Case No. VSA-0154, 27 DOE ¶ 83,008 (OHA January 6, 1998)

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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.

January 6, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: October 23, 1997

Case Number: VSA-0154

This determination considers a Request for Review filed by XXXXXXXXX (“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 September 22, 1997, the Hearing Officer assigned by the DOE Office of Hearings and Appeals (OHA) issued an Opinion recommending that the individual’s access authorization should not be restored. Personnel Security Hearing (Case No. VSO- 0154), 26 DOE ¶ 82,794 (1997). On October 23, 1997, counsel for the individual filed a Request for Review of the Hearing Officer’s Opinion pursuant to 10 C.F.R. § 710.28. Counsel for the individual filed a Statement of Issues on November 3, 1997. The Office of Safeguards and Security (OSS) filed a response concurring with the recommendation of the Hearing Officer and I closed the record in this proceeding on November 25, 1997. This Opinion considers the matters raised by the Statement of Issues.

I. Background

The individual is an employee of a DOE subcontractor. In October 1996, the individual was arrested for Driving While Intoxicated (DWI). In November 1996, his drivers license was suspended for one year. During a November 1996 Personnel Security Interview (PSI), the individual gave an account of a history of heavy drinking, marked by family problems and an earlier DWI arrest in 1994. A DOE psychiatrist evaluated the individual in January 1997 and diagnosed him as suffering from alcohol abuse. In March 1997, the DOE suspended the individual’s access authorization and initiated the current administrative review proceeding through the issuance of a Notification Letter to the individual. The Notification Letter alleged that the individual “has been, or is 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,” which is derogatory information under 10 C.F.R. § 710.8 (j) (Criterion J).

The Notification Letter made numerous allegations with respect to Criterion J, including periods of heavy drinking in the spring of 1994 after his divorce earlier that year, complaints by his ex-wife and girlfriend about his drinking, and the two DWI arrests. The Notification Letter explained that the individual’s conduct with respect to alcohol caused the DOE to have substantial doubts about his continued eligibility for access authorization. The Notification Letter also summarized the findings of the DOE consultant-psychiatrist who evaluated the individual in January 1997 and concluded that the individual suffered from the disorder of alcohol abuse. However, during the evaluation, the individual denied that he was an alcoholic and indicated his desire to continue drinking in moderation.

In his Response, the individual requested a hearing to respond to the concerns raised in the Notification Letter. He admitted to a “drinking problem” and generally admitted the accuracy of the information in the Notification Letter. The hearing convened on this matter focused on the issue of whether the individual’s participation in a rehabilitation program was sufficient to mitigate the DOE’s concerns regarding past alcohol-related activity and a current diagnosis of alcohol abuse. At the hearing, the individual presented five witnesses, including himself, and the DOE presented three.

Based on the record, the Hearing Officer concluded that the Individual had not resolved the alcohol- related security concerns under Criterion J and subsequently issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (Case No. VSO- 0154), 26 DOE ¶ 82,794 (1997).

II. Hearing Officer's Opinion

In his Opinion, the Hearing Officer addressed the issue of whether there was sufficient mitigating evidence to allay the serious security concerns raised by the individual’s alcohol abuse. The Hearing Officer considered the following mitigating factors presented by the individual: (1) the individual's allegation that he was rehabilitated from alcohol abuse, (2) the individual's stated intention not to resume drinking, (3) his participation in Alcoholics Anonymous (AA) and in a substance abuse Employee Assistance Program (EAP) counseling program that monitored his behavior with respect to drinking, and (4) his exemplary job performance.

In considering these factors, the Hearing Officer placed great weight on the testimony of the DOE psychiatrist and the EAP counselor, a licensed clinical mental health counselor. The DOE psychiatrist testified that the individual required at least one full year participation in a structured treatment program in order to be properly rehabilitated. The EAP counselor recommended a two-year program of treatment in order to adequately show rehabilitation. In his Opinion, the Hearing Officer commended the individual’s “sincere” efforts toward rehabilitation, including six months of abstinence, participation in AA with an AA sponsor, and regular counseling sessions with the EAP counselor. However, the Hearing Officer was persuaded by the testimony of both substance abuse professionals who stressed that the individual, who had a history of relapse after a prior period of eighteen months of sobriety, was not yet rehabilitated. After weighing this testimony and the other evidence in the record, the Hearing Officer concluded that there was insufficient mitigating evidence to warrant the restoration of the individual’s security clearance.

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all 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 individual’s access authorization.

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. Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 (1997); Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 at 86,504-05 (1996); 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 substitute my judgment for that of a Hearing Officer in such matters.

B. Statement of Issues

The individual presents two arguments in his Statement of Issues. First, he argues that the Hearing Officer improperly based his opinion on an alleged per se rule that denies restoration of a security clearance to an individual diagnosed as an alcohol abuser who has not completed twelve months of treatment and abstinence. Statement of Issues at 2-3. Second, the individual submits that the Hearing Officer did not give sufficient weight to the mitigating factors presented at the hearing. Statement of Issues at 4-5.

1. The So-Called “Twelve Month Per Se Rule”

The individual contends that the Hearing Officer improperly applied a per se rule requiring a minimum of one year of treatment and abstention as the standard for demonstrating adequate evidence of reformation and rehabilitation under Criterion J after a diagnosis of alcohol abuse. According to the individual, the diagnosis of alcohol abuse “merely create[d] a question” as to the individual’s continued access authorization, and the regulations direct the hearing officer to consider all factors listed in 10 C.F.R. § 710.7(c) prior to making a determination as to restoration. Statement of Issues at 3. In conclusion, the individual submits that the absence of a regulatory requirement of one year of treatment and abstention to mitigate a diagnosis of alcohol abuse clearly demonstrates that the DOE did not intend to hold individuals so diagnosed to such a strict standard. Statement of Issues at 3.

In previous cases, OHA has noted the “widely-held view among substance abuse professionals that individuals cannot be considered sufficiently rehabilitated until a one year period of abstinence has occurred.” Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 at 86,562 (1997) (five month abstinence insufficient for rehabilitation). See also Personnel Security Hearing (Case No. 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). In this case, the EAP counselor testified at the hearing that two years of sobriety and treatment would be required to demonstrate rehabilitation. Opinion at 85,812; Transcript [hereinafter Tr.] at 96-97. The DOE psychiatrist evaluated the individual in January 1997, recommended a one to two year structured treatment program in a follow-up report in February 1997, and testified at the hearing that in the case of this individual a full year of sobriety was essential to demonstrating rehabilitation and reformation. Opinion at 85,812; Tr. at 65. The DOE psychiatrist testified that his position on rehabilitation went “by the book in requiring a year or more, ” i.e., followed the guidance provided by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV). Tr. at 61. He testified that according to the DSM-IV, “in alcohol abuse or alcohol dependency, the determination of whether the person is in the early stage or the sustained stage of remission from active drinking is defined as one year.” Id. The Hearing Officer indicated that “[i]n making a determination on [rehabilitation], I place great weight on the testimony of the DOE psychiatrist, a medical expert in this area who evaluated the individual and observed his testimony at the hearing.” Opinion at 85,810. Therefore, I conclude that, in keeping with regulatory requirements and OHA precedent, the Hearing Officer made a common-sense judgment based on credible and persuasive expert testimony that the individual was not yet rehabilitated. See 10 C.F.R. § 710.7(a).

After a careful review of the record in this case, I find that the Hearing Officer did not deny restoration of the individual’s clearance based on a per se rule requiring one year of treatment and abstinence in alcohol abuse cases. Rather, the one year period reflects the medical and substance abuse treatment community’s documented observation of the period that marks the difference between early and sustained remission from active drinking. Tr. at 61-63. See also Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 at 86,562 (1997); Personnel Security Hearing (Case No. VSO-018), 25 DOE ¶ 82,758 (1995). Therefore, I find that the Hearing Officer made an appropriate predictive assessment of the individual’s risk of relapse based on the testimony of two substance abuse professionals. See Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996) (stating that Hearing Officer must evaluate the risk of relapse).

2. The Mitigating Factors

The individual submits that the Hearing Officer did not evaluate and weigh the following four mitigating factors in deciding the weight to be given the psychiatrist's opinion. First, the individual stresses that the diagnosis of alcohol abuse is much less serious than alcohol dependence and that there was a 66% chance of not having a relapse at the time of the hearing. Second, the DOE psychiatrist had recommended the individual for EAPRO in January 1997 and testified at the hearing that the individual was a stronger candidate for the program after staying sober for six months. Third, the individual has enthusiastically participated in a structured treatment program, similar to EAPRO and supervised by the EAP counselor. Finally, the individual emphasizes the importance that the psychiatrist and the EAP counselor gave to the individual’s strong support system.

In spite of the favorable evidence in the record relating to the mitigating factors, I find no error in the Hearing Officer's opinion. A diagnosis of alcohol abuse, although not necessarily as grave as alcohol dependence, is nonetheless derogatory information of the type that creates a serious security concern. According to the testimony of a DOE security specialist, “the DOE is concerned with an individual who may have an alcohol problem, when his judgment or reliability may be affected by the use of alcohol which could cause an impairment with regards to safeguarding classified matter or special nuclear material.” Tr. at 115. Thus, the issue before me is DOE’s identification of derogatory information and whether the individual has presented sufficient evidence to mitigate the related security concern. I join with the Hearing Officer in commending the individual for his sincere efforts toward rehabilitation, specifically his active participation in both AA and long-term EAP counseling, and his period of sobriety. Opinion at 85,813. I note favorably the family support evident in testimony by the individual and his EAP counselor. However, I find that the Hearing Officer also weighed these factors carefully in his Opinion and correctly concluded that he was not able to find sufficient rehabilitation to mitigate the DOE's security concerns.

In conclusion, the factors mentioned above, although favorable, were insufficient to mitigate the security concerns in this case. Part 710 requires a comprehensive, common-sense judgment based on consideration of all relevant information. In this case, the expert testimony overwhelmingly supported a finding that the individual had not provided adequate evidence of rehabilitation or reformation. Opinion at 85,814 (stating that the psychiatrist's testimony was "reasonable and persuasive"). Accordingly, I find that the Hearing Officer properly considered all mitigating factors in his Opinion.

IV. Conclusion

I have thoroughly reviewed the record in this proceeding, including the Hearing Officer’s Opinion and the individual’s Statement of Issues. 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 this individual under Criterion J. Moreover, I find that there is insufficient evidence of mitigating factors to restore the individual's security 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.

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: January 6, 1998