Case No. VSO-0043, 25 DOE ¶ 82,777 (H.O. Woods Nov. 1, 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 Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 22, 1995

Case Number: VSO-0043

This Opinion considers the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold 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." As explained below, it is my opinion that the individual's access authorization should not be restored.

STATEMENT OF THE CASE

The individual is employed by XXXXX, the Department of Energy (DOE) contractor that operates the XXXXX. He has worked at that location as a XXXXX technician since 1978. On May 17, 1995, the Department of Energy's XXXXX Field Office (XXXXX) issued a Notification Letter to the individual. The Notification Letter charged that the individual had engaged in conduct subject to 10 C.F.R. § 710.8(f) (Criterion F) and § 710.8(j) (Criterion J).

Criterion F concerns information that an individual has deliberately misrepresented, falsified, or omitted significant information from a security questionnaire, a qualifications statement, or from a personnel security interview (PSI). In this regard, the Notification Letter finds that during personnel

security interviews conducted on April 27, 1993 (the 1993 PSI) and May 18, 1994 (the 1994 PSI), the individual denied that he had ever used any illegal substance at any time, and that a substantial doubt has been raised concerning the veracity of these statements. Specifically, the XXXXX received information from two "Q" cleared employees who allegedly witnessed the individual using marijuana. Moreover, one of these employees alleged that the individual had been one of the main suppliers of marijuana for a party.

Criterion J concerns information that an individual has been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist or psychologist as alcohol dependent or suffering from alcohol abuse. In this regard, the Notification Letter finds that the individual's history of alcohol use obtained from his arrest records, treatment records, and from the 1993 and 1994 PSI's indicates that the individual has been a user of alcohol habitually to excess. The Notification Letter also finds that the individual has been diagnosed by a board-certified psychiatrist, Dr. XXXXX, as suffering from "Alcohol Abuse, Episodic."

The Notification Letter explained that the individual's conduct caused the XXXXX to have substantial doubts about his continued eligibility for access authorization. Because of these doubts, the XXXXX informed the individual that his access authorization was suspended, pending administrative review under 10 C.F.R. Part 710.

In a June 6, 1995 Response to the Notification Letter, the individual requested a hearing to answer the charges in the Notification Letter.

The Office of Hearings and Appeals received the case on June 22, 1995, and a hearing was held before the undersigned hearing officer on XXXXXXXXXXXXXXX. The individual and three witnesses presented by the DOE testified at the hearing. The Office of Hearings and Appeals received the transcript of the hearing on XXXXXXXXXXXXXXX.

ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the DOE and the individual, and to render an opinion based on the weight of that evidence. The Hearing Officer must render an opinion as to whether restoring the individual's access authorization would not endanger the national defense and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). This opinion is a "comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, . . ." 10 C.F.R. §710.7(a). Accordingly, I have examined the evidence in light of the requirements of Part 710, and assessed the credibility and demeanor of the witnesses who gave testimony at the hearing.<1>

As discussed below, after carefully considering the record in view of these regulatory standards, it is my opinion that the derogatory information presented by the XXXXX with respect to the individual's alleged marijuana use is insufficient to raise a substantial doubt concerning the veracity of the individual's repeated denials that he ever used illegal drugs. However, the information presented by the XXXXX regarding the individual's alcohol abuse is sufficient to support a denial of access authorization pursuant to Criterion J, and the individual has failed to present sufficient evidence of rehabilitation to mitigate that derogatory information.

A. THE XXXXX'S CRITERION F ALLEGATIONS

False statements by an individual regarding the use of illegal drugs raise serious issues of honesty and trustworthiness. The DOE security program is based on trust, and if a security clearance holder lies to the DOE that trust is violated. However, in the present case the XXXXX has failed to provide convincing evidentiary support for its Criterion F allegations. The Notification Letter relies on information obtained during security interviews with two "Q" cleared employees who allegedly witnessed the individual using marijuana during the 1980's. Relevant portions of these transcripts comprise XXXXX Exhibit 41 in this proceeding. One of these employees, XXXXX (hereinafter referred to as XXXXX Witness I), was interviewed by XXXXX security specialists on May 17, 1994. At that time, he stated that at a bachelor party for an identified co- worker held in 1986 or 1987, he observed the individual possessing and using marijuana.

XXXXX Witness I:... there may have been a...a bigger group where a joint was being passed around and then maybe a smaller group of two or three individuals outside. Ahh ... The reason I remember [the individual]..., it seemed like...um...he...he was the person who seemed to have the marijuana with him....

Security Specialist:Hmm.

XXXXX Witness I:...and...and he had the reputation of being, you, know, a consistent provider, I mean, on plantsite. And I feel like I'm involved in an undercover sting operation about now.

Security Specialist:But you...he was never your supplier?

XXXXX Witness I:No.

Security Specialist:That was just a reputation basically that he had?

XXXXX Witness I:And he...and...and based on the fact that he had the marijuana with him at the party.

Security Specialist:At that party.

XXXXX Witness I:Yeah, he was...I believe he was one of the main suppliers at the party.

Transcript of May 17, 1994 Security Interview with XXXXX Witness I, XXXXX Exhibit 41.

However, a statement of this type is only one of the various types of evidence that we consider in these proceedings. We also consider evidence presented at the hearing. The foregoing statement of XXXXX Witness I was not presented to me at the hearing in the form of live testimony, and was not subject to challenge upon cross-examination.

In fact, at the hearing XXXXX Witness I refused to confirm under oath the allegations recorded in the transcript of his May 17, 1994 security interview. He responded to all questions regarding his knowledge of the individual's possible possession and use of marijuana by invoking his right against self-incrimination under the Fifth Amendment of the United States Constitution. Moreover, he also volunteered the following statement with regard to his May 17, 1994 security interview.

XXXXX Witness I:After the review of the [interview] transcript and the tapes, given the length of time we are talking about, based on my recollection now and my recollection then, I have to serious[ly] -- because of my physical, mental and emotional state of being at the time -- I have to question the validity of those questions or that [interview] as anything relevant to this case.

Hearing Transcript at 36. This statement by XXXXX Witness I, when coupled with his refusal to answer questions under oath concerning his knowledge of the individual's alleged possession and use of marijuana, casts serious doubt on the veracity of the allegations concerning the individual that he made in his May 17, 1994 security interview. Moreover, although several other of the individual's co-workers purportedly attended the particular 1986 or 1987 social event identified by XXXXX Witness I, the XXXXX has not been able to provide any corroboration of XXXXX Witness I's allegations concerning the individual's activities at that social event. Under these circumstances, I can accord very little evidentiary weight to the allegations made by XXXXX Witness I at his 1994 security interview.

The Notification Letter also relies on allegations of marijuana use by the individual that were made by another co-worker, XXXXX (hereinafter referred to as XXXXX Witness II). In a November 24, 1993 interview with XXXXX security personnel, XXXXX Witness II was asked to name co-workers who used marijuana. He replied "Um, one mighta been, uh, . . . [named the individual]." When asked if he actually saw the individual smoke marijuana, he replied, "I believe once, yes." Transcript of Personnel Security Interview of XXXXX Witness II, November 24, 1993, at 42-43, XXXXX Exhibit 41. No precise time frame is provided for this allegation, other than the seven year period between 1983 and 1990. Transcript at 44. The location of the incident is not provided, nor are any other participants or possible witnesses identified. Also, the DOE counsel was unable to secure the appearance of this witness at the August 31 hearing. Based on the statements of XXXXX Witness II in the record of this proceeding, I must conclude that XXXXX Witness II has only the vaguest possible recollection of the alleged incident. Accordingly, I can assign very little evidentiary weight to his statements.

Section 710.9(a) of the security regulations provides the following description of what constitutes "derogatory information."

When the reports of investigation of an individual or other reliable information reasonably tend to establish the validity and significance of one or more items in the criteria, or of other reliable information or facts which are derogatory, although outside the scope of the stated categories, such information shall be regarded as substantially derogatory and create a question as to the individual's eligibility for access authorization.

This provision makes clear that information sufficient to create a substantial doubt regarding an individual's access authorization must be "reliable" information and must "reasonably tend to establish the validity and significance" of a security concern. The uncorroborated, self-impugned statements of XXXXX Witness I in the record of this proceeding cannot be viewed as reliable, nor do they reasonably establish the validity of the individual's alleged use of marijuana at a party in 1986 or 1987. The vague, uncorroborated statements of XXXXX Witness II are similarly deficient. Neither of these allegations has been repeated under oath before this Hearing Officer, so that I could gauge the credibility of the witness, and neither has been tested under cross-examination. Moreover, the individual has responded to these allegations with consistent and emphatic denials.<2> Accordingly, I conclude that the derogatory information presented by the XXXXX concerning the individual's alleged use of marijuana is insufficient to raise a substantial doubt under Criterion F that the individual may have made false statements to the DOE regarding his use of illegal drugs.

As a final matter regarding these Criterion F allegations, I note that the inability of the XXXXX to secure XXXXX Witness II's appearance at the hearing raised a significant question concerning the proper conduct of Part 710 proceedings. At the hearing, XXXXX counsel moved that the hearing be reconvened at a later date so that he could present the testimony of XXXXX Witness II. In a letter dated September 7, 1995, I denied this motion on the grounds that the allegations of XXXXX Witness II in the record of this proceeding are too vague and qualified to warrant the reconvening of the hearing to hear his testimony. In reaching this decision, I noted that a Part 710 hearing is intended primarily to afford the individual the opportunity to present evidence in support of his eligibility for access authorization, not as an investigatory forum for the DOE to develop information concerning its allegations against the individual. 10 C.F.R. § 710.21(b)(6) and (7). The regulations require the DOE office in question to provide in its Notification Letter and evidentiary attachments "the information which creates a substantial doubt regarding the individual's eligibility for access authorization (which shall be as comprehensive and detailed as the national interest permits)." 10 C.F.R. § 710.21(b)(2). At the hearing, that office should present its witnesses for the purpose of explaining the allegedly derogatory information previously provided to the individual, and of providing the individual with the opportunity to question and otherwise respond to these witnesses.

However, the DOE office should not make it a practice to elicit new or additional factual information at a hearing, when it is too late for the individual to prepare a proper defense or to call in rebuttal witnesses. Thus, a reconvened hearing in this case to hear from XXXXX Witness II would not have been fair to the individual. The appropriate means for the XXXXX to have used in obtaining clarification or additional factual information from XXXXX Witness II was a follow-up interview with XXXXX Witness II prior to its issuance of the Notification Letter to the individual.

B. THE XXXXX'S CRITERION J ALLEGATIONS

With respect to Criterion J, the Notification Letter finds that the individual's history of alcohol use obtained from his arrest records, treatment records, and from four PSI's conducted in 1993 and 1994 indicates that the individual has been a user of alcohol habitually to excess. The Notification Letter's specific findings concerning the individual's alcohol use may be summarized as follows:

(1) On October 23, 1984, the individual was arrested for Driving Under the Influence (DUI), with a Blood Alcohol Concentration (BAC) at the time of the arrest of .181. He was convicted of Driving While Ability Impaired (DWAI), and, as one condition of his sentence, attended Level II alcohol education classes.

(2) At an interview with XXXXX security personnel on April 27, 1993, the individual stated that he had learned a lesson from this DUI and would not drink and drive in the future. He described his usual alcohol intake as a 12-pack of beer per month and stated that he generally became intoxicated twice a year.

(3) On August 11, 1993, the individual was arrested for a second DUI offense, and supplied information to the XXXXX concerning this incident at interviews on February 9 and May 18, 1994. He stated that his BAC at the time of his second arrest was over .2, and estimated that he probably consumed eight or nine beers in the two to three hour period prior to his arrest. Following his arrest, he was taken to XXXXX, an alcohol center, for detoxification, and was released the following day. He subsequently pled guilty to DWAI and voluntarily began attending Level II alcohol education classes. In his interviews with the XXXXX, he stated that his drinking was confined to about a six-pack on weekends, and that he "usually never" drank during the week. He denied ever having any other alcohol-related problems.

(4) In a fourth interview with XXXXX security personnel on May 25, 1994, the individual acknowledged that he had one additional alcohol-related incident that he had not previously mentioned. In August of 1986, he was stopped by police officers while riding in a car with some friends. He was taken to XXXXX for detoxification but was not issued a citation for any offense.

(5) On July 26, 1994, XXXXX received records from XXXXX regarding the individual's 1993 DUI. These records indicated in three separate places that the individual reported drinking one to two beers each day in the thirty days prior to his arrest. These records contradict his statements to the XXXXX that he was almost entirely a weekend consumer of alcohol.

(6) On July 21, 1994, XXXXX received the alcohol evaluation and referral completed by the XXXXX County Probation Department after the individual's 1993 DUI arrest. The individual reportedly told the evaluator that on the evening of the arrest, he went out drinking following an argument with his wife. He consumed beer and shots of Schnapps, and he felt capable of driving safely when he left the bar. The evaluator noted that the individual would have had to consume twelve and one-half standard drinks to have reached the reported BAC of .216. The individual reportedly told the evaluator that his usual pattern of alcohol consumption was six to seven beers two weekends a month. The evaluator diagnosed the individual as a problem drinker.

The Notification Letter also finds that the individual has been diagnosed by a board-certified psychiatrist, Dr. XXXXX, as suffering from "Alcohol Abuse, Episodic." At the request of the XXXXX, Dr. XXXXX studied the individual's record of alcohol use and conducted a professional evaluation of the individual on September 28, 1994. In his September 28, 1994 Report to the XXXXX, Dr. XXXXX stated that "alcohol abuse" is that form of alcoholism which involves a pattern of alcohol use that may interfere with significant life areas without there being physical dependence upon the substance. XXXXX Report at 5. In his Report, Dr. XXXXX lists the following factors as supporting his diagnosis:

(1) [The individual] has had two DUI [Driving under the influence of alcohol] arrests on 10-23-84 and 8-11-93 with DWAI convictions and measured blood alcohol concentrations of .18 (80% above the level of legal intoxication) and .216 (twice the level of legal intoxication) respectively.

(2) The [individual] has shown tolerance to the effect of alcohol in that he was able to drive at the two measured blood alcohol concentrations.

(3) The second DUI arrest occurred after the [individual] drank to intoxication following an argument with his wife. This is an example of emotional reliance upon the use of alcohol, a possible sign of alcoholism.

(4) As I attempted to elicit a history of alcohol use, the [individual] showed minimization of that use and became defensive. Repeatedly he would state "I don't know, I don't keep track." Minimization of alcohol use is another possible indicator of alcoholism.

(5) The [individual] continues to drink six beers per sitting twice a month, in spite of his current attendance at court- ordered alcoholism therapy at the XXXXX program. In response to my question, he stated that the program there knows that he is drinking.

(6) The [individual] has been classified a problem drinker in the evaluation by the XXXXX County Alcohol/Drug Driving Safety Program. This evaluation was done after his last DUI arrest in August of 1993.

(7) The [individual] has shown loss of control over his alcohol use but was vague about its frequency.

(8) He experienced guilt about his alcohol use after his last DUI.

(9) The [individual] is in denial about his alcoholism in that he focused only on drinking and driving and stated that he has changed, but as mentioned above, he continues to drink twice monthly.

Report at 5-6.

In its submissions in this proceeding, and through the testimony of witnesses at the Hearing, the XXXXX has thoroughly documented the factual basis for its findings that the individual's past statements and conduct regarding alcohol use raise serious questions concerning his eligibility for access authorization. This derogatory information provides substantial support for the XXXXX's Criterion J grounds for revoking the individual's access authorization.

At the Hearing, the individual contested the XXXXX's finding that he had a serious problem with the use of alcohol. His final statement summarizes his position on this issue.

Regarding the alcohol charges, I believe the evidence speaks for itself. I have had two DWAI's, but that doesn't make me an alcoholic. My work record at XXXXX for the past 17 years has [been] excellent. Alcoholics always have attendance problems, which I do not. I have many letters of appreciation regarding my work performance. I have went [sic] by all the rules regarding DWAIs with DOE, with the State of XXXXX. I believe my security clearance should be reinstated.

Transcript at 101-102. At the hearing, the individual admitted under questioning that he had drunk to excess in the past, and that, at least with respect to the DWAI convictions, his drinking has interfered with his life. However, he maintained that he is not an alcoholic. Transcript at 86.

I do not accept the individual's position that the XXXXX's finding of alcohol abuse is unsubstantiated. It is true that the individual's two DWAI convictions are almost nine years apart, and there is no indication that the individual's alcohol use has affected his job performance. However, in his April 1993 interview, he stated that he generally became intoxicated about twice a year at family holiday get-togethers. Moreover, the XXXXX has documented contradictory statements by the individual concerning the level and frequency of his alcohol use that support its view that he is minimizing and evasive concerning his actual level of alcohol consumption. Records of XXXXX dated August 11, 1993 indicate that the individual stated at that time that he "drank daily" during the past thirty days. XXXXX Exhibit 28 at 2 and 5. However, in a subsequent interview with XXXXX security personnel, he stated that his drinking was confined to weekends and that he "usually never" drank during the week. Transcript of February 9, 1994 security interview at 18, XXXXX Exhibit 22. When asked to explain this discrepancy at the hearing, the individual insisted that the XXXXX records were from ten years ago, which is clearly incorrect. When pressed on the matter, he responded with "I don't know" and "I don't recall that." Hearing Transcript at 61-63. The individual appeared reluctant and uncomfortable when discussing his alcohol use at the hearing, and his general demeanor served to confirm the clinical observations of Dr. XXXXX.

Dr. XXXXX's testimony at the hearing in support of his diagnosis was comprehensive and convincing. He noted at the outset that for the past 21 years a subspecialty of his practice has been alcohol and chemical dependency, and that he has consulted at the great majority of alcohol/chemical dependency programs in the Denver metro area. Hearing Transcript at 43. He estimated that he has conducted over four hundred clinical evaluations for the DOE over a ten year period. Hearing Transcript at 46. With regard to his clinical examination of the individual, he explained the general diagnostic standards that he applied in reaching his findings. He than discussed in detail specific instances of how the individual's responses to his questions reflected symptoms of alcohol abuse. Hearing Transcript at 47-72.

After listening to this testimony, the individual was asked why he disagreed with Dr. XXXXX's diagnosis. The individual stated, "[t]hat is just his opinion. He says a possible alcoholic." Hearing Transcript at 85. In response, Dr. XXXXX characterized this statement as typical of the individual's attitude of denial regarding his abuse of alcohol.

And I still hear words that I think show denial. Not necessarily that he disagrees with my diagnosis, but he picks up, for example, that I said he's possibly alcoholic, and that is not true. I didn't say he was possibly alcoholic. I diagnosed him as alcohol abuse, and then in my list I said for any one given sign that I was talking about, that this one sign was a possible sign of alcoholism. But I didn't say he was possibly alcoholic. I said he is alcoholic. And so for him to mishear like that, I think shows that he is still pretty much in denial about there being any kind of difficulty.

Hearing Transcript at 92. Based on the testimony at the hearing and on my review of the record, I agree that the individual exhibits a consistent attitude of denial and evasion with respect to his use of alcohol. Moreover, the findings contained in the Notification Letter and in Dr. XXXXX's report are sufficient to support a finding of alcohol abuse, and, absent adequate evidence of rehabilitation or reformation, an adverse finding under Criterion J. Personnel Security Hearing (Case No. VSO-0016), 25 DOE ¶ 82,757 (1995).

The individual has not shown adequate evidence of rehabilitation or reformation at this time. In his report, Dr. XXXXX recommended rehabilitation consisting of a minimum of one year of total abstinence from alcohol coupled with attendance at Alcoholics Anonymous (AA) a minimum of three times a week, with sponsor- monitored step work. Report at 6. At the hearing, Dr. XXXXX explained that a full year of sobriety coupled with active AA involvement was very important for a showing of successful rehabilitation. He referred to a research study which found that people who worked an AA program and maintained total abstinence and sobriety for a year had an 80% chance of maintaining that sobriety in the following year. Transcript at 73. A one year period of sobriety is generally viewed as the minimum period for a showing of rehabilitation and reformation in DOE security proceedings. See Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,529 (1994) (individual required to show a year of abstinence from alcohol following the end of professional treatment).

At the hearing, the individual estimated that he has abstained from alcohol for approximately four months, since shortly after his security clearance was suspended.<3>Dr. XXXXX commented that this period was insufficient and stressed that because the individual "is still very much in denial", it was very important that he actively participate in AA or similar programs. He concluded that "I would say he needs another eight months, but during which he would get some type of in-depth work on alcoholism." Hearing Transcript at 93. Accordingly, I find that a four month period of abstinence is not enough to warrant the conclusion that he has been rehabilitated.

Under these circumstances, I find that the individual has failed to present sufficient evidence of rehabilitation or reformation to mitigate the DOE's derogatory information under 10 C.F.R. § 710.8(j) regarding his alcohol abuse.

CONCLUSION

As explained in this Opinion, I conclude that the XXXXX has not established a proper basis for suspending the individual's access authorization pursuant to 10 C.F.R. § 710.8(f), but that it has properly invoked 10 C.F.R.§ 710.8(j) in suspending the individual's access authorization. In view of the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's "Q" access authorization should not be restored.

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, S.W., Washington, D.C. 20585-0107, and served on the other party. The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows: Director, Office of Safeguards and Security, NN-51, Office of Security Affairs, U.S. Department of Energy, 19901 Germantown Road, Germantown, MD 20874.

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 twenty calendar days of receipt of the statement. 10 C.F.R. § 710.28(b).

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

<1>/ In resolving questions about the individual's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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;

and the likelihood of continuation or recurrence."

<2>/ At the Hearing, for example, the following exchange took place:

Hearing Officer: Are you saying then, that you have never used marijuana?

Individual: I never have. Never used drugs.

Hearing Officer: Not at any time during your life have you used marijuana?

Individual: Never, never.

Hearing Transcript at 102. I do not necessarily accept the individual's stated position regarding his past use of marijuana. As discussed below, there appear to be issues of denial relating to the individual's problems with alcohol, and these may extend to his possible use of marijuana as well. However, his consistent position that he has never used marijuana provides no support for the allegations of XXXXX Witness I and XXXXX Witness II on this issue.

<3>/ As the individual's security clearance was suspended on March 9, 1995, the actual period of abstinence may have been more than five months at the time of the hearing. This discrepancy is not relevant to my determination, as even five or six months of sobriety would not be adequate evidence of rehabilitation or reformation in this instance.