Case No. VSO-0066, 25 DOE ¶ 82,797 (H.O. Klurfeld Mar. 26, 1996)

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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: November 2, 1995

Case Number: VSO-0066

This opinion concerns the eligibility of XXXXX (hereinafter referred to as the individual) for continued "Q" access authorization. The regulations governing an individual's eligibility are set forth at 10 C.F.R. Part 710, Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material. In this opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. For the reasons stated below, I am of the opinion that the individual's access authorization should not be restored.

I. Procedural Background

The individual works for XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, which is the primary subcontractor providing construction, custodial, engineering and maintenance services at the Department of Energy's XXXXXXXXXXXXXXXXXXXXXXXXXXXX. He has held "Q" access authorization since XXXXX. A routine re-investigation in 1994 uncovered derogatory information which called into question the individual's continuing eligibility for access authorization. After reviewing those materials, DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated September 6, 1995. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his continuing eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of that derogatory information. In particular, it specified two areas of derogatory information described in 10 C.F.R. § 710.8. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding

his eligibility for access authorization. In an undated note received by DOE/XXXXX on October 23, 1995, the individual requested a hearing. DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On November 7, 1995, I was appointed as Hearing Officer in this matter.

The hearing was convened in XXXXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXXXXX. Four witnesses testified: (I) the individual, (ii) XXXXX, MD, a DOE consulting psychiatrist, (iii) a DOE personnel security specialist, and (iv) Mr. XXXXXXXXXXXXXX, the employment supervisor for the individual's employer.

II. Statement of Derogatory Information

The September 9, 1995 Notification Letter included a list of the derogatory information that falls within two regulatory criteria, subsections (j) and (l) of 10 C.F.R. § 710.8. Criterion (j) involves 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." The Notification Letter cited the following evidence to support this charge:

(1) On February 2, 1995, the individual stated in a personnel security interview (PSI) that he consumed up to 12 beers weekly since 1971.

(2) In a report of evaluation, Dr. XXXXX diagnosed the individual as having Substance Dependence, Alcohol. He opined that the individual is a user of alcohol habitually to excess and did not exhibit adequate evidence of reformation or rehabilitation.

(3) Laboratory tests showed that the individual has elevated liver enzymes that, in Dr. XXXXX's opinion, are probably caused by his "habitual and excessive use of alcoholic beverages."

In addition, the Notification Letter stated that information the DOE possessed fell within criterion (l) of 10 C.F.R. § 710.8. Criterion (l) covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances which tended to show that he is not honest, reliable, or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. 10 C.F.R. § 710.8(l). The basis for this statement was the following: Sometime in 1993 the individual committed domestic violence while under the influence of alcohol. The incident occurred at his house, and his wife called the police. The individual left his house prior to the arrival of the police so that he could avoid them.

III. Findings

For the past seven years the individual has worked at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for XXXXXXXXXXXXXXXX. Transcript of Hearing on XXXXXXXXXXXXXXXX, at 9 (hereinafter cited as Hearing Tr.). Because he needs access to buildings behind a security perimeter to perform his job, his employer has determined that his position requires him to possess a "Q" access authorization. Exhibit 13.

The DOE has granted the individual access authorization since XXXXX. A routine reinvestigation was started in 1994. Exhibit 13. The individual's background report raised two issues that DOE/XXXXX believed required additional investigation. On February 2, 1995, DOE/XXXXX conducted a PSI with the individual in which the individual's alcohol consumption was discussed. Exhibit 3. As a result of the interview, DOE/XXXXX asked the individual to be evaluated by Dr. XXXXX, a DOE consultant psychiatrist. In a report dated July 9, 1995, Dr. XXXXX found that the individual meets the criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for Substance Dependence, Alcohol, Without Physiological Dependence, Active. Exhibit 12 at 24. Tests ordered by Dr. XXXXX indicated elevated liver enzymes, which are consistent with his diagnosis. Dr. XXXXX concluded that his evaluation and the laboratory reports indicate that the individual drinks alcohol habitually to excess. Exhibit 12 at 25. Finally, Dr. XXXXX opined that the individual does not have a mental condition which causes or may cause a significant defect in his judgment or reliability. Exhibit 12 at 27.

The first witness to testify at the hearing was the individual. The individual testified that he has recognized that he has a problem drinking alcohol since his interview with Dr. XXXXX in the summer of 1995. Hearing Tr. at 12. The individual stated that "[o]ne question that [Dr. XXXXX] proposed to me made me think. If I had my choice between drinking or having a Q clearance would I quit, and I told him yes. And I can't admit to having totally quit, but I definitely have been abstaining quite a bit." Hearing Tr. at 12-13. The individual further testified that he and his former wife have discussed reconciliation contingent upon his not drinking at all. Hearing Tr. at 14.

The individual also testified about a 1993 incident involving domestic violence. He stated that he and his wife were home at the time. He had been drinking. Hearing Tr. at 18. According to the individual, he pushed his wife down on the couch in his house to, in his words, "get my wife out of my immediate area." Hearing Tr. at 50. He testified that she was angry at him for drinking, and that he thought she may have called the police in response to his drinking rather than to protect herself from further violence. Hearing Tr. at 51. He stated that there was no other violence involved. Hearing Tr. at 51-52. He further testified that he has never pushed her when he wasn't using alcohol. Id. Prior to the police arriving, the individual left his house: "I didn't see anything being resolved by a couple arguing in the driveway with two police officers there in front of their children . . . ." Hearing Tr. at 18.

Finally, the individual testified that he does not believe he currently has a problem with drinking alcohol. Hearing Tr. at 12. He testified that he has cut back his consumption of beer. Rather than drinking six beers twice a week, his consumption is "three beers maybe every two weeks." Hearing Tr. at 13. "[I]t's gotten to a point where it's just a Friday night ritual . . . ." Id. He has decreased his use of alcohol without the intervention of the employee assistance program, participation in Alcoholics Anonymous meetings, or any other assistance. Throughout the hearing I found the individual to be honest in answering the questions posed to him.

Dr. XXXXX was the second witness at the hearing. At first Dr. XXXXX described his evaluation of the individual, explained the results of the laboratory tests he ordered, and reiterated his conclusion that the individual drinks alcohol habitually to excess. Since his evaluation of the individual was based on information more than six months old, I allowed Dr. XXXXX to listen to the individual's testimony to see if it would affect his diagnosis in any way. Dr. XXXXX testified that the individual's testimony at the hearing reinforced the correctness of his opinion. Hearing Tr. at 24. Dr. XXXXX pointed out that despite knowing that if he could stop drinking he might be able to reconcile with his wife and two children, which the individual testified is a priority to him, Hearing Tr. at 21, the individual still drinks. Hearing Tr. at 24. According to Dr. XXXXX, it is more than likely that given his history, the individual will go back to drinking excessively. Hearing Tr. at 25. Dr. XXXXX summed up the present situation by saying:

[T]hree beers every two weeks doesn't sound like very much, except that, you know, you have injured your liver because of drinking, and that's injuring it more. And second, I think only somebody that's an alcoholic wouldn't stop drinking three beers every two weeks if the alternative of not drinking is you can get back with your wife and family. I mean, it must mean an awful lot to you to continue drinking at that level.

Hearing Tr. at 25-26.

IV. Analysis

The DOE regulations require that I make specific findings "as to the validity of each of the allegations contained in the notification letter . . . ." 10 C.F.R. § 710.27. The DOE/XXXXX relied on 10 C.F.R. § 710.8(j) as one of the bases for suspending the individual's "Q" access authorization. Criterion (j) covers an individual that has "been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist . . . as alcohol dependent or as suffering from alcohol abuse." Dr. XXXXX, a board-certified psychiatrist, diagnosed the individual as alcohol dependent in July 1995. The individual does not dispute this. Rather, he argues that he has decreased his consumption of beer to three beers every two weeks, and that this level of consumption shows that he is reformed.

However, as Dr. XXXXX pointed out at the hearing, the individual continues to drink despite knowing that his access authorization, his employment, his health, and reconciliation with his wife and children all may hinge on his total abstinence from drinking alcohol. In addition the individual has not sought any help in overcoming his alcoholism. As Dr. XXXXX noted, an important variable in determining whether an alcoholic will recover is whether that person is in some kind of therapeutic endeavor. In this case, the individual has not gone to meetings of Alcoholics Anonymous. Nor has he sought professional therapy. Accordingly, there is a high degree of probability that his consumption of alcohol will escalate rather than decrease in the future. Under these circumstances, I find that the individual has not shown that he is rehabilitated or reformed from his alcoholism.

In suspending the individual's access authorization the DOE/XXXXX also relied on criterion (l) of 10 C.F.R. § 710.8. Criterion (l) covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances that tended to show that he is not honest, reliable, or trustworthy. To support this charge, DOE/XXXXX points to a 1993 incident involving domestic violence. While the record is sparse concerning the facts surrounding the incident, the individual does not dispute that an incident occurred that caused his wife to call the police, and that the individual left the scene rather than deal with law enforcement officers upon their arrival. This is sufficient to raise legitimate security concerns. A violent act towards his wife and leaving the vicinity so that he would not have to deal with responding police officers raise serious concerns about his judgment, reliability, and trustworthiness.

In his testimony at the hearing, the individual attempted to mitigate these security concerns. He testified that the incident merely involved pushing his wife. Hearing Tr. at 50. He also testified that "something like that never happened before." Id. He had been drinking at the time, and he speculated that his wife called the police in part because she was angry that he was drinking. Hearing Tr. at 51. However, while alcohol was clearly involved in this matter and in all likelihood played a pivotal role in the situation, this fact does not absolve the individual of responsibility for his behavior. The dual behaviors of violence and leaving before law enforcement officers arrived manifests conduct that shows a lack of judgment and reliability. The individual's attempt to minimize the incident has not been supported by any other evidence, such as the testimony of others or the submission of a police report. Thus, I conclude that his behavior during the 1993 incident indicates unusual conduct which tends to show that the individual is not honest, reliable or trustworthy.

IV. Conclusions

The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to 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). After carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the derogatory information presented by DOE/XXXXX in this case is accurate and that the individual has failed to present sufficient evidence to rebut or mitigate that derogatory information.

Among the factors I have considered in rendering this opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a).

I have found that there is significant derogatory information in the possession of DOE/XXXXX that provided a sufficient basis for invoking the criteria in 10 C.F.R. § 710.8(j). In particular, I have found that the individual has been diagnosed by a board-certified psychiatrist as being alcohol dependent. I have considered the individual's claim that he has decreased his consumption of alcohol to an acceptable level. However, as Dr. XXXXX correctly pointed out, the individual continues to drink despite knowing that his access authorization, his employment, his health, and reconciliation with his wife and children all rest on his abstinence from alcohol. Although the individual has decreased his alcohol consumption, he has not received any assistance. Given these facts, I must agree with Dr. XXXXX when he said that drinking alcohol must mean a lot to the individual. I also find that he has not shown the presence of rehabilitation or reformation.

I have also found that there is derogatory information that provided a sufficient basis for invoking the criteria in 10 C.F.R. § 710.8(l). I have found that the individual's behavior during a 1993 incident manifests conduct that tends to show that the individual is not honest, reliable, or trustworthy. I have also found that the individual has failed to mitigate those concerns. Finally, I have found that the incident was related to the individual's drinking. Since the individual continues to drink alcohol, and according to Dr. XXXXX is more likely than not to resume drinking excessively, I believe that there is a likelihood that behavior of this type will recur.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I am unable to 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 access authorization should not be restored.

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 this 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). 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

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals