Summary of Decisions - February 05, 2024 - February 09, 2024

FOIA Appeals (FIA)

Appeal Denied

On February 9, 2024, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by the John Marske (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of the Inspector General (OIG). On appeal, the Appellant challenged the adequacy of OIG's search. After reviewing OIG's response, we found that OIG FOIA staff used their experience to determine an appropriate employee to conduct a search. That employee then conducted a search using keywords from the Appellant's request. When that request returned no results, the employee checked with other agency employees in the appropriate offices to determine if they had heard about a case related to the Appellant's request. No other employee had any knowledge of the alleged investigation in the request. Therefore, a reasonable search was conducted, and we deny the appeal. (OHA Case No. FIA-24-0013)

Personnel Security Hearing (PSH)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On February 9, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization should restored under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance after it discovered that he had been hospitalized for alcohol withdrawal symptoms and diagnosed with Alcohol Use Disorder, Severe, and, over a decade ago, been arrested charged with Driving Under the Influence of Liquor.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G . The AJ also determined that the Individual put forth sufficient evidence to resolve the Guideline G security concerns. Accordingly, the AJ concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-24-0003, Thompson III)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On February 9, 2024, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. In August 2022, the Individual was charged with Battery Upon a Peace Officer after consuming four to six beers and a shot of whiskey. Four months later, in December 2022, the charge was dismissed. As a result of the criminal charge, the Local Security Office issued a Letter of Interrogatory (LOI) concerning the incident. In his response, he stated that he had not consumed any alcohol since the incident. In June 2023, the DOE Psychologist evaluated the Individual and diagnosed him with Alcohol Use Disorder (AUD), moderate in early remission, without adequate evidence of rehabilitation or reformation. The Individual, his aunt, his sister, and his mother testified that he has not consumed alcohol since the incident. The Individual and his EAP counselor testified that he has been attending a six-week EAP course and is now scheduled to attend a twelve - week "Maintaining Changes" course, which is alcohol use based. Based on the testimony he heard at the hearing, the DOE Psychologist testified that he no longer carries the AUD diagnosis, because he has not met the criteria for the disorder for a period of sixteen months. The DOE Psychologist also testified that he showed adequate evidence of rehabilitation or reformation. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guideline G. (OHA Case No. PSH-24-0007, Fishman)

Access Authorization Not Restored; Guideline E (Personal Conduct); Guideline G (Alcohol Consumption)

On February 9, 2024, 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. In February 2023, the Individual reported that he was arrested for Driving While Intoxicated (DWI) in December 2022. The Individual subsequently underwent a psychological assessment with a DOE consultant psychologist (DOE Psychologist) who concluded that the Individual was using alcohol to excess and was binge consuming alcohol frequently to the point of impaired judgment. At the hearing, the Individual testified that he had been abstinent from alcohol for approximately three months and had attended two Alcoholic Anonymous meetings. He also testified that he had delayed reporting the DWI and had underreported his alcohol consumption because he was afraid of losing his job. The DOE Psychologist testified that the Individual had not yet established adequate evidence of rehabilitation or reformation regarding his habitual or binge consumption of alcohol to the point of impaired judgment. Ultimately, the Administrative Judge determined that the Individual had failed to mitigate the Guideline E and Guideline G security concerns, and she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0024, Quintana)

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

On February 7, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. 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 potentially derogatory information regarding the Individual's alcohol consumption, dishonesty, and criminal conduct. The LSO alleged that the Individual was arrested and charged with Driving Under the Influence (DUI) in 1998 and 2023, disorderly conduct in 2017, and underage consumption of alcohol in 1991. The LSO alleged that the Individual had failed to list his 1991 arrest on his 2017 QNSP. The LSO further alleged that a DOE Psychiatrist opined that the Individual habitually and binge drank to intoxication, that the results of the PEth test that was administered indicated recent heavy alcohol consumption, and that the Individual was dishonest when he told the Psychiatrist that he had not consumed alcohol in 5 months.

At the hearing, the Individual admitted that he had relapsed in the summer of 2023 after 5 months of sobriety and that he had been consuming alcohol heavily before his PEth test. He testified that he was attending counseling every other week and AA meetings several times per week. He had been maintaining this treatment for about 5 months by the hearing date and testified that he had been sober for 6 months. The DOE Psychiatrist testified that the Individual had not been abstinent from alcohol long enough to have a low risk of relapse. The Administrative Judge agreed and found that the Individual had not demonstrated a pattern of abstinence sufficient to make relapse unlikely . Accordingly, she found that the Individual had not mitigated the Guideline G concerns. The Administrative Judge further found that until he had mitigated the Guideline G concerns, she could not be certain (1) that the Individual would not continue his pattern of alcohol related criminal offenses, or that the Individual would be truthful about his drinking or criminal activity. For those reasons, the Administrative Judge found that the Individual had not mitigated the concerns under Guidelines G andJ. The Administrative Judge found that because security concerns remained unresolved, the Individual's security clearance should not be restored. (OHA Case No. PSH-24-0011, Martin) (OHA Case No. PSH-24-0011, Martin)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On February 7, 2024, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual signed and submitted a Questionnaire for National Security Positions (QNSP) in connection with seeking access authorization. The Individual disclosed on the QNSP that he had not filed federal and state personal income tax returns or paid income taxes as required for several years. A background investigation of the Individual additionally revealed that he had fallen into delinquency on three consumer debts on which he owed a cumulative $2,487. At the hearing, the Individual provided evidence that he had paid one of his debts and entered into a payment plan with a second creditor. However, the Individual had not filed federal or state personal income tax returns for six consecutive years and was unsure how much he owed in unpaid income taxes. The Administrative Judge concluded that the Individual had not resolved the security concerns asserted by the local security office under Guidelines F, and therefore determined that the Individual should not be granted access authorization. (OHA Case No. PSH-24-0021, Harmonick)