Case No. VSO-0177, 27 DOE ¶ 82,752 (H.O. Brown January 9, 1998)

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 XXXXXXX’s.

January 9, 1998

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: September 17, 1997

Case Number: VSO-0177

This Opinion concerns the eligibility of xxxxxx xxxxxxx xxxxxxxx (hereinafter referred to as "the individual") 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) A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored. As set forth in this Opinion, I have determined that the individual's security clearance should not be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he

decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).

In this instance, the DOE granted the individual an access authorization, a "Q" clearance, as a condition of his employment with a DOE contractor. However, on August 7, 1997, DOE initiated formal administrative review proceedings by the issuance of a Notification Letter informing the individual that his access authorization would be suspended pending the resolution of certain derogatory information that created substantial doubt concerning his continued eligibility. The specific derogatory information received by DOE in support of its determination is described in Enclosure (2) accompanying the Notification Letter, and is summarized below.

Enclosure (2) of the Notification Letter states that the derogatory information regarding the individual falls within the purview of potentially disqualifying criteria set forth in 10 C.F.R. § 710.8(j), specifically that the individual "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." 10 C.F.R. § 710.8(j). In this regard, Enclosure (2), Paragraph A states that on May 21, 1997, the individual was evaluated by xxxxxxxxxxxx, a DOE consultant psychiatrist (DOE Psychiatrist), who reported his professional opinion that the individual is a user of alcohol habitually to excess without adequate evidence of rehabilitation and reformation.

In addition, Enclosure (2), Paragraph B states that information in possession of DOE reveals that the individual has had two alcohol-related driving arrests, first in April 1979, for Driving While Intoxicated (DWI) and Careless Driving, and then again in June 1995, for Aggravated Driving Under the Influence, Careless Driving and Open Container, at a time when the individual's blood alcohol level was measure at .23 and .24. Finally, Enclosure (2), Paragraph C states that during a Personnel Security Interview (PSI) that was conducted with the individual on March 11, 1997, the individual recounted that: (1) on average he drinks three six-packs of beer each week; (2) the individual becomes intoxicated every weekend he drinks; and (3) the individual's spouse has periodically requested that he discontinue drinking in order to use the money to pay bills.

In a letter received by the DOE Office of Hearings and Appeals (OHA) on September 17, 1997, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On September 22, 1997, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE Counsel called as witnesses the individual, the DOE Psychiatrist, the DOE Personnel Security Specialist who conducted the PSI with the individual, and a Human Resources Specialist employed by the DOE contractor. The individual, through his representative, elected to call as witnesses his Employee Assistance Program counselor (EAP Counselor), his wife, and three supervisory co-workers (Co-Workers). The transcript taken at the hearing shall be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and shall be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): 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 voluntariness of the 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 continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security or would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Individual's Use of Alcohol

The individual is a xx year old xxxx xxxxxx who has been employed by the DOE contractor for 14 years. The DOE's concern regarding the individual's use of alcohol centers upon the report issued by the DOE Psychiatrist on June 5, 1997, finding that the individual is a user of alcohol habitually to excess and has failed to show adequate evidence of rehabilitation and reformation. Report of DOE Psychiatrist, Exh. 12 at 7-8. These findings by DOE Psychiatrist were based upon his review of the individual's security file, his examination of the individual and certain tests that were administered in the course of his examination. Tr. at 45. For the reasons below, I find that the record contains ample evidence to uphold the determination of the DOE Psychiatrist.

The individual has been arrested for driving an automobile while intoxicated on two occasions. The first arrest for DWI occurred on April 22, 1979, pursuant to which the individual was sentenced to attend DWI school and fined $50. The second arrest for Aggravated Driving Under the Influence occurred 16 years later, on June 24, 1995, but apparently involved severe circumstances. Reportedly, the individual nearly hit a pedestrian while entering a convenience store parking lot, had an open can of beer in the car and registered blood alcohol levels (BAL) of 0.23 and 0.24 (three times the 0.08 legal limit) on breathalyser tests administered at the approximate time of arrest. Exh. 12 at 2. However, the individual was not prosecuted for the second arrest due to an error in administrative processing by the arresting officer. Exh. 12 at 3.

During his PSI and subsequent examination by the DOE Psychiatrist, the individual described his level of alcohol use in the interim following his second arrest. The individual then stated that his alcohol consumption, which almost exclusively involved beer, averaged about three six packs a week. PSI, Exh. 4 at 14; Exh. 12 at 3. The individual described his typical consumption pattern as two six packs of beer on the weekend and then four or five beers during the week. He further stated, however, that he may consume two six packs on a special occasion such as a wedding. Exh. 4 at 13, 15. The individual states that he knows that he is legally intoxicated after consuming one six pack but has consumed as much as two six packs without actually feeling intoxicated. Exh. 4 at 19.(2) The individual relayed during the PSI that he had been drinking at this level for the past ten years or more. Exh. 4 at 29.

The DOE Psychiatrist believes, however, that the individual likely understated the amount of his alcohol consumption. For instance, the individual stated that he drank two six packs of beer over a six-hour period on the occasion of a wedding celebration, on the day of his second DWI arrest. The DOE Psychiatrist states, however, a person would have to consume at least three six packs of beer during this time frame in order to reach the 0.24 BAL registered upon his arrest. Exh. 12 at 2-3. More significant, the DOE Psychiatrist reports that the results of the individual's blood test showed a substantially elevated liver enzyme gamma-glutamyltransferase (GGT) which is "often considered one of the more sensitive tests in monitoring medically-related problems associated with alcoholism." Exh. 12 at 5. The lab results specified the individual's liver enzyme GGT at the abnormally high range of 177, while the reference range of normal is 8 to 78.(3) The individual stated that he had previously been informed of his elevated liver function by his personal physician. Exh. 12 at 4. In view of the individual's blood test results and other indications of denial by the individual(4), the DOE Psychiatrist opined that in the individual's alcohol consumption was likely double the three six packs per week average that he claimed. Tr. at 70.

On the basis of this information, the DOE Psychiatrist determined that the individual was a user of alcohol habitually to excess. Exh. 12 at 7. In reaching this assessment, the DOE Psychiatrist first differentiated that the individual did not meet the criteria for the more serious diagnoses of "alcohol dependence" or "alcohol abuse," as specified in the American Psychiatric Association's Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Exh. 12 at 6-7; Tr. at 45-46.(5) Nonetheless, on the basis of the individual's pattern of excessive alcohol use, the DOE Psychiatrist stated that he would require the following as adequate evidence of rehabilitation and reformation on the part of the individual: (1) abstain from alcohol for at least a long enough period of time to cease the medical harm (liver enzyme GGT abnormalities) that alcohol is most likely causing him; and (2) maintain an additional two-year period of sobriety with no further evidence of elevated GGT liver enzymes, during which the individual received support in the form of outpatient treatment such as Alcoholics Anonymous (AA). Exh. 12 at 8. The DOE Psychiatrist recommended outpatient treatment because "[t]his support and structure would be needed to deal with his denial with respect to his drinking problems." Exh. 12 at 8. In this regard, the DOE Psychiatrist previously noted in his report that during the PSI, the individual expressed his belief that he did not have a problem with alcohol (Exh. 4 at 30) and although during his examination the individual stated that he intended to "pretty much eliminate" his drinking, the individual saw no need to seek treatment or counseling. Exh. 12 at 4, 7; Tr. at 71-72.

On the basis of the foregoing, I find substantial evidence to support the determination of the DOE Psychiatrist that the individual has been a user of alcohol habitually to excess. The Personnel Security Specialist testified that such excessive use of alcohol raises serious security concerns: "An individual who drinks habitually to excess can exhibit less than complete reliability, stability and good judgment, which are important components for access to classified information or special nuclear material. Under the influence of alcohol, an individual can unwittingly divulge information [or] may conduct themselves in less than a socially acceptable manner, perhaps even to a criminal . . . ." Tr. at 77-78. For these reasons, Hearing Officers in DOE security clearance proceedings have consistently found that the habitual excessive use of alcohol raises important security concerns. See, e.g., Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995). Accordingly, I will turn to whether the individual as presented adequate evidence of rehabilitation and reformation, or other mitigating circumstances, to overcome the legitimate security concerns of DOE.

B. Mitigating Circumstances

In the context of the hearing, the individual presented a number of mitigating factors in favor of his continued eligibility to retain his security clearance despite the concerns of DOE with regard to his prior alcohol use. First, the individual testified that on August 20, 1997, following his receipt of the Notification Letter, he ceased his consumption of alcohol, he has not had a drink since that time and has no intention to consume alcohol in the future. Tr. at 14. According to the individual, "I just started putting a lot of things together . . . and so I decided that was the best course to take was just to quit." Tr. at 15. In addition, on August 22, 1997, the individual submitted himself to counseling with the EAP Counselor, and has seen the EAP Counselor regularly on a weekly basis since that time. Tr. at 15-16. More recently, the individual began to attend AA meetings upon the advice of the EAP Counselor, and had attended four weekly meetings as of the date of the hearing. Tr. at 17. The individual stated that he intends to continue the AA program. Tr. at 17.

In support of his testimony regarding his abstinence for alcohol, the individual submitted the laboratory test results from four urine tests taken during September through November 1997, and a blood test taken on September 19, 1997. Exh. 15 and Exh. 16, respectively. Most notably, the blood test results show that the individual's GGT level had dropped to 70, well within the normal range specified as 0 - 82. Exh. 16. The EAP Counselor corroborated the individual's weekly attendance at counseling sessions as well as the individual beginning the AA program. Tr. at 90-91.(6)

Moreover, there are other considerations that weigh in favor of the individual's stated commitment to his sobriety. Despite his problems with alcohol, the individual has been able to maintain stability in his work and home life. The three supervisory Co-Workers were uniform in their testimony that the individual was never under the influence of alcohol while at work, but instead is commonly known to be a valuable and highly reliable worker. Tr. at 104-105, 107-108 and 111-112. Consistent with their testimony, the Human Resources Specialist testified that the individual's personnel file contained no letters of discipline but eight letters of appreciation and commendation. Tr. at 85-86. With respect to the individual's home life, the individual's wife confirmed in her testimony that the individual's enjoys a stable home environment, has a sound relationship with his wife and children, and has the support of his family in his efforts to maintain his sobriety. Tr. at 33-34, 38-40. In addition, the DOE Psychiatrist noted that his examination revealed that the individual is generally in good health, and has no psychiatric disorders such as anger or depression which might impede his recovery. Tr. at 67; Exh. 4 at 30; Exh. 12 at 4(7).

Notwithstanding the mitigating evidence and other factors presented by the individual, I am unable to find that the individual has overcome the security concerns of DOE with regard to his alcohol use. While the individual was sincere and convincing in stating his intention to maintain his sobriety, I am yet unpersuaded that the individual has established adequate rehabilitation and reformation. As explained more fully by the DOE Psychiatrist, the individual's period of abstinence and counseling are insufficient at this time to meet the threshold requirements of rehabilitation and reformation, given the nature and degree of the individual's past alcohol use.

During the hearing, the DOE Psychiatrist was specifically asked whether the individual's changed attitude toward the use of alcohol, his markedly improved liver enzyme test, and other mitigating factors described above, would cause the DOE Psychiatrist to modify his requirements for rehabilitation and reformation. The DOE Psychiatrist responded that while the individual's improved liver enzyme test results and submitting to counseling are good signs, the treatment the individual has received thus far is insufficient both in substance and duration. The DOE Psychiatrist remains convinced that a "structured" treatment program for a "long period of time being a year or two" is required to achieve a reasonable assurance of rehabilitation and reformation. Tr. at 50. The "structured" program recommended by the DOE Psychiatrist would entail AA meetings twice a week with a sponsor to direct him, in addition to continuing his weekly sessions with the EAP Counselor. Tr. at 51.

The DOE Psychiatrist explained that while he diagnosed the individual with only use of alcohol habitually to excess, as opposed to the ostensibly more severe diagnoses of alcohol dependent or alcohol abuse, the individual's past level of alcohol use was "pretty serious" in view of: (i) the two DWI arrests, the second with a .24 BAL which is three times the legal limit; (ii) his consumption of an three six packs of beer per week, or likely more; and (iii) his continuing to use alcohol despite his knowledge of ongoing liver damage and concerns expressed by his wife. Tr. at 50, 71. According to the DOE Psychiatrist, "you might say he's a problem drinker with a capital P." Tr. at 70. The DOE Psychiatrist also found it significant that the individual was only led to stop drinking and to seek counseling in August 1997, after the individual had received the Notification Letter confirming the suspension of his security clearance pending administrative review. Tr. at 71, 73. The DOE Psychiatrist points out that at the time of his examination in May 1997, the individual saw no reason to stop drinking and "the resistance to treatment or the feeling he had no need for treatment was especially strong." Tr. at 71. Thus, the DOE Psychiatrist remained adamant that the individual requires one to two years of abstinence under a "structured" treatment program in order to achieve rehabilitation and reformation. Tr. at 51-52, 72. In the absence of these measures, he gives the individual only a 50/50 chance of maintaining sobriety during the next year. Tr. at 62, 65.

The EAP Counselor, who testified on behalf of the individual, was somewhat more optimistic in his prognosis of the individual and believes him to be a good candidate to stay away from alcohol. Tr. at 91. However, the EAP Counselor was generally in accord with the DOE Psychiatrist regarding the suggested course of the individual's treatment for appropriate rehabilitation and reformation. The EAP Counselor recommended that in order to maintain his sobriety, the individual should continue his EAP counseling sessions for "a minimum of the next six months" and "continue with the AA for a minimum of two times a week during that period for the next year." Tr. at 96. The EAP Counselor also concurred that given the individual's circumstances and diagnosis, a period of one year of sobriety is a proper requirement as adequate proof of rehabilitation and reformation. Tr. at 100.

On the basis of this testimony and supporting evidence, I find that the individual cannot be considered rehabilitated or reformed from his use of alcohol at this time. While it is commendable that the individual has not consumed alcohol since August 1997, this five-month period of abstinence is insufficient to demonstrate rehabilitation and reformation, particularly in view of the fact that the individual has only recently begun the type of structured treatment program recommended by both the DOE Psychiatrist and EAP Counselor. In view of the likelihood of relapse in such cases of alcoholism, I cannot find that the individual has overcome the legitimate security concerns of DOE. See, e.g., Personnel Security Hearing, Case No. VSO-0099, 25 DOE ¶ 82,759 (1996);Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995). I am therefore drawn to the conclusion that allowing the individual to retain his access authorization would pose an unacceptable security risk at this time.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. § 710.8(j) in suspending the individual's access authorization. It is my opinion that the individual "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." 10 C.F.R. § 710.8(j). Moreover, I find that the individual has failed to sufficiently mitigate the security concerns of DOE relating to his use of alcohol. I therefore cannot find that restoring the individual's access authorization at this time would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find 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. 20585-0107, 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 where 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 20874-1290

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: January 9, 1998

(1) 1 An 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 referred to variously in this Opinion as an access authorization or security clearance. In the present case, the individual seeks the restoration of a level "Q" access authorization; however, that designation has no bearing upon the applicable standards governing eligibility to hold an access authorization.

(2) 2 During a prehearing telephone conference held on November 18, 1997, the individual generally stipulated the allegations in Enclosure (2) of the Notification Letter with regard to his alcohol use. For purposes of the proceeding, the individual did not contest Paragraph B. relating to his two DWI arrests or the allegations in Paragraphs C.1. and C.3., that on average he drinks three six packs a week and that his wife has periodically requested that he stop drinking for financial reasons. Tr. at 8. However, the individual disputes the allegation in Paragraph C.2. that "[h]e becomes intoxicated every weekend that he drinks" on the basis that it misinterprets his statements made during the PSI.

(3) 3 The DOE Psychiatrist notes that an elevated liver enzyme GGT is not conclusive evidence of excessive alcohol use, but might instead be attributable to other medical conditions. Therefore, a factor that is used to determine whether alcohol is the likely explanation is to compare the liver enzyme GGT level to the alkaline phosphatase enzyme, with a ratio greater than 1.4 being suggestive of alcohol-related liver disease. In the case of the individual, this ratio comparison was 1.79 (177 divided by 99). Exh. 12 at 5.

(4) 4 For example, the DOE Psychiatrist noted that during the PSI, the individual initially claimed that he hadn't drank any beer during the week prior to the PSI (Exh. 4 at 16), but later contradicted himself stating that "Yesterday I had two beers." Exh. 4 at 17; Exh. 12 at 8. The DOE Psychiatrist further states that although the individual claimed during his PSI that he no longer drank and drove after his second DWI ("after about maybe two or three beers I won't drive", Exh. 4 at 33), the individual conceded to the DOE Psychiatrist that he had done so four months prior to his interview. Exh. 12 at 3, 7.

(5) 5 According to the DOE Psychiatrist, the individual did not meet the DSM-IV criteria for alcohol abuse since the individual's second DWI (June 1995) had not occurred within the 12-month period preceding his interview, and the individual denied any other alcohol related legal, family or employment

problems. Exh. 12 at 4, 6. The DOE Psychiatrist clarified at the hearing, however, that he would have diagnosed the individual with alcohol abuse if he had seen him closer in time to the second DWI. Tr. at 46-47.

(6) 6 The individual also submitted an article, entitled "Improving Alcoholism Treatment: An Overview," that was given to him by the EAP Counselor. Exh. 17; Tr. at 24. Among other things, the article discusses the possibility of "spontaneous recovery" from alcoholism absent the conventional treatment programs such as AA. The individual's representative suggested that the individual may fit into this category. Tr. at 57. However, I can accord little weight to the article since it is highly general and bears no specific relation to the individual's circumstances.

(7) 7 As part of the DOE Psychiatrist's examination, the individual was given the Minnesota Multiphasic Personality Inventory, MMPI-II. That report was interpreted as a "Normal profile of a job applicant." Exh. 12 at 5.