Case No. VSA-0029, 25 DOE ¶ 83,003 (OHA Dec. 13, 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 Filed: October 10, 1995

Case Number: VSA-0029

This Opinion concerns the eligibility of XXXXX [hereinafter "the individual"] 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 XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710. The individual then requested a Hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. On September 8, 1995, the Hearing Officer issued an opinion recommending against restoring the individual's access authorization. On October 10, 1995, the individual 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 individual's access authorization should be restored.

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. An individual who has been denied access authorization may request a hearing in the matter before a Hearing Officer. 10 C.F.R. § 710.21. After the Hearing Officer issues an opinion, either the Office of Security Affairs or the individual involved may file a request for review of the opinion with the Director of the Office of Hearings and Appeals (OHA). 10 C.F.R. § 710.28(a). The regulations provide that the party seeking review must file, within 15 calendar days after filing its request for review, a statement with the OHA identifying the particular issues on which it wishes me to focus. 10 C.F.R. § 710.28(a). The other party is then given 20 calendar days in which to file a response to the statement. 10 C.F.R. § 710.28(b).

On March 13, 1995, DOE/XXXXX issued a Notification Letter to the individual informing him that the DOE possessed information which created a substantial doubt about his eligibility to maintain a "Q" access

authorization. Specifically, the Notification Letter informed the individual that derogatory information in the DOE's possession indicated that he had been or was a user of alcohol habitually to excess, or that he had been diagnosed by a board-certified psychiatrist, or other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. Letter from XXXXX, Manager, DOE/XXXXX, to the individual at Enclosure 1 (March 13, 1995); see 10 C.F.R. § 710.8(j).

The individual requested a hearing in this matter on March 30, 1995. On April 12, 1995, I appointed Warren Gray as Hearing Officer. The Hearing was held on XXXXXXXXXXXXXX, in XXXXXXXXXXXXXXXXXXXXX. There was no material dispute concerning the facts of the case. The individual admitted to the allegation that he was alcohol dependent. The sole issue was whether the individual's rehabilitation program has restored him to eligibility for access authorization.

After considering all relevant information, the Hearing Officer issued an Opinion on September 8, 1995, in which he found that: (1) the individual was alcohol dependent; (2) the individual's alcohol use impaired his judgment and reliability; (3) although the individual had followed a program aimed at rehabilitation since late March 1995, at the time of the hearing there was still a high risk that the individual would return to using alcohol; (4) the individual's superior work record, by itself, was not sufficient to mitigate the security concerns raised by his alcohol dependence; (5) a finding of disloyalty was not necessary to deny access authorization to the individual. Personnel Security Hearing, 25 DOE ¶ 82,766 at 85,608-10 (1995) (citing Molerio v. FBI, 749 F.2d 815, 824 (D.C. Cir. 1984); Personnel Security Hearing, 25 DOE ¶ 82,758 at 85,558-59 (1995); Personnel Security Hearing, 25 DOE ¶ 82,757 at 85,550-51 (1995); Personnel Security Hearing, 25 DOE ¶ 82,755 at 85,537-38 (1995); Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,529-30 (1995)). Accordingly, the Hearing Officer found that the individual'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. at 85,610.

On October 10, 1995, the individual filed a request for review with this office. I received the individual's Statement of Issues on October 23, 1995. On November 3, 1995, when the Office of Security Affairs informed me that it concurred with the opinion of the Hearing Officer and would not be submitting additional information, I closed the administrative record of this proceeding.

II. Analysis

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(b)(2). In the present case, neither party has submitted any additional evidence or otherwise disputed the factual basis of the Hearing Officer's Opinion. The only issues raised by the individual relate to the Hearing Officer's application of the Part 710 regulations to the undisputed facts of this case. Specifically, the individual argues that: (1) the Hearing Officer did not "properly apply the factors of section 710.7(c) to the facts . . . ;" (2) "the decision of the Hearing Officer was not a comprehensive common sense judgment as required by section 710.7(a);" (3) the Hearing Officer "incorrectly applied" the Part 710 regulations to "the facts of this case in light of the standard imposed in section 710.27(d);" and (4) "[t]he Hearing Officer failed to consider the lack of any nexus between the subject's behavior and his work with access or classified material." Statement of Issues at 1. This decision will address the first three issues collectively, as does the individual in his statement of issues, and then separately address the fourth issue.

A. Issues 1, 2, and 3

The applicable DOE regulations state that "[t]he 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 to be considered in rendering a determination concerning the individual's access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of the 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 or material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). Finally, the regulations state:

If, after considering all the factors in light of the criteria set forth in this subpart, the Hearing Officer is of the opinion that it will not endanger the common defense and security and would be clearly consistent with the national interest to grant or continue access authorization to the individual, the Hearing Officer shall render a favorable opinion; otherwise the Hearing Officer shall render an adverse opinion.

10 C.F.R. § 710.27(d).

As at the hearing, the individual now does not dispute the diagnosis of his alcohol dependence. Rather, he contends that he has been successfully rehabilitated, and that by taking this and other mitigating factors into account, the Hearing Officer should have concluded that the individual's security clearance should be restored. Statement of Issues at 2-5. For the reasons set forth below, I disagree.

Regarding his rehabilitation from alcohol dependence, the individual argues that he has entered and completed a treatment program and was undergoing aftercare, both of which were "consistent with rehabilitation and the D.O.E. consulting psychiatrist recommendation." Id. at 2. However, the testimony of both parties' psychiatrists was carefully considered by the Hearing Officer, who found in his opinion:

Both psychiatrists agreed that the [individual's] rehabilitation program was appropriate, but still incomplete. In the opinion of the DOE psychiatrist, the [individual] would have to remain abstinent for two years to establish credibility that he had achieved some measure of rehabilitation. He referred to several studies showing that, of recovering drinkers who return to drinking, 70% will do so within a year and another 20% will do so within two years.

The [individual's] psychiatrist cited recent medical research suggesting that long-term consumption of alcohol causes a depletion of certain neurotransmitters in the brain. The individual experiences the depletion as a strong craving for alcohol. According to the study, it can take up to a year for the body to restore the quantity of neurotransmitters to normal values. The study thus supports the view that persons attempting to recover from alcohol-related disorders are most likely to relapse in the early stages of rehabilitation. Considering the short time the [individual] has been in a rehabilitation program, both psychiatrists agreed that he was still at risk of relapse.

25 DOE ¶ 82,766 at 85,609 (footnotes omitted).

Thus, both psychiatrists agreed that the individual is, and may always be, at some risk of relapse. Both experts appeared to also agree that this risk will diminish over time, assuming that the individual maintains his sobriety. The individual correctly points out that the "expert witnesses did not opine [that he] was a security risk." Statement of Issues at 3. However, the purpose of expert testimony is to elicit an opinion regarding a question within the witness' field of expertise, e.g. psychiatry, rather than an opinion on the ultimate question in the case, the suitability of the individual for access authorization. Based on the experts' testimony, the Hearing Officer came to the conclusion that, at this stage of the individual's recovery, the risk of relapse was still too high to restore access authorization to the individual.

The individual contends that he is now "less a security risk than during the period" when he was still using alcohol, and that, under the circumstances, the conclusion of the Hearing Officer "impose[s] on him an impossible standard of rehabilitation." Id. at 2-3, 4. It is unfortunate that, at the time the hearing was held, less than four months had passed since the individual began his treatment and abstention. Nonetheless, there is nothing "impossible" about a standard of rehabilitation that takes into account the length of time a person has been in recovery. While it is no doubt true that the individual was a greater security risk prior to his treatment, the Hearing Officer made a reasonable judgment, based on expert testimony, that at this point in time the risk remains too high.

The individual further argues that the Hearing Officer's opinion does not reflect a common-sense judgment, contending that the individual's "past performance supports a common sense finding that he will not now breach an access authorization." Id. at 2. The individual points to his years of service, his positive work record, his compliance with security regulations, and the absence of any impact on his work performance stemming from his alcohol use. Id. at 2-3. Yet the Hearing Officer did not ignore these facts in his opinion, noting that the individual's "coworkers and supervisor testified that he gets along well with other workers and is respected for his occupational abilities. He has never been observed under the influence of alcohol while at work, nor has his use of alcohol affected his job performance." 25 DOE ¶ 82,766 at 85,608. Taking these facts into account, the Hearing Officer concluded that the individual's "superior work record, by itself, is not sufficient to mitigate the security concerns raised by his alcohol dependence." Id. at 85,610 (citing Albuquerque Operations Office, 24 DOE ¶ 82,753 at 85,530 (1995)). This is precisely the kind of "common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable," that is required by the Part 710 regulations. 10 C.F.R. § 710.7(a).

Finally, the individual states that the DOE denied him the opportunity to participate in an employee assistance program "which would have provided him two years to demonstrate his abstinence and rehabilitation." Statement of Issues at 4. However, it is not the role of the Hearing Officer in these proceedings to determine whether an individual should be given additional time to demonstrate rehabilitation. Rather, the Hearing Officer is to render an opinion as to whether access authorization can be granted or restored at the present time.<2> In that regard, based on my review of the record, I find that in his opinion the Hearing Officer properly applied the standards of Part 710 to the facts of this case, and therefore conclude that the first three issues raised by the individual are without merit.

B. Issue 4

The last issue raised by the individual concerns what he characterizes as "the lack of any nexus between the subject's behavior and his work with access or classified material." Statement of Issues at 1. The individual relies for support on the opinion of the U.S. Court of Appeals for the Ninth Circuit in McKeand v. Laird, 490 F.2d 1262 (9th Cir. 1973). According to the individual, "[i]f the standard of McKeand is to be satisfied there must be evidence in the record to show an actual not speculative propensity . . . to breach security because of his prior alcohol use." Statement of Issues at 7.

In McKeand, the court faced the question of "whether a person can lose his or her security clearance on the sole basis of private homosexual activity." McKeand, 490 F.2d at 1263. One judge argued that the homosexuality of McKeand did not alone provide a sufficient basis, noting that McKeand "has never talked with others concerning secret information within his access; has never been approached by others seeking secret information; and, in fact, has never breached his security classification in any way." Id. at 1265. Nonetheless, the majority upheld the findings of the hearing examiner in that case because he "not only found McKeand was a homosexual, but in addition, made specific findings of fact clearly describing why his homosexuality posed a threat of divulgence of classified material." Id. at 1263.

First, we note that the decision of the Court of Appeals in McKeand was issued over 20 years ago. Under the present DOE security regulations, "sexual orientation or preference, in and of itself, is not considered a negative factor in determining a person's eligibility for access authorization." Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material, 59 Fed. Reg. 35178, 35179 (1994). Yet, the general principle enunciated in McKeand, that there need not have been an actual breach of security to warrant the denial of a security clearance, supports the conclusion of the Hearing Officer in the present case. As was the case in McKeand, there is no allegation here that the individual has ever violated security regulations. However, similar to the hearing examiner in McKeand, the Hearing Officer in the present case not only found that the individual was alcohol dependent, "but in addition, made specific findings of fact clearly describing" the effect of alcohol dependence on the individual's judgment and reliability. Id.; see, e.g. 25 DOE ¶ 82,766 at 85,609 ("The [individual's] behavior, such as habitually drinking while driving, or hunting with a loaded rifle while intoxicated, suggests that alcohol dependence impaired his judgment and reliability."). In the final analysis, the Hearing Officer could not "ignore the evidence that relapse can be expected for someone at the [individual's] early stage of recovery, or that alcohol use produces impaired judgment and reliability in the [individual]. Such impairments can easily lead to unintentional or negligent compromises of classified material." 25 DOE ¶ 82,766 at 85,610. I must agree, and conclude that the nexus established in this case between the behavior of the individual and the risk to the national security easily meets the standard set forth in McKeand. Personnel Security Hearing, 25 DOE ¶ 82,758 at 85,558-59; Personnel Security Hearing, 25 DOE ¶ 82,757 at 85,550-51 (1995); Personnel Security Hearing, 25 DOE ¶ 82,755 at 85,537-38 (1995); Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,529.

III. Conclusion

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 July 14, 1995 hearing convened in this matter. In resolving the question of the individual'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 individual'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).

As explained in this Opinion, the individual has not established that he is sufficiently rehabilitated. I therefore am not convinced that restoring his access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that his access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

[On February 21, 1996, 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 (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.

<2> . This is in no way intended to discourage an individual's ongoing attempts at rehabilitation, as the regulations provide for reconsideration of an individual's eligibility for access authorization where the individual has presented "[c]onvincing evidence of reformation or rehabilitation." 10 C.F.R. § 710.31(b)(2).