Case No. VSA-0106, 26 DOE ¶ 83,009 (OHA May 15, 1997)

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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 XXXXXXX's.

May 15, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: March 4, 1997

Case Number: VSA-0106

This Opinion considers a Request for Review filed by XXXXXXXXXX (hereinafter referred to as "the Individual") concerning the suspension of his access authorization, also referred to as a security clearance. As explained below, I cannot conclude that restoring the Individual's access authorization would be clearly consistent with the national interest.

I. Background

A. Regulatory

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710 ("Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material"). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an "access authorization" or a "security clearance."

B. Procedural

This case concerns the suspension of the Individual's access authorization. In March 1995, the Individual reported to a DOE office (hereinafter referred to as "the DOE Office") that he had been arrested for Driving Under the Influence of Alcohol (DUI). The DOE Office conducted a Personnel Security Interview (PSI) and

requested that the Individual be interviewed by a psychiatrist (the DOE psychiatrist). The PSI and the DOE psychiatrist's report did not resolve the security concerns of the DOE Office, which then suspended the Individual's access authorization and issued a Notification Letter. The Notification Letter stated that the DOE Office possessed derogatory information indicating that the Individual

· has been, or is, "a user of alcohol habitually to excess" or has been diagnosed as "alcohol dependent or as suffering from alcohol abuse." 10 C.F.R. § 710.8(j) (Criterion J).

· has an "illness or mental condition" which "causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h) (Criterion H).

· has engaged in "unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy." 10 C.F.R. § 710.8(l) (Criterion L).

The Notification Letter advised the Individual of his opportunity to request a hearing before a Hearing Officer in the Office of Hearings and Appeals (OHA) in order to resolve the cited security concerns.

The Individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE Office called two witnesses: the DOE psychiatrist and a DOE security specialist. The Individual called four witnesses: (i) a neuropsychologist (hereinafter referred to as "the Individual's neuropsychologist"), (ii) his probation officer, (iii) his shift supervisor, and (iv) himself.

The Hearing Officer issued an Opinion recommending that the Individual's access authorization not be restored. Personnel Security Hearing (VSO-0106), 26 DOE ¶ 82,767 (1997) (Hearing Officer Opinion). The Individual filed the instant Request for Review. The Request included a Statement of the Issues to be reviewed. The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the Hearing Officer, and had no additional information to submit in this proceeding.

II. The Hearing Officer's Opinion

The Hearing Officer noted that the derogatory information related largely to the Individual's past alcohol use. The Hearing Officer further found that the Individual had not met his burden of resolving the security concerns arising from that use.

The Hearing Officer first noted that the facts concerning the Individual's alcohol consumption were largely undisputed. The Individual had 1) a history of alcohol-related problems beginning in adolescence, 2) used alcohol despite negative consequences on his personal life, 3) pled guilty in 1987 and 1995 to DUI charges, 4) consumed alcohol contrary to the terms of his probation following his 1995 DUI guilty plea, 5) made inconsistent statements concerning his alcohol use during his PSI, and 5) only recently admitted that he was an alcoholic.

The Hearing Officer addressed the Individual's contention that he did not consume alcohol on the job or in a manner that adversely affected his reliability and trustworthiness on the job. The Hearing Officer found that while the Individual's job performance was a positive, mitigating factor, it was not sufficient to overcome the security concern that excessive alcohol consumption off the job might cause him to say or do something that would violate security regulations.

The Hearing Officer also addressed the Individual's contention that he was rehabilitated. The Hearing Officer commended the Individual's efforts toward rehabilitation, which included a five- month period of abstinence, participation in Alcoholics Anonymous (AA), and life-style changes. The Hearing Officer found, however, that the five month abstinence and other efforts were not of sufficient duration to warrant a conclusion that the Individual was rehabilitated.

Based on the foregoing, the Hearing Officer concluded that the Individual had not resolved the alcohol-related security concerns arising under Criteria J, H, and L.(1)

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the access authorization of the Individual.

As a general rule, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988), quoting Federal Rule of Civil Procedure 52(a). See also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, as well as the appropriate weight to be given to their testimony and other evidence. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily supplant my judgment for that of a hearing officer in such matters. Id.

B. Statement of Issues

In the Statement of Issues, the Individual challenges three aspects of the Hearing Officer's Opinion. First, the Individual contends that the Hearing Officer did not give sufficient weight to the evidence that the Individual's past alcohol use had not affected his job performance. Second, the Individual contends that his alcohol use did not have two of the four negative effects identified by the Hearing Officer. Third, the Individual contends that the Hearing Officer did not give sufficient weight to certain evidence relating to rehabilitation.

1. Evidence that the Individual's alcohol use did not affect his job performance

The Individual contends that the Hearing Officer did not give sufficient weight to evidence that the Individual's past alcohol use had not affected his job performance. The Individual contends that this evidence mitigates the security concerns under Criteria J, H, and L.

As stated above, the Hearing Officer specifically addressed the Individual's contention that his good job performance mitigated or resolved the DOE's security concerns about his off-the-job alcohol use. The Hearing Officer noted the evidence concerning the Individual's good job performance, but found that it was not sufficient to overcome the security concern arising from his off- the-job alcohol use. The Hearing Officer stated:

Excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that violates security regulations. See Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); Personnel Security Hearing (Case No. VSO-0054), 25 DOE ¶ 82,783 at 85,730 (1995) (citing Cole v. Young, 351 U.S. 536, 550 n.13 (1956)). The fact that this has apparently not occurred in the past is no guarantee that it will not occur in the future.

Hearing Officer Opinion, slip op. at 6, 26 DOE at 85,617 (emphasis added). Thus, the Hearing Officer specifically considered and explained why he found that evidence concerning the Individual's good job performance did not mitigate the security concerns arising from his off-the-job alcohol use.

There is no basis for the Individual's assertion that the Hearing Officer erred in his conclusion that a security concern existed despite evidence that the Individual's off-the-job alcohol use had not affected his work. Off-the-job excessive alcohol use entails an increased security risk. First, there is an increased risk that the Individual will develop on-the-job alcohol-related problems. Second, as the Hearing Officer stated, there is an increased risk that the Individual, off the job, may compromise security by saying or doing something while under the influence of alcohol. Thus, consistent with other security decisions, the Hearing Officer properly found that off-the-job excessive alcohol use raised a security concern.

2. Evidence concerning whether the Individual's alcohol use had negative consequences on his personal life

The Individual challenges two of the four findings cited by the Hearing Officer as support for the conclusion that the Individual's alcohol dependence caused a defect in judgment under Criteria H. As explained below, the Individual has failed to explain how this contention, even if accepted, would alter the conclusion that there is a Criterion H security concern.

The Hearing Officer stated that it was undisputed that the Individual's alcohol dependence had caused a defect in judgment within the meaning of Criteria H. Hearing Officer Opinion, slip op. at 4, 26 DOE at 85,615. The DOE psychiatrist referred to the following as examples of defects in judgment:

(i) the Individual's alcohol-related arrests,

(ii) the Individual's refusal to recognize that his alcohol use contributed to the breakup of his marriage,

(iii) the Individual's view that he could control his alcohol consumption, and

(iv) the Individual's use of alcohol for the wrong reasons.

Id. The Hearing Officer stated that the DOE psychiatrist's diagnosis, and underlying explanation, were corroborated by the Individual's neuropsychologist. Id.

In his Statement of Issues, the Individual does not specifically dispute the diagnosis that he has alcohol dependence which has caused a defect in judgment. Moreover, the Individual does not dispute two of the four matters cited above - his two alcohol- related traffic offenses and his use of alcohol for the wrong reasons. Instead, the Individual merely disputes that the other two matters - his refusal to recognize that alcohol contributed to the breakup in his marriage and his view that he could control his alcohol use - reflect a defect in judgment.

The Individual has not identified any clear error. As just indicated, the Individual does not challenge the conclusion that his alcohol dependence has caused a defect in judgment; his own witness agrees with that view. Because the Individual does not challenge the conclusion that his alcohol dependence caused a defect in judgment, it simply does not matter whether the Individual agrees with every finding cited in support of that conclusion. In any event, there is no basis upon which to conclude that the Hearing Officer erred in the cited findings. With respect to the impact of the Individual's alcohol use on his marriage, the Individual's ex-wife identified alcohol as one of the causes of their marital difficulties, see DOE Office Submission dated November 1, 1996, and even the Individual concedes that his alcohol use contributed to his failure to address his marital problems. Hearing Tr. at 241, 244-45. With respect to the Individual's ability to control his alcohol use, the Individual admits that he could not control his off-the-job use. Id. at 240-41, 252-53. Accordingly, I find no error in the Hearing Officer's findings on these issues.

3. Evidence concerning the Individual's recent recognition of his alcohol problem and efforts toward rehabilitation

The Individual contends that the Hearing Officer failed to give sufficient weight to the fact that the Individual, once he admitted that he had a problem, undertook to abstain from alcohol and participate in alcohol rehabilitation activities. The Individual contends that this evidence strongly supports his claim of rehabilitation.

The Hearing Officer considered various factors in determining that the Individual had not established rehabilitation. Hearing Officer Opinion at 6-8, 26 DOE at 85,617-18. The Hearing Officer recognized the Individual's commendable rehabilitation efforts: (i) a five-month abstinence, (ii) participation in AA, and (iii) life style changes. The Hearing Officer concluded, however, that those efforts had not been sustained for a sufficiently long period of time to warrant a conclusion that the Individual was rehabilitated. The Hearing Officer relied primarily on (i) the undisputed fact that the Individual had been abstinent for only five months, and (ii) the testimony of the DOE psychiatrist and the Individual's neuropsychologist, who both cited one year of abstinence as a benchmark.(2)The Hearing Officer also cited the duration and degree of the Individual's alcohol problems as support for his conclusion that the five-month abstinence period was insufficient to support a finding of rehabilitation in this case.

There is no basis for concluding that the Hearing Officer erred in his finding that the Individual had not shown sufficient rehabilitation. As indicated above, the Hearing Officer found that the Individual had not been in remission for a long enough period to support a finding that he was rehabilitated. The Hearing Officer based his finding on the testimony of two expert witnesses, as well as the duration and degree of the Individual's alcohol- related problems. The Hearing Officer's finding was also consistent with the widely-held view among substance abuse professionals that individuals cannot be considered sufficiently rehabilitated until a one year period of abstinence has occurred. As we stated in another case:

This consensus is reflected in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV), which specifies that the first 12 months following dependence is a time of particularly high risk for relapse. This period is designated as "Early Remission." After 12 months has passed without relapse, the person enters "Sustained Remission."

Personnel Security Review, 26 DOE ¶ 83,006 at 86,544 (1997). See also Personnel Security Hearing (VSO-0079), 25 DOE ¶ 82,803 (1996) (five month abstinence insufficient for rehabilitation); Personnel Security Hearing (Case No. VSO-0031, 25 DOE ¶ 82,770 (1995) (nine month abstinence insufficient for rehabilitation); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (eight month abstinence insufficient for rehabilitation). Accordingly, I see no error in the Hearing Officer's finding.

IV. Conclusion

As is evident from the above discussion, the matters raised by the Statement of Issues indicate that the Individual disagrees with some of the findings made by the Hearing Officer. However, those disagreements do not evidence error by the Hearing Officer. Based on the entire record, I cannot conclude that a grant of access authorization would be clearly consistent with the national interest. 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: May 15, 1997

(1)On the other hand, the Hearing Officer concluded that the Individual had sufficiently mitigated the security concerns identified as non-alcohol related. The Notification Letter had identified depression and other mental disorders under Criterion H as a concern, based on the Individual's interview with the DOE psychiatrist. The Individual's neuropsychologist, who interviewed the Individual one year later and did not find these problems, testified that the earlier diagnosis was attributable to the Individual's problems at that time, specifically his alcohol use, divorce, and the inability to see his children frequently as a result of their relocation with their mother to a geographically distant location. The Hearing Officer found that the depression and other problems identified by the DOE psychiatrist were situational in nature and had been mitigated by the passage of time. Hearing Officer Opinion, slip op. at 10, 26 DOE at 85,620.

(2)The DOE psychiatrist cited one-year or more; the Individual's neuropsychologist cited one year.