Case No. VSA-0334, 28 DOE ¶ 83,017 (OHA February 16, 2001)

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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.

February 16, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing: December 14, 2000

Case Number: VSA-0334

This Opinion considers a Request for Review filed by XXXXXXXXXXXX (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. (1)

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-0334), 28 DOE ¶ 82,761 (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.

Derogatory information about this individual resulted in the suspension of his access authorization. A Notification Letter was issued to the individual, citing derogatory information described at 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: (1) was arrested for driving while intoxicated on at least four occasions, (2) was diagnosed by a board-certified psychiatrist as suffering from alcohol abuse; and (3) continues to consume alcohol.

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 four witnesses, the individual, the individual’s supervisor, the DOE consultant psychiatrist (DOE Psychiatrist), and a DOE personnel security specialist. The individual testified and called eight witnesses, including five acquaintances, the mayor of his hometown, a psychologist, and a psychiatrist.

II. Opinion of the Hearing Officer

The Hearing Officer recommended against restoring the individual’s access authorization. His opinion correctly notes that the individual had been diagnosed as suffering from Alcohol Abuse by each of the three mental health professionals that testified at the hearing. The Hearing Officer further concluded that the individual had not demonstrated that he was reformed or rehabilitated. Accordingly, the Hearing Officer concluded that the individual had failed to resolve the serious security concerns raised by the derogatory information contained in the record of this proceeding and therefore recommended against restoring the individual’s DOE access authorization.

On December 14, 2000, the individual filed a Request for Review. The Request for Review contends: (1) that the adjudicatory process implemented by Part 710 is “highly biased,” since the individual was not provided with enough time to prepare for the hearing and was not provided with an adequate period in which to demonstrate one year’s abstinence from the use of alcohol, (2) the Hearing Officer failed to carefully review the record, (3) OHA precedent establishes that he does not need to show that he abstained from alcohol use, but rather merely requires him to show that he has gone for two years without alcohol related problems, (4) the DOE Psychiatrist, as well as the two expert witnesses called by the individual, misapplied the DSM-IV criteria for alcohol abuse, (5) the individual’s psychiatrist, whom he called as a expert witness at the hearing, was unduly influenced by the DOE Psychiatrist, and (6) the individual’s low ALT levels show that he was not abusing alcohol. In response to the Request for Review, the Office of Safeguards and Security indicated that it would not submit any additional information in this case.

III. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, I am 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, I shall render an opinion favorable to the individual; otherwise, I 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).

IV. Analysis

The individual contends that “the real evidence that we charted . . . and showed would have shown to any group of people with any common sense that I don’t meet the criteria of an alcohol abuser.” Request for Review at 2. The individual’s contention is not supported in the record, during this proceeding three mental health professionals examined the individual and reviewed his record. Each of these three experts testified under oath that the individual suffered from alcohol abuse. Tr. at 42, 87-88, 90, and 158. My review of the record indicates that it contains more than sufficient evidence to support the findings of the three expert witnesses. The American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM-IV) sets forth the following criteria for a diagnosis of substance abuse:

A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring during a 12 month period:

(1) recurrent substance abuse resulting in a failure to fulfill major role obligations at work, school or home.

(2) recurrent substance use in situations in which it is physically hazardous.

(3) recurrent substance-related legal problems.

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.

B. The symptoms have never met the criteria for Substance Dependence for this class of substance.

DSM-IV at 182-83 (examples omitted). The individual contends that the three experts’ diagnoses of alcohol abuse are not fully consistent with the DSM-IV. Specifically, the individual notes that the record does not show that the individual recurrently operated a motor vehicle under the influence of alcohol more than once during a 12 month period. However, two of the individual’s DWI arrests occurred only 16 months apart. Under the DSM-IV, individual practitioners may appropriately exercise clinical judgment and deviate from the DSM-IV criteria in making their diagnoses. DSM- IV at xxvii. Apparently, each of the experts in the present case exercised his judgment, given all the facts, to extend the base line period of recurrence from 12 to 16 months. Since this exercise of judgment appears reasonable, I find that the record supports the inference that the individual met Criterion A(2) and therefore supports the three experts’ findings of alcohol abuse.

The record further shows that even under the possible penalty of perjury, the individual omitted material information in response to DOE security inquiries in order to conceal his drinking from the DOE. On September 16, 1998, the individual was required, as part of a routine security procedure, to fill out a Questionnaire for Sensitive Positions (QSP). Question 23c of the QSP asked the individual: “Have you ever been charged or convicted of any offense(s) related to alcohol or drugs?” The individual correctly answered yes to this question. However, the QSP further required the individual to list the date, nature, consequence and location of each such offense. The individual listed only one offense, a DWI, which he claimed occurred in 1989, even though he had four DWI arrests at the time he signed the QSP. The QSP also contained a portion entitled: Certification that My Answers are True, which states: “My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith. I understand that a knowing and willful false statement on this form can be punished by a fine or imprisonment or both...” The individual signed and dated this certification. Accompanying the QSP was a form addressed: To all Security Applicants or Clearance Holders. This form instructed all individuals completing the QSP to “read each question and answer each item completely and truthfully.” The form further instructed that: “all arrests subsequent to your 16th birthday must be listed, even if the charges were dismissed.” The form further required the individual to sign and date the following statement: “I have read and understand the contents of this letter of instruction, and I understand the ramifications associated with falsification of the QSP.” The individual signed and dated this certification. During his June 28, 1999 PSI, the individual was asked why he failed to report three of his four DWI arrests on his QSP. At first, the individual claimed he had forgotten about the other DWI arrests. Transcript of June 28, 1999 PSI at 44. Subsequently, he claimed that he omitted the other DWIs because he was embarrassed by them. Id. at 45.

The significance of the individual’s misrepresentations is twofold. First, they substantially detract from the individual’s credibility which strongly diminishes the weight of his testimony. Second, these misrepresentations are recurrent instances of the individual’s lying to conceal the extent of his drinking. These recurrent intentional misrepresentations clearly constitute a failure to fulfill a major role obligation at work. Accordingly, they meet Criterion A(1) and therefore support the three expert’s findings of alcohol abuse.

Even if the objective evidence in the record did not fully explain the experts’ diagnoses of alcohol abuse, it clearly establishes a pattern of habitual and excessive alcohol use. The objective and uncontested evidence shows that the individual’s use of alcohol during the past 17 years has repeatedly harmed him, endangered the safety of both him and others, and threatened his employment. The individual’s four DWI’s indicate that, on at least four occasions, the individual has operated a motor vehicle while under the influence of alcohol. On each such occasion, he placed himself and others at risk of serious bodily harm by operating a motor vehicle while impaired by alcohol. In doing so he also placed himself in jeopardy of serious legal consequences. Accordingly, I find that the individual is “a user of alcohol habitually to excess.”

Having found that the Hearing Officer correctly determined that the derogatory information in the record raises serious security concerns about the individual, I now turn to my consideration of whether the individual has shown sufficient mitigation of these serious security concerns. In the present context, the individual must show that he is rehabilitated and reformed from his abuse of alcohol. The evidence in the record strongly indicates that he has neither reformed nor rehabilitated himself.

At an absolute minimum, I would expect that in order to reform or rehabilitate himself, the individual would need to be able to recognize that his use of alcohol has been problematic. This the individual refuses to do. Despite four DWI arrests, evidence that his alcohol consumption is damaging his liver, the opinion of three metal health professionals that he suffers from alcohol abuse, and a threat to his employment, the individual fails to acknowledge that he has a problem with alcohol. Tr. at 136-37, 141-42.

Moreover, the DOE Psychiatrist testified that the individual would need to demonstrate that he had completely abstained from using alcohol for at least 12 months before he could be considered to be reformed and rehabilitated. Tr. at 172-73. This requirement is clearly reasonable and consistent with the standards and practices of the mental health care professions. A number of highly qualified expert witnesses have testified in previous DOE Security Hearings that individuals with substance abuse disorders are not sufficiently rehabilitated until they have abstained from the use of all psychoactive substances for a period of at least 12 months. See e.g., Personnel Security Hearing, Case No. VSO-0063, 25 DOE ¶ 82,789; Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753, affirmed 25 DOE ¶ 83,013, terminated, (OSS June 7, 1995); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755; Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758. The testimony of these experts reflects a widely held view among substance abuse professionals. This consensus exists because substance abusing individuals present a significantly higher danger of relapse during the first 12 months following their sobriety date. This significantly higher rate of relapse provides a sound and reasonable basis for the profession’s consensus that a period of 12 months of abstinence from the use of alcohol and drugs is generally necessary to establish rehabilitation. This 12-month guideline is not a hard and fast rule. It therefore must be flexibly applied on a case-by-case basis in the DOE’s security clearance proceedings. However, expert witnesses and Hearing Officers have generally applied this standard except in cases where significant mitigating circumstances were present. Id. No such showing has been made in this case, and the DOE Psychiatrist continues to assert that the individual needs at least 12 months of sobriety. Since the individual has not shown that he has completely abstained from the use of alcohol for a period of at least 12 months, as suggested by the DOE Psychiatrist, he has not shown sufficient evidence of rehabilitation. (2)

The individual contends that he has shown rehabilitation and reformation. In support of this assertion he cites an OHA Hearing Officer’s opinion in Personnel Security Hearing, Case No. VSO- 0018, 25 DOE ¶ 82,758 (1995). However, the individual’s reliance upon this citation is misplaced. As properly interpreted, the hearing officer in that proceeding found that an individual must either complete one year of treatment and abstinence or complete two years of abstinence. That this was the Hearing Officer’s finding is made completely clear from the text of the opinion, which reads as follows:

Dr. XXXXX opined that the individual would require at least one year of sobriety while enrolled in an ongoing alcohol treatment program before he might be considered rehabilitated or reformed, or at least two years of abstinence if he chose not to seek treatment. The reasons given by Dr. XXXXX for those periods of abstinence is that there is a significant rate of recidivism during the first year for persons recovering from alcohol abuse, which is even higher for those who try to control their drinking without seeking any treatment.

Id. at 85, 558. Since the individual has neither completed an alcohol treatment program nor a year’s abstinence from alcohol use, the opinion in the cited case does not support the individual’s assertion that he is reformed or rehabilitated.

The individual also contends that his ALT levels are low and that low ALT levels conclusively establish that he is not an alcohol abuser. An ALT level is a measure of a particular liver enzyme. A raised ALT level can be an indication of liver damage caused by alcohol consumption. As an initial matter, I note that not all of the individual’s ALT levels were low as the individual claims. At least one of his Laboratory Reports in the record shows that his ALT level was elevated. DOE Psychiatrist’s Report at 5-6. More importantly, there is no evidence in the record indicating that low ALT levels conclusively establish or even strongly suggest that an individual is not an alcohol abuser, as asserted by the individual.

Finally, the individual has made a number of contentions suggesting that the procedures implemented by 10 C.F.R. Part 708 are unfair or biased against him, that his own expert witnesses were turned against him by the DOE consultant psychiatrist, and that the Hearing Officer failed to carefully review the evidence before recommending that the individual’s access authorization not be restored. However, the individual has failed to articulate any reasonably plausible explanation of how the proceeding was biased or unfair to him.

In summary, the record of this proceeding shows that: (1) the individual operated a motor vehicle while under the influence of alcohol on at least four occasions during a 15-year period, (2) Laboratory tests indicated a high probability that the individual had damaged his liver by consuming large amounts of alcohol for a prolonged period of time, (3) the individual intentionally misled DOE security officials about his drinking, (4) three mental health professionals concluded that the individual suffers from alcohol abuse, and (5) the individual continued to use alcohol even after he should have realized that his security clearance and perhaps his job were jeopardized by his drinking. DOE Psychiatrist’s Report at 8 (noting that individual had indicated having five drinks ten days before his examination, which occurred months after the individual’s PSI). Despite, this strong evidence that his alcohol use is endangering his health and employment, the individual refuses to acknowledge that he has a problem with alcohol.

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 on the road towards a successful completion. Accordingly, I find that the Criterion J security concerns raised in this case have not been resolved.

V. 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: February 16, 2001

(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)Even if the individual had demonstrated a 12 or 24 month period of abstinence from alcohol, he still would not have convinced me of his rehabilitation since he has failed to recognize his problems with alcohol.