Case No. VSA-0309, 28 DOE ¶ 83,006 (OHA July 12, 2000)

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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 12, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 25, 2000

Case Number: VSA-0309

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXX (the individual) concerning his eligibility for access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0309), 27 DOE ¶ 82,843 (2000). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Operations Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. § 710.8(j) (Criterion (J). That Criterion refers to information that an individual has been or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, or other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. In this regard, the Notification Letter contends that the individual: (i) acknowledged three alcohol-related arrests, two in the previous seven years, (2) continues to consume alcohol; and (3) was diagnosed by a DOE consultant psychiatrist as suffering from alcohol abuse.

A hearing was convened by an Office of Hearings and Appeals Hearing Officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Operations Office presented the testimony of two witnesses, the DOE consultant psychiatrist (DOE psychiatrist), and a DOE personnel security specialist. The individual testified and called as witnesses his supervisor, his substance abuse therapist, his psychologist and two co-workers.

II. Opinion of the Hearing Officer

The Hearing Officer did not recommend the restoration of the individual’s access authorization. She noted that the individual had several incidents of driving while intoxicated or under the influence of alcohol. These occurred in 1982, 1992 and 1998. She stated that after the last incident, the individual signed a recovery agreement in connection with his employer’s Employee Assistance Program (EAP) that mandated one year of abstinence from alcohol. The Hearing Officer stated that two months after signing the agreement, the individual admitted to his EAP counselor that he had consumed one or two beers on one weekend. Furthermore, the Hearing Officer noted that in connection with the 1998 charge of driving under the influence of alcohol, the individual pled guilty to a lesser charge of alcohol-related reckless driving and received a suspended sentence, a fine and 12 months probation. As the Hearing Officer stated, the probation provided that the individual must not have any similar offense or operate a motor vehicle while using an intoxicant. 27 DOE at 86,038. However, the Hearing Officer noted that within that one-year period, the individual did use alcohol and then operate a motor vehicle. Id. at 86,040.

The Hearing Officer also pointed out that the DOE psychiatrist considered the individual to be an alcohol abuser. She noted that the psychiatrist also believed that given the individual’s prior denial that he had an alcohol problem and his resistance to treatment, he would need to complete a 12-month outpatient program. Id. at 86,039.

After reviewing the testimony at the hearing, the Hearing Officer stated that the individual had made considerable progress through participation in a treatment program. She also noted that he attends alcoholics anonymous meetings, and meets with private therapists. She further found that the individual began to abstain from alcohol in August 1999. Id. at 86,040. (2)

Overall, however, the Hearing Officer concluded that the individual was not rehabilitated or reformed from his alcohol abuse. She pointed out in particular that he had broken two agreements related to his alcohol use: the EAP recovery agreement and the court mandated probation. She further noted that the individual had been abstinent only seven months, and that the DOE psychiatrist had recommended an abstinence period of one year. Id. at 86,041.

Based on these factors, the Hearing Officer found that the individual had failed to mitigate the Criterion J security concerns.

III. Statement of Issues and Response

Pursuant to 10 C.F.R. § 710.28(b), the individual filed a statement setting forth three issues on which he wants me to focus in the review phase of this proceeding. First, he asks me to review whether his recovery agreement with his employer required six or twelve months of abstinence. Second, he asks me to review the terms of the 12-month probation imposed upon him in connection with his plea of guilty to charges of alcohol related reckless driving and driving with an open container of alcohol. Third, he asks me to consider his continuing rehabilitation efforts beyond abstinence. In addition, I will review a letter submitted by a co- worker of the individual, supporting restoration of the individual’s access authorization. The Office of Safeguards and Security has indicated that it has no additional information to submit in this case.

IV. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals 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 a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996). As discussed below, I see no errors of any kind in the Hearing Officer’s analysis or in her overall conclusion.

V. Analysis

As stated above, one of the concerns cited by the Hearing Officer in her Opinion was that the individual had disregarded a July 1998 agreement reached under his employer’s Employee Assistance Program, in which he promised to refrain from all alcohol use for a period of one year.(3) Although the agreement clearly provides that the duration of the abstinence period is one year, the individual disputes this in his Statement of Issues. In support of his position, the individual has submitted a document from his EAP counselor, indicating that the July 1998 agreement was in fact intended to be for a six-month period. The counselor states that he inadvertently failed to make the change in the standard 12-month language to reflect the six-month agreement that he intended for this individual.

This clarification does not, however, resolve the concern identified by the Hearing Officer, which was that the individual has a history of breaking agreements associated with his alcohol use. The individual admittedly used alcohol within two months of signing the agreement. Transcript of Personnel Security Hearing (Tr.) at 175-76. Whether the agreement was to last for six months or twelve months is thus irrelevant. The Hearing Officer’s conclusion that the individual violated the terms of his recovery agreement was correct, and the concern that arises from that violation has not yet been resolved.

The Hearing Officer also found that the individual violated the terms of probation imposed upon him in connection with a plea of guilty in connection with an arrest for Driving Under the Influence (DUI). In this regard, the Hearing Officer cited the fact that the individual violated the probation by admittedly using alcohol and then driving.

In the Statement of Issues the individual contends that this conclusion is incorrect. He argues that he did not violate the terms of his probation merely by drinking and driving. In support, the individual submitted a statement from the attorney who represented him in the court proceeding involving the DUI charge, in which she contends that the probation agreement specifies that the individual was not to repeat the same or similar offense within a one year period. She further indicates that the probation ordered the individual not to drink any alcoholic beverage while operating a motor vehicle or while a passenger in a motor vehicle. The attorney concludes that under the terms of the probation the individual did not violate the terms of the probation by having an alcoholic drink and then driving, “unless he was subsequently stopped and charged with being incapable of safely operating a vehicle. To my knowledge, such an event never took place.”

The attorney’s argument is fatuous. A key purpose of the limitations set out in the probation document was to deter the individual from engaging in the wrongful behavior, not merely to ensure that he was not apprehended at it. The attorney’s formalistic explication certainly does not convince me that the individual did not violate the terms of his probation.

If the individual did drive while intoxicated, he violated the probation agreement, whether or not he was actually arrested and charged. The individual admittedly had some amount of alcohol and then proceeded to operate a motor vehicle. Tr. at 194. He has presented no supporting evidence as to the amount of the alcohol he used. I cannot find that he was not intoxicated or impaired when he drove the vehicle after admittedly using alcohol.

In any event, in view of his persistent problems with alcohol, this individual certainly used very poor judgment in having any alcohol at all prior to driving a motor vehicle. Even if he was not in actual violation of the probation agreement by driving while intoxicated, he violated the spirit of that agreement by drinking and driving. Accordingly, even if the individual did not technically violate the terms of his probation, the security concern regarding his use of alcohol is not necessarily alleviated.

Finally, the individual asks me to review the steps he has taken since the hearing to rehabilitate himself from his alcohol problems. In this regard, he has submitted (i) a log showing weekly attendance at Alcoholics Anonymous meetings for the period since November 1999; (ii) a list of dates since the beginning of this year on which he met with a counselor from his out-patient program (9 meetings), his EAP counselor (6 meetings), and his psychologist (3 meetings); and (iii) a summary of drug/alcohol screenings showing negative results for each of the months from August of 1998 through May 2000.

These steps are all very admirable, and the individual has certainly made considerable progress towards rehabilitation. Nevertheless, this evidence does not fully resolve the security concerns at issue here. First, the individual has not provided any corroboration from close friends or relatives for his claim of continued abstinence since the hearing date. It is by now well- established in these personnel security cases that affected individuals are expected to provide such support if they wish to prevail in their claims that they have refrained from alcohol use. E.g., Personnel Security Hearing (Case No. VSO-0219), 27 DOE ¶ 82,779 (1998), aff’d (OSA February 4, 1999). This aspect of his showing of rehabilitation is therefore incomplete.

Furthermore, the testimony of the experts in this case strongly supported a one-year period of abstinence for this individual. Tr. at 32, 35, 141. At the time of the hearing, the individual had only been abstinent for six and one-half months. At the time of the preparation of this Opinion, he has purportedly been abstinent for a period of about 10 months. Accordingly, even if I were persuaded that the individual has been abstinent as he asserts, a sufficient period of time has not yet passed for me to find that he has completed the minimum period of abstinence necessary for rehabilitation in this case. (4)

As a final matter, a colleague of the individual submitted a letter attesting to his superior abilities and performance. In addition, the colleague suggests that the individual’s willingness to take corrective action regarding his alcohol-related problems demonstrates his desire to resolve the DOE’s concerns in this case. The colleague also states that the suspension of the individual’s access authorization has had a negative effect on classified and sensitive projects in which the individual was involved.

These assertions do not convince me that any change in the result in this case is warranted. First, the quality of this individual’s performance is not a consideration here. This case involves a review of whether the individual has resolved the security concerns raised by the DOE. As discussed above, I do not believe that he has done so at this point. Second, although the individual has taken some important steps towards rehabilitation, I do not believe that process is complete. Finally, it is not appropriate for me to consider the effect that the loss of access authorization will have on the DOE program. 10 C.F.R. § 710.27(b).

As discussed above, I see no error by the Hearing Officer that would cause me to disturb the result in this case. The purported errors raised by the individual involve trivial, irrelevant or immaterial matters. Further, the individual has not convinced me that his rehabilitation efforts are yet complete. Accordingly, I find that the Criterion J security concerns raised in this case have not been resolved.

VI. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, 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 12, 2000

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)The individual testified that he had not used alcohol since August 18, 1999. Transcript of Personnel Security Hearing at 183. I will use that date for purposes of calculating the time of abstinence in this case.

(3)A copy of the July 1998 agreement is set forth at DOE Exhibit 3 at Tab 3 of the record in Case No. VSO-0309.

(4)In her Opinion, the Hearing Officer cited a case in which another Hearing Officer found that an individual who had 11 months of abstinence at the time of the hearing would be permitted to supplement the record after the hearing to establish the necessary 12 month period. Personnel Security Hearing (Case No. VSO-0258), 27 DOE ¶ 82,806 (1999), aff’d OSA (August 12, 1999). The present case is different, in that even at the time of this appeal, the individual has not yet completed the full 12 month period of abstinence.