Case No. VSO-0027, 25 DOE ¶ 82,764 (H. O. Tao Aug. 14, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: March 30, 1995

Case Number: VSO-0027

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to receive a level "Q" 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>

I. Background

The individual has been employed by the management and operating contractor at the Department of Energy's (DOE) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXX since 1993. As a condition of employment, the individual's employer required that the individual apply for access authorization. As part of that process, the DOE/XXXXX Field Office (DOE/XXXXX) Personnel Security Division began an investigation into the individual's background. This investigation included three separate Personnel Security Interviews (PSIs) with the individual and a DOE-sponsored evaluation of the individual by a board-certified psychiatrist. On the basis of the investigation, the Director of the Personnel Security Division of DOE/XXXXX determined that information uncovered during the investigation was substantially derogatory.

On February 24, 1995, the DOE/XXXXX's Manager informed the individual of the Personnel Security Division's findings in a letter which stated that the information possessed by the DOE created a substantial doubt concerning his eligibility for a "Q" access authorization. I will hereinafter refer to this letter as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information possessed by the DOE. Specifically, the Notification Letter included information described in 10 C.F.R. § 710.8(j). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

In a letter dated March 9, 1995, the individual responded to the DOE/XXXXX Manager's Notification Letter and requested a hearing on this matter. The DOE/XXXXX Manager forwarded the individual's request to the Office of Hearings and Appeals on March 30, 1995. I was appointed the Hearing Officer in this matter on April 6, 1995. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference was held on XXXXXXXXXXX. The hearing was convened at the DOE/XXXXX on XXXXXXXXXXXXXX.

At the hearing on XXXXXXXXXXXXX, at which the individual represented himself, the following six witnesses testified: (1) XXXXX, a current co-worker of the individual; (2) XXXXXXXXXXXXXXXXXXXX, a DOE Personnel Security Specialist; (3) the individual; (4) XXXXX, M.D., the DOE psychiatrist; (5) XXXXX, a former supervisor of the individual at XXXXX; (6) XXXXX, a former supervisor and current co-worker of the individual at XXXXX; and (7) XXXXX, a current co-worker at XXXXX and previous supervisor of the individual while both were in the Navy.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on February 24, 1995, included a statement of derogatory information in possession of the DOE that created a substantial doubt as to the individual's eligibility to hold a "Q" clearance. The DOE/XXXXX Manager found this information met the provisions of 10 C.F.R. § 710.8(j). That subsection pertains to information that an 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 being alcohol dependent or as suffering from alcohol abuse."

The Notification Letter's statement of derogatory information included a detailed history of the individual's alcohol consumption. The individual's initial alcohol drinking episodes began in 1977 when the individual was 17 years old and were limited to two or three drinks per episode. However, the individual's consumption amount soon increased to weekly intoxication and to the point where the individual was incoherent every four to six weeks. By the time the individual entered the Navy in July 1979, he consumed 12 to 13 shots of rum daily. After entering the Navy, the individual's alcohol consumption was limited to weekends, usually eight to 12 drinks in five to seven hours. Following a change in job duties in September 1980, the individual's alcohol consumption became sporadic, but the individual reported that he was intoxicated on many of those occasions. Beginning in April 1980, while deployed at sea for three months, the individual completely stopped his alcohol consumption. However the individual reported that when he returned to port, he resumed drinking alcohol and became intoxicated every weekend for the two months before he returned to his deployment at sea. This pattern of abstinence while deployed at sea followed by excessive alcohol consumption while stationed in port continued for four years. During this time period, the individual was involved in a few alcohol-related incidents. In one of these instances, the individual broke his knuckle while wrestling with a shipmate and in another incident the individual arrived late for work as a result of a hangover.

In December 1983 a more serious incident occurred when the individual was arrested for "Driving Under the Influence" (DUI). The individual estimated that he consumed eight to 10 beers in two or three hours that night. Following this arrest, the Navy enrolled the individual in a six-week alcohol rehabilitation program. Upon the completion of this Navy run program, the individual was placed on Antabuse (a drug which causes an adverse reaction to the intake of alcohol) for six months. However, the individual reported that about one month after completing his Antabuse treatment, he resumed drinking alcohol.

The individual reported that from June 1985 through February 1987 he drank an average of 12 beers per week. During this time, he became intoxicated a couple of times every month. Following a leg injury, the Navy transferred the individual to Hawaii. This injury and transfer coincided with an increase in the individual's alcohol intake to six to 10 beers in three to four hours, two or three times per week. Many of these drinking episodes were accompanied by intoxication.

In February 1987, the individual was arrested a second time for DUI, although this charge was later reduced to Inattention to Driving. Dr. XXXXX, the psychiatrist who conducted the individual's psychiatric evaluation for the DOE/XXXXX, estimated that the individual's blood alcohol content (BAC) of 0.193 indicated that the individual consumed at least 16 drinks that night. As a result of this DUI, the Navy enrolled the individual in a three-week alcohol rehabilitation "refresher" course, and the individual was again placed on Antabuse. The individual estimated that from the time of this "refresher" course until April 1994, he consumed one or two alcoholic drinks two or three times per week and that he became intoxicated on two occasions. One of these intoxication episodes occurred during the summer of 1988 after a bachelor party, and the second episode followed the individual's notification that he had been laid off of work in December 1992. Furthermore, in the 1988 incident, the individual was arrested after a physical confrontation with off-duty, Military Police and registered a BAC of 0.170.

In the individual's July 6, 1994 PSI, the individual informed the DOE that in April 1994 he had decided to stop his use of alcohol, but that he had not attended any alcohol counseling or AA meetings. In the individual's November 1994 PSI, he stated that he had consumed approximately three or four nonalcoholic beers on separate occasions in the summer of 1994 and was aware at that time that nonalcoholic beer does contain some alcohol. The individual stated that he gave up drinking nonalcoholic beer at the end of summer 1994 because he did not care for its taste.

The Notification Letter's statement of derogatory information also contained a summary of Dr. XXXXX's October 1993 psychiatric evaluation of the individual. In this psychiatric evaluation, Dr. XXXXX diagnosed the individual as suffering from "alcohol abuse until May of 1987 with current alcohol use." He listed the following reasons for his diagnosis: the individual has had abusive patterns of alcohol use multiple times in his life; he required alcohol treatment twice in the Navy; he experienced an affective change while under the influence of alcohol in the Summer 1988 incident; he minimized his alcohol intake in that incident; he has had hangovers which have caused him to be late to work; he has had two alcohol-related traffic violations within five years; he has shown tolerance to alcohol; he has shown denial regarding his alcoholism; his parents have expressed concern regarding his use of alcohol; and he has a family history of alcoholism. Dr. XXXXX stated that he did not find evidence that the individual was rehabilitated and he could not consider the patient to show adequate evidence of rehabilitation or reformation as long as he continued to drink any amount of alcohol. Thus, Dr. XXXXX recommended at that time that the individual abstain from drinking alcohol for at least one year, attend Alcoholics Anonymous (AA) meetings at least three times per week and that he obtain additional alcohol education.

III. Analysis

The record indicates and the individual has acknowledged that he has suffered from alcohol abuse, Transcript of XXXXX Personnel Security Hearing at p.79, 145 (hereinafter Tr.), and as described above, does not dispute that he has had a long history of alcohol usage. Because of this fact, the DOE/XXXXX Personnel Security Division has raised questions regarding the individual's eligibility for access authorization. However as the Part 710 regulations dictate, once there is derogatory information such as that specified in § 710.8, the Hearing Officer must undertake a careful review of all of the surrounding facts and circumstances. In fact, the applicable DOE regulations require the Hearing Officer to make a "common-sense judgment . . . after consideration of all the relevant information." 10 C.F.R. § 710.7(a). Without this careful review, this process would be transformed into a simple matter of obtaining a medical diagnosis which calls into question the individual's judgment or reliability. Thus, pursuant to the regulations, I must consider all information that is "favorable or unfavorable" to the individual and ultimately bearing on "whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual's conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual's potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). It is the totality of these facts and circumstances that will shed light on whether the individual could fail to perform his security responsibilities adequately. Although it is impossible to predict with absolute certainty an individual's future behavior, as the Hearing Officer, I am directed to make a predictive assessment. Thus, it is incumbent upon the individual to demonstrate to me that granting him access authorization will not compromise national security concerns. After careful consideration of all of these factors, as well as all the evidence in the record in this proceeding, including oral testimony transcribed at the XXXXX Personnel Security Hearing, and all of the documents filed with me by the parties, I find that granting the individual access authorization will not endanger the common defense and security and is clearly consistent with the national interest.

A. The Nexus Between Alcohol Abuse and the DOE/XXXXX's Security Concerns

The DOE/XXXXX contends that, pursuant to 10 C.F.R. § 710.8(j), the individual has been 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 suffering from alcohol abuse. Specifically, based on Dr. XXXXX's diagnosis of "alcohol abuse until May 1987 with current alcohol use," <2> the DOE/XXXXX argues that the individual's condition creates a substantial doubt concerning his eligibility for access authorization. The DOE/XXXXX contends that a clearance holder who is under the influence of alcohol has lowered inhibitions and is thus more likely to release classified or sensitive information. Tr. at 28-30. Of particular concern is the possibility that the individual might experience a blackout while under the influence of alcohol and not even remember releasing information. This scenario would prevent DOE security from even being provided the opportunity to minimize the damage, as it would not be made aware that a breach had actually occurred. Tr. at 29. Furthermore, the DOE/XXXXX security specialist testified that while even nonalcoholics pose some security risk if they become intoxicated, alcoholics present an unacceptable security risk because they experience alcohol's compromising effects with greater frequency. Accordingly, the DOE denies security clearances to those determined to be alcoholics who have not demonstrated rehabilitation. Tr. at 29-30. While I agree that a nexus exists between alcoholism and the DOE/XXXXX's security concerns, I find that these concerns are not an issue in this case for the reasons described below.

B. The Individual's Current Condition

The individual does not deny that he was an abuser of alcohol, Tr. at 79, 145, but believes that he has recently been rehabilitated and reformed. Tr. at 200. Specifically, the individual states that since his resolution in April 1994 to stop drinking, he has consumed only three or four nonalcoholic beers, most recently in September 1994. Tr. at 76, 91. He further testified that he intends to continue his abstinence and has no desire to continue drinking alcohol because he has discovered what he believes is the underlying reason for his history of alcohol abuse. Tr. at 77, 151-152. The individual contends that he lessened and subsequently stopped his consumption of alcohol following his attendance at the May 1987 alcohol rehabilitation course, when he gradually discovered that his excessive drinking was the result of his abusive childhood. Tr. at 36, 38, 39-40, 60-61, 86-87. Currently, the individual does not attend AA meetings as maintenance for his rehabilitation because he feels that he now has a sufficient understanding behind the reasons for his alcohol abuse and because he finds AA meetings "depressing." Tr. at 85. Finally, the individual states that he does not consider himself an alcoholic because he disagrees with the irreversible nature of the "label." Tr. at 85-86, 88.

When the individual's Personnel Security Hearing was held in XXXXX, more than 20 months had passed since Dr. XXXXX had interviewed and evaluated the individual. At the hearing, Dr. XXXXX reevaluated the individual based on the important changes that had transpired in the individual's life since their last meeting. This reevaluation resulted in Dr. XXXXX adding to his original diagnosis to include a finding that he now considers the individual to be "reformed and rehabilitated" from his alcohol abuse problem, pursuant to the terminology used in 10 C.F.R. § 710.7(c). Tr. at 154-156. Moreover, Dr. XXXXX stated that the individual is "in remission" from his alcohol abuse, pursuant to the standards outlined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, (1994). Tr. at 158-159.

Dr. XXXXX based his reevaluation on a few important factors. Initially, he noted the significance of the individual not consuming any alcohol, except for the nonalcoholic beer, for the past 14 months. <3> This 14 month period of abstinence is significant because Dr. XXXXX stated that those who maintain one year of abstinence (while participating in an AA program) have an 80% chance of maintaining abstinence for another year and those that maintain abstinence for four or five years have a 90% chance of remaining abstinent for the following year. Tr. at 124. While Dr. XXXXX was aware that the individual was not participating in an AA program, Tr. at 152, this fact did not ultimately affect his reevaluation. Specifically, Dr. XXXXX stated in his original evaluation and reiterated in his testimony, that he was "impressed" by the individual's honesty and reliability, an event which Dr. XXXXX said occurred only rarely. Tr. at 132, 150-51, 153, 157. Thus, Dr. XXXXX testified that he believes the individual will continue to abstain from drinking alcohol as long as he is employed by the DOE. <4> Tr. at 156. Furthermore, Dr. XXXXX stated that he has no reason to believe that the individual has not given a complete account of his alcohol intake since March 1994. While Dr. XXXXX did initially express reservations at the hearing regarding the individual's condition, these reservations were ultimately set aside in his "reformed and rehabilitated" reevaluation. <5>

Dr. XXXXX's reevaluation is based on facts that are undisputed and supported in the record. Accordingly, I find Dr. XXXXX's reevaluation that the individual is "reformed and rehabilitated" from his alcoholism and that his alcoholism is "in remission" to be both credible and reasonable. Furthermore, there is no evidence in the record to contradict Dr. XXXXX's belief that the individual has been honest regarding his past alcohol consumption and his belief that the individual will abstain from drinking alcohol while working for the DOE. <6> As such, I find that this portion of Dr. XXXXX's testimony has predictive value.

C. Additional Factors

Testimony at the hearing also uncovered two other important factors which bear mentioning. First, it is important to note that when an alcohol abuser is found to have been "reformed and rehabilitated," the DOE/XXXXX Personnel Security Division no longer considers that individual to be a security concern. Tr. at 28. Second, the DOE Counsel also explained that in cases such as this where the DOE psychiatrist initially diagnoses a substance abuse problem and subsequently, the DOE psychiatrist confirms the presence of reformation, the DOE/XXXXX's investigation process is usually "derailed" so long as a hearing had not already been scheduled. Tr. at 196-197. While the DOE Counsel noted that the Office of Safeguards and Security (OSS) has at times rejected a psychiatrist's finding that a person was rehabilitated after six months because the OSS preferred to see one year of abstinence, that is obviously not the case here since Dr. XXXXX viewed the individual's abstinence to have lasted 14 months. Thus, it appears that if Dr. XXXXX's reevaluation had not been at the hearing, but somewhat earlier in the investigative process, this case might very well have been "derailed" before it ever reached the hearing stage.

IV. Conclusion

While the individual's extensive history of excessive alcohol consumption is significant derogatory information, the presence of rehabilitation and reformation from this history is the key factor in my decision. <7> Based on Dr. XXXXX's new diagnosis that the individual is currently reformed from his alcoholism and all of the facts and circumstances surrounding his condition, I find that the individual has adequately demonstrated rehabilitation. Certainly, if I was not convinced that the individual was indeed rehabilitated from his condition or if I did not believe the individual could and would abstain from future alcohol consumption, I would not be able to recommend that he be granted access authorization. Furthermore, it is significant that a representative from the DOE/XXXXX Personnel Security Division testified that her division does not view a rehabilitated individual to be a security concern. For all these reasons, I believe that granting the individual access authorization will not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's access authorization should be granted.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

Leonard M. Tao

Hearing Officer

Office of Hearings and Appeals

<1>A level "Q" 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 variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>In addition, Dr. XXXXX testified at the hearing that he also considers the incidents which occurred during summer 1988 and December 1992 to be examples of abusive drinking. Tr. at 122.

<3>Although nonalcoholic beer does contain some alcohol (less than 0.5%), Dr. XXXXX discounted the individual's consumption of nonalcoholic beers for the purpose of determining when his abstinence began. Tr. at 133.

<4>Dr. XXXXX also testified that the individual's primary motivation for his abstention from alcohol consumption is his desire to obtain access authorization. Thus, Dr. XXXXX could not predict whether the individual would maintain his abstinence if no longer employed by the DOE. Tr. at 156.

<5>These reservations concerned Dr. XXXXX's belief that the individual had failed to experience a "mind set" or "lifestyle" change due to his refusal to characterize himself as an alcoholic. Tr. at 132-33, 155. Thus, since the individual does not believe he had the "illness" or condition of alcoholism, Dr. XXXXX believed there might be little reason for the individual to continue to abstain from consuming alcohol. Tr. at 133, 149. Ultimately however, Dr. XXXXX concluded that the individual's credibility was bolstered by the fact that the individual did not come to the hearing and "[play] the game" by saying everything he thought the DOE psychiatrist and DOE/XXXXX Security Division would want to hear. Tr. at 157.

<6>Witnesses who have socialized extensively with the individual over the last 14 months confirmed the individual's testimony regarding his abstention from alcohol consumption except for the nonalcoholic beers. Tr. at 166-67, 169, 183-84, 193-194.

<7>The individual's witnesses testified that the individual had tremendous responsibilities in his various positions and that the individual consistently performed his duties at or near the highest level possible. I find this testimony to be unimportant because the individual's competency to perform his job is not evidence of his ability to protect national security both on and off the job.