Case No. VSA-0444 (OHA November 7, 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.
November 7, 2001
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGYOpinion of the Director
Name of Case: Personnel Security Review
Date of Filing: August 28, 2001
Case Number: VSA-0444
This determination considers a Request for Review filed by XXXXXXXXXXXXXXXXX (hereinafter referred to as “the individual”) concerning his eligibility for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." (1) The individual was denied a security clearance at the direction of the local security office under the provisions of Part 710. Pursuant to the individual’s request, a hearing was held, and on July 26, 2001, an Office of Hearings and Appeals (OHA) Hearing Officer issued an Opinion recommending that the individual not be granted access authorization. Personnel Security Hearing (Case No. VSO-0444), 28 DOE ¶ 82,811 (2001). On August 28, 2001, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On September 18, 2001, he filed a Statement of Issues to be reviewed. The DOE's Office of Safeguards and Security (OSS) notified OHA that it would not file a response to the Statement of Issues and the administrative record in this case was closed on September 26, 2001. This Opinion considers the matters raised by the Statement of Issues.
I. Background
The individual’s employer, a Department of Energy (DOE) contractor, requested a DOE access authorization for the individual. As a result of information that was ascertained during his background investigation and during a Personnel Security Interview (PSI), the individual was referred to a psychiatrist (hereafter “the DOE psychiatrist”) for an agency-sponsored evaluation. After reviewing the results of this evaluation and other information in the individual’s file, the Manager of the DOE’s local Operations Office issued a Notification Letter to the individual, in which he declined to issue access authorization.
In this Notification Letter, the Operations Office found that security concerns exist regarding the individual pursuant to Section 710.8(j) of the regulations governing eligibility for access to classified material. Specifically, the Operations Office concluded that the individual has been, or is a user of alcohol habitually to excess. In support of this conclusion, the Notification Letter states that
[The individual] started drinking alcohol excessively when he was in college (1977- 81). In 1992 he received a DUI. In 1994 he was in an outpatient rehabilitation program. His former employer recommended that he attend because he was drinking on the job. He abstained from drinking for a couple of years; however, in 1997 he resumed drinking. Prior to his psychiatric evaluation, he drank a liter bottle of vodka on the weekends.
Amended Enclosure 2 to February 2001 Notification Letter, submitted on June 7, 2001. The Notification Letter also cited the findings of the DOE psychiatrist. Although the psychiatrist concluded that the individual does not meet the Diagnostic and Statistical Manual of Mental Disorder Fourth Edition (DSM-IV) criteria for Alcohol Abuse or Alcohol Dependency, he found that the individual suffers from an “Alcohol Related Disorder not otherwise specified.” DOE psychiatrist’s report at 6.
The individual requested a hearing to respond to the concerns raised in the Notification Letter. At this June 2001 hearing, the individual testified on his own behalf and presented the testimony of three other witnesses. The DOE psychiatrist and a personnel security specialist testified for the DOE.
II. The Hearing Officer's Opinion
In his Opinion, the Hearing Officer reviewed the DOE psychiatrist’s report and diagnosis and found them to be “reasonable.” In the report, the DOE psychiatrist found that the individual’s excessive alcohol use had had a negative impact on his job performance, his school work and his marriage. DOE psychiatrist’s report at 6-7. He therefore concluded in the report that the individual “has been drinking in a maladaptive manner consistent with an Alcohol Related Disorder” during the past three years, and that his “continuing use of alcohol until a month ago indicated a significant defect in judgment and reliability.” Id. at 7. The Hearing Officer found the psychiatrist’s evaluation to be “well supported and based on a full and professional assessment of the individual’s personality, medical condition, and case history.” Personnel Security Hearing, 28 DOE ¶ 82,811at 85,780.
The Hearing Officer then discussed the mitigating evidence presented by the individual. The individual testified that he had completely abstained from the use of alcohol since September 7, 2000, and had begun attending Alcoholics Anonymous (AA) meetings on a regular basis. Furthermore, he instituted lifestyle changes in support of his general health and continued sobriety. Specifically, he embarked on an exercise regimen, and attempted to change his pattern of weekend drinking by becoming involved in his teenaged daughters’ sporting activities. He testified that
To break patterns, I coached the girls Tuesdays and Thursdays, and I was at the basketball games all day Saturday. . . .I also, to kind of stay in that pattern after basketball was over in March, I decided to help out with the track team. So I was coaching the long jump. And that really wasn’t that much, it was again all day Sundays, but at least twice a week because the girls and boys practice Monday, Tuesday, Wednesday and Thursday.
Hearing Transcript (Tr.) at 77-78.
The individual’s wife, supervisor, and a friend also testified on his behalf. The individual’s wife stated that in September 2000, he promised her that he would stop drinking, and that since that time, she had seen nothing that would lead her to believe that he had broken that promise. The individual’s friend testified that his wife and daughter spend a considerable amount of time at the individual’s home, and that neither of them had expressed any concern about the individual and alcohol. The individual’s supervisor stated that the individual was always on time, and exercised sound judgement in business and personnel matters. Both of these witnesses testified that they had not seen the individual drink alcohol since September 2000, despite associating with the individual in settings where alcohol was available. Furthermore, both stated that they had never seen the individual appear “hung over.”
The Hearing Officer determined that this testimony and other documentary evidence was sufficient to establish that the individual had remained abstinent from September 7, 2000 through June 22, 2001, a period of over ten months. (2) He opined that since the individual’s wife was a registered nurse, her training would make it more likely that she could discern any signs of alcohol use by the individual. Moreover, he cited the individual’s AA participation as evidence of his continuing commitment to maintaining his sobriety.
After carefully considering this mitigating evidence, the Hearing Officer concluded, however, that valid security concerns remained regarding the individual’s prior consumption of alcohol and diagnosis of Alcohol Related Disorder. He based this finding primarily on the testimony of the DOE psychiatrist, who indicated at the hearing that while the measures taken by the individual since September 2000 were “steps in the right direction,” Tr. at 89, it would be appropriate to hold him to the accepted clinical standard, as set forth in the DSM-IV, for all types of conditions involving alcohol, which is to require twelve months of abstinence in order to establish rehabilitation.
The Hearing Officer then noted that, while the OHA does not have a set policy on what constitutes rehabilitation and reformation from alcohol related disorders, in cases filed with this Office, it is very rare for a psychiatrist to find reformation or rehabilitation where an individual has been abstinent for less that one year. This is because, as the DOE psychiatrist stated at the Hearing, a period of one year is generally viewed as necessary to reach a state of sustained remission. The Hearing Officer concluded that because the individual had “only ten months of demonstrated sobriety, [his] risk of relapse remains unacceptably high.” Personnel Security Hearing, 28 DOE ¶ 82,811 at 85,783. He therefore recommended that the individual be denied access authorization.
However, the Hearing Officer stated that, should the individual choose to appeal the recommendation, he could submit evidence of any ongoing rehabilitative efforts, Specifically, the Hearing Officer suggested that, on or after September 7, 2001, the individual should submit (i) a sworn and notarized statement that he has not consumed alcohol for a full year and that he intends to continue abstaining from alcohol, (ii) a sworn and notarized statement from his wife confirming that, to the best of her knowledge and belief, he has abstained from consuming alcohol for the past year, and (iii) attendance sheets from his AA meetings documenting his continuing participation in that support program. The hearing Officer concluded that this information would indicate that he has met the requirements for rehabilitation established by the DOE psychiatrist and mitigated the concerns raised in the Notification Letter.
III. Analysis
A. Standard of Review
Part 710 provides that if, after considering all 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 discussed below, after reviewing the record in this case, I conclude that granting access authorization to the individual would not endanger the common defense and security and would clearly be consistent with the national interest.
As a general rule, I will not set aside findings of fact made by a Hearing Officer in these types of cases unless they are clearly erroneous. Personnel Security Review, 26 DOE ¶ 83,001 at 86,504-05 (1996); see also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a Hearing Officer considers the demeanor and credibility of witnesses, as well as the appropriate weight to be given to their testimony and other evidence. Personnel Security Review, 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily substitute my judgement for that of a Hearing Officer in such matters.
B. Statement of Issues
In his Statement of Issues, filed on September 18, 2001, the individual avers (i) that he has abstained from consuming alcohol for one full year, (ii) that he continues to attend AA meetings on at least a weekly basis, and (iii) that he “continue[s] to have a changed and more positive life style,” as evidenced by his participation in amateur softball umpiring and as Athletic Director at his daughter’s elementary school. Statement of Issues at 1. In support of these contentions, the individual has submitted sworn, notarized statements from himself that he has not consumed alcohol for a full year and that he intends to continue to abstain in the future, and from his wife that, to the best of her knowledge and belief, her husband has not consumed alcohol for the past year. He has also submitted an AA attendance sheet which indicates that from June 2, 2001 through August 31, 2001, the individual attended at least one, and often two meetings per week. Finally, he submitted scheduling information for his softball umpiring duties in support of his claim that he has continued the changes that he made in his way of life to address his alcohol problem.
Based on this information, I find that the individual has continued to abstain from alcohol use and has regularly attended his AA meetings since the hearing. When viewed in concert with the information already in the record, it demonstrates that the individual has remained abstinent for a full year, and that he has diligently pursued a program of personal growth and rehabilitation. I agree with the Hearing Officer that this information “indicate[s] that [the individual] has met the requirements for rehabilitation established by the DOE psychiatrist and mitigated the concerns raised in the Notification Letter.” Personnel Security Hearing, 28 DOE ¶ 82,811 at 85,783.
IV. Conclusion
I have thoroughly reviewed the record in this proceeding, including the Hearing Officer’s Opinion and the individual’s Statement of Issues. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7 (c). I conclude that the Hearing Officer properly found that, at the time of the hearing, unresolved security concerns existed with respect to the individual’s alcohol use. However, I also conclude that the individual has adequately addressed those concerns by submitting the information suggested in the Hearing Officer’s Opinion. For the reasons explained above, I find that granting access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27 (a). Accordingly, it is my opinion that access authorization should be granted.
George B. Breznay
Director
Office of Hearings and AppealsDate: November 7, 2001
(1) An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Opinion as access authorization or a security clearance.
(2) These documents include AA attendance sheets for bi-weekly meetings through June 22, 2001.