Case No. VSO-0036, 25 DOE ¶ 82,772 (H.O. Gray Oct. 13, 1995)

For full history of this case, and links to other cases, click here.

* 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: May 11, 1995

Case Number: VSO-0036

Respondent XXXXX requested a hearing on the continuation of his access authorization. The Respondent works for a contractor at the Department of Energy's XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. After a security review revealed derogatory information about the Respondent, the manager of the XXXXX Operations Office suspended his access authorization.

The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXXXX. After considering the evidence in view of the relevant regulations, it is my opinion that the Respondent's access authorization should not be continued.

BACKGROUND

The Respondent's eligibility for access authorization is governed by regulations found at 10 C.F.R. Part 710. The regulations set forth specific types of derogatory information that create a question as to an individual's eligibility for access authorization. In the Respondent's case, the Department of Energy (DOE) alleged two types of derogatory information that cast substantial doubt on the Respondent's eligibility for access authorization. The DOE charged that the Respondent had:

(1) 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 as suffering from alcohol abuse (10 C.F.R. § 710.8(j)); and

2) engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include . . . criminal behavior . . . (10 C.F.R. § 710.8(l)).

At the hearing, the DOE presented two consulting psychiatrists (the "DOE psychiatrists") who had examined the Respondent, and a security specialist from XXXX. The Respondent testified on his own behalf. <1>

There is no material dispute concerning the facts in this case. The Respondent has admitted to the allegation that he was an alcohol abuser, and to the incidents that form the basis of the allegation that he engaged in criminal behavior. The sole issue is whether the Respondent has adequately rehabilitated and reformed himself so that he is eligible to hold access authorization.

FINDINGS OF FACT

The Respondent is a XXXXX-year old XXXXXXXXX worker who has been at XXXX for about fifteen years.<2> He has a good work record, with no evidence that alcohol consumption interfered with his job performance.<3>

The Respondent started drinking alcohol in his mid-teens.<4> He later developed a habit of drinking heavily in binges. During the 1980's, he experienced several blackouts because of heavy drinking.<5>

His bouts of drinking led to a series of legal problems. In 1984, he was arrested and fined for urinating on a roadside while under the influence of alcohol. In 1989, while drinking heavily, he inhaled a quantity of cocaine. When a relative discovered him unconscious and with an irregular heartbeat, he was rushed to the emergency room of a local hospital. He was successfully treated there for alcohol and cocaine overdose. When he was admitted to the hospital, his blood alcohol level was .375.<6>

He was arrested for driving while intoxicated three times -- in 1983 (when the charges were dropped after he attended a court-ordered driving school), 1991, and 1992. In the 1991 incident, he drove his pickup truck into the back of another truck that had stopped to make a left turn. In both the 1991 and 1992 incidents, his blood alcohol level measured between .26 and .28, almost three times the minimum levelation necessary to establish impaired driving.<7>

His drinking also contributed to a stormy relationship with his girlfriend. During their fourteen years together, she filed several reports with the police accusing him of various degrees of assault or destruction of property. It is impossible to know exactly what happened in these incidents.<8> It is clear, however, that several violent altercations took place. At one incident in 1986 or 1987, the Respondent struck his girlfriend's nose and broke it.<9> In May 1993, he pushed her, causing a bruised breast and twisted hand.<10> In September 1993, the girlfriend obtained a temporary restraining order against the Respondent.<11> The restraining order was dismissed at her request in December 1993, but not before the Respondent violated it several times by going to her house.<12> Another argument in February 1994 ended with the girlfriend in the emergency room of a hospital.<13> The Respondent claims that he did no more than try to restrain her from striking his vehicle. A police officer who interviewed the girlfriend at the hospital, however, noted in his report "unusual red bruising" around her neck and face.<14>

The Respondent's accounts of these incidents minimize the intensity of the conflict. It is clear from the injuries sustained by the girlfriend, however, that the Respondent became on occasion physically violent toward her. The Respondent estimates that alcohol played a role in half of the conflicts he had with his girlfriend.<15> Instead of facing charges, he attended a domestic violence counseling program of the XXXXXXXXXX state's attorney's office.<16> He was favorably discharged from the program in June 1995.

The DOE referred the Respondent for psychiatric examinations on two occasions. After the first examination, in 1992, the psychiatrist concluded that the Respondent "does have an alcohol abuse problem, and that he should, from a medical treatment perspective, accept abstinence from alcohol as a treatment goal and probably be involved in some sort of alcohol support counseling."<17>

In 1995, a second psychiatrist diagnosed the Respondent as an abuser of alcohol and suffering from probable alcoholic liver disease.<18> The psychiatrist noted that:

there is not adequate evidence of rehabilitation or reformation. There is continued usage despite knowledge of recurrent problems caused by alcohol. [The Respondent] very likely underestimates the amount of alcohol usage and impairment from alcohol usage. He needs to accept total abstinence from alcohol and cannot be an asymptomatic drinker. The alcohol abuse problem may cause significant defect in judgment and reliability. I would recommend continuation of his alcohol treatment program for one year. During this one year period, he should be totally abstinent from alcohol usage.<19>

After his arrest for driving while intoxicated in 1992, the Respondent checked himself into an inpatient substance abuse program.<20> He was discharged from the program approximately one month later, with a recommendation that he participate in an aftercare program. He attended only a few sessions of the aftercare program because he found it too difficult to attend while his driver's license was suspended.<21>

The Respondent has occasionally attended meetings of Alcoholics Anonymous in XXXXXXXX, but has made no effort to locate meetings in XXXXXXXXX that would be closer to his home and work place.<22> He talked with a substance abuse counselor about once a week before his recent back surgery.<23>

Substance abuse counselors, as well as the two psychiatrists who testified at the hearing, have recommended that the Respondent abstain from alcohol.<24> The Respondent did not claim that any substance abuse professional advised him that he can continue to drink and expect to remain free from the consequences of alcoholic disorders. Nevertheless, he continues to drink. He consumed beer about six weeks before the hearing, and again two-and-a-half weeks before the hearing.<25>

ANALYSIS

The regulations provide that my opinion is to be "a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of [the Respondent's] 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).

The DOE suspended the Respondent's access authorization based on two allegations: that he habitually used alcohol to excess, and that he engaged in criminal behavior. As for the allegation of alcohol abuse, the record clearly supports the DOE's position. It is beyond dispute that the Respondent abused alcohol for many years. Moreover, despite several convictions for driving while intoxicated, violent confrontations with his girlfriend, a near-fatal overdose of alcohol and cocaine, and the suspension of his clearance, he has been unable to come to terms with the seriousness of his alcohol abuse problem. The fact that he still drinks puts him in increased danger of relapsing into a drinking binge, and heightens the risk that he will compromise classified material.

The Respondent contended at the hearing that he is rehabilitated from alcohol abuse and therefore eligible for access authorization. I do not agree. His current drinking level may be low, but it must be noted that the Respondent never consumed large quantities of alcohol regularly. His incidents of alcohol abuse occurred during binge drinking, with periods of reduced drinking or abstinence between them.

The Respondent points out that his having an occasional beer is not a significant practice.<26> While this may be true for some people, it is not for the Respondent. Because of the Respondent's well-documented history of uncontrolled drinking, I do not believe that he can continue to consume alcohol without increasing the risk that he would endanger national security.

The Respondent implies that the psychiatrists are predisposed to find symptoms of alcohol-related disorders in patients referred to them by the DOE. He describes this as the "hammer and nail syndrome," referring to the proverbial saying that "when you have a hammer, everything looks like a nail."<27>

The hammer and nail argument is unpersuasive because the Respondent agrees with the psychiatrists on all material points. He concedes that he is an alcohol abuser, and he acknowledges that abstinence from alcohol is the proper course for him. The only point of disagreement between the Respondent and the psychiatrists is whether the Respondent's continued drinking is significant. The Respondent did not cite any substance abuse professional to support his claim that he could safely continue to consume alcohol. I conclude, therefore, that the Respondent's "hammer and nail" argument is unpersuasive.

The Respondent also argued that, according to the guidelines of the standard psychiatric diagnostic manual, alcohol disorders are considered "in remission" after twelve months of sobriety.<28> The concept of "remission" from alcohol disorders may be significant in some contexts, but it is not the equivalent of rehabilitation or reformation. The presence of remission, therefore is not controlling as to the Respondent's eligibility for access authorization. Personnel Security Hearing, VSO-0029, 25 DOE ¶ ____ (1995).

Substance abuse professionals have uniformly recommended that the Respondent abstain from alcohol and attend recovery group meetings. Since he continues to drink, and attends group meetings sporadically, it is clear that the Respondent's efforts at complying with these recommendations have been half-hearted. I cannot conclude, therefore, that he is rehabilitated from alcohol abuse at this time. Furthermore, it is my opinion that the Respondent's alcohol disorder leads to impaired judgment and reliability, and is thus an adequate ground for denying him continued access authorization. See Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758 at 85,558 (1995); Personnel Security Heaering, VSO-0016, 25 DOE ¶ 82,757 at 85,550-51 (1995); Personnel Security Hearing, VSO-0014, 25 DOE ¶ 82,755 at 85,537-38 (1995); Personnel Security Hearing, VSO-0005, 24 DOE ¶ 82,753 at 85,530 (1995).

The DOE based its allegation of criminal behavior on a succession of actions by the Respondent, including assault, criminal damage to property, violation of a restraining order, and use of cocaine. As for the Respondent's eligibility for access authorization, it is not important that he was not convicted of the crimes. An adverse personnel action can be based on a criminal act, even in the absence of a conviction. Brown v. U.S. Department of Justice, 715 F.2d 662 (D.C. Cir. 1983). Nor does it matter whether the Respondent's girlfriend instigated some of the incidents. What is important is that the Respondent has shown a pattern of disobeying the law. Such behavior gives rise to the inference that he may not obey security regulations, and is thus inconsistent with the standards for holding access authorization.

The Respondent claims that he has reformed himself, pointing out that his use of cocaine was confined to one instance, and that he received a favorable prognosis from the domestic violence counseling program, and that there have been no violent confrontations since February 1994.<29> It is significant, however, that the Respondent's cocaine overdose and much of his violent behavior occurred after drinking bouts. There is no reason to suppose that the Respondent is given to violent or lawless conduct when he is sober. His reformation from criminal behavior, therefore, is inseparable from his rehabilitation from alcohol abuse. Since he has not yet adequately rehabilitated himself from his alcohol disorder, I find that he has not adequately reformed himself from his criminal behavior. I conclude that the Respondent's criminal behavior is an adequate ground for denying him continued access authorization.

CONCLUSION

In view of the criteria set forth in 10 C.F.R. Part 710, and the reasons stated above, I find that continuing the Respondent's access authorization would endanger the common defense and security and would not be clearly consistent with the national interest. 10 C.F.R. § 710.7(a). It is therefore my opinion that the Respondent's access authorization should not be continued.

Warren Gray

Hearing Officer

Office of Hearings and Appeals

<1>In addition, the Respondent provided a written psychiatric evaluation performed by a third psychiatrist. The Respondent underwent a psychiatric examination from this psychiatrist in July 1995 without a referral from the DOE. The report of the examination focuses on psychiatric issues other than the Respondent's alcohol abuse. It notes, however, that the Respondent "is not likely to maintain sobriety unless given structure and support." It is not clear from the report what structure and support would be required. Exhibit 34 at 4.

<2>Transcript of Hearing (Tr.) at 14.

<3>Tr. at 147.

<4>Tr. at 14.

<5>Tr. at 11-12.

<6>By way of reference, a blood alcohol level of .05 produces sedation or tranquility; .05 to .15, lack of coordination; .15 to .20, intoxication (delirium); and .30 to .40, unconsciousness. Blood alcohol levels greater than .40 may be fatal. The Merck Manual (16th ed. 1992), 1552.

<7>At the time of his arrests, a blood alcohol level of .10 was sufficient to support a charge of driving while intoxicated in XXXXX.

<8>The Respondent's police record includes several complaints by his girlfriend that are not discussed in this Opinion. The girlfriend refused to press charges in any of these incidents. The Respondent claims that some of the complaints are false, and that he did not know about the complaints until much later. In reaching my opinion on the Respondent's eligibility for access authorization, I considered only those incidents that the Respondent has admitted took place. The Respondent's version of these incidents often differs considerably from his girlfriend's version.

<9>Exhibit 4 at 72.

<10>Exhibit 4 at 94.

<11>Exhibit 4 at 71.

<12>Exhibit 4 at 72-73. The Respondent says he thought the restraining order was removed a few weeks after it was issued.

<13>Exhibit 4 at 79-81.

<14>Exhibit 25.

<15>Tr. at 97.

<16>Tr. at 32.

<17>Exhibit 21 at 7.

<18>The diagnosis of alcoholic liver disease is based on the Respondent's history of elevated liver enzymes.

<19>Exhibit 20 at 12.

<20>Tr. at 16.

<21>Tr. at 17.

<22>Tr. at 61.

<23>Tr. at 44-45.

<24>Tr. at 16; 73; 101.

<25>Tr. at 15-16.

<26>Tr. at 155.

<27>Tr. at 74; 149.

<28>Tr. at 155. For the definition of remission, see American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), 180. The chart on this page gives time limits in terms of alcohol dependence and not alcohol abuse. The Respondent and the psychiatrists who testified agree, however, that the time limits apply to alcohol abuse as well. Tr. at 82-83.

<29>Tr. at 157.