Case No. VSO-0204, 27 DOE ¶ 82,775 (H.O. MacPherson September 30, 1998)

For full history of this case, and links to other cases, click here.

* 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 XXXXXXX’s.

September 30, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:April 13, 1998

Case Number:VSO-0204

This Opinion concerns the continued eligibility of xxxxx xxxxx xxxxx (hereinafter referred to as "the respondent") to hold an access authorization under the "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material," 10 C.F.R. Part 710. (1) As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent's access authorization should not be restored.

I. Background

The respondent is employed by a contractor at a DOE facility. The Notification Letter issued to the respondent on March 3, 1998, specifies that a DOE-retained, board-certified psychiatrist diagnosed two conditions that create a substantial doubt concerning his continued eligibility for an access authorization: (1) a "Personality Disorder — Not Otherwise Specified" that may cause a significant defect in the respondent's judgment and reliability, and (2) alcohol abuse. See 10 C.F.R. § 710.8(h) & (j).

The respondent was referred to a psychiatrist for evaluation because a Personnel Security Interview (PSI) held in May 1997 was unable to resolve security concerns raised by two incidents:

1. A 1992 conviction for domestic battery. The record indicates that the respondent returned home to find his 14 year old daughter with her 18 or 19 year old boyfriend. The respondent thought the boy was too old for his daughter and asked him to leave. According to the respondent, after the boy left, his daughter "lashed out at me and proceeded to tell me that I didn't have the right to do that. And in doing so, reached out and slapped me. At that time, I grabbed hold of my daughter's hands and held her on the floor to keep her from striking me again." May 1997 PSI at 3. The respondent's wife became upset and called the police. The respondent was charged with domestic battery and resisting arrest. The respondent denies he was guilty of the charges, but he states that he pled guilty to one count of domestic battery because he could not afford to contest the charges. He received a fine of $70 and one year unsupervised probation. The other charges were dismissed. Id. at 4-6. The respondent consumed several beers prior to this incident. Id. at 6.
2. A 1995 conviction for possession of a controlled substance (amphetamines, marijuana, and paraphernalia). According to the respondent, while having a few drinks in a bar, he and his wife began to argue. To avoid further conflict, he returned home, took a car that he had not driven for several months, and drove around. He discovered the drugs in the car, which he assumed belonged to his wife or daughter. Because the respondent did not want to confront them at that time, he checked into a motel under a fictitious name so his wife could not find him. Evidently, the motel operator became suspicious and called the police. The respondent consented to their request to search the room. The police found the drugs and he was arrested. Id. at 8. He received a "withheld judgment" and a fine of $150. Id. at 11.(2)

Based upon his evaluation, the psychiatrist issued a report that found despite these two incidents "No psychiatric contraindication to hold security access." Psychiatrist Report at 4 (August 15, 1997). Based upon this evaluation, the respondent was granted an access authorization.

Following approval of the security clearance (but before the respondent was notified that he had been granted a clearance), DOE discovered that the respondent had been arrested for driving under the influence (DUI) between the May 1997 PSI and the interview with the psychiatrist. The respondent had neither reported the arrest to DOE nor mentioned it to the psychiatrist during his evaluation. A second PSI was held in September 1997, to permit the respondent to explain the circumstances surrounding the arrest. He stated that after having less than two beers, he was stopped while riding his motorcycle for a defective tail light. The officer smelled alcohol on his breath, gave him a field sobriety test and arrested him. He was taken to the police station and asked to take a breathalyzer test, which he states he refused because that he did not understand it or the consequences of not taking the test. September 1997 PSI at 2-3. The respondent pled guilty to DUI and received a "withheld judgment," a $1,000 fine ($500 suspended) and a jail sentence of 180 days, that was all suspended except for five days of community service. His driver's license was also suspended, but he was permitted to drive to work.

Upon learning of the DUI, the DOE sent the psychiatrist a letter asking whether the DUI arrest would alter his evaluation. The psychiatrist reversed his opinion in view of this new incident. He found that the respondent has a personality disorder — not otherwise specified and that he suffers from alcohol abuse. Psychiatrist Revised Report (December 27, 1997). Subsequently, the respondent's security clearance was suspended, and the Notification Letter was issued.

The respondent requested a hearing to resolve the issue of his eligibility for access authorization, and the request was forwarded to the Office of Hearings and Appeals on April 13, 1998. At the hearing, the DOE presented the testimony of the psychiatrist and a Personnel Security Specialist, and the respondent presented his own testimony and the testimony of an alcohol evaluator for the state that evaluated him in connection with an arrest for DUI.

II. The Relevant Facts

A. Personality Disorder

As noted above, in his first report, the psychiatrist found no indication that the respondent had a personality disorder:

Psychological testing indicates, and clinical evaluation indicates, no current mental illness, personality disorder, or chemical dependency. It is the opinion of this evaluator that his appearance of uncooperation is the product of an extroverted nature in an individual who tends not to be insightful (refusing to answer or give glib answers) to avoid unpleasant emotional issues.

Psychiatrist Report at 4.

After being informed of the DUI arrest, the psychiatrist changed this diagnosis:

As suggested in the [first report], this individual tends to use denial (an unconscious defense mechanism) to avoid emotional pain, but what is becoming more clear with added information is that this is tightly associated with avoidance of responsibility for his actions. . . . The subject's denial of problems to avoid responsibility for his actions is based in . . . Personality Disorder — NOS [Not Otherwise Specified] which manifests itself in a pattern of lack of empathy, specialness — the rules not applying to him, arrogant behavior in the face of authority, and proclivity to lie . . . .

Psychiatrist Revised Report at 1-2.

The psychiatrist explained at the hearing that it was the respondent's failure to report the DUI (not the fact of the DUI itself) that led him to his personality disorder diagnosis. Transcript at 54, 64. The psychiatrist stated that although he did not specifically ask whether the respondent had had other alcohol-related incidents, he did ask whether there was anything else he should know. Transcript at 50. In addition, the respondent told the psychiatrist that he had last been intoxicated in January 1997 even though the DUI was in May 1997. The psychiatrist also viewed the respondent's failure to report the DUI to DOE as indicating that he believes the rules do not apply to him. Transcript at 36-37. On this basis, the psychiatrist concluded that the respondent does not take responsibility for his actions and suffers from a personality disorder. At the hearing, however, the psychiatrist indicated that his diagnosis is "pretty fuzzy at this point." Transcript at 139.

B. Alcohol Abuse

With respect to alcohol abuse, the record indicates that approximately once a week, the respondent consumes between two to six beers in social situations. He may also occasionally consume less than two beers. Transcript at 129-30. The psychiatrist did not base his diagnosis upon the amount of alcohol the respondent consumes, but upon the impact of the respondent's alcohol use on his life. Transcript at 141-42. According to the psychiatrist, this impact is reflected in his three convictions, in 1992 for domestic battery, in 1995 for controlled substances, and in 1997 for DUI.

For a diagnosis of alcohol abuse, the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), a standard reference work for diagnosing mental disorders, generally requires a recurrent pattern of alcohol use that results within a 12- month period in significant hazardous situations, failure to fulfill major role obligations, or legal or social problems. DSM-IV at 182-83. The psychiatrist explained that while three incidents over five years would not normally constitute a recurrent pattern of conduct, there may have been other alcohol-related incidents that have not come to DOE's attention, such as driving under the influence where he was not stopped by the police. In addition, he noted that you might consider as separate problems, the DUI, not reporting it to DOE, and not mentioning it in his clinical interview. Transcript at 70-71. The psychiatrist further explained that his diagnosis rested upon the assumption that the respondent was in fact driving with a blood alcohol content higher than the legal limit. He stated that if the respondent's blood alcohol level was within the legal limit, he would not have diagnosed alcohol abuse. Transcript at 143-44.

The respondent does not believe that either the domestic battery or the controlled substances charges resulted from his use of alcohol. With respect to the DUI, he stated that he refused to take the breathalyzer test because he did not understand the system. He strongly asserts that he was not guilty of the charge, and he has submitted statements from the bartender and the person he was with the night in question. They support the respondent's contention that he had between one and two beers. He stated that he pled guilty to avoid the cost of contesting the charge and to ensure that he would retain his ability to drive to work. Transcript at 100-01, 130- 31. The respondent also submitted a statement from his employer indicating that there have been no problems with his work and a statement from a friend indicting that he is honest and not a problem drinker.(3)

II. Standard of Review

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding, where the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,202 (1996). A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. This standard implies that if there is doubt, the decision should be against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

DOE regulations provide that my opinion is to be based on a comprehensive, common-sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a).(4)

III. Analysis

A. Alcohol Abuse

There is no clear answer to the question of whether the respondent suffers from alcohol abuse. Although alcohol abuse generally requires a pattern of incidents over a 12-month period, the psychiatrist's reliance upon three events over five years is not unreasonable under the circumstances of this case. The psychiatrist's diagnosis is based upon the assumption that the respondent was in fact guilty of DUI. The was a reasonable assumption under the circumstances. He further stated, however, that if that were not the case he would not have made that diagnosis. The respondent has submitted statements of two witnesses indicating that he had consumed less than two beers. If that were the case, it is unlikely, but not impossible, that he was over the legal limit when he was stopped by the police. Thus, the validity of the diagnosis of alcohol abuse rests upon the respondent's blood alcohol level at the time he was arrested.

There is no direct evidence of the respondent's blood alcohol level. While the statements submitted by the respondent imply that the was not driving above the legal limit, those witnesses were not called to testify and therefore were not subject to cross examination. I am therefore unable to give those unsworn statements great weight.(5) Moreover, while it is understandable that the respondent would not want to undertake the cost of defending the DUI charge and would want to ensure that he could continue to drive to work, his apparent failure of the field sobriety test and his guilty plea to the charge cannot be disregarded. As noted above, the respondent in this case has the burden of demonstrating that restoring his access authorization would not be contrary to the national interest. The evidence submitted by the respondent has not convinced me that he does not suffer from alcohol abuse. Because the respondent does not believe that he has an alcohol problem, he offered no evidence of reformation or rehabilitation. I am unable, therefore, to find that restoration of the respondent's access authorization would be in the national interest.

B. Personality Disorder

As an initial matter, I find no evidence that the respondent intentionally lied or attempted to mislead the psychiatrist. As discussed above, the respondent believed he was innocent (and continues to so believe) of the DUI charge. Consequently, he was not lying when he stated that he believed he was last intoxicated in January 1997. Nor do I find any attempt to mislead when the respondent did not mention the DUI when the psychiatrist asked if there was anything else he should know. That question is too nebulous and subjective to form the basis for a finding of intentional deceit. Nonetheless, the psychiatrist's diagnosis does not rest solely upon intentional lying. He stated that "I don't think that [the respondent] consciously went about withholding information and lying. I think that this is an unconscious defense mechanism process to minimize emotional pain and stress . . . ." Transcript at 56. According to the psychiatrist, the respondent's failure to mention the DUI, led him to view the domestic battery and controlled substance convictions in a different light. He became skeptical of the explanations that the respondent offered for those incidents. Transcript at 34.

I am, however, seriously concerned with the manner in which the psychiatrist was asked to review his diagnosis after DOE learned of the DUI. Although the psychiatrist testified that he did not believe another clinical evaluation was necessary, Transcript at 37, I would have more confidence in the psychiatrist's revised report had the respondent been given an opportunity to explain why he had not mentioned the DUI and to answer any other questions the psychiatrist might have.(6) This is particularly relevant in this case, since the psychiatrist himself concedes that his diagnosis of personality disorder is "pretty fuzzy." As part of his evaluation, the psychiatrist administered the Minnesota Multiphasic Personality Inventory 2 (MMPI 2). Although this test did not reveal any psychological problems, the respondent did omit answers to 7 of the more than 500 questions. As a result, the psychiatrist does not have great confidence in the results of this test. Transcript at 25-26, 33-34. A second interview would have allowed the respondent to provide answers to those questions and might have led the psychiatrist to accept the results of the test.

More significantly, however, the diagnosis of personality disorder was based in large part upon the DOE's conclusion, which was stated in the letter requesting that the psychiatrist review his diagnosis, that the respondent was required to report the DUI to DOE but did not do so. Transcript at 36. It is not clear that the respondent was in fact required to report the DUI. A DOE security form signed by the respondent indicated that the respondent should report arrests that occur during the period in which he holds a security clearance. It did not state that he should report arrests while his application for a clearance was pending.(7) In any event, I accept the respondent's testimony that he was unaware of any obligation to report the DUI. Transcript at 101-02, 131, 133. A second clinical evaluation would have permitted him to clarify why he did not report the DUI.

Moreover, DSM-IV states that personality disorders are diagnosed "only when they are inflexible, maladaptive, and persisting and cause significant functional impairment or subjective distress." Id. at 633. The record in this case is bereft of any evidence to a persisting functional impairment. The incidents referred to above, do not alone seem to constitute the type of persisting functional impairment that the DSM-IV contemplates. However, as the psychiatrist notes there might be additional incidents that we do not know about. Cf. Transcript at 71.

In reviewing this matter, I am cognizant that while I have experience in resolving factual issues, I lack formal medical training that would allow me to make a medical diagnosis. I also recognize that the psychiatrist had to make his diagnosis based upon limited information — a single interview with the respondent and records of the DOE investigation that were provided to him. His diagnosis can be only as accurate as the information upon which it was based. As hearing officers have done in prior cases where a diagnosis has been challenged, I have examined the facts to determine whether there is an adequate factual basis for the diagnosis. See, e.g., Albuquerque Operations Office, VSO-0016, 25 DOE ¶ 82,757 at 85,548 (1995).

In the present case, I find an insufficient factual basis upon which to base the diagnosis personality disorder — not otherwise specified. The diagnosis was based, in part, upon the incorrect assumption that the respondent had violated a known obligation to report the DUI arrest to DOE. This mistaken factual basis is particularly significant since according to the psychiatrist the diagnosis was already a close call. In addition, I do not find evidence of a persisting functional impairment that the DSM-IV requires for this diagnosis. Accordingly, I find no reason to believe that the respondent suffers from a personality disorder.

IV. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(j), the respondent suffers from alcohol abuse. I do not find, however, sufficient evidence to support the allegation under 10 C.F.R. § 710.8(h), that the respondent has a personality disorder. I find that the respondent has failed to demonstrate that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent's access authorization should not be restored.

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

Date:September 30, 1998

(1)Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

(2)DOE has not disputed the respondent's statement of the circumstances surrounding these two incidents.

(3)He also submitted a report of an alcohol evaluation that was conducted for the court as a result of the DUI. That report indicated that the respondent did not have an alcohol problem. However, when called to testify, the evaluator stated that he was unaware of the domestic

battery and controlled substances convictions and that they may make his conclusion invalid. Transcript at 161, 169.

(4)The factors I must consider in reaching my determination are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

(5)Consumption of two beers during a one-hour period by a man of average size (as is the respondent) would not normally raise an average individual's blood alcohol above 0.05 percent. However, individuals differ in their response to alcohol.

(6)To eliminate the possibility that the psychiatrist might be defensive about having possibly been misled, it would have been preferable for the respondent to have been referred to a different psychiatrist. In this regard, the respondent stated that at the conclusion of the clinical interview, as he was going into another room to take the MMPI-2, that the psychiatrist told him "don't you go in there and try to lie, because if you lie and we find out it pisses me off, and then there's recourse." Transcript at 148. The psychiatrist appeared at the hearing to be very reasonable and competent. Nonetheless, if he made this statement, it raises some concern about his ability to remain objective after learning that the respondent did not tell him about the DUI. However, the psychiatrist was not present to respond to this testimony.

(7)Certainly, DOE would wish to know of arrests while clearance applications are pending. However, the security acknowledgement, signed by the respondent on April 20, 1997, states in paragraph 9 that he will notify DOE of arrests "occurring during any period in which I may hold access authorization and which occurred subsequent to the completion of the security forms which I executed on . . . ." (emphasis added). As he did not hold a clearance at the time of the DUI arrest, this form did not according to its terms require him to report it to DOE. The DOE Personnel Security Specialist testified that after conclusion of the PSI (but not on the record) he advised the respondent to report any arrests. Transcript at 81-82. The respondent, however, testified that he did not recall such an instruction. Transcript at 131-33. It is not unreasonable for the respondent to have forgotten this instruction, if it was made, since it was inconsistent with the written security acknowledgement that he had signed.