Case No. VSO-0038, 25 DOE ¶ 82,769 (H.O. MacPherson Oct. 2, 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:June 5, 1995

Case Number:VSO-0038

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the respondent") to hold an 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 respondent's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) under the provisions of Part 710. As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent's access authorization should not be restored.

I. Background

The respondent XXXXX works for the XXXXXXXXXXXXXXXXXXXX, a contractor that provides services to the XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. This administrative review proceeding was commenced by the issuance on May 1, 1995, of a Notification Letter to the respondent.<2> In that letter, the respondent was informed that information in the possession of the DOE/XXXXX created a substantial doubt concerning his continued eligibility for an access authorization. See 10 C.F.R. § 710.21. On May 16, 1995, the respondent responded to the DOE/XXXXX's allegations and requested a hearing to resolve the issue of his eligibility for access authorization. The respondent's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals on June 5, 1995. The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXXXX.

The Notification Letter alleged two areas of derogatory information: alcohol dependence and untrustworthiness. 10 C.F.R. § 710.8(j), (l).<3> The allegation of alcohol dependence is

based upon a number of arrests for Driving While Intoxicated (DWI) and the report of Dr. XXXXX, a board certified psychiatrist who evaluated the respondent's problems with alcohol at the request of DOE. The allegation of untrustworthiness is based on a July 1992 Personnel Security Interview (PSI) where the respondent acknowledged that he had abused alcohol and indicated that he was going to try not to drink anymore. The Notification Letter alleges that the respondent violated a verbal commitment to DOE when he resumed drinking.

At the hearing, DOE presented the testimony of (1) the respondent, (2) Dr. XXXXX, (3) a deputy group leader at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX who testified that the respondent has access to classified information, Transcript of Hearing 74 (August 22, 1995) (hereinafter cited as "Tr."), and (4) XXXXXXXXXXXXXXXXXXXXXXXXXXX, a personnel security specialist at DOE/XXXXX who testified concerning the respondent's alleged verbal commitment to DOE to abstain from alcohol. The respondent presented the testimony of (1) his supervisor, (2) his brother and former co-worker, and (3) Dr. XXXXX, a psychologist who evaluated the respondent's use of alcohol.<4>

II. The Relevant Evidence

A. The Respondent's Use of Alcohol

Most of the relevant facts concerning this issue are uncontested. The respondent is a XXXXX-year old XXXXXXXXXX who attends the University of New Mexico part time. He began drinking at age nineteen. Tr. at 14-16, 23. During the two or three years immediately prior to suspension of his security clearance, the respondent tended to be a "binge" drinker of beer on the weekends. Typically, he would consume a six-pack of beer about every two weeks, on a single weekend day. Two or three times a year the respondent would drink up to two six-packs at a single sitting. The respondent would seldom drink during the work week, although occasionally he might have a single drink. There were periods during which the respondent would not drink for a period of time. For example, he abstained from alcohol consistently between the first of the year through the end of Lent. Tr. at 24-25. In addition, the respondent attempted to stop drinking in 1993, but this attempt was not successful. The respondent concedes that he is an alcoholic. Tr. at 20.

The respondent's consumption of alcohol over the last few years is more moderate than it was in prior years. In prior years, his drinking often led to intoxication, and he had experienced blackouts. The respondent has had at least six arrests for DWI, the most recent in 1989.<5> Tr. at 18. See Exhibits 3, 4, 5 and 6.

The respondent ceased drinking in December of 1994, and had not resumed drinking as of the date of the hearing. Tr. at 19-20. He stated that the action of suspending his security clearance motivated him to stop drinking alcohol. Tr. at 20. The respondent retained a psychologist, Dr. XXXXX, to evaluate his alcohol problem, and during the month before the hearing, the respondent saw an alcohol counselor four times and attended four Alcoholics Anonymous (AA) meetings. Tr. at 20-22. The respondent has not entered any formal alcohol treatment program or group therapy. Tr. at 27. The respondent indicated at the hearing that he did not know where to go to find help that he can afford for his alcohol problem, and he was unaware of employee assistance programs that might be available to him. Tr. at 28.

Dr. XXXXX found no evidence that alcohol caused any significant problems, other than the DWIs, in the respondent's work or personal life. The respondent's supervisor (since January 1995) and his brother (who was also a coworker) testified that the respondent has never been observed under the influence of alcohol while at work. Tr. at 98-102; 104-105.<6> To the contrary, his supervisor testified that he is reliable, gets his work done, and has good judgment. He testified that the respondent arrived at work on time and did not have any unusual absences. The supervisor indicated that he would trust the respondent with confidential information. Tr. at 101-102. The respondent's brother testified that the respondent does not have any financial problems and that he gets along well with others. Tr. at 104-105. Moreover, the respondent's brother stated that he does not discuss any confidential information that pertains to his job. Tr. at 105.

Two mental health professionals who evaluated the respondent's problems with alcohol testified at the hearing. Dr. XXXXX, a psychiatrist, was called by the DOE. Dr. XXXXX, a psychologist, was called by the respondent. There was no significant difference in their testimony. Both Dr. XXXXX and Dr. XXXXX concluded that the respondent was alcohol dependent, a fact that the respondent concedes, and they both indicated that he was not yet rehabilitated.

Dr. XXXXX examined the respondent on two separate occasions and witnessed the respondent's testimony at the hearing. He conducted his most recent examination of the respondent on December 16, 1994. On December 31, 1994, he issued a report in which he noted that the respondent was drinking, but in a controlled fashion. Exhibit 21.<7> He concluded that the respondent 1) met the criteria under the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) for alcohol dependence; and 2) has been a user of alcohol habitually to excess, but is not currently using alcohol to excess. Dr. XXXXX indicated that the respondent is an alcoholic who was then drinking in a controlled fashion.<8> He stated that it is simply a matter of time before the respondent again uses alcohol habitually to excess. Dr. XXXXX further indicated that there was no adequate evidence of rehabilitation or reformation. See Exhibit 21; Tr. at 41-42.

Dr. XXXXX stated that in order to be considered rehabilitated, the respondent should satisfactorily complete a 50 hour formal program with the following four elements: (1) individual counseling, (2) group therapy with other substance abusers, (3) education, and (4) family involvement. Exhibit 21, at 13. Dr. XXXXX indicated that there should be abstinence during the period of treatment and for one year after the completion of the treatment program. Dr. XXXXX concluded that this one year period should commence after the treatment program is finished because there are fewer relapses while people are in treatment. Dr. XXXXX testified that the respondent's abstinence since December 1994, seeing an alcohol counselor four times and attending four AA meetings during the month prior to the hearing do not constitute sufficient evidence of rehabilitation. Dr. XXXXX opined that, in the absence of a formal treatment program containing the elements outlined in his report, the odds are very strong that the respondent would relapse. Tr. at 19-22, 42-45 & 62.

During the summer of 1995, the respondent asked Dr. XXXXX for a second opinion concerning his alcohol problem. Dr. XXXXX generally concurred with Dr. XXXXX's opinion concerning the respondent's dependence on alcohol. Dr. XXXXX indicated that the respondent was not currently rehabilitated. She also agreed that the respondent needs to remain abstinent and needed psychological counseling for his dependence. Dr. XXXXX agreed that he should be in an alcohol treatment program that uses group therapy. Tr. at 126-127. She was unwilling to specify an amount of time that it would take for the respondent to demonstrate rehabilitation. She indicated that it would require between six and twelve months, but it would have to be determined by the respondent's therapist. Tr. at 121.

B. The Respondent's Alleged Violation of a Commitment to Abstain from Alcohol

The DOE alleges that the respondent is untrustworthy because he violated a commitment in 1992 to refrain from using alcohol. There is no dispute as to the statements that the respondent made. In the July 1992 PSI, the respondent stated on five occasions either that he intended to abstain from alcohol or that he would "try" to give up alcohol. Exhibit 4, at 15, 22, 23, 27, 28. The DOE and the respondent differ in their interpretation of these statements.

XXXXXXXXXXXXXXXXXXXXXXXXXXX, a Personnel Security Specialist at DOE/XXXXX, testified that she had recommended that the respondent's clearance be continued in 1992. She further testified that she had based her recommendation upon the respondent's assurance that he would remain abstinent from alcohol. Tr. at 80. The respondent, however, contends that he did not violate any commitment. He maintains that he only stated that he would try to abstain from alcohol, and he did in fact try to abstain, but was not successful. Furthermore, the respondent states that he was never informed that DOE considered his statements a commitment or that his clearance was continued in 1992 based upon his stated intention to try to give up consuming alcohol. Exhibit 2, at 1.

III. Analysis

DOE regulations provide that my opinion is to be based on a comprehensive, common-sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a).<9> As detailed below, it is my opinion that the respondent's access authorization should not be restored.

In the instant case, both mental health professionals agree that the respondent is currently alcohol dependent. Dr. XXXXX has also concluded that the respondent has been a user of alcohol habitually to excess. Indeed, the respondent has himself admitted that he is an alcoholic. Tr. at 20.

The evidence indicates that the respondent's alcohol consumption never impaired his ability to perform his assigned duties or his handling of classified materials. However, I need not find that the respondent actually failed to handle and safeguard classified material properly before recommending that his access authorization be revoked or denied. On the contrary, I must consider that even alcohol abuse that occurs after working hours presents an enhanced risk that classified material could be mishandled. See Cole v. Young, 351 U.S. 536, 550 n.13 (1956). It cannot be disputed that the respondent's problem with alcohol is serious. Dr. XXXXX specifically concluded that the respondent's judgment is impaired during the times that he is intoxicated.

The principal issue in this case is whether the respondent is rehabilitated or reformed to a sufficient extent that restoration of his access authorization would be warranted under 10 C.F.R. § 710.7(a). It is uncontested that the respondent stopped drinking in December 1994. He has therefore refrained from drinking for a longer period than was usual under his drinking pattern (to refrain from drinking between the first of the year and the end of Lent). He has also attended four AA meetings and consulted with a counselor four times during the month before the hearing. Based upon the respondent's testimony, I am convinced that he is serious about remaining sober. Nonetheless, both mental health experts testified that the respondent has not been reformed or rehabilitated. The respondent's attempt to solve his alcohol problem on his own is not sufficient to demonstrate reformation. Dr. XXXXX opined that in the absence of a formal treatment program, the odds are very strong that the respondent would relapse. Dr. XXXXX stated that in order to be rehabilitated, the respondent should satisfactorily complete a formal substance abuse program and that there should be abstinence during the period of treatment and for one year after the completion of the treatment program. Dr. XXXXX also indicated that in the absence of a treatment program, the respondent must be abstinent for three years as adequate evidence of reformation. See Exhibit 21; Tr. at 42-45.

I accept Dr. XXXXX's conclusions in this regard. I cannot ignore the evidence that relapse can be expected for someone in the respondent's situation. Such a relapse result in impaired judgment and reliability. Such impairments can lead to unintentional or negligent compromises of classified material. While there still exists a high risk of relapse, I believe the respondent presents an unacceptable risk if granted access to classified material. See Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758 (1995) (request for review pending); Personnel Security Hearing, VSO-0016, 25 DOE ¶ 82,757 (1995).

In view of the foregoing considerations, I find that the weight of the evidence indicates that the respondent is alcohol dependent and has not achieved rehabilitation from his dependence. Therefore, I find that the respondent's rehabilitation efforts to date are not yet sufficient to mitigate the security concern raised by his alcohol use.

With respect to whether the respondent is unreliable because he allegedly violated a promise to abstain from alcohol, I find that the DOE has not established that the respondent's statements constituted a verbal commitment. The Notification Letter, as amended, alleges that the commitment was "to try not to drink anymore." Based upon the evidence before me, I am convinced that the respondent did make an honest attempt in 1992 to stop drinking. In view of Dr. XXXXX's testimony that it is very unlikely that the respondent will be able to maintain abstinence without the assistance of a formal treatment program, it is not surprising that the respondent's 1992 attempt was unsuccessful. Moreover, although I recognize the security concern associated with an individual's failure to be honest or to follow through with commitments, I am unconvinced, based on the record before me in this case, that the respondent believed that he was making a verbal commitment to the DOE. A commitment exists only if the individual involved understands that he is making a commitment. There is no evidence that the DOE impressed upon the respondent that it was construing his statements as a commitment to never again use alcohol and was continuing his clearance based upon that commitment. Without the existence of a clear commitment to abstain from alcohol, I find that DOE has not established the allegation as advanced in the Notification Letter with respect to 10 C.F.R. § 710.8(l).

IV. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(j), the respondent has been a user of alcohol habitually to excess and has been diagnosed by a board-certified psychiatrist as suffering from alcohol dependence. I also find insufficient evidence of rehabilitation or reformation. I do not find that DOE established the allegation with respect to 10 C.F.R. § 710.8(l). However, based upon my finding that the respondent has not yet been rehabilitated or reformed from alcohol dependence, I conclude that the respondent has failed to demonstrate that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent's access authorization should not be restored. While I cannot conclude, based upon the present record, that the respondent's access authorization should be restored, the Office of Security Affairs might consider him for participation in the Employee Assistance Program Referral Option (EAPRO).<10>

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

<1>/ Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

<2>/ DOE regulations provide an opportunity for hearing and review in cases where an individual's

eligibility for access authorization cannot be favorably resolved by interview or other action. When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a Notification Letter is sent to the respondent. This letter sets forth the information

which creates a substantial doubt regarding the eligibility of the respondent for access authorization, and states that the respondent may file a request for a hearing in writing. 10 C.F.R. § 710.21(a), (b)(2), (b)(4). On July 20, 1995, the Notification Letter was amended in a manner that was not prejudicial to the respondent. References in this Opinion to the Notification Letter refer to the amended letter.

<3>/ Part 710 lists twelve broad categories of derogatory information which might create questions as

to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review determinations regarding access authorization. Criteria (j) and (l) are at issue in this case. Criterion (j) applies to an individual who 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.

Criterion (l) pertains to information evidencing that a person has:

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy . . . . Such conduct or circumstances include . . . violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access eligibility.

<4>/ The respondent referred to a "Case Evaluation Sheet, Interview Summary, Personnel Security

Assurance Program (PSAP)." Although this evaluation stated that "there is nothing in the subject's background which could be used against him to act in any way contrary to the best interests of National Security," this statement reflects only the opinion of the personnel security specialist and is not binding on DOE. See Respondent's Exhibit 1, at 2. The Case Evaluation Sheet itself recommends that the respondent undergo a psychiatric evaluation. It appears from

the record that after the psychiatric evaluation, the respondent was removed from the PSAP and suspended.

The PSAP is described at 10 C.F.R. Part 710, Subpart B. See also Personnel Security Hearing, VSO-0012, 25 DOE ¶ 82,754 at 85,528 (1995).

<5>/ There is some dispute as to the total number of the respondent's DWI arrests. The respondent

admits to six arrests. Tr. at 25. The DOE alleged seven DWI arrests, but failed to substantiate that number. I shall therefore assume that there were six arrests. However, even six arrests strongly indicate an alcohol problem and the finding in this case does not depend upon whether there were six or seven DWI arrests.

<6>/ The respondent also submitted the affidavit of a co-worker who stated that the respondent was

not intoxicated at work and was an asset to the working group.

<7>/ The report of this examination was generally consistent with the report Dr. XXXXX issued with

respect to the earlier examination that he conducted on May 13, 1992. At the time of the earlier examination, however, the respondent was attempting to stop drinking. See Exhibit 22.

<8>/ At the hearing Dr. XXXXX testified that the respondent's alcohol dependence was in the mild

to moderate range. Tr. at 57.

<9>/ The text of section 710.7(c) states that:

In resolving a question concerning an individual's eligibility for access authorization, all DOE officials involved in the decision-making process shall consider: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; 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 potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

<10>/ The EAPRO procedures were developed by the DOE office of Safeguards and Security in order

to provide some individuals with substance abuse problems the opportunity retain their security clearances while completing their effort at rehabilitation. Generally, EAPRO is designed for cases that have not been referred for administrative review under 10 C.F.R. Part 710. See Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758 at 85,554 (1995); Personnel Security Hearing, VSO-0005, 24 DOE ¶ 82,753 at 85,527 (1995). Nevertheless, Dr. XXXXX found that the respondent met the criteria for participation in EAPRO and that he would be a good candidate for the program, and Dr. XXXXX in describing an appropriate course of treatment for the respondent included many elements of EAPRO. Exhibit 21, at 13-14, 15; Tr. at 119-20.