Case No. VSA-0359, 28 DOE ¶ 83,016 (OHA January 9, 2001)

* 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 9, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: December 1, 2000

Case Number: VSA-0359

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXX (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 a decision issued by an Office of Hearings and Appeals Hearing Officer. Personnel Security Hearing (Case No. VSO-0359), 28 DOE ¶ 82,768 (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 (h), (j) and (l) (Criteria H, J, and L respectively). (2)

The Criterion H concern expressed in the Letter relates to a diagnosis by a DOE consultant-psychiatrist (DOE psychiatrist) that the individual was suffering from Gender Identity Disorder (GID). The Criterion J concern related to the DOE psychiatrist’s diagnosis that the individual was suffering from “substance abuse, alcohol without adequate evidence of rehabilitation or reformation.” The Criterion L concern involves the individual’s alcohol-related arrests, and the fact that for many months the individual withheld information about his alcohol consumption from his Employee Assistance Program (EAP) counselor.

The Hearing Officer convened a hearing in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Counsel called two witnesses: the DOE psychiatrist and a DOE personnel security specialist. The individual offered the testimony of his supervisor, a friend and co-worker, his EAP Counselor, his psychotherapist, and his wife, and testified on his own behalf.

II. Opinion of the Hearing Officer

Based on the testimony of the DOE psychiatrist, the Hearing Officer determined in his Opinion that the GID did not cause a significant defect in the individual’s judgment or reliability. Accordingly, he found no valid security concern under Criterion H in this case.

However, the Hearing Officer did find that the individual’s use of alcohol and the DOE psychiatrist’s diagnosis of alcohol abuse created a security concern under Criterion J, and proceeded to assess whether the individual had mitigated that concern. The Hearing Officer noted the following evidence in that regard. The individual testified that he had abstained from alcohol since January 2000. Several witnesses supported that testimony. The individual also testified, with corroboration, that he participated in one-on-one and group psychotherapy regarding anger management marriage, and alcohol issues. Further, the individual testified about his attendance at Alcoholics Anonymous (AA) meetings and about his serious involvement in that program. He submitted a log documenting his attendance.

Notwithstanding this mitigating evidence, the Hearing Officer found with respect to Criterion J that at the time of the hearing, the individual could not be considered rehabilitated or reformed from his abuse of alcohol. The Hearing Officer was convinced by the testimony of the DOE psychiatrist that, given the individual’s history, to establish reformation, the individual needed two years of abstinence from alcohol, or three years with no alcohol-related social, family, medical, legal or employment problems, if he chose to drink at all. As evidence of rehabilitation from alcohol abuse, the DOE psychiatrist stated that he would require either 100 hours of attendance at Alcoholics Anonymous meetings, at least once a week for a year, or successful completion of a professionally led alcohol treatment program for a minimum of 50 hours or six months. Either of these programs would have to be coupled with a two-year period of no alcohol-related problems as described above. Under the DOE psychiatrist’s time frames, the individual cannot achieve rehabilitation or reformation in less than two years (beginning in January 2000). Because less than one year had passed since the individual truly committed himself to abstinence, the Hearing Officer determined that the individual had not reached either of the goals cited by the DOE psychiatrist as appropriate in this case. The Hearing Officer also noted that the individual’s GID was causing significant stress in his life and in his relationship with his wife and children, and pointed to the concern that he might turn to alcohol to cope with that stress. Accordingly, the Hearing Office found that the Criterion J concern had not been resolved.

With respect to Criterion L, the Hearing Officer found that the individual had a pattern of concealing the truth about his use of alcohol and that it was too early to predict whether the individual will be truthful in the future about his alcohol and gender-related issues.

The Hearing Officer therefore did not recommend the restoration of the individual’s access authorization.

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 of Issues,” or “Statement”).

In his Statement of Issues, the individual has not set forth any factual or legal errors by the Hearing Officer. Rather, he has provided updated information regarding his situation. He asks me to consider the following new documents in reviewing his eligibility for an access authorization: (i) his own letter, asserting the changes in his domestic situation since the hearing, and his continued abstinence from alcohol; (ii) updated AA meeting attendance records; (iii) a letter from his wife describing the recent improvement in her own mental status and in her relationship with the individual; (iv) a letter from his mother in law, stating that the individual has made considerable progress in changing his lifestyle.

The DOE 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).

V. Analysis

As discussed below, the updated information included in the Statement of Issues does not persuade me that the individual’s access authorization should be restored.

The three letters all support the individual’s position that he is continuing to make considerable changes in his life. They indicate that the individual is maintaining his abstinence from alcohol and is attending therapy sessions. The AA attendance records show that the individual has taken seriously the recommendation of the DOE psychiatrist that he attend meetings for at least one year. His wife indicates that she and the individual have reconciled, and that she is now attending therapy sessions. Her letter describes a more stable family situation, including improved communication among all family members.(3) These are all factors that are in the individual’s favor and very much to his credit. I am impressed by his commitment to gradually resolving his alcohol and GID- related problems. This additional information suggests that the individual has continued to make progress since the hearing.

However, it is clear to me that rehabilitation efforts and a further stabilization period still remain for this individual. In particular, he has not yet completed the two-year abstinence period recommended by the DOE psychiatrist, and he has also not completed the recommended one-year attendance at AA meetings. I agree with the Hearing Officer’s finding that these are minimum key benchmarks for this individual. Thus, at this time, I do not find that the Criterion J and L security concerns have been fully resolved. Accordingly, I cannot recommend that this individual’s access authorization be restored.

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: January 9, 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)Criterion H includes information that an individual has an illness or mental condition that in the opinion of a board- certified psychiatrist, causes or may cause a significant defect in his judgment or reliability. Criterion J includes information that the individual 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. Criterion L covers information that an individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes to reason to believe that he may be subject to pressure, coercion, exploitation or duress which may cause him to act contrary to the best interests of the national security.

(3)Of course, without the opportunity to probe these assertions, I cannot make a finding as to their truthfulness.