Summary of Decisions - February 13, 2023 - February 17, 2023

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guidelines G (Alcohol Consumption); E (Personal Conduct) and J (Criminal Conduct)

On February 13, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Individual reported to the local security office (LSO) that he was arrested and charged with operating a vehicle under the influence of alcohol or drugs (OVI) in November 2021. In July 2022, the Individual was evaluated by a DOE-consultant psychiatrist ("Psychiatrist").  Regarding Guideline G, the LSO cited the DOE Psychiatrist's conclusion that the Individual's July 2022 Phosphatidylethanol ( PEth) test results of 458 ng/ML indicated that the individual had heavy alcohol use within the prior month and has binge consumed alcohol to the point of impaired judgment. The LSO also cited the Individual's OVI arrest and a 1998 arrest and charge for Driving While Under the Influence of alcohol ( DWUI). Under Guideline E, the LSO cited the DOE Psychiatrist's conclusion that the Individual's PEth test results indicated heavy alcohol use within the prior month which contrasted with the Individual's reported alcohol use during the psychiatric exam. Regarding Guideline J, the LSO cited his two alcohol related arrests.

At the hearing, the Individual, his Deputy General Manager (manager), his former supervisor, and the DOE Psychologist testified. The Individual's witnesses asserted that they have never seen him consume alcohol in excess or observed that he has any impairment at work related to alcohol use . The Individual asserted that he does not have an alcohol problem and that the July 2022 PEth test was inaccurate. He testified that he had continue to engage in alcohol consumption and has no plans to modify his alcohol use. The DOE Psychiatrist provided expert testimony regarding the validity of the July 2022 PEth result. He confirmed his conclusion and his recommendations including that the Individual needs to recognize the presence of an alcohol problem, participate in a treatment program, and attempt to reduce or abstain from alcohol use as part of his recovery.

The AJ determined that the Individual had not resolved the security concerns under Guidelines G and E because he does not recognize the presence of an alcohol problem, continues to engage in maladaptive alcohol use without obtaining treatment for it, and did not present any evidence such as a competing expert opinion to refute the opinions of the DOE Psychiatrist regarding the validity of the July 2022 PEth test result. The AJ further found that the Individual had not resolved the Guideline J concerns because the Individual had not addressed his problematic alcohol consumption, which is inextricably linked to and is the root cause of his criminal activity.  Accordingly, she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0028, Balzon)

Access Authorization Denied; Guideline G (Alcohol Consumption)

On February 16, 2023, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received derogatory information regarding the Individual that raised security concerns under Guideline G ( Alcohol Consumption) of the Adjudicative Guidelines. Specifically, the LSO noted the Individual's history of alcohol-related and domestic violence-related arrests, and the Individual's diagnosis of Alcohol Use Disorder.

At the hearing, the Individual testified to his prior alcohol use, including his history of participating in multiple drug and alcohol-treatment programs, exiting the programs, and relapsing into problematic alcohol consumption. The Individual also testified that, although he still drinks, he does not think he has a drinking problem because he no longer drinks to intoxication. The Individual also stated he did not follow the DOE Psychologist's recommendations to undergo PEth testing and enroll in an alcohol treatment program because he has shown a great deal of rehabilitation from his prior drinking habits and did not believe PEth testing was mandatory.

The DOE Psychologist opined that without independent evidence of the Individual's alcohol consumption, she could not determine if he still had a problematic drinking pattern, and could not opine on what the Individual's alcohol consumption would look like in the future. Therefore, the DOE Psychologist could not determine whether the Individual has been rehabilitated from his Alcohol Use Disorder.

After a hearing, the Judge found the Individual did not sufficiently mitigate the security concerns under Guideline G. The Judge found that the Individual did not follow the DOE Psychologist's recommendations to enroll in an alcohol treatment program and the Individual did not undergo any PEth testing. The Judge also found that because the Individual has a history of participating in alcohol treatment programs, exiting the programs, and relapsing, his problematic drinking behavior is likely to recur in the future.

Accordingly, the Administrative Judge found that the Individual was not able to demonstrate that he resolved the security concerns under Guideline G and his access authorization should not be restored. (OHA Case No. PSH-22-0141, Fishman)