PSH-25-0093

*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: March 17, 2025 ) Case No.: PSH-25-0093
)
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Issued: August 5, 2025
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 not be restored.
I. BACKGROUND
From 1995 to 2014, the Individual was charged with the following offenses:
Driving with a Suspended/Revoked Driver’s License (1995)
Felony Burglary (1995)
Felony Criminal Damage to Property (2006)
Simple Assault (2008)
DUI (2014)
Exhibit (Ex.) 18 at 140, 147‒48, 150, 276‒77.2 The Individual was granted access authorization in
2018 following a background investigation. Ex. 17 at 124. In September 2022, the Individual
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 Bates numbered in the upper right corner of each page. This Decision will refer
to the Bates numbering when citing to exhibits submitted by DOE.
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disclosed to the local security office (LSO) that he had been charged with a domestic violence-
related offense after he allegedly brandished a firearm during an altercation with a girlfriend
(Weapon Offense). Ex. 12 at 38. Following a review by the LSO, the security concerns presented
by the Individual’s conduct were mitigated and he maintained his access authorization. Ex. 6 at 24
(summarizing the adjudication of the Individual’s eligibility for access authorization in a 2023 case
summary).
In May 2024, the Individual submitted a Personnel Security Information Report (PSIR) disclosing
that he had been arrested and charged with DUI on February 22, 2024. Ex. 8 at 29‒30. The
Individual subsequently met with a DOE-contracted psychologist (DOE Psychologist) for a
psychological evaluation. Ex. 15 at 67. Following the evaluation, the DOE Psychologist issued a
report of the evaluation (Report) in which he opined that the Individual binge consumed alcohol
to the point of impaired judgment. Id. at 71.
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 8‒10. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that
the derogatory information raised security concerns under Guidelines G and J of the Adjudicative
Guidelines. Id. at 6‒7.
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 in July
2025. The LSO submitted eighteen exhibits (Ex. 1–18). The Individual did not submit any exhibits.
The Individual testified on his own behalf. Hearing Transcript, OHA Case No. PSH-25-0093 (Tr.)
at 3, 14. The LSO offered the testimony of the DOE Psychologist. Id. at 3, 55.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline G (Alcohol Consumption) of the Adjudicative Guidelines as the first
basis for its substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1
at 6. “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. The SSC cited the Individual having been
arrested and charged with DUI on two occasions and the opinion of the DOE Psychologist that the
Individual binge consumed alcohol to the point of impaired judgment. Ex. 1 at 6. The LSO’s
allegations that the Individual experienced alcohol-related incidents away from work and binge
consumed alcohol to the point of impaired judgment justify its invocation of Guideline G.
Adjudicative Guidelines at ¶ 22(a), (c).
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the other basis
for its substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1 at 6‒
7. “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 seven instances of unlawful
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conduct disclosed for which the Individual was arrested or charged from 1995 to the 2024 DUI.
Ex. 1 at 6‒7. The LSO’s allegations that the Individual engaged in committed criminal conduct
justify 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
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
A. Individual’s Alleged Criminal Conduct
The Individual was charged with Driving with a Suspended/Revoked Driver’s License and Felony
Burglary in 1995. Ex. 18 at 140, 275‒77. The Individual’s driver’s license was suspended due to
the number of traffic infractions he committed. Tr. at 41‒42. The Individual had believed that his
driver’s license would not be suspended so long as he paid the fines associated with the traffic
infractions and was unaware of the suspension of his driver’s license until he was arrested. Id. The
Individual denied recollection of the Felony Burglary offense. Ex. 14 at 61 (denying recollection
of the offense in a 2023 response to a letter of interrogatory from the LSO); Tr. at 42‒43 (testifying
that he was questioned by law enforcement in connection with the theft of merchandise, which he
attributed to several of his friends, but denying recollection of having been charged with any
offense related to this matter).
The Individual was arrested and charged with Felony Criminal Damage to Property in 2006. Ex.
18 at 147. According to the Individual, the property damage in question occurred when he broke
the door handle of a girlfriend’s vehicle trying to open the door during a dispute about financial
matters. Ex. 14 at 60; Tr. at 39‒40. The Individual successfully completed a diversion program to
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resolve the charges related to this offense and the charges were expunged from his criminal record.
Ex. 18 at 148.
The Individual was charged with Simple Assault in 2008 after a dispute with his wife and an order
of protection was issued against him. Ex. 18 at 281; Tr. at 36. In his hearing testimony, the
Individual indicated that his wife had called the police because she wanted him to leave the home
during an argument over financial matters related to the potential dissolution of their marriage. Tr.
at 37‒38. The Individual denied that the dispute with his wife was physical and asserted that the
charges were dropped. Id. at 36, 38.
In September 2014, the Individual was arrested and charged with DUI after a Breathalyzer
estimated his blood alcohol content at .09. Ex. 18 at 149‒50, 168. The Individual entered into a
twelve-month diversion program in early 2015 to resolve the charges Id. at 150. The Individual
participated in alcohol education classes and a Mothers Against Drunk Driving panel as part of the
diversion program which he successfully completed in March 2016. Id.; Ex. 15 at 69.
On September 10, 2022, the Individual was arrested and charged with a Weapon Offense. Ex. 12
at 40. The Individual’s girlfriend alleged to law enforcement that he had displayed a gun in a
threatening manner during a domestic dispute. Id. The Individual claimed that the girlfriend had
physically attacked him and threatened him with a knife following a verbal altercation and that he
was collecting his belongings to leave when he was arrested. Id. at 38; see also Tr. at 28‒29
(Individual alleging in his hearing testimony that the girlfriend made false allegations against him
to hurt him because of an argument during their separation). The Individual denied that he had a
gun in his possession during the altercation with the girlfriend and claimed that he “only had his
gun holster on.” Ex. 12 at 38; see also Ex. 14 at 57 (stating in response to a letter of interrogatory
that he had taken his gun holster from a closet when leaving the residence and had it “in [his]
pocket and [the girlfriend] assumed it was a gun and called the police”); Tr. at 30, 32‒33 (claiming
at the hearing that he did not own a weapon and that he took the holster from the girlfriend because
he had bought it for her as a gift and was reclaiming gifts he had bought for her when they
separated). The charges against the Individual were dismissed in March 2023 after the girlfriend
failed to appear in court on numerous occasions. Ex. 9 at 32; Ex. 18 at 142.
The Individual was arrested and charged with DUI in February 2024 after a law enforcement
officer pulled the Individual over for changing lanes without signaling and the Individual refused
to undergo a Breathalyzer test. Ex. 8 at 30. During the clinical interview with the DOE
Psychologist, the Individual represented that he consumed two mixed drinks and one beer prior to
driving and did not recognize that “he was as intoxicated as he was” when he decided to drive. Ex.
15 at 68‒69. The Individual testified at the hearing that he pleaded guilty and entered into a
diversion program through which he was required to attend an eight-hour alcohol education class,
perform community service, and pay fines and fees. Tr. at 19, 21, 27, 52. The Individual further
testified that he successfully completed the diversion program but provided no corroborating
evidence of having done so. Tr. at 27‒28, 52‒53.
B. Individual’s Alcohol Consumption and Evaluation by the DOE Psychologist
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Following his 2014 arrest for DUI, the Individual abstained from alcohol until January 2018 when
he resumed alcohol consumption. Ex. 18 at 253. From 2022 to 2023, the Individual’s alcohol
consumption increased due to his desire to “escape” financial difficulties. Ex. 15 at 68; Tr. at 49‒
50. At the hearing, the Individual admitted that he consumed alcohol to intoxication approximately
monthly during this period. Tr. at 50.
The Individual met with the DOE Psychologist for the clinical interview on September 9, 2024.
Ex. 15 at 67. The Individual denied having consumed alcohol to the point of intoxication since his
February 2024 arrest. Id. at 68. He also reported having consumed no more than three alcoholic
beverages in the thirty days prior to the psychological evaluation. Id. at 70.
At the request of the DOE Psychologist, the Individual provided a sample for Phosphatidylethanol
(PEth)3 testing at a laboratory. Id. The PEth test was positive at 34 ng/mL. Id. at 78. According to
a medical doctor (MD) who reviewed the results of the test, studies have found PEth levels
comparable to the Individual’s consistent with consumption of “about 4 drinks/week.” Id. at 77;
see also William Ulwelling & Kim Smith, The PEth Blood Test in the Security Environment: What
it is; Why it is Important; and Interpretative Guidelines, J. OF FORENSIC SCI., July 2018 at 4
(journal article cited by the MD listing estimated correlations between PEth levels and alcohol
consumption based on research studies, including a recommendation that 20 ng/mL be used as the
basis for a positive PEth test representing at least moderate alcohol consumption in the past month
and citing to a study finding that an average PEth level of 24 ng/mL correlated to consumption of
4.1 alcoholic drinks per week among study subjects). The MD characterized the Individual’s PEth
level as consistent with “low” to “medium” risk alcohol consumption but opined that the PEth test
would have been negative if the Individual’s self-reported alcohol consumption was accurate. Ex.
15 at 76‒77.
The DOE Psychologist issued the Report on September 21, 2024. Id. at 72. Therein, he opined that
the Individual engaged in binge drinking. Id. at 71. This opinion was based on the Individual
having “had a prior alcohol related event in his life prior to the recent arrest” and the PEth test
results being inconsistent with the Individual’s self-reported alcohol consumption. Id. The DOE
Psychologist defined binge drinking as “consumption of five or more drinks over two hours.” Id.
at 68; see also Personnel Security Hearing, OHA Case No. PSH-25-0046 at 2, note 4 (2024)
(indicating that the Substance Abuse and Mental Health Services Administration defines binge
drinking for men as consumption of five or more drinks over two hours). The DOE Psychologist
recommended that the Individual demonstrate rehabilitation by participating in a weekly substance
abuse treatment program for at least four months followed by at least monthly “relapse prevention
or maintenance group therapy sessions.” Id. at 71. He further recommended that the Individual
participate in an alcohol abstinence support group and abstain from alcohol for one year,
demonstrating his abstinence from alcohol through monthly PEth testing. Id.
The Individual testified at the hearing that he decided to abstain from alcohol in September 2024,
prior to meeting with the DOE Psychologist, due to exacerbation of a chronic health condition by
alcohol consumption and concern that consuming alcohol could contribute to other chronic health
3 PEth is a biomarker for alcohol consumption that can be detected in blood for approximately thirty days following
moderate or greater episodes of alcohol consumption. Ex. 15 at 76‒77.
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conditions from which other members of his family suffer. Tr. at 18‒19, 50‒51. However, the
Individual did consume alcohol in September 2024 at a birthday party, which he characterized as
“a mistake.” Id. at 17, 19. The Individual denied having consumed alcohol again until April 2025,
approximately three months prior to the hearing, when he said that he consumed two beers. Tr. at
14‒15. The Individual testified that he consumed the alcohol, despite his intention to abstain,
because he was at a party “and [] just was in a celebratory mood . . . .” Id. at 15. The Individual
intends to abstain from alcohol in the future and to attend Alcoholics Anonymous (AA). Id. at 25.
However, he had not begun attending AA as of the date of the hearing nor did he undergo alcohol
testing following his evaluation by the DOE Psychologist. Id. at 17, 20‒21.
The DOE Psychologist opined at the hearing that the Individual had not demonstrated
rehabilitation or reformation. Id. at 58. The DOE Psychologist cited the Individual’s alcohol
consumption despite his intention to abstain and admission that he would benefit from attending
AA, which the DOE Psychologist stated was something that he was “uncertain as to why someone
would [do]” “if he didn’t have a problem,” as factors supporting the conclusion that the Individual
had not demonstrated rehabilitation or reformation. Id. at 59. The DOE Psychologist opined that
the Individual had a “fair” prognosis and needed to “fully embrace[] the idea that he needs
treatment . . . .” Id. at 60.
V. ANALYSIS
A. Guideline G
Conditions that could mitigate security concerns under Guideline G include:
(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; or,
(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.
Before addressing the mitigating conditions, I will first consider the LSO’s allegation that the
Individual engaged in binge drinking. The PEth test does not definitively show that the Individual
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engaged in binge drinking, and in fact indicates that the Individual may have been engaged in low-
risk alcohol use in the month prior to the test. However, the Individual admitted in his hearing
testimony that from approximately 2022 to 2023 he consumed alcohol to the point of intoxication
approximately monthly. Moreover, the Individual’s extremely low estimate of the number of
alcoholic drinks that he consumed in the month prior to the PEth test, which the MD opined was
inconsistent with even the relatively low amount of alcohol consumption reflected on the PEth
test, is evidence that the Individual underreported his alcohol consumption to the DOE
Psychologist during the clinical interview. Based on Individual’s recent DUI, his admission to
consuming alcohol to intoxication approximately monthly in the relatively recent past, and the
implication from the PEth test that the Individual has underreported his alcohol consumption, I
find that, although there is not strong evidence that the Individual engaged in binge drinking, there
is a sufficient basis to support the LSO’s allegation.
Considering that ten years elapsed between the Individual’s 2014 DUI and his 2024 DUI, the
passage of a little over one year since his latest DUI is insufficient for me to conclude that the
conduct will not recur. There is no indication in the record that the Individual’s arrests occurred
under unusual circumstances and, considering that he has been arrested and charged with DUI
multiple times, I find that the conduct is not so infrequent that it is unlikely to recur. Regarding the
alleged binge drinking, the Individual provided no evidence other than his own testimony that the
behavior is not ongoing. Therefore, I cannot conclude that binge drinking behavior by the
Individual occurred so long ago, so infrequently, or under such unusual circumstances that it is
unlikely to recur. Accordingly, I find the first mitigating condition inapplicable. Id. at ¶ 23(a).
The Individual has not demonstrated any action to overcome his alcohol-related issues besides
completing the court-ordered alcohol class. Court-ordered classes were insufficient to prevent the
Individual from reoffending following his 2014 DUI, and I am not convinced that they will suffice
in this case. Moreover, the Individual admits that he consumed alcohol against the
recommendation of the DOE Psychologist in April 2025 and has produced no alcohol testing to
substantiate that he has abstained from alcohol for any period of time. Accordingly, I find the
second mitigating condition inapplicable. Id. at ¶ 23(b).
The third and fourth mitigating conditions are irrelevant in this case because the Individual does
not allege that he entered into or completed any alcohol-related treatment program. Id. at ¶ 23(c)‒
(d).
Having concluded that none of the mitigating conditions are applicable, I find that the Individual
has not resolved the security concerns asserted by the LSO under Guideline G.
B. 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;
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(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.
The Individual has been arrested and charged for criminal conduct during multiple stages of his
life, sometimes with a decade or more passing between offenses, only for alleged criminal conduct
to recur. Considering that the Individual’s latest offense, the 2024 DUI, occurred only a little more
than one year prior to the hearing, the passage of time does not suggest that the Individual is
unlikely to commit criminal behavior in the future. Moreover, with the exception of the
Individual’s 1995 offenses, all of the alleged criminal conduct occurred during ordinary domestic
disagreements or while the Individual was engaged in routine social drinking. These circumstances
are not unusual, and therefore I find the first mitigating condition inapplicable. Id. at ¶ 32(a).
The second mitigating condition is irrelevant to the facts of this case because the Individual does
not allege that he was pressured or coerced into committing criminal conduct. Id. at ¶ 32(b).
The Individual does not dispute that he committed the DUI offenses, Driving with Suspended
License offense, or the 2006 Felony Damage to Property offense. While the Individual denies that
he committed the other offenses, the fact that the Individual has been accused by multiple women
of criminal conduct in connection with domestic disputes, his admission to the 2006 Felony
Damage to Property offense in connection with one of those domestic disputes, and his inconsistent
and illogical explanations for the September 2022 Weapon Offense lead me to conclude that there
is at least some evidence that he committed the offenses, even though the women ultimately did
not cooperate with the prosecution of the 2008 and 2022 offenses. There is no evidence in the
record concerning the Felony Burglary charge or how it was resolved. Considering that the
Individual does not dispute committing several of the offenses, and that he has brought forth no
evidence corroborating his account of the Felony Burglary offense or the 2008 and 2022 domestic
disputes, I cannot find the third mitigating condition applicable. Id. at ¶ 32(c).
The Individual successfully completed a diversion program to resolve the charges associated with
the 2024 DUI. However, this is the third diversion program in which the Individual has
participated. Considering that the Individual has been arrested and charged with unlawful conduct
after two previous diversion programs, I do not consider the Individual’s successful completion of
the 2024 diversion program sufficient to establish rehabilitation. The Individual has not brought
forward evidence of job training or higher education, good employment record, or constructive
community involvement following his 2024 DUI, and accordingly I find that the fourth mitigating
condition is inapplicable. Id. at ¶ 32(d).
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Having concluded that none of the mitigating conditions are applicable to the facts of this case, I
find that the Individual has not resolved the security concerns asserted by the LSO under Guideline
J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines G and 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 not brought forth sufficient evidence to resolve the security concerns
asserted by the LSO. 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.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals