 32.
While the LSO did not allege that the Individual’s behavior presented concerns under Guideline
G (Alcohol Consumption) of the Adjudicative Guidelines, both of the incidents cited by the LSO
as presenting security concerns under Guideline J arose after the Individual consumed alcohol to
the point of intoxication. The Individual has consistently represented that he began binge drinking
to cope with a series of traumatic events. There is substantial evidence that the Individual has
recognized his maladaptive alcohol use, pursued interventions to help him resolve his maladaptive
alcohol use, abstained from alcohol, and adopted a new, alcohol-free lifestyle. In light of the
evidence that the Individual’s maladaptive alcohol use emerged as a result of unusual and
substantial traumas in the Individual’s life, the Individual’s criminal conduct occurred due to his
alcohol misuse, and the Individual is unlikely to return to maladaptive alcohol use, I find that the
Individual’s criminal conduct occurred under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the Individual’s current reliability, trustworthiness, or good judgment.
Therefore, I find that the first mitigating condition is applicable and that the Individual has resolved
the security concerns asserted by the LSO under Guideline J. Id. at ¶ 32(a).
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 J 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 brought forth sufficient evidence to resolve the security concerns
asserted by the LSO. 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.
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Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals