Case No. VSA-0120 26 DOE ¶ 83,015 (OHA July 25, 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.

July 25, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: April 28, 1997

Case Number: VSA-0120

This Opinion determination considers a Request for Review filed by XXXXX (hereinafter referred to as "the individual") concerning his eligibility to retain an access authorization. The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1)

I. Background

This case concerns the suspension of the individual’s access authorization. In December 1995, the individual reported to a DOE Office (hereinafter “the DOE Office”) that in July 1995 he was arrested for driving under the influence of alcohol (DUI). The DOE Office conducted a Personal Security Interview (PSI) and requested that the individual be interviewed by a psychiatrist (DOE Psychiatrist or 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. (2)The Notification Letter stated that the DOE Office possessed derogatory information indicated that the individual:

· has been or is, “a user of alcohol habitually to excess” and has been diagnosed by a licensed physician as having alcohol abuse, which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J).

· has an “illness or mental condition” which in the opinion of a licensed physician causes or may cause a significant defect in judgment or reliability....” 10 C.F.R. § 710.8(h) (Criterion H).

The Notification Letter advised the individual of his right to request a hearing before a Hearing Officer in the DOE’s 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 as witnesses the individual, the Psychiatrist, the Security Specialist who had conducted a January 1996 PSI with the individual, and the office manager of an alcohol and drug treatment center. The individual called five witnesses: a personnel manager for the individual’s former employer, a production superintendent, and three former co- workers, including one who has also been the individual’s foreman.

Based upon the testimony at the hearing and other record evidence, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (VSO-0120), 26 DOE ¶ 82,772 (1997). The individual filed a Request for Review, and then a Statement of the Issues to be reviewed (hereinafter “the Statement” or “the Statement of Issues”). 10 C.F.R. § 710.28(a),(b). 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. (3)

II. The Hearing Officer’s Opinion

The Hearing Officer first found that there was considerable evidence that the individual has been a user of alcohol habitually to excess. He noted that the individual had a long history of alcohol use going back to his senior year in high school. Further, the Hearing Officer found that the individual had been arrested on four occasions for DUI. The Hearing Officer also noted the Psychiatrist’s conclusion that the individual was a habitual user of alcohol to excess and suffering from alcohol abuse under the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition (DSM-IV). He further pointed out that according to the Psychiatrist, the individual had a mental condition that was very likely to significantly impair the individual’s judgment and reliability. The Psychiatrist found that the individual has a mixed type personality disorder, based upon narcissistic and obsessive compulsive personality feature and histrionic personality. He believed that these traits are detrimental to the individual when he uses alcohol. (4)

To dispute the Psychiatrist’s diagnoses, the individual offered a letter from his personal physician, which found none of the mental diseases described above. However, as the Hearing Officer pointed out, the individual had not informed his physician about his history of alcohol consumption and the DUI arrests. The Hearing Officer found the testimony and the report of the Psychiatrist entitled to more weight than the letter of the physician, who was not a psychiatrist. Accordingly, the Hearing Officer found that the DOE’s allegations of derogatory information under Criteria H and J were established, and that the individual’s consumption of alcohol, which according to the Psychiatrist is exacerbated by the individual’s mental condition, raised legitimate security concerns.

The Hearing Officer next considered the individual’s contention that there are mitigating factors that alleviate the agency’s security concerns. The Hearing Officer first 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 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. He also found that a future DUI might put the individual in a situation in which he would be subject to pressure, coercion or exploitation. 10 C.F.R. §710.7(c).

The Hearing Officer also found that the individual had not sustained his burden of showing that he was rehabilitated. In this regard, he cited the relatively short period in which the individual stated that he had been abstinent (approximately four to six months), and the testimony of the Psychiatrist about the unlikelihood of rehabilitation within that short period.

The Hearing Officer also considered other evidence in reaching his determination that the individual had not shown rehabilitation. In this regard the Hearing Officer found that although the individual had participated in Alcoholics Anonymous (AA) programs, he did not have an AA sponsor, would not fully follow the AA program, had not fully accepted that he is alcoholic, and would not reveal the date on which he last had alcohol. Based on the foregoing, the Hearing Officer concluded that the individual had not resolved the alcohol- related security concerns arising under Criteria J and H.

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, the hearing officer, who was present for the testimony of the witnesses, is in the best position to assess their demeanor and credibility, as well as to determine the appropriate weight to be given to their testimony.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

The Statement of Issues challenges the conclusion of the Hearing Officer that the individual did not show rehabilitation. The Statement points out that the DOE Psychiatrist testified that an abstinence period of one year would be a necessary component of this individual’s rehabilitation. Although the Hearing Officer found that there had only been a four to six-month abstinence period, the Statement of Issues asserts that the individual had in fact abstained from alcohol use for a period of one year.

The Statement of Issues encloses a document, which it alleges supports this claim. The document is entitled as “Petition to Reduce Probation,” and is dated March 25, 1997. It is signed by a Magistrate Probation Officer (MPO), who states that she has supervised the individual for 16 months during a period of supervised probation for driving under the influence of alcohol and/or drugs. The MPO further states that the individual “has verified twice weekly attendance at Alcoholics Anonymous meetings and has remained abstinent from alcohol and all illegal drugs.” The Statement of Issues contends that this document demonstrates the individual’s abstinence from alcohol for a one year period.

This document is new evidence within the purview of 10 C.F.R. § 710.29. (5)This evidence might provide additional support for the individual’s overall claims that, as of the time of the hearing, he had been abstinent for a sufficient period to satisfy this component of a complete rehabilitation program.

After scrutinizing the document, I find that it does not satisfactorily demonstrate a period of abstinence for the individual. The MPO’s statement that the individual “has remained abstinent from alcohol...” does not provide convincing evidence on this issue. She does not provide any basis for the conclusion that the individual has in fact remained abstinent from alcohol. Thus, the statement by the MPO is, in and of itself, rather weak evidence. Without knowing more about the occasions on which the MPO observed the individual, their frequency, their duration, and the relevant time span, I find the MPO’s statement to be insufficient. It does not persuade me that I should overturn the Hearing Officer’s conclusion that the individual is not sufficiently rehabilitated.

There is a further concern regarding the assertion of abstinence by the MPO. The MPO’s statement does not provide a specific date when the abstinence began. If I use the 16 month supervised period covered by the Petition to Reduce Probation, I would conclude that the individual has been abstinent since November 1995. However, at the hearing, the individual testified that he had last used alcohol in the summer of 1996, although he would not be specific on this point. Transcript of Hearing at 103. Thus, the additional evidence provides a wholly inconsistent abstinence date. I am therefore unwilling to accord the new document any weight on this point.

Moreover, as the Hearing Officer pointed out, the individual refused to be forthcoming about the date of his last drink, stating that it was “personal.” As the Hearing Officer noted, the individual’s unwillingness to be completely forthright about the length of his abstinence, raises a serious question as to whether he has in fact been completely sober, as he asserts.Personnel Security Review (VSO-0120), 26 DOE ¶ 82,772 at 85,656 (1996). In addition to that lack of cooperation, the individual has now presented information that differs from his own evasive testimony on the issue of abstinence. I find that his assertion of abstinence has been weakened, rather than strengthened by this new evidence. In fact, I am not convinced that any sobriety date has been reasonably established in this case.

There is a further implication in the Statement of Issues to the effect that if the time that has elapsed following the hearing through the filing of the Statement of Issues is included in the abstinence period, then the individual has indeed abstained from alcohol use for a period of one year, even if the sobriety date of “summer of 1996" is used as the reference point. This claim ,too, is unconvincing. The Statement of Issues in this case was filed with the OHA on June 23, 1997. The “summer of 1996" covers the three-month time span from June 22 through September 22, 1996. Given the uncertainty of the individual’s sobriety date, I cannot say with confidence when a year has passed since the individual last used alcohol.

In this case, it is not appropriate to consider the time that elapsed during the pendency of review of the Hearing Officer’s Opinion as an extended opportunity for the individual to achieve rehabilitation, and thereby obtain reversal of the Hearing Officer’s decision recommending denial of his security clearance. See Personnel Security Review (VSA-0014), 25 DOE ¶ 83,002 (1995). I cannot find that the individual has shown additional evidence of abstinence, such that a reversal of the Hearing Officer’s Opinion on this point is warranted.

The Statement also challenges the Hearing Officer’s conclusion that the individual has not fully accepted the AA Program in which he has participated. The Hearing Officer found it significant that, although the individual attended AA activities, he had failed to have an AA sponsor.

The Statement of Issues asserts that the individual now has an AA sponsor. This sponsor is one of the witnesses who testified for the individual at the hearing, and stated that he would be willing to sponsor the individual, but that the individual had not requested that he do so. Transcript of Hearing at 216, 218-19.

I see no flaw in the Hearing Officer’s reasoning on this point. As an initial matter, there is no corroboration whatsoever that the individual has a sponsor, as asserted. Further, I do not agree that this step of requesting a sponsor, even if it is true, alone establishes that the individual is rehabilitated, or even that he is now fully committed to AA. Having a sponsor is certainly one step towards establishing a commitment to the AA program. However, in and of itself, it does not demonstrate that the individual has accepted AA principles, is sincerely using the sponsor as a resource, and is following the “Twelve Steps,” which AA describes as the “heart of the program.” Hearing Officer’s Opinion (VSO- 0120), 26 DOE at 85,656. Thus, I will not accord any significant weight to the fact that the individual has asserted that he now has a sponsor.

In making this determination, I have taken into consideration the contention in the Statement of Issues that the sponsor can verify the individual’s commitment to the AA program. I do not believe that it would be practicable to attempt to probe this unsupported assertion any further. At this stage of the administrative review process, without reconvening the hearing, there is no realistic means to evaluate the sponsor’s views and his demeanor through his live testimony, or verify and test the sponsor’s opinions by cross examination. I certainly do not believe that reopening the hearing in this case is justified. Thus, I see no feasible method to achieve the verification that the Statement suggests is available. I therefore see no basis for any reversal of the Hearing Officer’s Opinion based on the possibility that the individual’s sponsor can verify his commitment to AA.

Finally, the Statement claims that the Petition to Reduce Probation supports the assertion that the individual is committed to AA. I see no such support in that document. The MPO does not indicate whether the individual is committed to the AA program, but only that he attended AA meetings twice a week for a period of 16 months. As I indicated above, the Hearing Officer did consider that the individual attended AA meetings. Personnel Security Hearing (VSO-0120), 26 DOE at 85,655. However, the Hearing Officer found that the individual had not shown that he was committed to the AA Program. Id. at 85,656. The reasons he found that there was a lack of commitment are discussed above. I therefore fail to see that the new document establishes any error in the Hearing Officer’s conclusions with respect to the individual’s participation in AA.

In sum, the new evidence submitted by the individual and the arguments raised in the Statement of Issues do not establish that there was any error on the part of the Hearing Officer in this case. I therefore cannot find that restoring this individual’s access authorization would not endanger the common defense and security and will be clearly consistent with the national interest.

IV. 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: July 25, 1997

(1)”1/ An “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 or security clearance.

(2)The individual’s employer terminated his employment on the same day that his security clearance was suspended.

(3)The Office of Safeguards and Security did provide a comment with respect to a piece of new evidence submitted by the individual. The comment will be implicitly considered in the context of my discussion of whether the individual has established that he has abstained from alcohol for one year. See also Note 5 infra.

(4)The Hearing Officer noted that although the Notification Letter cited two criteria raising security concerns, Criteria J and H, the derogatory information in this case concerns only one type of conduct: the individual’s consumption of alcohol. In this regard, the Psychiatrist had diagnosed the individual as having a mixed type personality disorder comprised of narcissistic, obsessive, compulsive, and histrionic personality traits. According to the Psychiatrist, when these traits mix with excessive alcohol use, the individual’s judgment and reliability are very likely to be significantly impaired.

(5)This document was submitted directly to the OHA, as well as to the Director of the DOE Office of Safeguards and Security. This is not the proper procedure for submission of new evidence under § 710.29. Under that Section, new evidence is to be presented to the OHA through the Office of Safeguards and Security. However, that Office has been afforded an opportunity to respond, and I see no harm in considering this piece of evidence, even though the submission procedures set out in the applicable regulation were not followed.