Case No. VSA-0328, 28 DOE ¶ 83,009 (OHA August 9, 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.

August 9, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: June 16, 2000

Case Number: VSA-0328

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXXXXX (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-0328), 27 DOE ¶ 82,849 (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 (f), (h), (j), and (l) (Criteria F, H, J, and L respectively). The Hearing Officer found that the Criteria F and L security concerns were resolved by the individual. Id. at 86,082, 86,084-5. Since they are not at issue in this proceeding, I will give them no consideration in this determination. The bases for allegations in the Notification Letter regarding Criteria H and J are summarized below

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Citing Criterion H, the Notification Letter alleges that the individual has “an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . may cause, a significant defect in judgment or reliability.” In support of this assertion, the Letter states that on July 11, 1999, the individual was evaluated by a DOE consultant psychiatrist (DOE psychiatrist), who diagnosed the individual with Major Depressive Disorder and Alcohol Abuse by History, and further concluded that the individual’s mental condition, particularly in relation to his alcohol use, causes or may cause a significant defect in his judgment and reliability.

The Notification Letter also asserts that as set forth in Criterion J, 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.” In this regard the Letter again refers to the report of the DOE psychiatrist, and alleges that the individual has been diagnosed by a psychiatrist as suffering from alcohol abuse without reformation. The Notification Letter also references the individual’s arrests for driving under the influence of alcohol (DUI), and his own admissions regarding his alcohol use, made during a Personnel Security Interview (PSI) conducted with the individual on June 2, 1999.

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 psychiatrist, and the individual. The individual’s witnesses were a clinical neuropsychologist (psychologist), a neighbor, and a co-worker.

II. Opinion of the Hearing Officer

The Hearing Officer did not recommend the restoration of the individual’s access authorization. He found that the individual had failed to resolve the Criterion H and Criterion J security concerns. In particular, he found that the period during which the individual has abstained from alcohol use, dating from December 1999, was too brief to permit a conclusion that the Criterion J security concerns were resolved. In this regard, he noted the testimony of the DOE psychiatrist that there is a significant risk of relapse prior to one year of sustained abstinence. The Hearing Officer found that since the individual had not resolved the concerns related to his alcohol abuse, the security concerns regarding his judgment continued to exist. The Hearing Officer therefore concluded that the Criterion H security concerns were also not resolved. Personnel Security Hearing (Case No. VSO-0328), 27 DOE at 86,082-84.

III. Statement of Issues and Response

Pursuant to 10 C.F.R. § 710.28(b), the individual filed a statement setting forth the issues on which he wants me to focus in the review phase of this proceeding (hereinafter referred to as “Statement”). First, with respect to the issue of alcohol abuse, the individual claims that he has been honest with the DOE about his usage, and notes in this regard that he voluntarily reported a 1999 misdemeanor charge which caused a reinvestigation of his access authorization. He also points out that he has an excellent work history, has been diligent in following his treatment program, and has maintained his commitment to abstinence. With respect to the Criterion H security concern, the Statement contends that there was no basis for the Hearing Officer to conclude that the individual has a mental condition that would cause a defect in his judgment. In this regard, the Statement points out that the DOE psychiatrist found that depression did not cause such a defect, and that the psychologist saw no signs of serious psycho-pathology in the individual. The Office of Safeguards and Security filed a Response indicating that it did not wish to submit any additional information 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 his overall conclusion.

V. Analysis

In considering Criterion J, the Hearing Officer found that the individual abstained from alcohol since December 1999. This was a period of less than six months as of the time of the hearing. The Hearing Officer pointed out that the DOE psychiatrist’s view was that a period of one year of abstinence is necessary. This view was based on the fact that there is a relatively high risk of relapse if the abstinence period is less than one year. Transcript of Personnel Security Hearing (Tr.) at 26-27.

The individual has brought forward no evidence to suggest that the one year abstinence period recommended by the psychiatrist is not appropriate here. In fact, the individual’s psychologist supported the view of the DOE psychiatrist that the abstinence period was brief. He testified that the risk of relapse was a “toss up.” Tr. at 49. Thus, neither expert believed that the individual’s rehabilitation efforts were complete.

The individual’s work history is irrelevant to the issue of whether he has demonstrated rehabilitation from alcohol abuse. The fact that he was honest in revealing his alcohol abuse and a 1999 misdemeanor charge is also irrelevant. The individual was obligated to reveal those matters to the DOE. Mere compliance with that requirement does not resolve the overall security concern regarding his alcohol abuse.

The Statement also objects to the Hearing Officer’s conclusion that the individual did not resolve the Criterion H security concerns. In this regard, the Statement points out that the psychiatrist found that the individual’s depression did not cause a defect in the individual’s judgment. The Statement further indicates that the psychologist did not find any signs of “serious psychopathology” in the individual. Tr. at 14, 42.

The Statement misinterprets both the evidence and the Hearing Officer’s conclusion on this issue. It is true that the psychiatrist did not find that the individual’s depression caused a defect in his judgment. However, the psychiatrist specifically stated that the individual’s history of alcohol abuse does cause him to have a defect in his judgment and reliability. Tr. at 14. It is this aspect of the Criterion H security concern that the Hearing Officer found the individual failed to resolve. Personnel Security Hearing (Case No. VSO-0328), 27 DOE at 86,082 and note 2.

Moreover, in testifying that the individual displayed no serious “psychopathology,” the psychologist was referring only to a particular 1999 misdemeanor incident set out in the Notification Letter. Tr. at 42. The psychologist did state that since the individual is currently abstinent, the individual has no current judgment problems with alcohol. Tr. at 39. However, this testimony does not resolve the Criterion H security concern. The clear testimony by both experts was that the abstinence period is too brief in this case, and that the risk of relapse is still at a relatively high level. Therefore, the psychologist’s testimony that the individual currently has no judgment problem does not convince me that the Criterion H security concerns are resolved here. An immediate judgment problem could well surface if the individual returns to alcohol use. Given the relatively high risk of relapse, there is an ongoing Criterion H security concern. I therefore conclude that the Hearing Officer correctly determined that since the individual had not resolved the Criterion J security concern regarding his alcohol abuse, he had also not resolved the Criterion H security concern created by that condition.

As a final matter, the Statement recommends that the individual be allowed to remain on restricted duty until he has been abstinent for one year. In effect, the Statement is requesting that I hold the security review process here in abeyance until the abstinence period and rehabilitation are complete. I do not believe that such a step is in accord with the intent of the Part 710 regulations, which set forth clear limits on the time frames applicable to these proceedings. Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 (1995); aff’d, Personnel Security Review (Case No. VSA-0005), 25 DOE ¶ 85,013 (1995), aff’d (OSA 1995). I will therefore not hold the security review process open in this case.

Furthermore, in these security review cases, I do not make recommendations as to whether and under what conditions this individual’s employment should be maintained if his access authorization is terminated. This is a matter between the individual and his employer. See 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. Further, the individual has not convinced me that his rehabilitation efforts are yet complete. Accordingly, I find that the Criteria H and 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: August 9, 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.