Summary of Decisions - May 01, 2023 - May 05, 2023

Personnel Security Hearing (PSH)

Access Authorization Restored; Guideline G (Alcohol Consumption) and J (Criminal Conduct)

On May 1, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should 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 Simple Assault, Willful Obstruction of Law Enforcement Officers, and Public Drunkenness in May 2022. Subsequently, the LSO discovered the Individual had three alcohol-related incidents including two alcohol related arrests between 2002 and 2017. Regarding Guideline G, the LSO cited his diagnosis by a DOE Psychologist, Individual with Alcohol Use Disorder (AUD), Mild, in early remission, and his prior alcohol related incidents and charges. Regarding Guideline J, the LSO cited his alcohol-related criminal offenses.

At the hearing, the Individual testified that he has been abstinent from alcohol for nine months since his May 2022 arrest, and he provided seven negative PEth tests and 11 UA tests from May 2022 through March 2023, to support his testimony. He provided evidence that he completed an IOP program, continues to actively participate in his weekly after-care program, and participates in multiple weekly AA meetings. The Individual testified regarding his sober support system and revised coping mechanisms. He provided supporting letters from his treating providers and support network. His AA sponsor testified that the Individual is consistently progressing in AA including taking on leadership roles, and has advanced to Step 9 in his 12-step work. The Individual also demonstrated that he took further action steps beyond the DOE Psychologist's recommendations by participating in individual psychotherapy to successfully address how to cope with his triggers and integrate the skills he learned through his treatment programs. His treating therapist opined that the Individual has an excellent prognosis for his AUD,  his risk of relapse is very low, and he is rehabilitated from AUD. The DOE Psychologist opined that the Individual "has shown more than adequate evidence" for demonstrating rehabilitation and reformation from AUD.  She concluded that the Individual has a "good" prognosis with a very low risk of relapse.  After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had resolved the security concerns associated with Guideline G  and Guideline J. Accordingly, she concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-23- 0013, Balzon)

Access Authorization denied; Guideline G

On May 4, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

The Individual was found to be engaging in excessive alcohol use after being arrested and charged with Aggravated Driving Under the Influence of Alcohol (ADUI) after a one vehicle automotive accident.

The AJ found that the Individual had not resolved the security concerns raised by her excessive alcohol use.  The AJ found that Individual provided conflicting testimony at the hearing about her present consumption of alcohol, having testified at the hearing that she still consumes alcohol "on occasion," then subsequently testifying that she still consumes alcohol "in moderation," and then later testifying that she has been abstaining from alcohol use for over two months.  However, the AJ found that the Individual had recently gained a recognition that she needs to address her alcohol issues and to permanently abstain from alcohol use and had found an effective and appropriate program for addressing her issues in the form of the SMART class she was attending.  However, the AJ found that the Individual's sobriety was in its early stages, and that even her last consumption of alcohol occurred in February, she would have only been sober for less than three months at the time of the hearing.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0038, Fine)

 Access Authorization denied; Guideline G

On May 5, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

A Local Security Office (LSO) received a report from the Individual's manager (the Manager) reporting his concerns about the Individual's alcohol use, which he believed had caused the Individual's conduct and work performance to become "erratic and unpredictable."

The Individual responded to the Manager's concerns by taking action to address his alcohol issues . He attended an inpatient alcohol treatment program (ITP), where he was diagnosed with Alcohol Use Disorder (AUD) and then an intensive outpatient program (IOP) and successfully completed both programs.  The Individual was attending aftercare, where he received individual and group counseling and medication.  Moreover, the Individual had become thoroughly engaged in AA, having completed 90 meetings during his first 90 days, obtained a sponsor, and commenced working AA's Twelve -step program.  The Individual had also developed a strong support network, consisting of his wife, and his AA group. The AJ was impressed with the Individual's commitment to his sobriety and the amount of progress that he had made in a short time. However, the AJ remained concerned with the relative recency of the Individual's sobriety which had only begun three and a half months prior to the hearing . The AJ found that three and a half months of sobriety was too short a time period for the Individual to have established a sufficient pattern of abstinence from alcohol to demonstrate that his AUD has been resolved, and that the concerning behavior is unlikely to recur, given its severity.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0057, Fine)

Privacy Act Appeal (PAA)

Appeal Denied

On May 3, 2023, the Office of Hearings and Appeals (OHA) denied a Privacy Act Appeal filed by Polina Vabishchevich (Appellant) from a determination letter issued by the Department of Energy's ( DOE) National Nuclear Security Administration (NNSA). In the Appeal, the Appellant challenged the adequacy of the search by NNSA in response to her March 7, 2023 Privacy Act request.

The Appellant argued that NNSA had not used sufficient search terms and had not searched all relevant NNSA offices but did not identify any terms or offices that were not searched. The NNSA analyst responsible for responding to the request provided documentation that NNSA had conducted a search in the one NNSA office that conducts background investigations. She further explained that many of the records that the Appellant was asking for were the property of the third -party contractor, and, therefore, the government did not have access to them. Accordingly, the Appeal was denied. ( OHA Case No. PAA-23-0001, Weinstock)