Case No. VSA-0005, 25 DOE ¶ 85,013 (OHA June 16, 1995),

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* 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 XXXXX's.

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Request for Review

Case Name: Personnel Security Review

Date Filed: March 13, 1995

Case Number:VSA-0005

This Opinion concerns the eligibility of XXXXX ("the respondent") for continued "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." <1> The Department of Energy's (DOE) XXXXX Operations Office (the Operations Office) suspended the respondent's access authorization under the provisions of Part 710. The respondent then requested a Hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. On February 5, 1995, the Hearing Officer issued an opinion recommending against restoring the respondent's access authorization. On March 30, 1995, the respondent filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This opinion considers whether, on the basis of the regulations and the record before me, the respondent's access authorization should be restored or in the alternative, whether the administrative review of the respondent's access authorization should be stayed.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permitees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. §710.7(a).

On September 2, 1994, the Operations Office issued a Notification Letter to the respondent informing her that the DOE possessed information which created a substantial doubt about her eligibility to maintain a "Q" access authorization. Specifically, the Notification Letter informed the respondent that derogatory information in the DOE's possession indicated that she: (1) habitually uses alcohol to excess; (2) is a user of marijuana, cocaine and amphetamines; (3) has, on at least four occasions, deliberately provided DOE security officials with false or misleading information; and (4) has been diagnosed by a board-certified psychiatrist as having an illness or mental condition which causes or may cause a significant defect in her judgment or reliability. Notification Letter at Enclosure 2. The Notification Letter concluded that since the respondent had failed to provide adequate evidence showing that she had been rehabilitated or reformed, her access authorization would be suspended.

On September 21, 1994, the respondent requested a hearing and submitted a response to the DOE's allegations in which she argued that the concerns raised by the DOE were mitigated by her successful alcohol and drug rehabilitation program, as well as by her exemplary record as a DOE employee. On November 9, 1994, I appointed Thomas L. Wieker as Hearing Officer. The Hearing was held on XXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXXXXX.

At the Hearing, the respondent made no attempt to rebut the derogatory information showing that she had habitually used alcohol to excess, had used marijuana, cocaine, and amphetamines, and had deliberately misled DOE security officials by providing them with false information about these activities. Instead, the respondent attempted to establish that her access authorization should be restored by showing that she had been successfully rehabilitated and by showing that the derogatory information contained in the Notification Letter was mitigated by her exemplary record as a DOE employee.

After considering all relevant information, the Hearing Officer issued an Opinion on February 9, 1995, in which he found that the respondent had: (1) engaged in a long term pattern of alcohol and illegal drug abuse; (2) deliberately supplied DOE security officers with false information on at least four occasions; (3) been diagnosed by a DOE-sponsored psychiatrist as suffering from "Psychoactive Substance Dependence Disorder," an illness or mental condition which causes or may cause a significant defect in her judgment or reliability; and (4) failed to establish that she was rehabilitated or reformed. Personnel Security Hearing, 24 DOE ¶ 82,753 (1995). Accordingly, the Hearing Officer found that the respondent's access authorization should not be restored since he was unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. Id.

On March 13, 1995, the respondent's request for review was filed with this office. On March 23, 1995, I received the respondent's Statement of Issues. The Office of Security Affairs declined an opportunity to respond to the respondent's submissions. On May 5, 1995, I closed the administrative record of this proceeding.

II. Analysis

Under 10 C.F.R. § 710.28(a), either the Office of Security Affairs or the individual involved may file a request for review of a Hearing Officer's opinion with the Director of the Office of Hearings and Appeals (OHA). The regulations provide that the party seeking review must file a statement with the OHA identifying the particular issues on which it wishes me to focus when conducting my review within 15 calender days after filing its request for review. 10 C.F.R. § 710.28(a). The other party is then given 20 calender days in which to file a response to the statement. 10 C.F.R. § 710.28(b).

In considering requests for review, I will generally confine my inquiry to those issues raised in the statement or response. The regulations provide that I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(2). In the present case, neither party has submitted any additional evidence or otherwise disputed the factual basis of the Hearing Officer's Opinion. Instead, the only issues raised by either party are the respondent's contentions that she is rehabilitated and her request that the administrative review process be stayed until she can fully complete her rehabilitation program. Accordingly, my present opinion will be limited to these two issues.

A. Whether the Respondent is Rehabilitated or Reformed.

The respondent contends that she has "substantially" met the criteria for rehabilitation set forth by a DOE-sponsored psychiatrist, XXXXX, M.D. On June 14, 1994, Dr. XXXXX conducted a psychiatric examination of the respondent at the Operations Office's request. On the basis of information supplied to him by the Operations Office and his examination of the respondent, Dr. XXXXX concluded that the respondent's symptoms met the diagnostic criteria for "Psychoactive Substance Dependency Disorder" as set forth in the Diagnostic and Statistical Manual III-R. June 25, 1994, Report of Psychiatric Examination at 14. In his report, Dr. XXXXX explained that in order to be considered rehabilitated or reformed from this condition, the respondent must either: (1) participate in an appropriate rehabilitation or treatment program followed by at least one year of total abstinence from psychoactive substances, or (2) if she chose not to participate in a treatment program, two years of total abstinence from the use of any psychoactive substance. Since the respondent tested positive for marijuana use at the time of the psychiatric examination, Dr. XXXXX concluded that she had not abstained from the use of psychoactive substances for the requisite time period and therefore had not provided adequate evidence of rehabilitation or reformation. June 25, 1994, Report of Psychiatric Examination at 14-15. Dr. XXXXX reiterated this conclusion six months later at the hearing. (Tr., 84-86).

While it is theoretically possible that, the respondent has now "substantially completed her treatment program," as asserted in her March 22, 1995 Statement, she has not supported this assertion with any evidence. More importantly, even if she has satisfactorily completed her treatment program, she has not totally abstained from the use of psychoactive substances for the length of time recommended by Dr. XXXXX. Instead, the record before the Hearing Officer shows that as recently as November 5, 1994, she has ingested alcohol to the point of intoxication. Transcript of XXXXXXXXXXXXXXXX, Personnel Security Interview at 21-26. The respondent's relatively recent abuse of alcohol constitutes strong evidence which conclusively rebuts her claim that she is rehabilitated. At present, the respondent could have only abstained for a maximum of eight months which falls far short of the minimum period of abstinence recommended by Dr. XXXXX. Therefore, even after considering the record before the Hearing Officer in the light most favorable to the respondent, I must find that she has not presented adequate evidence of rehabilitation.

Nor does the respondent's 23 year record of excellence as a DOE employee overcome the security concerns raised by the derogatory information contained in the Notification Letter. Simply put, excellent work performance alone is not sufficient to mitigate the security concerns about the respondent's judgment and reliability that were raised by both her alcohol and drug use and lack of candor with DOE security officials. While the respondent might be able to function as a highly effective employee, the record shows that her substance abuse has had a negative effect on her judgment and reliability, as evidenced by her provision of false or misleading information to DOE security officials and her operation of a motor vehicle while under the influence. An unauthorized disclosure of sensitive or classified information poses the same threat to national security regardless of the discloser's employment record. Therefore, evidence that the respondent has been an excellent employee to date does not mitigate the security concerns raised by the evidence in this case.

B. The Respondent's Request for a Stay

The respondent concedes that she has yet to complete her rehabilitation, since she requests that I stay the review process until she has had an adequate amount of time to complete her treatment program so that she can meet the minimum period of abstinence that Dr. XXXXX suggested was necessary to show rehabilitation.

While I am certainly sympathetic to the respondent's concern, this is a matter of her own creation. I therefore am unable to grant the relief requested. Under 10 C.F.R. § 710.27(c), hearing officers have some discretion to allow the record to remain open after the receipt of the hearing transcript. However, the intent of this provision is to allow the Local Director of Security to arrange for additional investigation on any points which the hearing officer believes need further investigation or clarification. 10 C.F.R. § 710.26(p). Allowing individuals time to establish a sufficient period of abstinence from psychoactive substances is clearly not the sort of investigation or clarification contemplated by the DOE in this provision. This point is underscored in the Preamble of the Federal Register Notice announcing the recent amendments to the DOE security clearance regulations which specifically rejects, on national security grounds, a commentor's request to include a provision allowing individuals to request stays of access authorization actions. 59 Fed. Reg. 35178, 35179 (July 8, 1994).

If DOE were to stay administrative review proceedings in order to allow individuals the opportunity to complete their rehabilitation, it would create a situation where the process could be prolonged indefinitely, thereby resulting in a waste of administrative resources and possible compromise of national security. It is for these reasons that the security clearance regulations set time limits for each step of the administrative review process. See, e.g., 10 C.F.R. § 710.9; § 710.21(a); § 710.21(b)(4); § 710.25(g) § 710.27(e). The purpose of the hearing procedures is to allow a period within which a disinterested person can hear testimony, review the evidence and make findings. Any extension of time during those procedures must be consistent with that purpose. Individuals will not be allowed to abuse these procedures as a means of creating evidence of rehabilitation. Accordingly, I will deny the respondent's request for a stay.

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the XXXXXXXXXXXXXXXX hearing convened in this matter. In resolving the question of the respondent's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the respondent's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

III. Conclusion

As explained in this Opinion, I find that the respondent has not established that she is rehabilitated or reformed. I therefore am not convinced that restoring her access authorization would not endanger the common defense and security and would be consistent with the national interest. Nor is there a reason to grant her the alternate relief she has requested. Accordingly, I find that her access authorization should not be restored, and her request for a stay should be denied.

George B. Breznay

Director

Office of Hearings and Appeals

Date:

<1> A "Q" access authorization (also referred to as a security clearance) is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.