Case No. VSA-0130, 26 DOE ¶ 83,017 (OHA September 16, 1997)

Case No. VSA-0130, 26 DOE ¶ 83,017 (OHA September 16, 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.

September 16, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:July 9, 1997

Case Number: VSA-0130

This determination considers a Request for Review filed by the Office of Safeguards and Security (hereinafter "the OSS") concerning the eligibility of XXXXXXXX (“the individual”) 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 June 2, 1997, the Hearing Officer assigned by the DOE Office of Hearings and Appeals (OHA) issued an Opinion recommending that the individual's access authorization be restored. Personnel Security Hearing, VSO-0130, 26 DOE ¶ 82,779 (OHA 1997). On July 9, 1997, the OSS filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. OSS incorporated a Statement of Issues into its Request for Review. This Opinion considers the matters raised by the Statement of Issues.

I. Background

The individual is an employee of a Department of Energy (DOE) who is required to maintain a security clearance. Upon learning from the individual that he had been arrested for driving while intoxicated, the Personnel Security Division of the local DOE office (DOE Security) conducted two Personnel Security Interviews (PSIs) with the individual. Following these interviews and the individual’s interview with a DOE consultant psychiatrist, DOE Security determined that information existed that was substantially derogatory to the individual and created questions regarding the individual’s continued eligibility for access authorization. Accordingly, the individual’s access authorization was suspended and an administrative review proceeding was initiated.

In December 1996, the DOE issued a letter notifying the individual that information in the possession of the DOE created a substantial doubt concerning his continued eligibility for an access authorization (hereinafter referred to as “the Notification Letter”). In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information possessed by the DOE indicating that the individual was “a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

In a December 1996 letter, the individual requested a hearing on this matter. This request was forwarded to the Office of Hearings and Appeals (OHA) and the Director of the OHA appointed a Hearing Officer. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference and a hearing were conducted within the time deadlines promulgated in the regulations.

II. Hearing Officer's Opinion

After carefully considering all of the evidence before him in the record, the Hearing Officer found that the individual was properly diagnosed as suffering from “alcohol abuse” as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders - IV (DSM-IV) at 196-197. (1) However, the Hearing Officer ultimately concluded that the individual had sufficiently mitigated and alleviated the DOE’s concerns regarding his alcohol abuse and therefore recommended that the individual’s access authorization be restored.

The Hearing Officer’s finding that the security concerns were sufficiently mitigated was based upon a number of factors. First, the Hearing Officer noted the individual had established an extensive treatment program which included regular counseling sessions with an Employee Assistance Program (EAP) counselor and weekly attendance at Alcohol Anonymous (AA) meetings. The most important component of the individual’s treatment program was his total abstinence from the use of alcohol since October 1996. Second, the Hearing Officer was impressed by the particularly strong recommendations of the individual’s EAP counselor, and supervisors. Third, the Hearing Officer cited the individual’s testimony which convinced him of the individual’s strong commitment to achieving and maintaining his sobriety.

Most importantly, the Hearing Officer was persuaded by the testimony of the DOE psychiatrist. Much of the DOE psychiatrist’s testimony supported the individual’s contention that he was rehabilitated. For example, the DOE psychiatrist testified that the individual was doing very well in his treatment program. Tr. at 129. The DOE psychiatrist attributed this success to the individual’s high levels of commitment and insight. Tr. at 119, 132, and 133. Moreover, the DOE psychiatrist specifically found that the individual’s judgment and reliability had remained intact. Tr. at 117-18 and 136. Of particular significance was the DOE psychiatrist’s testimony that he believed it was not likely that the individual would ever use alcohol again. Tr. at 140.

After considering all of the information in the record before him, the Hearing Officer concluded that despite the fact that the individual had only completed half of the recommended treatment program, he was sufficiently reformed or rehabilitated from his alcohol abuse to maintain a DOE access authorization. Accordingly, he found that the security concerns raised under Criterion J had been mitigated and therefore recommended that the individual’s access authorization be restored.

III. Statement of Issues

On July 9, 1997, the OSS submitted a consolidated Request for Review and Statement of Issues pursuant to 10 C.F.R. § 710.28(a) and (b). In this submission, OSS contends that the derogatory information set forth in the notification letter has not been sufficiently resolved to warrant restoration of the individual’s access authorization. Specifically, the OSS contends that since the DOE psychiatrist recommended that the individual undergo a course of treatment that included a minimum of 12 months of counseling and abstinence from the consumption of alcohol, and only 6 months had passed at the time of the hearing, the individual has not shown that the doubts raised by his alcohol abuse have been sufficiently resolved.

An adjudication of an individual’s suitability to maintain a DOE access authorization is in essence a “predictive assessment.” Personnel Security Hearing, VSO-0011, 25 DOE ¶ 82,751 at 85,504 (OHA 1995); affirmed 25 DOE ¶ 83,014 (OHA 1995); proceeding terminated (OSA 1995). Although it is impossible to predict with certainty an individual’s future behavior, it is incumbent upon the individual to show that the maintenance of an access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Id. In evaluating the potential risk posed by the possibility of relapse, both the likelihood of relapse and the potential consequences of a relapse must be considered. Personnel Security Hearing, VSO-0150 (OHA August 7, 1997); appeal pending.

The DOE psychiatrist’s September 30, 1996, Report of Examination had contained his recommendation that the individual undergo a treatment program consisting of at least 12 months of professional counseling and abstinence from alcohol. When asked on two occasions at the hearing if he still believed that the individual needed to complete the full 12 months of counseling, he unambiguously reiterated this opinion. Tr. at 130 and 135. However, some confusion has understandably arisen. At the hearing, the DOE psychiatrist’s testimony did not adequately explain why he believed that six months of counseling and abstinence was inadequate. The only explanation provided directly on this issue was the following exchange between the DOE Counsel and the DOE psychiatrist:

Q [by DOE COUNSEL]: Are you aware of any studies or statistics that indicate the failure rate is less after a year of somebody going through sobriety -- in other words, falling off the wagon?

A [by DOE PSYCHIATRIST]: You know, I’ll have to be honest with you. I don’t know what the exact statistics are. I do know that when people go through a process like [the individual] is starting that they are going to have a better chance of staying out of difficulty. I can’t give you numbers, I mean --

Q: But --

A: -- I can tell you that --

Q: Your degree -- would your degree of confidence be much greater if he would have demonstrated he’s done this for a year as opposed to six months?

A: Yes.

Q: I’ve also heard testimony to the effect that one element of the year is that you go through complete cycles of Christmas, New Years, 4th of July, a lot of things happen in a year, which is a better indicator. Can you espouse to that?

A: I think that generally speaking, I would agree with that.

Q: Because there are certain times of the year that you -- some people, drink more, say the 4th of July.

A: Right.

Tr. at 132-33. Accordingly, the psychiatrist testified that one year of sobriety provided a greater confidence level than six months. He also testified that “there is no magic to the one year” and indicated his belief that it was not likely that the individual would resume drinking. Tr. at 130-131. I find it most significant, however, that the DOE psychiatrist testified that he would have “much greater” confidence that the individual would remain abstinent if he were to complete the first phase of the recommended treatment program. Tr. at 133. Since the individual had only completed half of the prescribed one year of abstinence, it can thus be inferred that a significant possibility of relapse existed at the time of the hearing. In my view, the Hearing Officer’s opinion fails to take this critical element of uncertainty about the eventual outcome of the individual’s alcohol rehabilitation into account.

Turning to the consequences of relapse, it should be noted that the DOE psychiatrist has testified that the individual was a “symptomatic” drinker, i.e. the individual could not be expected to return to the social use of alcohol without serious consequences. Tr. at 112-13 and 140. This is a particularly serious type of problem. Many DOE opinions have noted the security risks associated with alcohol abuse. See, e.g., Personnel Security Hearing, VSO-0106, 26 DOE ¶ 82,767 (OHA 1997), and cases cited therein. Therefore, if the individual were to consume alcohol again, he would constitute an unacceptable risk to the national security. I disagree with the Hearing Officer’s ultimate conclusion to recommend restoration because there is substantial evidence that the security concern posed by the individual’s drinking problem was still not resolved to a satisfactory risk level at the time of the hearing.

While there is nothing magic about one year of abstinence from alcohol, I agree with the view expressed by the OSS in its Request for Review that six months of abstinence is clearly not enough to mitigate the security concerns in this case. This is consistent with the weight of opinion expressed in many cases by expert professionals in the field of substance abuse treatment. See, e.g., Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758 (OHA May 22, 1995), affirmed, 25 DOE ¶ 83,006 (OHA Aug. 30, 1995), affirmed, (OSA Sept. 21, 1995). In that case, the OHA hearing officer’s opinion was based, in part, upon a psychiatrist’s testimony. That psychiatrist testified that research had shown that the probability of successful rehabilitation increased from 25 percent to 40 percent when the subjects had completed a year of appropriate treatment and abstinence from alcohol.

I find that the Hearing Officer’s opinion placed too much emphasis on the excellent potential for this individual’s rehabilitation and did not give appropriate weight to the countervailing testimony of the DOE psychiatrist regarding the existence of a significant possibility at the time of the hearing for a relapse and its attendant consequences. Since there remains a significant possibility that the individual will once again engage in behavior that would pose an unacceptable risk to the national security, it is my conclusion that restoration of the individual’s access authorization is not warranted.

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 Criterion J. However, I find that there is insufficient evidence of rehabilitation or reformation or other relevant mitigating factors to restore the individual's clearance at this time. 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 the individual’s access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

Date:September 16, 1997

(1) As an initial matter, the Hearing Officer resolved in the individual’s favor security concerns regarding the DOE’s allegations that the individual presented conflicting accounts of whether he had ever had a “blackout.” OSS apparently accepted the Hearing Officer’s resolution of this issue, and it has not requested review of this aspect of the Hearing Officer’s opinion.