Case No. VSA-0049, 25 DOE ¶ 83,011 (OHA May 23, 1996)
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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: February 29, 1996
Case Number: VSA-0049
This determination considers a Request for Review filed by XXXXX (hereinafter "the individual") concerning his eligibility to retain a "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>The individual's access authorization was suspended at the direction of the Acting Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX). The individual requested administrative review of this action before a Hearing Officer. On XXXXXXXXXXXXXXXX, a hearing was convened before a Hearing Officer assigned by the DOE Office of Hearings and Appeals, and on January 4, 1996, he issued an Opinion that the individual's access authorization should not be restored. On February 29, 1996, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28(a). <2>On April 4, 1996, the DOE's Office of Safeguards and Security (OSS) filed a response to the Request for Review. This Opinion considers the issues raised by these two submissions, and ultimately whether the individual's access authorization should be restored.
I. BACKGROUND
A. The Notification Letter
The administrative review proceeding was commenced by the issuance of a Notification Letter dated June 1, 1995. See 10 C.F.R. § 710.21. In that letter, the Individual was informed that derogatory information in the possession of the DOE created a substantial doubt concerning his continued eligibility for a "Q" access authorization. The Notification Letter set forth the following two areas of derogatory information:
1. The individual had deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire (PSQ), a Questionnaire for Sensitive Positions (QSP), a personnel security interview (PSI), written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization. See 10 C.F.R. § 710.8(f) (Criterion F). The bases for this statement were the following incidents. In a written statement dated May 12, 1993 submitted to a DOE/XXXXX security specialist (May 12 Document), the individual indicated that in April 1993 he had been cited for wasting energy (speeding), not wearing a seat belt and not having a valid drivers
license. <3>In a January 24, 1995 PSI, the individual admitted that a Driving Under The Influence (DUI) citation that he had previously reported on a QSP as having occurred in April 1993, actually occurred in March 1993. On March 24, 1993, the Individual was arrested for DUI, failure to have a valid driver's license and failure to notify the Division of Motor Vehicles of his address change. The individual admitted in a PSI that he had not previously informed anyone about the DUI prior to filing a January 1994 QSP because he thought it would affect his job and security clearance.
2. The individual had been diagnosed by a board-certified psychiatrist as having an illness or mental condition of a nature which, in the opinion of that psychiatrist, causes or may cause a significant defect in judgment or reliability. See 10 C.F.R. § 710.8(h)(Criterion H). Among the bases for this statement were that the individual admitted that he drank an average of one six pack of beer on the weekends, that he got drunk about 20 times a year, and had a history of alcohol abuse. The individual was examined on March 27, 1995, by Dr. XXXXX, a board-certified psychiatrist who found that the individual was suffering from alcohol dependency and that the individual's judgment and reliability were suspect.
B. The Hearing and the Hearing Officer's Opinion
Criterion F
At the hearing, it was the DOE/XXXXX's position that the individual had omitted from the May 12 document the fact that he had been arrested for DUI on March 24, 1993, and had falsely stated that he had been cited for wasting energy (speeding), when in fact he had been arrested for DUI. In support of its position, the DOE submitted a copy of a portion of the individual's OPM (Office of Personnel Management) background investigation which states that on March 24, 1993, the individual was stopped for operating his automobile at 72 miles per hour (mph) in a 55 mph zone and arrested for DUI, not having a valid driver's license and failing to notify the Division of Motor Vehicles of a change of address.
It was the individual's position at the hearing that in the May 12 document he sought to report a separate incident from the March 24, 1993 arrest for DUI. Specifically, he maintained that he was attempting to report only a speeding arrest that had occurred on another date.
The Hearing Officer was not convinced that the individual was indeed attempting to report an arrest separate from the March 24 arrest. In his Opinion, the Hearing Officer pointed out that the description of how fast the individual was speeding in the May 12 document was identical to the reason stated in the OPM report for why the individual was stopped in his March 24, 1993 DUI arrest (traveling 72 mph in a 55 mph zone). The Hearing Officer also found it significant that the date that the individual gave in the May 12 document as the date he was going to court for the speeding ticket (May 25, 1993) was the date that the individual pled guilty for the March 24, 1993 DUI. The Hearing Officer was thus not persuaded by the individual's assertion that he was attempting to report another arrest and noted that the individual had not even submitted any evidence to support the claim of a second arrest. <4>
In view of these considerations, the Hearing Officer found that the May 12 document was submitted by the individual to report the circumstances surrounding his March 24 arrest. He further found that in the May 12 document, the individual neglected to report that he had been arrested on March 24 for DUI. He also found that in the May 12 document the individual falsely stated that he had been charged with wasting energy, when in reality he had been arrested for DUI. He therefore concluded that the DOE/XXXXX had properly invoked Criterion F in suspending the individual's access authorization.
Criterion H
At the Hearing, the Hearing Officer received testimony from Dr. XXXXX, a DOE consultant psychiatrist, concerning whether the individual was alcohol dependent. In a report of March 28, 1995, Dr. XXXXX diagnosed the individual as suffering from alcohol dependency. The individual admitted to having problems with alcohol, but asserted that he had been rehabilitated. The individual testified regarding the 28-day rehabilitation program that he had attended, and stated that he had abstained from alcohol since he entered that program in July 1995, a period of about four months. He indicated that he was committed to sobriety. Dr. XXXXX indicated that the individual's alcohol treatment program was excellent and that as of the time of the hearing, the individual should be considered reliable and to have good judgment.
In his Opinion, the Hearing Officer found that the individual did suffer from alcohol dependence, but that he had been rehabilitated. He reached this conclusion based on evidence concerning the individual's treatment program. He also considered Dr. XXXXX's testimony that at the time of the hearing the individual should be considered reliable, and that he saw no problem with the individual's being returned to work with the appropriate monitoring. The Hearing Officer also pointed to the fact that the individual continued to attend AA meetings and to the individual's stated commitment to sobriety. The Hearing Officer concluded that the individual had mitigated the security concern regarding his alcohol dependency. Although the Hearing Officer's determination with regard to this Criterion was favorable to the individual, the Hearing Officer did not recommend restoration of access authorization because of his adverse decision regarding Criterion F.
II. Analysis of Request for Review and OSS Response
With his Request for Review, the individual submitted a photocopy of a traffic citation, which he states that he was only recently able to retrieve. <5> The photocopy shows that the individual was cited for wasting energy (speeding) on XXXXX on March 17, 1993. The individual believes that this document establishes that he did not provide the DOE with false information, and that his access authorization should be restored.
The OSS has filed a statement indicating that it agrees with the Hearing Officer's finding concerning Criterion F. However, it disagrees with the Hearing Officer's determination that the individual has been rehabilitated from alcohol dependency. Given this individual's long history of alcohol dependence, which was associated with illegal conduct, financial problems and domestic disputes, the OSS believes that the individual's period of abstinence from alcohol was too short to permit the conclusion that the individual had been rehabilitated
A. Criterion F: Falsification and the May 12 Document
With respect to Criterion F, I must determine whether the photocopy of the traffic citation establishes that the finding by the Hearing Officer on this issue should be reversed. <6>
As the Hearing Officer stated in his Opinion, with regard to issues of fact upon which the decision to grant an access authorization may be made, the burden of persuasion is on the individual. See Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 (1995). Thus, the individual must establish that granting the 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). Consequently, it is the individual's burden to come forward with information to clearly refute, explain, or mitigate the allegations of derogatory information. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995).
The additional information submitted by the individual does not meet this standard. This information does seem to establish that the individual was cited for a different traffic infraction from the March 24 DUI incident. Therefore, he was not lying in his testimony that there was an additional incident. However, the issue to be resolved is whether this new information confirms the individual's contention that he was, in fact, attempting to report the March 17 incident in the May 12 document. Further, the evidence in this document must also overcome the Hearing Officer's conclusion that the individual omitted significant information from a response to an official inquiry. As I discuss below, I do not believe that this new document makes either showing.
There are two references in the newly-submitted March 17 citation that are not consistent with the assertions of the May 12 document. First, in the May 12 document the individual states that he was arrested for traveling at 72 mph, whereas the March 17 ticket indicates that the individual was traveling at 70 mph. As the Hearing Officer indicated, there is evidence that the May 24 DUI arrest was also in part for traveling at 72 mph. Personnel Security Hearing (Case No. VSO-0049), 25 DOE ¶ 82,785 at 85,744 (1996). Thus, the 72 mph speed mentioned in the May 12 document is consistent with the March 24 incident and not with the March 17 incident.
Secondly, the court appearance date set forth in the March 17 ticket is April 7, 1993. As discussed above, the May 12 document refers to a May 25, 1993 appearance date, and this is the very date on which the individual pled guilty to the March 24 DUI.<7> Due to these two significant inconsistencies, I am not convinced that this new piece of evidence establishes that in the May 12 document, the individual was attempting to report the March 17 incident. I believe that he intended to report the March 24 DUI citation.
In any event, even if the individual did not intend to report the March 24 incident in the May 12 document, he was nevertheless obligated to report that DUI citation to the DOE, as required by his July 1991 security acknowledgment. Exhibit 10. See Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 (1995), aff'd, Personnel Security Review (Case No. VSA-0029), 25 DOE ¶ 83,003 (1995). By signing the security acknowledgment, the holder of access authorization agrees to notify the DOE of all arrests within five working days of the occurrence. The individual's failure to honor that agreement constitutes an omission, falling within the purview of Criterion F. Transcript of XXXXX Hearing (hereinafter Tr.) at 46-47. <8>
Based on the foregoing, I find that the Hearing Officer correctly determined that the individual supplied false and incomplete information to the DOE. I cannot conclude that the additional information supplied by the individual provides any basis for disturbing that determination. Accordingly, I will not reverse his finding with respect to Criterion F.
B. Criterion H: The Individual's Rehabilitation From Alcohol Dependence
As stated above, the OSS has filed a statement indicating that it disagrees with the Hearing Officer's finding that the individual has been rehabilitated from alcohol dependency. Given this individual's long history of alcohol dependence, which was associated with illegal conduct, financial problems and domestic disputes, the OSS believes that the period of abstinence was too short to permit the conclusion that the individual had been rehabilitated. At the time of the hearing, the individual stated that he had abstained from alcohol since entering a rehabilitation program, a period of approximately four months.
After reviewing the Hearing Officer's Opinion in this case, I find the basis for his determination that rehabilitation occurred to be incomplete. In particular, I am not able to discern from this Opinion whether the Hearing Officer gave due consideration to all aspects of the expert testimony in reaching his decision.
Under the Part 710 regulations, the Hearing Officer is directed to make a predictive assessment as to whether restoring 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). See also, Personnel Security Hearing (Case No. VSO-0044), 25 DOE ¶ 82,780 (1995), aff'd, Personnel Security Review (Case No. VSA-0044), 25 DOE ¶ 83,007 (1996). In deciding whether an individual who has been diagnosed with alcohol dependency is rehabilitated, the Hearing Officer must make a predictive assessment as to the likelihood that the individual will maintain his sobriety. In other words, taking into consideration the stage of recovery of the individual before him at the time of the hearing, the Hearing Officer must assess the risk of relapse. Personnel Security Review (Case No. VSA-0029), 25 DOE ¶ 83,003 (1995).
It is not clear from the Opinion in this case that the Hearing Officer made a full assessment on this point. The Hearing Officer cited the following testimony of Dr. XXXXX in making his determination:
Dr. XXXXX testified that the treatment program at XXXX was excellent and that based on the information that the Individual provided at the hearing, he thought the Individual's prognosis was excellent. Dr. XXXXX further stated he had no reason to believe that the Individual had not made a real commitment to a life of sobriety. Further, Dr. XXXXX noted that the Individual was going to AA [Alcoholics' Anonymous] meetings, which Dr. XXXXX deemed to be a crucial component for treatment. With regard to the Individual's judgment and reliability, Dr. XXXXX stated that his recommendation would now be that the Individual be considered reliable and possessing good judgment. Further, Dr. XXXXX stated that there was no reason why the Individual should not be allowed to go back to work, but recommended that the Individual be subject to blood or urine alcohol testing by the Employee Assistance Program. <9>
Personnel Security Hearing (Case No. VSO-0049), 25 DOE ¶ 82,785 at 85,747 (1996).
The Hearing Officer then reached the conclusion that the individual had been rehabilitated, by referring specifically to the following aspects of Dr. XXXXX's testimony:
...Dr. XXXXX has testified that in his opinion the Individual has successfully completed a course of treatment for his alcohol dependency and that the Individual is reliable and that his judgment is good. Further Dr. XXXXX has testified that he sees no problem with returning the Individual to work with appropriate monitoring....After reviewing the testimony and other evidence before me, I find that the Individual has mitigated the security concerns regarding his alcohol dependence.
Neither of these key passages from the Opinion gives consideration to the issues of the period of abstinence and the risk of relapse.
I note from my review of the transcript of the November 1 hearing that the Hearing Officer questioned Dr. XXXXX repeatedly on the issue of what his recommendation was as to the individual's reliability and judgment. Tr. at 68, 69, 70. In each instance, Dr. XXXXX responded that at the time of the hearing he believed that the individual should be considered reliable, and could go back to work. The Hearing Officer appears to have relied heavily on this aspect of the Doctor's testimony. In the passages cited above, the Hearing Officer twice referred to Dr. XXXXX's testimony regarding the individual's judgment and reliability at the time of the hearing.
However, the question of the individual's level of judgment and reliability at the moment of the hearing, while of some relevance, is not the only issue that must be probed. As I pointed out above, a key issue that a Hearing Officer must consider in making a determination as to whether an individual has been rehabilitated from alcoholism for purposes of eligibility for access authorization, is a predictive one. He must evaluate the risk of relapse. Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,610 (1995).
In his Opinion in this case, the Hearing Officer made only one passing reference to the issue of prognosis. He referred to Dr. XXXXX's statement that he thought that the individual's prognosis was excellent. To support this assertion, the Hearing Officer cited Dr. XXXXX's testimony at page 64 of the hearing transcript. 25 DOE at 85,747. However, in other testimony Dr. XXXXX qualified his opinion on the prognosis for this individual. For example, later on, Dr. XXXXX stated the following:
I think that the issue for people who have any substance abuse problem is more determined by time than anything else. And while [the individual] certainly has done what anyone would ask him to do and continue to do that, the test of time is an important factor. You know...that there is a high degree of recidivism in substance abusers, whether it's alcohol or any other drug. And people who relapse, they do that after some period of time has gone by. So I think that's an important issue in determining ultimately the final decision of [the individual]; and I'm just picking a time, remain completely sober for five or six years....I think that a three or four-month period of time is on the short side in terms of making long-term predictions. Tr. at 68-69.
In assessing whether rehabilitation occurred, the Hearing Officer did not weigh in his Opinion this important testimony of Dr. XXXXX as to the time that the individual had abstained from alcohol and the risk of relapse. Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995)(in assessing whether granting access authorization presents an acceptable security risk, the Hearing Officer considers whether there is a high risk of relapse of alcohol dependency). The Hearing Officer did not state, why, in view of Dr. XXXXX's testimony that there is a high risk of recidivism and that a three or four month period of sobriety is short in this case, he had still decided that the individual was rehabilitated. See Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 at 85,598 (reliance of Hearing Officer on predictive value of psychiatrist's testimony). If, for example, he did not find the witness' testimony on these points to be credible, he should have explained why. Or, if he found these aspects of Doctor XXXXX's testimony to be outweighed by other factors, he should have explicitly discussed those factors, and why he believed the balance tilted in the individual's favor.
There is thus significant testimony of Dr. XXXXX regarding the extent of this individual's rehabilitation from alcohol dependence that was not considered by the Hearing Officer in his Opinion. The Hearing Officer should certainly have given explicit consideration to the crucial issues of the potential for relapse and whether a period of abstinence of no more than four months was sufficient to demonstrate rehabilitation in this case. See Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758 (1995), aff'd, Personnel Security Review (Case No. VSA-0018) 25 DOE ¶ 83,006 (1995). In this regard, he should also have balanced the length of time of abstinence from alcohol against the severity of this particular individual's alcohol dependence problem. Personnel Security Hearing (Case No. VSO-0014), 25 DOE ¶ 82,755 (1995), aff'd, Personnel Security Review (Case No. VSA-0014), 25 DOE ¶ 83,002 (1995); Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (1995). I find that it was an error to give no consideration to that testimony and to have omitted from the Opinion any discussion of that testimony.
I must determine what action, if any, is necessary in order to correct the Hearing Officer's failure to give full consideration to the issue of risk of relapse and the length of time of abstinence from alcohol in connection with rehabilitation. Inasmuch as I will not recommend the restoration of the individual's access authorization, based on my conclusion with respect to Criterion F, the issuance of a new determination by the Hearing Officer reflecting his complete deliberations with respect to the rehabilitation issue will have no effect on the ultimate outcome in this case. <10> In fact, preparation of such an Opinion would result in a waste of administrative time and effort. Accordingly, I will let stand the finding with respect to Criterion H.
Nevertheless, I am inclined to agree with the OSS view in this instance. Based on previous cases considering the issue of time of abstinence in connection with rehabilitation from alcohol dependence, I tend to believe that the period of abstinence in this case, which is about four months, is probably too short for rehabilitation to have occurred, given this individual's prolonged history of alcohol-related difficulties. E.g., Personnel Security Hearing, (Case No. VSO-0029) 25 DOE ¶ 72,766 at 85,610 (1995)(for an individual with a twenty-year history of heavy alcohol use, a three and one-half month period of abstinence is considered an early stage in the recovery period, during which there was still a high risk of relapse). I believe that in this case, the potential for relapse is still very high. Absent some special circumstances not cited in the Opinion, I do not see a sufficient basis for the determination that rehabilitation has occurred.
III. Conclusion
As indicated by the foregoing, it is my opinion that the individual's access authorization should not be restored. 10 C.F.R. §710.28(d).
The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).
George B. Breznay
Director
Office of Hearings and Appeals
Date:
* * * * *
[This proceeding was administratively terminated prior to the issuance of a final determination by the Director, Office of Security Affairs, concerning the individual's Department of Energy access authorization.]
<1>/ A level "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 access authorization, security clearance, or "Q" clearance.
<2>/ Section 710.28(b) provides that the party seeking review shall file a statement identifying the issues on which it wishes the Director, Office of Hearings and Appeals, to focus. The individual did not file such a statement. Nevertheless, the Request for Review that he filed adequately identifies the issues that the individual wishes to have reviewed in this proceeding. Accordingly, I will construe the Request as the Statement of Issues.
<3>/ The relevant text of the May 12 Document is as follows: I was pulled over for speeding in early April 1993 by the XXXX. I was cited for (1) Wasting energy (speeding) (72 mph in a 55 mph); (2) Not wearing a seat belt and (3) Not valid Driver's License...I am scheduled to appear in XXXX on May 25, 1993 to take care of the April 1993 citation.
<4>/ However, at the Hearing the individual indicated that he wished to submit additional evidence on this point. He was granted a period of two weeks in which to provide evidence concerning the issue of the additional citation. He did not do so.
<5>/ Technically, this evidence should have been submitted pursuant to the procedures set forth at Section 710.29. In part, that section requires that new evidence be submitted through the OSS. However, we have allowed OSS an opportunity to comment on this new evidence. There is no adverse effect on this proceeding by permitting the individual to submit this evidence directly to the OHA. Thus, no useful purpose is served in this case by requiring strict adherence to that section.
<6>/ In its submission, OSS also maintains that this new evidence does not establish that the finding with respect to Criterion F should be overturned.
<7>/ Charges of speeding, not having a valid driver's license and failure to notify the Division of Motor Vehicles of a change of address were dismissed. Personnel Security Hearing (Case No. VSO-0049), 25 DOE ¶ 82,785 at 85,743 (1996).
<8>/ The Hearing Officer found that the individual's failure to mention the March 24 DUI in the May 12 Document constituted an omission under Criterion F.
<9>/ References to the transcript of the XXXXXXXXXX Hearing have been omitted from this citation.
<10>/ The Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). She also assesses the appropriate weight to be given to their testimony. Personnel Security Hearing (Case No. VSA-0014), 25 DOE ¶ 83,002 at 86,512. As a general rule, I will not supplant my judgment for that of the Hearing Officer in such matters.