Case No. VSA-0113, 26 DOE ¶ 83,010 (OHA June 2, 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.

June 2, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: March 13, 1997

Case Number: VSA-0113

This determination considers a Request for Review filed by XXXXX (hereinafter "the individual") concerning his eligibility to retain a Department of Energy (DOE) 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." The individual's access authorization was suspended at the direction of the local security office under the provisions of Part 710. The individual requested a hearing, and on February 3, 1997, the Hearing Officer assigned by the DOE Office of Hearings and Appeals (OHA) issued an Opinion recommending that the individual's access authorization not be restored. On March 13, 1997, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On March 28, 1997, he filed a Statement of Issues to be reviewed. On April 17, 1997, DOE's Office of Safeguards and Security (OSS) notified OHA that it would not file a response to the Statement of Issues and I closed the administrative record in this case. This Opinion considers the matters raised by the Statement of Issues.

I. Background

The individual is employed at a DOE facility. He has had a series of encounters with law enforcement officials. In February 1990, the individual broke into his ex-wife's house and was charged with criminal trespassing and domestic violence. In October 1990, he was charged with telephone harassment of his ex-wife and her boyfriend. He was convicted of these charges, but certain other, related charges were dropped. This information surfaced during a background reinvestigation and was the subject of a Personnel Security Interview (PSI) on May 12, 1992 [hereinafter 1992 PSI]. In December 1992, the individual hit a parked car near a hospital, was involved in an altercation with a hospital security guard, and was arrested for driving while under the influence of alcohol (DUI). The guard initially charged the individual with assault, but this charge was later dropped. The

individual's employer completed an arrest report the following month, but DOE never received notification of the arrest. On October 6, 1995, the individual was stopped for a traffic violation, and a police officer found marijuana in his pocket. He was consequently arrested and charged with DUI, drug abuse, and other offenses. An altercation ensued, in which the individual damaged a police vehicle. As a result of this incident, he was convicted of DUI, assault, and criminal damaging. The individual was incarcerated for 15 days, spent 30 days under house arrest, received five years probation, and had his drivers license suspended for one year. After reporting the incident to his employer, the individual was suspended from his job for five months without pay, and on his return, placed in a new position that did not require access authorization. He participated in another PSI on December 15, 1995 [hereinafter 1995 PSI]. On June 21, 1996, the individual's access authorization was suspended.

DOE initiated the administrative review proceeding by issuing a Notification Letter to the individual, advising him that the DOE possessed information which created a substantial doubt concerning his eligibility to maintain a security clearance. The Notification Letter charged that: (1) the individual has been or is a user of alcohol habitually to excess within the meaning of 10 C.F.R. § 710.8 (j) (Criterion J), (2) the individual has trafficked in, sold, transferred, possessed, used, or experimented with a drug listed in the schedule of "Controlled Substances" as stated in 10 C.F.R.§ 710.8 (k) (Criterion K), and (3) the individual engaged in unusual conduct and is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress, which may cause him to act contrary to the best interests of the national security as described in 10 C.F.R. §710.8 (l) (Criterion L).

The DOE reached its determination to rely on Criterion J based on the individual's arrest and conviction for DUI on October 6, 1995 and December 14, 1992, and his convictions for domestic violence-related charges in 1990. The Notification Letter also refers to a document from the counseling center that the individual had attended after his arrest which diagnosed (1) the individual as alcohol dependent. As for Criterion K, the DOE reached its determination based on the fact that marijuana was found in the individual's pocket during his 1995 arrest and the individual's statements in the 1995 PSI. The DOE reached its determination on Criterion L based on the individual's signature on a drug certification, the individual's record of drug and alcohol-related offenses, the individual's admission during the 1995 PSI that he had marijuana on his person when stopped by the police, and his arrest on several domestic violence charges while undergoing a divorce in 1990.

At the request of the individual, a hearing was convened. The individual testified in his own behalf and presented three other witnesses: two supervisors and an acquaintance. DOE presented a state trooper as its only witness.

II. Hearing Officer's Opinion

A. Criterion J

The Hearing Officer concluded that under Criterion J the individual has been a user of alcohol habitually to excess. This finding was based on the individual's "history of alcohol consumption as recorded in the 1992 and 1995 PSIs and the two DUI arrests within a period of three years." Personnel Security Hearing (Case No. VSO-0113), 26 DOE ¶ 82,768 (1997) [hereinafter Opinion] at 85,624. Even though the individual denied that he was intoxicated at the time of his October 6, 1995 DUI arrest, there was uncontroverted evidence on the record that he had been drunk while operating a motor vehicle. The arresting officer testified that the individual failed divided attention tests and a breathalyser test. Id.

After considering the record, the Hearing Officer found no mitigation of the security concerns raised by the individual's history of drinking habitually to excess. Opinion at 85,625. The Hearing Officer gave three reasons for his conclusion. First, he found that the individual's failure to follow two major tenets of the Alcoholics Anonymous program (in which he enrolled after his second DUI arrest) undercut his claims of rehabilitation.(2) Second, the Hearing Officer was not persuaded by the individual's assurances that no more incidents would result from his drinking since he had made similar promises in 1992 and subsequently was arrested twice for driving while intoxicated. Finally, the Hearing Officer noted that the individual had not been able to abstain from alcohol despite stating in his 1995 PSI that he would like to do so. Id.

B. Criterion K

At the hearing, the individual testified, and an acquaintance corroborated, that the marijuana found in the individual's pocket during his 1995 arrest did not belong to the individual. The Hearing Officer found the acquaintance to be a credible witness. Opinion at 85,625. Both men testified that the acquaintance left the drugs in the individual's car by mistake when the individual gave him a ride home. Five minutes after the individual found the marijuana and placed it in his pocket, he was stopped by the police for a traffic violation and arrested. Id. The Hearing Officer considered the evidence and found that the testimony was sufficient to "mitigate the security concerns that marijuana possession normally raises." Id. at 85,626. The OSS has not challenged the Hearing Officer's Opinion on the marijuana charge.

C. Criterion L

Under this criterion, the record contains evidence that the individual had engaged in unusual conduct (e.g., breaking into his ex-wife's house, harassing his ex-wife and her boyfriend over the telephone, threatening a police officer, damaging a police car). The local DOE security office alleged, and the Hearing Officer concluded, that the unusual conduct indicated that he was "unreliable and untrustworthy" under Criterion L.(3) The Hearing Officer also concluded that the individual did not mitigate the security concerns raised under this criterion simply by asserting that the lessons he learned from his divorce and his participation in a counseling program have taught him how to maintain self-control. Rather, the Hearing Officer found that even though the domestic violence arrests occurred six years ago, they were "part of a pattern of drinking and admitted threatening behavior over the last seven years." Opinion at 85,627.

The Hearing Officer found a similar pattern to exist in connection with the allegations of physical violence in the domestic violence incidents that took place in 1990 and in the DUI incidents that occurred in 1992 and 1995. Even though the individual noted that the domestic violence arrests occurred six years ago, and claimed not to have physically assaulted his wife, the Hearing Officer found it "more likely than not that some type of violence or threat of violence occurred between the individual and his wife." Opinion at 85,627. Because the individual was charged with assault following DUI arrests in 1992 and 1995, after claiming to have learned a lesson from the domestic violence charges in 1990, the Hearing Officer concluded that the individual "has been clearly unable to control his behavior and therefore shown himself unreliable and untrustworthy." Id. Therefore, he found that the individual failed to mitigate the charges under Criterion L. Id.

Because the individual failed to mitigate the security concerns surrounding violations of Criterion J and Criterion L, the Hearing Officer recommended that the individual's access authorization not be restored. Opinion at 85,628.

III. Statement of Issues

On March 28, 1997, the individual submitted a Statement of Issues on which I will focus my review of this case. He argues that (1) he has not used alcohol habitually to excess, and (2) there is no proof of many allegations of unusual conduct. The individual also claims that testimony presented during the hearing reflects mitigating factors which should favorably resolve DOE's security concerns regarding his eligibility for access authorization. As mitigating factors, he emphasizes the absence of a professional diagnosis of alcoholism, his successful completion of a counseling program, the stress caused by an event "unlikely to occur in the future," i.e., his divorce in 1990, and his good conduct since the 1995 DUI. For the reasons explained below, I have concluded that the evidence presented is insufficient to eliminate the security risks found in this case, and the individual's access authorization should not be restored.

A. The Individual Has Not Used Alcohol Habitually To Excess

The individual contends that he "has not used alcohol habitually to excess and, in any event, has shown adequate evidence of reformation." Statement at 14. In his statement, the individual attempts to minimize the significance of his two DUI arrests by stating that the two incidents were "three years apart and entirely unrelated." Id. He also insists that, contrary to the Opinion, he has not admitted to an alcohol problem but in fact has "lived up to his intentions to use alcohol responsibly." Id. at 18.

While the individual has not been diagnosed as alcohol dependent or as suffering from alcohol abuse, no professional diagnosis is required according to Criterion J if there is relevant derogatory information that the individual has been, or is currently using alcohol habitually to excess. A habit is defined as "a customary practice or pattern," Webster's New Riverside University Dictionary 557 (1988), and I find on the basis of this record that this individual has demonstrated a pattern of drinking to excess in response to his personal problems. See 1992 PSI at 14, 16 (drinking before breaking into ex-wife's house); 1992 PSI at 24 (drinking due to stress of divorce); Tr. at 130 (drinking upon discovering his wife's affair); Tr. at 125 (admitting to excessive drinking due to depression); Tr. at 94-96 (drinking because of depression over break-up with girlfriend). This behavior demonstrates his emotional reliance over an extended time period upon alcohol, a possible sign of alcoholism. See Personnel Security Hearing (Case No. VSO-0043), 25 DOE ¶ 82,777 (1995). Despite the problems resulting from his drinking, the individual continues to consume alcohol, often drinking whiskey twice a month and beer three to four times per month. 1995 PSI at 20-25; Tr. at 175-177. He was arrested and convicted twice for DUI within three years, which is significant notwithstanding the fact that he denies that he was intoxicated. Tr. at 105. Reviewing the record before me, I find a common-sense basis for concluding that the individual has a pattern of drinking alcohol habitually to excess. See, e.g., Personnel Security Hearing (Case No. VSO-0106), 26 DOE ¶ 82,767 (1997); Personnel Security Hearing (Case No. VSO-0120), 26 DOE ¶ 82,772 (1997); Personnel Security Hearing (Case No. VSO-0068), 25 DOE ¶ 82,804 (1996) (multiple DUIs supporting diagnoses of alcohol dependence or habitual use).

I turn now to the issue of mitigation. First, the individual argues that the two DUIs were three years apart, unrelated, and not part of a pattern of excessive alcohol use. I do not agree that the passage of time between the incidents supports his claim that they are "unrelated." Rather, I find that the incidents are related because of their similarity, since both involved irresponsible use of a motor vehicle and episodes of violent conduct that occurred when the individual was intoxicated from drinking too much alcohol. (In addition, even though not included in DOE's allegations under Criterion J, at least one domestic violence episode also occurred after the individual had been drinking. See 1992 PSI at 14-17.) Therefore, I find no mitigation based on the timing of the incidents, and conclude that these incidents confirm this individual's pattern of habitually drinking alcohol to excess.

As evidence of reformation, the individual submits that since the 1995 arrest he has avoided subsequent alcohol-related problems and attended a counseling program (on the advice of his lawyer) that included Alcoholics Anonymous (AA) sessions. Statement at 16; Tr. at 140-143. It is commendable that the individual has had no reported alcohol-related problems since October 1995. However, I am not convinced that this individual has reformed when he testifies that he "limits" his intake to two to four drinks at a time. Tr. at 175-177. In 1992, the individual stated that he would not drive if he had consumed over two or three beers. 1992 PSI at 25. Seven months later, he was arrested on his first DUI charge. The individual testified that the three-month counseling program in which he was enrolled taught him not to use alcohol to solve his problems, and he admitted that alcohol was his "biggest problem." Tr. at 142. However, even though the AA portion of the program recommended abstinence, he continued to drink because he did not consider himself an alcoholic. Tr. at 169-170; 1995 PSI at 29. Thus, I cannot find that this program has reformed the individual. The AA program requires total abstinence. Personnel Security Hearing (Case No. VSO- 0120), 26 DOE ¶ 82,772 (1997); Personnel Security Hearing (Case No. VSO-0043), 25 DOE ¶ 82,777(1995) (explaining importance of abstinence in AA programs). Moreover, despite completion of his attendance at the program, only the imminent threat of losing his job has recently moved the individual to promise to stop drinking. Statement at 18 n.8.

In a previous case, I found adequate evidence of reformation where an individual demonstrated he underwent a substantial period of time, i.e., six years, without drinking to intoxication or being arrested for DUIs. See Personnel Security Review (Case No. VSA-0008), 25 DOE ¶ 83,001 (1995). However, I do not find those factors present in this case. In addition, I cannot, as the individual asks, rely on his "efforts and conduct over the past year and a half" to mitigate any security concerns. Statement at 18. The individual expressed similar assurances in the 1992 PSI, but was subsequently arrested twice in three years for DUI. 1992 PSI at 30. Thus, I seriously question the depth of the individual's commitment to stop drinking and agree with the Hearing Officer that the individual has not presented adequate evidence of reformation.

B. Not All Of The Unusual Conduct Was Proved

The individual submits that there is inadequate proof of nearly all of the unusual conduct alleged in this case. Statement at 18. He also argues that any substantiated unusual conduct has been mitigated by the circumstances under which it occurred, and by his subsequent behavior. Statement at 18. However, as explained below, I find that there is sufficient evidence in the record to support the charges under Criterion L.

Even if two domestic violence charges were dropped in 1990 and the hospital guard dropped the assault charge in 1992, as he contends is true, there is still more than enough uncontroverted derogatory information in this case to raise security concerns about the individual's conduct. The other domestic violence incidents that resulted in convictions tend to show that the individual is not reliable or trustworthy. He agreed to move out of the home that he shared with his wife, but then broke in during her absence to search for proof of an affair. Tr. at 129-130. He was also convicted of harassing his wife on the telephone. Behavior of this type is a serious matter. In previous cases, OHA has found that a domestic violence arrest demonstrates that an individual cannot control his behavior under stressful circumstances, a cause for concern where national security is involved. See Personnel Security Hearing (Case No. VSO-0118), 26 DOE ¶ 82,769 (1997). In addition, both DUI arrests involved violence or physical assault. The individual admitted that he struck the hospital guard immediately prior to his 1992 DUI arrest. The 1995 DUI arrest resulted in a physical assault on two state troopers and a patrol car, and threats on the lives of the officers and their families. Prior decisions concluded that a DUI demonstrates a security concern under Criterion L due to reckless behavior and a serious lack of judgment. See Personnel Security Hearing (Case No. VSO-0118), 26 DOE ¶ 82,769 (1997); Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,541 (1996). I agree with the Hearing Officer that these incidents show that the individual is at risk of being unable to control his behavior. This lack of control shows the individual to be unreliable and untrustworthy. Opinion at 85,627. Therefore, I conclude that these incidents constitute "unusual conduct" within the meaning of Criterion L.

The individual has not presented any convincing evidence of mitigation. He argues that (1) the domestic violence incidents occurred six years ago, (2) he terminated a serious romantic relationship peacefully in 1995, and (3) the alcohol counseling program has changed his behavior since there have been no unusual incidents since 1995. The argument that based on these factors he no longer presents a security risk must be rejected. First, there have been two violent incidents (the DUIs) since the domestic turmoil in 1990. Second, even though the 1995 break-up with the individual's girlfriend may have been peaceful, the 1995 DUI arrest followed a bout of excessive drinking which the individual attributes to his unhappiness over the end of the relationship. Tr. at 94. Finally, I am not sufficiently persuaded by the individual's assurances of reformation. See Section III A, supra. He assured DOE in 1992 that he learned a lesson from his 1990 domestic violence arrests, yet two DUI arrests later serious security concerns raised by his unusual conduct are before the Department again. Considering the likelihood of recurrence, in light of his history of arrests for drinking and violence, I conclude that the risk that this individual will be unable to control his behavior in the future is unacceptably high. Taking into account the frequency and recency of his conduct, the absence of rehabilitation, and the likelihood of continuation or recurrence, I agree with the Hearing Officer that the individual has failed to demonstrate circumstances that would satisfactorily mitigate the charges under Criterion L.

IV. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the testimony presented at the 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). I conclude that the Hearing Officer properly found that security concerns existed with respect to Criteria J and L. Moreover, I find that there is insufficient evidence of mitigating factors to restore the individual's clearance. For the reasons explained above, I find that the individual has not furnished evidence that restoration of his clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27 (a). Accordingly, it is my opinion that access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 2, 1997

(1)The DOE does not allege that this report meets the alternative standard in § 710.8(j) that an individual be diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as "alcohol dependent or suffering from alcohol abuse."

(2)The two tenets are: (1) to admit to a drinking problem, and (2) to abstain from drinking.

(3)The Notification Letter also stated that the individual was arrested for possession of marijuana despite having signed a drug certification. As explained above, the Hearing Officer found that the individual had mitigated the security concerns surrounding the possession of marijuana, and I find no error in that conclusion. Opinion at 85,626.