* 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.
November 5, 2001
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGYOpinion of the Director
Case Name: Personnel Security Review
Date of Filing: August 3, 2001
Case Number: VSA-0433
This Opinion considers a Request for Review filed by XXXXXXXXXXXX (hereinafter referred to as “the Individual”) concerning the suspension of his access authorization. As explained below, I do not recommend restoring the Individual’s access authorization.
I. Background
This case concerns the suspension of the Individual’s access authorization. The events leading to the suspension in question are fully set forth in Personnel Security Hearing (Case No. VSO-0433), 28 DOE ¶ 82,805 (2001) (Opinion) and will not be reiterated here. For purposes of the instant security review, the relevant facts are as follows.
A DOE office issued a Notification Letter to the Individual informing him that his access authorization was suspended due to derogatory information that created substantial doubt about his continued eligibility. That derogatory information falls within 10 C.F.R. § 710.8 (j) (Criterion J). The Notification alleges that the Individual has “[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” See 10 C.F.R. § 710.8 (j). The Criterion J concern expressed in the Notification Letter arises from the following events:
A. Following an evaluation of the Individual, a DOE consultant psychologist diagnosed the Individual as suffering from alcohol abuse as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), without adequate evidence of rehabilitation and reformation.
B. The Individual has been arrested and convicted twice for driving while intoxicated (DWI). The first arrest occurred in 1989, while the Individual was driving after attending a wedding reception. His blood alcohol level (BAL) at the time of arrest was 0.107. The second arrest occurred about one year before the hearing. The Individual’s BAL at that time was 0.234.
C. During a personnel security interview (PSI), the Individual stated that he typically drank on weekends, becoming intoxicated about twice a month. He further stated that he intended to limit his future consumption of alcohol to “the two or three [beers], to where I just have that intoxicated [feeling].”
Opinion at 85,748.
The Individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE office presented the testimony of a DOE consultant psychiatrist and a DOE personnel security specialist. The Individual testified on his own behalf, and presented the testimony of a clinical psychologist and two friends.
The Hearing Officer issued an Opinion recommending against restoration of the Individual’s access authorization. Personnel Security Hearing (Case No. VSO-0433), 28 DOE ¶ 82,805 (2001). The Individual filed the present Request for Review, which included a Statement of the Issues to be reviewed. The DOE Office of Safeguards and Security filed a response stating that it had no additional information to submit in this proceeding. The record was then closed.
II. The Hearing Officer’s Opinion
In recommending against the restoration of access authorization, the Hearing Officer considered the extent of the Individual’s alcohol use, the diagnosis of the Individual as suffering from alcohol abuse, the Individual’s efforts toward rehabilitation, and the expert opinions that there was insufficient evidence of rehabilitation and reformation.
First, the Hearing Officer considered the expert opinions of the DOE consultant psychiatrist and the Individual’s psychologist that the Individual suffered from alcohol abuse. The Hearing Officer cited the DOE consultant psychiatrist’s opinion that the Individual is in the middle stage of the rehabilitation process. He explained that the first stage begins when a person decides not to drink, though he still minimizes the effects of alcohol. As the process continues, an individual is able to view his condition with increasing honesty and less minimization. According to the DOE consultant psychiatrist, the Individual in this case should complete at least one year of abstinence, continued therapy and participation in Alcoholics Anonymous (AA) or a similar program. The Hearing Officer noted that the Individual’s psychologist concurred with the consultant psychiatrist in the diagnosis of alcohol abuse and his recommendation for rehabilitation.
Second, the Hearing Officer considered the Individual’s claim of rehabilitation. At the hearing, the Individual testified that he has been abstinent for 10 months, has attended court-ordered alcohol education and therapy, has returned to church and has attended AA meetings. The Individual also claimed that he has disassociated himself from his former drinking companions and intends to permanently abstain from alcohol.
Finally, the Hearing Officer took note of testimony from two of the Individual’s friends. These friends corroborated the Individual’s testimony concerning his abstinence and his commitment to an alcohol-free lifestyle.
After consideration of the foregoing, the Hearing Officer concluded that there was not sufficient evidence of rehabilitation or reformation. Therefore, he was unable to conclude that the Individual has mitigated the security concerns of the DOE.
III. Analysis
A. Standard of Review
Part 710 provides that if, after considering all the 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 a general 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, after reviewing the entire record in this case, I find that the Individual has not offered adequate evidence that he has been rehabilitated and reformed from alcohol abuse. This is also the key finding of the Hearing Officer, a conclusion that I determine to be correct. Therefore, I cannot conclude that it would be clearly consistent with the national interest to restore access authorization to the Individual.
B. Statement of Issues
In his Statement of Issues, the Individual focuses on one main issue for review. The Individual contends that he is totally rehabilitated for the following reasons: (1) he has refrained from the use of alcohol for more than one year and continues to maintain an alcohol-free lifestyle, (2) he continues to meet with an Employee Assistance Program (EAP) counselor and (3) he attends a weekly spiritual alcohol program. See Statement of Issues. For further support, the Individual points to the DOE Counsel’s closing statement during the hearing in which DOE Counsel indicated that the Individual has taken steps to eliminate his drinking, which would alleviate the security concern. Id.
During the hearing, the Hearing Officer addressed whether the Individual had provided sufficient evidence of rehabilitation to resolve the security concerns raised by his alcohol abuse. He was convinced of the Individual’s claim of 10 months abstinence at the time of the hearing, his disassociation from his former drinking companions and his commitment to his therapy programs. Although the Individual was close to achieving a year of abstinence at the time of the hearing, the Hearing Officer relied upon the two expert opinions in the record that a year of abstinence by itself is not enough for the Individual to attain rehabilitation. Both experts recommended continued counseling sessions and participation in AA. These help the Individual to maintain his commitment to abstinence. The Hearing Officer noted that, at the time of the hearing, the Individual was making arrangements to continue counseling sessions with the EAP counselor, but had not yet begun participating in AA. Thus, the Hearing Officer concluded that the Individual has not fulfilled the requirements for rehabilitation as stated by the two experts. He also found persuasive the testimony of the experts that the Individual is still in a relatively early stage of the rehabilitation process.
A Hearing Officer is responsible for considering the demeanor and credibility of witnesses and must determine the appropriate weight to be given to their testimony and other evidence. I find that the hearing record fully supports the Hearing Officer’s conclusion with respect to the Individual’s rehabilitation efforts. Moreover, at the time of the hearing, the Hearing Officer was correct in stating that the Individual, although close, had not completed a one-year period of abstinence and regular attendance at an ongoing treatment program in order to demonstrate rehabilitation. These prerequisites to the completion of an adequate rehabilitation program certainly comport with our precedent in Criterion J cases similar to this one. See, eg., Personnel Security Hearing, 25 DOE ¶ 82,758 (1995). Accordingly, I find no error in the Hearing Officer’s conclusion that the Individual has not demonstrated adequate evidence of rehabilitation.
As stated earlier, the Individual maintains that he has now met all of the requirements for rehabilitation: that he has been abstinent for over a year, that he has continued counseling sessions, and that he is attending weekly alcohol treatment sessions. However, the Individual has not produced any corroborating evidence to support these aspects of his claim of total rehabilitation. Generalized statements from the Individual concerning such key aspects of his claim of rehabilitation are not sufficient by themselves to warrant a change in the Hearing Officer’s opinion. Moreover, if the Individual did present new evidence of his claim of rehabilitation in this case, careful scrutiny of that evidence would be required. Both experts in this case agreed that a year of abstinence would not be enough to demonstrate rehabilitation. This appeal is not the proper vehicle to give that scrutiny to the Individual’s claims, nor is it the place to give full consideration to the Individual’s claim that he is rehabilitated and committed to continued abstinence. It would in essence mean we would conduct a second evidentiary hearing. This would not be appropriate in an appellate forum. However, two choices are available. One is to remand the case to the Hearing Officer. The other is to offer the Individual the chance to present his new evidence to the regional manager. I believe the second alternative to be more efficient, and on balance I therefore recommend the Individual utilize that route. The Individual should therefore present his evidence to the regional manager for future consideration of an access authorization. See 10 C.F.R. § 710.32.
III. Conclusion
As is evident from the above discussion, the matters raised by the Statement of Issues indicate that the Individual disagrees with findings made by the Hearing Officer. However, those disagreements do not evidence error. Based on the entire record and in light of my opinion that no error occurred, I cannot conclude that a grant of access authorization would be clearly consistent with the national interest. 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 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 AppealsDate: Novembef 5, 2001