Case No. VSO-0179, 27 DOE ¶ 82,755 (H.O. Wieker January 29, 1998)

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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 XXXXXXX’s.

January 29, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 3, 1997

Case Number: VSO-0179

This Opinion concerns the eligibility of xxxxxxxxxxxxxxxxxxxxxx (the individual) for restoration of an access authorization. The regulations governing the 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." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual's access authorization should be restored.

I. BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter to the individual. The Notification Letter stated that information in the possession of a Department of Energy Office (DOE Office) created a substantial doubt concerning the individual’s eligibility for an access authorization.(1) The Notification Letter specified that the individual is “suffering from Alcohol Abuse and has not had adequate evidence of rehabilitation.” The Notification Letter supported its finding by referring to i) the diagnosis of the DOE consulting psychiatrist

and ii) the individual’s two arrests for Driving While Intoxicated (DWI). Alcohol abuse is a security concern pursuant to 10 C.F.R. § 710.8(j) (Criterion J).

Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. A hearing provides “the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of proceeding, the standard is designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to demonstrate 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).

The individual requested a hearing. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was held. Fifteen witnesses testified at the hearing. Three witnesses were called by the DOE Office. The first was a DOE security specialist. The second was a DOE consulting psychiatrist. The third was the DOE manager of labor relations and legal services.

The individual called twelve witnesses: (i) his employee assistance program (EAP) counselor (the individual’s counselor), (ii) the director of the alcoholism program that the individual attended (alcoholism program director), (iii) the business manager of his labor union, (iv) his sister,(v) four co-workers who know him socially, (vi) one co-worker who did not know the individual socially, (vii) one family friend, (viii) a DOE facility management supervisor, and (ix) himself.

The individual indicates he has been drinking socially for eighteen years and never had any problems as a result of his consumption of alcohol prior to the death of his mother. However, after his mother’s death, which took place in January 1996, he drank excessively on several occasions. On two of these occasions he was arrested for DWI. The individual indicates that shortly after the second DWI he ceased consumption of alcohol and entered counseling.

Since the DOE consulting psychiatrist diagnosed the individual as suffering from alcohol abuse, the DOE properly invoked Criterion J. At the hearing the individual maintained that he is now rehabilitated from the alcohol-related problems. Accordingly, in this Decision I will consider “the absence or presence of rehabilitation or reformation and other pertinent behavioral changes.” 10 C.F.R. § 710.7(c). To recommend a restoration of the individual’s access authorization, I must be convinced that the individual is not likely to have any future problem with alcohol that could cause a security concern. The evidence on this issue is set forth in (i) the DOE consulting psychiatrist’s report and testimony, (ii) a letter from the alcoholism program director and his testimony, (iii) the testimony of the individual’s EAP counselor, (iv) the testimony of the individual’s friends and associates regarding his ability to deal with the death of his mother and avoid future alcohol abuse. In the section below I will provide a summary of the relevant documents and relevant hearing testimony.

II. TESTIMONY AND DOCUMENTARY SUBMISSIONS

A. The Alcoholism Program Director

A letter submitted by the alcoholism program director was submitted at the hearing. In that letter the director indicated a diagnosis of “Alcohol Abuse, precipitated by the death of his mother was established and also, the need to address his grief related issues.” The testimony of the alcoholism program director at the hearing indicated that “the [intake] interview clearly indicated alcohol abuse, episodic in nature, directly related to the death of his mother, and grief-related issues.” Transcript at 105.

The letter submitted by the alcoholism program director indicates that the individual has participated in 47 counseling sessions. That letter concludes that “It is the impression of this worker that [the individual] has dealt realistically and in depth with the grief related to his mother’s death. It should also be noted that [the individual] has opted on his own to abstain from any use of alcohol, his last drink reported on April 17, 1997.” He reinforced that conclusion by testifying at the hearing that

[H]e’s participated in the program, cooperated actively, very actively, participated in the outpatient program both in group and individually. He’s addressed the issue of the grief response. I know that he continues to grieve, as is appropriate, but he seems to be dealing with it, it’s my perception, in a very appropriate manner. He has agreed to attend, let’s see, two sessions a week for three months, which would have been a total of 24 sessions, and in fact, as of December 4th had attended 47 sessions.

Transcript at 103.

When asked for his opinion as to whether the individual has successfully overcome his grief-related difficulties, he testified, “Quite honestly, I think his prognosis is excellent.” Transcript at 105.

B. The DOE Consulting Psychiatrist

The DOE consulting psychiatrist diagnosed the individual as “suffering from alcohol abuse although he is not a user of alcohol habitually to excess.” The DOE consulting psychiatrist indicated that the individual’s “drinking increased dramatically after the death of his mother, who appears to have been the most important person in his life. The [individual] is a 39 year old bachelor who lived with his mother and devotedly cared for her at home during her terminal illness and eventual death.” The DOE consulting psychiatrist stated “It is my opinion that the subject’s increase in drinking was directly related to the emotional effects on him of the death of his mother. In order to be rehabilitated, the [individual] needs to emotionally deal with these issues . . .” In another section of his report he concluded that the individual’s abuse is “potentially temporary and was, at least in part, caused by a death or illness of a loved one.” Report at 22.

In his report the DOE consulting psychiatrist explained why he considered the individual not to be rehabilitated.

Although [the individual] has had approximately 24 hours of traditional alcohol rehabilitation (which ordinarily would be sufficient for a first episode of Alcohol Abuse), since he has not had individual psychotherapy to deal with the behavior issues, it is my opinion that he has not had adequate evidence of rehabilitation.

Report at 20.

In the report he explained his views regarding the steps the individual would need to take for reformation.

As adequate evidence of reformation, the subject needs to have a minimum of one year without any medical, family, social, legal psychological, or work related problems associated with alcohol. Because he only meets the DSM-IV criteria for Substance Abuse, rather than the more severe Substance Dependence, abstinence is not an absolute requirement of him showing adequate evidence of reformation.

Report at 21.

During his testimony the DOE consulting psychiatrist explained in more detail the steps he felt were appropriate for the individual’s rehabilitation.

I didn’t believe that you have what’s called alcoholism. And alcoholism is just another word for substance dependence, alcohol. But I did feel that you, at a time of emotional stress and crisis in your life, you kind of turned to alcohol to deal with - trying to kind of deal with, I guess your emotions and your feelings. So I didn’t make the usual recommendations that I make in terms of alcohol treatment. My recommendation was that you have at least 25 hours of therapy, and I said with a doctorate level mental health provider, either a psychiatrist or psychologist. That, in my opinion, is ideal, simply because I would say the more education you have and the more training you have, the better you’re able to deal with people’s sort of emotional problems. But I don’t say that although that is my ideal, it’s not that somebody who is a competent psychotherapist could not do the same thing.

Transcript at 35. After his review of the report submitted by the alcoholism program director, the DOE consulting psychiatrist clearly believed that the counseling the individual had received dealt effectively with his grief-related issued. Further, the DOE consulting psychiatrist indicated that the individual essentially met the requirements he specified for reformation.

[M]y recommendation with [regard to] the reformation was not that you never drink again, I didn’t recommend that, and I can’t recommend that based on the fact that you really don’t meet the criteria for substance dependence. . . . So what I recommended was that you have a one-year period without showing any alcohol-related problems, no social problems, medical problems, legal problems, job problems. And the way I count, your last alcohol-related problem was March 1st, 1997, and you know, this is January 8th, 1998. So you’re really only eight weeks away from what I said, a year of no alcohol-related problems. And, you know from my point of view eight weeks is not an issue - I would say that you’ve had very close to a year without having any alcohol-related problems.

Transcript at 36.

When asked by the DOE counsel to give his prognosis of whether the individual will have any more alcohol related problems, the DOE consulting psychiatrist testified that

it’s unlikely that he would have alcohol-related problems, simply because I think that [his mother’s death] was the biggest issue in his life. He admits that she was the human being he was most close to in his whole life. There was a time when he was dependent on her, and as she got older she became dependent on you.

I also know it’s very, very difficult, even as a doctor, to take care of people dying of cancer. It’s incredibly difficult to watch somebody that you love shrivel up and lose weight and get sick and have pain. That would be very difficult for anybody. My sense is if you dealt with that, I can’t imagine what for you is going to be more difficult. So I would say his prognosis is good, that it’s unlikely that he would have another episode where he had to turn to alcohol to deal with handling his emotions.

Transcript at 37. Finally, the DOE consulting psychiatrist cited his review of the individual’s file as further support for his conclusion that the individual was rehabilitated.

I was really impressed reading, you know, his file in terms of his character, his stability, the opinions that other people had of you. I mean, it was really squeaky clean, other than the immediate period after your mom’s death. So I mean, that’s a big factor in terms of my prognosis of him.

Transcript at 38.

C. Other Testimony

At the hearing the individual clearly admitted that he had abused alcohol. Transcript at 12. He testified that he knows he made a mistake in using alcohol to help deal with his feelings related to his mother’s death. Transcript at 13. He further testified that “I don’t know what else to say, you know, I don’t have an excuse for me for drinking, that was stupidity on my part.” Transcript at 21.

Both the DOE consulting psychiatrist and the director of his alcoholism program indicated that the individual’s rehabilitation did not require him to cease the consumption of alcohol. Transcript at 35 and 103. However, the individual decided to completely cease consumption of alcohol after his second DWI. “My last day was April the 17th.” Transcript at 25. He indicated that “That particular day, I just decided that was one step on my behalf to stop drinking.” Transcript at 25. He was asked by the DOE Counsel what his future intentions regarding consumption of alcohol. He testified:

I think that I’ve dealt with not having alcohol for eight months, a little over eight months. I think - my plan is to continue my sobriety. . . . I am keeping sobriety. I am not going to lie to them, and I am not going to lie to myself. So God willing, I have no intention of drinking again.

Transcript at 26.

Finally, the individual testified that he has now accepted the death of his mother. He indicated that he has addressed the issue of the loss of his mother during his counseling sessions. Transcript at 28. In response to the question of whether he believes he has come to grips with his loss, the individual indicated “Yes, I have. It’s time to let go, and I did it, took me awhile. But unfortunately, I did some things I shouldn’t have done, but I take blame, full blame for what I did.” Transcript at 29.

The individual provided supporting testimony from his sister, and four individuals that see him regularly. These witnesses provided detailed corroboration for two assertions made by the individual. These witnesses testified that they have each seen the individual in a variety of social situations that included regular daily activities outside of work and group social situations. Their combined testimony strongly corroborated the individual’s testimony that he has not consumed alcohol in the last eight months.

The second area of corroboration relates to the individual’s testimony regarding the severe grief he felt at the time of the death of his mother and his testimony that he has now been able to deal with his grief. One witness was asked by the DOE Counsel how she would characterize the individual’s reaction to the death of his mother. She testified that “he didn’t handle it very well. He was with his mom, you know, all the time in the hospital, when she was at home [he took] care of her all the time . . . .” Transcript at 99. She went on to respond to the question of whether she believed that his mother’s death had anything to do with his increase consumption of alcohol. She answered “I do, because I’ve known [the individual] for a long time, and I’ve never seen him drunk, ever.” Transcript at 99.

As another example, a close family friend testified:

I used to visit the family quite frequently when the mother was - his mother was ill . . . .

. . . .

[Y]es he did take it very hard. And he was the provider for his mother while she was ill, he was there constantly whenever he wasn’t working here, at least at night he was the only person that could really take care of her. And she went through a lot of pain and agony and suffering through that period of time. And [the individual] was there to try to comfort her and help her at all times.

Transcript at 116.

That witness believed that there was a relationship between the individual’s increased alcohol consumption and the suffering and death of his mother. Id.

His sister testified that “it [the death of their mother] hit him very hard, because he used to take care of my mom, he used to say up nights with her. He used to take her - he was her right hand.” She further testified that she has been helping him deal with his grief and that he is now moving on in dealing with his mother’s death. Transcript at 110.

Finally, several witnesses testified about the individual’s job performance. The DOE called the DOE manager of labor relations and legal services. He testified that the individual was extremely reliable and an excellent employee. The individual called several co-workers. All had a very positive evaluation of the individual’s character and work habits.

III. ANALYSIS

As is evident from the above discussion, the testimony and reports of the two counseling professionals strongly support the conclusion that the individual is not likely to abuse alcohol in the future. The experts agree the individual abused alcohol as a result of his extreme grief related to his mother’s death. The DOE consulting psychiatrist and the alcoholism program director reviewed the individual’s grief-related rehabilitation and concluded that he has dealt effectively with his severe grief.

Further, both the DOE consulting psychiatrist and the alcoholism program director believe that because he has overcome his severe feelings of grief, the individual is unlikely to abuse alcohol in the future. Their views are very persuasive and I agree with their conclusion that the individual has been rehabilitated.

In addition, I found the character witnesses’ testimony to be detailed and given in an honest and forthcoming manner. That testimony supports the experts’ opinion that the individual had been very upset by the long illness and death of his mother and the individual’s alcohol abuse resulted from his extreme grief. In addition the testimony of the character witnesses supports the individual’s statements that he has been sober for eight months.

I was impressed by the individual’s candor about his alcohol- related problems, and his acceptance of full responsibility for those problems. I am convinced by his testimony that he is determined not to make those mistakes in the future. I also believe the expert witnesses and character witness corroborated the individual’s testimony through their detailed descriptions of the individual’s attitudes and actions during the last eight months.

IV. CONCLUSION

I have been persuaded by the evidence brought forward in this case that restoring the individual’s access authorization would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, I find that the individual's access authorization should 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 the 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, 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 with 20 days of receipt of the statement.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: January 29, 1998

(1)The Notification Letter was modified and reissued to the individual on December 22, 1997. All subsequent references in this Decision to the Notification Letter refer to the December 22, 1997 Notification Letter.