Case No. VSA-0008, 25 DOE ¶ 83,001 (OHA July 5, 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.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:April 25, 1995

Case Number: VSA-0008

This Opinion concerns a request filed by the DOE's Office of Safeguards and Security (OSS), pursuant to the provisions of 10 C.F.R. Part 710, for review of a March 27, 1995 Opinion of an Office of Hearings and Appeals Hearing Officer. It was the opinion of the Hearing Officer that it is clearly consistent with the national interest to restore the "Q" access authorization of XXXXX ("the respondent"). <1> For the reasons that follow, I agree with that favorable opinion.

I. Procedural Background

The respondent is employed at the DOE's XXXXX. On September 23, 1994, the DOE's XXXXX (DOE/XXXXX) issued a Notification Letter to the respondent informing him that information in the possession of DOE created a substantial doubt concerning his continued eligibility for access authorization. <2> Enclosure 1 to the letter specified two areas of derogatory information: (i) a mental condition, namely, Intermittent Explosive Disorder-worsened by alcohol (IED), which, in the opinion of a board-certified psychiatrist causes or may cause a significant defect in judgment or reliability (see 10

C.F.R. § 710.8(h)["Criterion H"]) and (ii) the respondent had been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse (see 10 C.F.R. § 710.8 (j)["Criterion J"]).

The respondent requested a hearing in order to resolve the issue of his eligibility for access authorization. That hearing was held at XXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXX. The respondent, his wife, and a former supervisor testified on behalf of the respondent. XXXXX, M.D., the board-certified psychiatrist who had evaluated the respondent at DOE/XXXXX's request, testified on behalf of the DOE.

II. Hearing Officer Opinion

The Hearing Officer concluded that restoring the respondent's clearance would not endanger the common defense and security and would be clearly consistent with national security. See Personnel Security Hearing, Case No. VSO-0008, 25 DOE ¶ 82,753 (1995) (the March 27 Opinion). With respect to Criterion H, the Hearing Officer found that the respondent does not currently meet the definition of IED set forth in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV). The Hearing Officer further found that because the incidents that gave rise to Dr. XXXXX's diagnosis of IED occurred more than six years ago, the respondent's alleged inability to control his temper does not constitute a significant defect in his judgment or reliability.

With respect to Criterion J, the Hearing Officer found that several of the factors that Dr. XXXXX relied upon in his diagnosis of alcohol abuse were factually incorrect and that others were of little value in determining whether the respondent was an alcohol abuser at the time of his psychiatric evaluation. On the basis of these findings, the Hearing Officer questioned the accuracy of Dr. XXXXX's diagnosis. However, he did not specifically find that diagnosis to be incorrect, and his determination that the respondent's security clearance should be restored was not based on a finding that the respondent had never been an abuser of alcohol. Rather, it was based on his finding that during the period since the psychiatric interview, the respondent had sufficiently controlled his alcohol consumption and that this constituted "reformation" within the meaning of 10 C.F.R. § 710.7(c).

III. Request for Review and Response

In a memorandum filed with the Office of Hearings and Appeals on April 25, 1995 (hereinafter "Request for Review"), the OSS both requested review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28(a) and identified the issues for review as required by 10 C.F.R. § 710.28(b). The OSS does not dispute the Hearing Officer's findings with respect to Criterion H. However, the OSS disagrees with the Hearing Officer's finding with respect to Criterion J. According to the OSS, the derogatory information under Criterion J has not been resolved in view of the diagnosis of alcohol abuse by a board-certified psychiatrist, Dr. XXXXX, who relied heavily on the respondent's "undisputed history" of alcoholism. Moreover, the OSS asserts that there is not adequate evidence of rehabilitation in the record for the following reasons: (i) Dr. XXXXX testified that the respondent's current level of alcohol consumption was "high risk behavior," (ii) the respondent has not met any of Dr. XXXXX's conditions for rehabilitation or reformation,<3> and (iii) the respondent stated that he would increase his level of alcohol consumption if his security clearance were restored.

In accordance with the provisions of 10 C.F.R. § 710.28(b), the respondent filed a response (hereinafter "Response") to the OSS submission. In this Response, which was received by the Office of Hearings and Appeals on May 26, 1995, the respondent argues that the record does not support a finding that he is an alcohol abuser under either the eight criteria relied on by Dr. XXXXX or the standards set forth in the DSM-IV. Consequently, he asserts, it is not even appropriate to consider the issue of rehabilitation. He does indicate, however, that he continues to drink substantially less wine than he did a year and a half ago, i.e., prior to the psychiatric evaluation.

IV. Discussion

As an initial matter, I agree with OSS that there is sufficient evidence in the record to invoke Criterion J. That criterion pertains to derogatory information that an individual has "[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as being alcohol dependent or as suffering from alcohol abuse." 10 C.F.R. § 710.8(j). The respondent meets the first prong of Criterion J since he previously has been "a user of alcohol habitually to excess." At the hearing, he acknowledged that he consumed alcohol to excess while he was stationed in Vietnam:

My Marine Corps drinking. Oh, yes, guilty as charged. Two years I was in Vietnam. For two years I drank every ounce of alcohol I could get my hands on.

***

When I was in the Marine Corps in Vietnam, if I would have had more alcohol, I would have drank more alcohol, and I probably would have done that on a daily basis.

Transcript of January 25, 1995 Hearing (hereinafter "Tr.") at 176.

I also find that the second prong of the Criterion J standard has been satisfied since the individual "has been diagnosed by a board-certified psychiatrist ... as suffering from alcohol abuse." It is undisputed that a board-certified psychiatrist, Dr. XXXXX, diagnosed the respondent as an alcohol abuser. However, it is clearly within the Hearing Officer's authority to ascertain whether the factual bases underlying that diagnosis are accurate and reasonably related to that diagnosis, and whether that diagnosis is an adequate basis, given all the other information in the record, for revocation or denial of a security clearance. See, e.g., 10 C.F.R. §§ 710.7(a), 710.27(c). Thus, the Hearing Officer in the present case was entitled, given his regulatory responsibilities, to evaluate the information upon which Dr. XXXXX's diagnosis was based.

As a result of his examination of the evidence in this case, including the testimony at the hearing, the Hearing Officer had serious reservations about the accuracy of Dr. XXXXX's diagnosis, and he did not make an express finding with respect to whether that diagnosis satisfied Criterion J. After reviewing the entire record, I have concluded that there was a reasonable basis for Dr. XXXXX's diagnosis at the time of the evaluation and that therefore the second prong of Criterion J has been met. In reaching this conclusion, I have given deference to those factual findings of the Hearing Officer based upon testimony at the hearing and his assessment of the credibility of the witnesses. I have also given deference to the expert opinion of Dr. XXXXX, to the extent that it was based upon established facts in the record. In this regard, I find that among the eight factors relied upon by Dr. XXXXX in his psychiatric evaluation report and testimony, there is significant factual information upon which he could reasonably reach his diagnosis that the individual was an alcohol abuser at the time of the psychiatric evaluation.

Four of the factors were factually undisputed, although their significance was challenged. These factors (as numbered in Dr. XXXXX's psychiatric evaluation report), and my evaluation of them, are as follows:

1) The respondent's then consumption of three glasses of wine per evening and double that amount two to three times a month, in addition to occasional larger amounts. While the respondent asserted that his previous usual consumption of approximately three glasses of wine every evening was not abusive, his main argument, and the conclusion of the Hearing Officer, was that the respondent was not consuming this level of alcohol at the time of the hearing and for more than a year prior to it. I accept the Hearing Officer's finding of fact with respect to the respondent's current level of alcohol consumption. However, I also find that Dr. XXXXX reasonably concluded that the respondent's level of alcohol consumption during the period immediately preceding the psychiatric evaluation supported his diagnosis of alcohol abuse, particularly in view of the frequency with which the respondent consumed more than three glasses of wine in an evening.

3) That the respondent drank heavily while a United States Marine stationed in Vietnam during a two-year period in the late 1960s. The Hearing Officer agreed with Dr. XXXXX that this factor might be important for understanding the pattern of the respondent's history with alcohol, March 27 Opinion at 9, but concluded that the respondent's heavy drinking under extreme conditions more than 25 years ago was of little value in assessing his current condition. Id. at 12. At the hearing, Dr. XXXXX acknowledged that this was an unusual situation, and stated that he would not have diagnosed the individual as an alcoholic based solely upon this period of heavy drinking. Tr. at 202-03. Because this period was not the only time that the respondent engaged in excessive drinking, I find that Dr. XXXXX reasonably included it as a factor in support of his diagnosis. As for the long period of time that has elapsed since that period, I agree with the respondent that this is a "mitigating factor" (see Tr. at 176), and I therefore shall consider it in my evaluation as to whether his security clearance should be restored.

6) That the respondent once tested himself by suspending his drinking. Since he agreed with Dr. XXXXX's testimony that an alcohol abuser might experiment with abstinence, but also recognized that a non-abuser might also try abstinence, the Hearing Officer gave this factor "moderate weight." March 27 Opinion at 10, 12. I find nothing in the record, including the respondent's Response, which would cause me to question the Hearing Officer's opinion on this issue.

8) A family history of alcohol problems in that the respondent's father is an alcoholic. On the basis of his acceptance of the "majority view" that a family history of alcoholism increases the likelihood that a person will have alcohol problems, the Hearing Officer also assigned moderate weight to this factor. March 27 Opinion at 11, 12. In his Response, the respondent asserts that this factor is "of dubious provenance and which I am not even in control of." It is not clear what the respondent is asserting is of "dubious provenance" since he has acknowledged that his father is an alcoholic. Tr. at 67. If he is referring to the familial component of alcoholism, there is expert testimony from Dr. XXXXX upon which the Hearing Officer could reasonably base his finding. See Tr. at 147; see also Psychiatric Evaluation at 8. While the respondent is correct that he has no control over this factor, he does have control over the level of his drinking. To the extent that he has managed to control his drinking, the Hearing Officer correctly moderated the weight given to this factor.

The Hearing Officer gave no weight to the other four factors relied on by Dr. XXXXX, finding for the most part that they were based upon misunderstandings. As indicated below, I accept the Hearing Officer's findings with respect to purely factual matters, but disagree with some of his conclusions:

2) The respondent's statement to Dr. XXXXX that during the last 15 years he had drunk to the level of intoxication "lots and lots and lots." The Hearing Officer accepted the respondent's testimony at the hearing that, when he made that statement, he was referring to the number of times that he had consumed even one or two drinks. The respondent had testified that his statement to Dr. XXXXX was based, not upon his own definition of "intoxication," but on the definition that he thought Dr. XXXXX wanted him to use. Tr. at 31-32. It seems strange to me that the respondent, who appears from the record to be quite assertive, would not question Dr. XXXXX's supposed definition that was so vastly different from his own. Nevertheless, I find that there was sufficient testimony by the respondent and his wife to support the Hearing Officer's findings that the second factor relied on by Dr. XXXXX was based on a misunderstanding and that the individual has in fact been intoxicated only a few times since his discharge from the Marines, with the most recent incident occurring in 1990.

4) That the respondent has on many occasions lost control over his drinking and has lost track of his intake. The Hearing Officer agreed with Dr. XXXXX that the respondent occasionally lost count of how many drinks he has consumed, but concluded that there was no reason to believe that this implies that the respondent had lost control over his drinking. March 27 Opinion at 9, 12. I accept that a person can lose count of his drinks without necessarily losing control. It is also possible for someone to keep track of his intake and still lose control by drinking more than he intended. In the present case, Dr. XXXXX found both of these factors, losing track of intake and losing control, to be present and included both in his diagnosis of alcohol abuse. In my view, Dr. XXXXX's opinion about the respondent's loss of control was not mere speculation, as suggested by the Hearing Officer. It was based on his considerable experience in the areas of alcoholism and substance abuse and statements made by the respondent that the Hearing Officer found to be factual. The Hearing Officer found that during the period prior to the psychiatric evaluation the respondent usually shared a 750 ml. (25.36 ounce) bottle of wine at dinner almost every night with his wife, with the former drinking three 5-ounce glasses. Id. at 7-8. However, the respondent stated to Dr. XXXXX that there were times that he started pouring himself a fourth glass when his wife hadn't had any, not "recall[ing] having snorted down two." Id. at 9 (citing Psychiatric Evaluation at 5). <4> From this statement, Dr. XXXXX concluded that the respondent both lost control over his drinking and lost track of his intake. Tr. at 142. Since the factual basis existed for his opinion, I find that Dr. XXXXX properly relied on both of these factors in support of his diagnosis of alcohol abuse. <5>

5) That the respondent "has had multiple affective changes under the influence of alcohol." The Hearing Officer found that Dr. XXXXX's conclusion was based upon his misunderstanding of a statement made by the respondent at the psychiatric evaluation. Specifically, the Hearing Officer found that the respondent had not stated that incidents in which he struck his wife and family were caused by his consumption of alcohol. March 27 Opinion at 9-10,12. While I accept the Hearing Officers's finding with respect to this misunderstanding about what the respondent said, I do not find that this is a sufficient basis to reject Dr. XXXXX's opinion that on numerous occasions the respondent had behaved abusively toward family members as a result of his alcohol consumption. The respondent acknowledged that, on virtually all occasions in which he physically struck his wife and other family members, he had been drinking. Tr. at 192, 193, cited in March 27 Opinion at 9. He also admitted that alcohol occasionally takes away his good judgment and inhibitions. Tr. at 62, 180, cited in March 27 Opinion at 9. There was thus a sound factual basis for Dr. XXXXX's relying on this factor in his diagnosis. <6> His expert opinion is entitled to greater weight than the self-serving opinion of the respondent, even when augmented by the equally self-interested opinion of his wife. <7> The Hearing Officer also did not give any weight to this factor because the last incident of domestic violence occurred approximately six years prior to the hearing. However, while the length of time that had elapsed may appropriately be considered in mitigation, I do not find that it provides a basis for rejecting Dr. XXXXX's opinion on this issue.

8) Worries expressed by the respondent's wife and mother over his alcohol intake. The Hearing Officer recognized the potential relevance of concerns of alcohol consumption expressed by members of one's family. However, based on the testimony of the respondent that his mother would be concerned about any level of drinking because she is a teetotaler, the Hearing Officer accorded no weight to the statements made by the respondent's mother to the personnel security investigator in this case. March 27 Opinion at 10-11, 12. The Hearing Officer also gave no weight to this factor because the respondent's wife testified that she was not concerned about her husband's overall alcohol consumption. Id. at 11, 12. I find that the Hearing Officer's findings in this regard were reasonable in view of his assessment of the credibility of the undisputed testimony of the respondent and his wife.

Despite my finding that the Criterion J standard has been met, it is my opinion that the Hearing Officer's recommendation that the respondent's access authorization be restored was reasonable. Specifically, I find that his recommendation is in accordance with Section 710.7(a), which states that:

The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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). Among the factors which the regulations state should be considered by all DOE officials in cases concerning an individual's eligibility for access authorization are the following:

[T]he nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his 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.

10 C.F.R. § 710.7(c); see also 10 C.F.R. § 710.27(a).

After carefully considering the transcript of the testimony at the hearing and all other information in the record of this case in view of these factors, it is my opinion that there is sufficient evidence of the respondent's reformation and other mitigating factors to justify restoration of the respondent's security clearance.

As an initial matter, it is my opinion that, under the circumstances of this case, the Hearing Officer had a reasonable basis for finding reformation. The Hearing Officer based his finding primarily on the fact that the respondent had reduced his alcohol consumption since the psychiatric evaluation. <8> Neither the DOE Counsel at the hearing nor the OSS in its Request for Review has disputed the respondent's testimony that he reduced his consumption of wine from an average of three glasses each evening (and greater amounts once or twice a month) to about one 25-ounce bottle per week and has maintained that level for more than a year. Moreover, Dr. XXXXX testified that this level of alcohol consumption is "not an abusive one." Tr. at 202. While Dr. XXXXX testified that the respondent's continued use of alcohol is "high risk behavior," Tr. at 166, 202, he also testified that "a very small number" of alcoholics can control their drinking. Tr. at 165. <9> However, based on his experience working with a large number of alcoholics, Dr. XXXXX indicated that there was no basis upon which he could find that the respondent fell within that small group of alcoholics who are able to control their drinking. Tr. at 165-67. Unlike his diagnosis of alcohol abuse, which was based solely on the respondent's individual case history, his opinion as to rehabilitation or reformation, albeit an informed one, was nevertheless essentially a statistical prediction as to the unlikelihood of the individual's maintaining controlled drinking.

In contrast, the Hearing Officer's opinion that the respondent had reformed was based on his evaluation of the respondent's testimony and the other evidence in the record pertaining to his reduced alcohol consumption. The evidence of the respondent's protracted period of drinking at non-abusive levels was striking. It is a pertinent behavioral change that is just one of several significant mitigating factors that support the Hearing Officer's recommendation that the respondent's clearance be restored. <10> The others are (i) the only period in which the respondent seriously abused alcohol on a regular basis was more than a quarter of a century ago when he was serving his country in the Vietnam war, (ii) the most recent period in which the respondent engaged in serious antisocial behavior (assaulting his wife) while drinking was approximately six years ago, and (iii) the last time the respondent drank to the point of intoxication, as that term was defined by him at the hearing, was in 1990. These factors, which pertain to the frequency and recency of the respondent's abusing alcohol, are of paramount importance in resolving the ultimate question as to the respondent's eligibility for access authorization. <11> See 10 C.F.R. § 710.7(a) and (c).

In assessing the "nature, extent and seriousness of the [respondent's] conduct," Section 710.7(c), I also find significant the undisputed testimony of his former supervisor that the respondent never exhibited any alcohol-related problems on the job in terms of attendance, fitness for duty and punctuality, even when he would be called to work late at night, early in the morning or on weekends. See Tr. at 110-12. Finally, I believe it to be relevant and material that the respondent has never been arrested for driving under the influence of alcohol or any other alcohol-related offense. <12> Thus there is no evidence in the record of the type of poor judgment exhibited by behavior such as excess drinking and driving that has been found in other cases in which hearing officers have recommended the revocation or denial of security clearances under Criterion J. See, e.g., Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758 (May 22, 1995).

In my view, none of the above factors in and of itself would be sufficient to mitigate the derogatory information under Criterion J in this case. However, when considered together, I believe they are sufficient to overcome the security concerns presented by the respondent's prior alcohol abuse. I am therefore of the opinion that the Hearing Officer correctly concluded that restoring the respondent's clearance would not endanger the common defense and would be clearly consistent with the national security, and that therefore his access authorization should be reinstated.

George B. Breznay

Director

Office of Hearings and Appeals

[On October 19, 1995, the Director, Office of Security Affairs, made a final determination to revoke the individual's Department of Energy access authorization.]

<1> A "Q" access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as an access authorization, security clearance, or "Q" clearance.

<2> DOE/XXXXX had suspended the respondent's access authorization on July 18, 1994.

<3> As noted in the Request for Review, Dr. XXXXX had recommended (i) total alcohol abstention for a minimum of one year, (ii) attendance at Alcoholics Anonymous, and (iii) attendance at an Employee Assistance Program education course.

<4> In testifying about this statement, the respondent made it clear that he was referring to a situation in which he was about to drink the last glass of wine in the bottle. See Tr. at 35-36. Presumably, in that situation, his glass had been filled with more than five ounces of wine per drink.

<5> Although the discussion in the Psychiatric Evaluation and in the March 27 Opinion revolved around the respondent's statement about drinking more than his share of wine at dinner, there was other testimony in the record which supports Dr. XXXXX's conclusion about the respondent's losing track and losing control . For example, in discussing wine tastings that he has attended, the respondent stated: "[I]t's hard for you to keep track because you're drinking this much of a million and a half wines. So it's hard for you to keep track of what it is you have been drinking, and how much and all that." Tr. at 65. Dr. XXXXX's conclusion is also supported by the respondent's statement that part of his wife's "job" is to see that he doesn't drink too much. Tr. at 34.

<6> This factor is also relevant to Dr. XXXXX's opinion regarding the applicability of the DSM-IV alcohol abuse standards to the respondent. Although the DSM-IV was not cited in the Psychiatric Evaluation, during the hearing Dr. XXXXX stated that because of this abusive behavior at home, the respondent fell within the DSM-IV definition of a substance abuser. Tr. at 197-99. Specifically, he relied on the criterion that finds substance abuse if in a given 12-month period, repeated alcohol use has continued "despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the [alcohol]." Id. (referring to DSM-IV at 182-83). The Hearing Officer questioned the applicability of the DSM-IV standard since the respondent's social and interpersonal problems occurred at least six years ago. March 27 Opinion at 12. However, the DSM-IV does not specify how recently the 12-month period must have occurred.

<7> The Hearing Officer found Dr. XXXXX's opinion that excessive alcohol use can contribute to general aggressiveness to be "highly speculative" with respect to the respondent. March 27 Opinion at 10. I accept that finding with respect to aggressive incidents that occurred while the respondent was not drinking. See n. 12, infra. However, I do not find anything speculative about Dr. XXXXX's opinion with respect to the specific incidents of aggressive behavior that occurred while the respondent was drinking.

<8> While the March 27 Opinion refers to a 15-month period of controlled drinking, in fact only a little more than 13 months elapsed between the psychiatric evaluation on XXXXX and the hearing on XXXXX. No evidence regarding the respondent's drinking was entered into the record after the hearing. As indicated above, however, the respondent asserts in his Response that he has continued to control his drinking.

<9> Dr. XXXXX also referred to a Rand Corporation study that found that three percent of alcoholics could return to social drinking. Tr. at 159-60.

<10> In the course of its argument that there are not sufficient mitigating factors in this case, the OSS takes issue with the statement in footnote 8 of the March 27 Opinion that, even if the respondent were consuming alcohol at the same level as when he was interviewed by Dr. XXXXX and was properly diagnosed as an alcohol abuser, it might still be appropriate to restore his clearance depending on the level of his alcohol consumption. Request for Review at 2. I would be inclined to agree with OSS that under those circumstances there would not be an adequate basis for restoring the respondent's security clearance. However, since the Hearing Officer found that the respondent was not currently consuming alcohol at his previous level, his statement in footnote 8 is dictum and need not be addressed at the present time.

<11> Like the OSS, I am concerned about the respondent's statement that, if his security clearance is restored, he intends to increase his level of wine consumption although not to his previous level. As I indicate in the previous footnote, if the respondent were still drinking at the previous level, I might reach a very different conclusion in this case. However, I do not find that this statement alone undermines the mitigating factors in the respondent's favor.

<12> The respondent testified that he never had any alcohol-related arrests, Tr. at 214, and this was not disputed by DOE Counsel or contradicted by any information in the record. At the hearing, Dr. XXXXX stated that the respondent's "heightened sense of irritability" because of alcohol abuse might have been related to an isolated incident in October 1988 in which the respondent, who had not been drinking, assaulted his neighbor and was subsequently charged with a felony and two misdemeanors. Tr. at 153-54. However, he conceded that it was not clear that this incident, which resulted in the respondent's pleading guilty to Second Degree Criminal Trespass (a misdemeanor), would meet the DSM-IV criterion for a substance-related legal problem. Tr. at 198.