Case No. VSO-0200, 27 DOE ¶ 82,770 (H.O. Augustyn July 1, 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.

July 1, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 25, 1998

Case Number: VSO-0200

This Opinion concerns the eligibility of XXXXXXXXXX (the individual) for restoration of his access authorization(1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

I. Background

The individual has held an access authorization for 27 years while employed by various contractors at a DOE facility. In late January 1997, the individual was arrested for driving under the influence of alcohol (DUI). This arrest prompted the DOE to conduct a Personnel Security Interview (PSI) to obtain information regarding the circumstances surrounding the DUI arrest and the extent of the individual’s alcohol use. After the PSI, the DOE referred the individual to a board-certified psychiatrist (DOE consultant-psychiatrist) for a mental evaluation. The DOE consultant-psychiatrist examined the individual, and memorialized his findings in a report dated March 24, 1997 (Psychiatric Report or Exhibit 3). In the Psychiatric Report, the DOE consultant-psychiatrist diagnosed the individual as alcohol dependent and opined that the individual habitually uses alcohol to excess. The DOE consultant-psychiatrist further found that the individual has not shown adequate rehabilitation or reformation. Since information creating doubt as to the individual’s eligibility for a security clearance remained unresolved after the mental evaluation, the DOE suspended the individual’s security clearance and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

On September 30, 1997, the DOE issued a Notification Letter to the individual which identified the individual’s alcohol use as derogatory information that cast doubt on his continued eligibility for access authorization. According to the DOE, the derogatory information fell within the purview of 10 C.F.R. § 710.8(j) (Criterion J).(2) In this regard, the DOE cites numerous specific concerns relating to the individual’s alcohol use, including the following:

6 DUI arrests;

3 other arrests involving alcohol;

admissions that he drank to intoxication while in the military;

previous statements made under oath in 1981, 1993, and 1997 that he had stopped or intended to stop drinking;

a diagnosis by a board-certified psychiatrist that he suffers from alcohol dependence and is a user of alcohol habitually to excess.

On October 22, 1997, the individual filed a response to the allegations contained in the Notification Letter together with a request for a hearing regarding those allegations. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on March 25, 1998. The OHA Director appointed me as Hearing Officer in this case on March 31, 1998. 10 C.F.R. § 710.25(b). I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative review process. See 10 C.F.R. § 710.25(g). At the hearing, the DOE called two witnesses: a DOE personnel security specialist and the DOE consultant-psychiatrist. The individual offered his own testimony and that of two other witnesses: his supervisor and a relative. On June 5, 1998, I received the hearing transcript at which time I closed the record in this case. See 10 C.F.R. § 710.27(e).

II. Standard of Review

The applicable 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). In resolving questions about the individual's access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the 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.

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding in which the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,202 (1996), aff’d, Case No. VSA- 0078, 25 DOE ¶ 83,016 (1996) (affirmed by OSA, 1996). 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department 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). For the reasons discussed below, I find that the individual has not met his burden in this case.

III. Findings of Fact

Most of the facts in this case are not in dispute.(3) The individual began consuming alcohol in 1964 at age 17. In 1965, he was arrested three times for alcohol-related incidents. Ex. 10; Tr. at 9-10. From 1965 through 1969, the individual served in the Navy during which time, according to the record, he drank to intoxication approximately seven times. Id. According to a Navy Investigative Report, the individual vandalized a vehicle in 1966 after drinking. Id. Two years later, in 1968, the individual was arrested for drunk driving. Ex. 10.

In 1979 and again in 1981, the individual was arrested for DUI. Id. As a result of the 1981 DUI, a court fined the individual and ordered him to attend 24 hours of alcohol education and 36 hours of alcohol therapy. Ex. 6 at 26. The individual completed the court’s requirements in February 1982. Tr. at 9-10.

In the late 1980s, the police encountered the individual stopped in his car on two occasions, once when the individual had fallen asleep, and once when his car had skidded off the road in a storm. Tr. at 60-63. On both occasions, the police smelled alcohol on the individual’s breath and transported him to a detoxication center. Id.

In July 1993, the individual was arrested for DUI again. Ex. 6 at 15-20. At the time, the individual refused to take blood-alcohol and breathalyser tests, claiming he did not “trust” the system. Id. at 18. The individual lost his license for a one-year period for his refusal to take the blood-alcohol and breathalyser tests. Id. at 22. According to the individual, he was willing to forfeit his license for one year in order to deprive the police of legal proof of his intoxication. Id. at 21.

During a personnel security interview in 1993, the individual represented that he had “basically quit drinking” after his 1981 arrest and intended to abstain from alcohol entirely as a consequence of the July 1993 arrest. Id. at 35-41. In September 1996, the individual was arrested again for DUI, this time after a blood alcohol test revealed his blood alcohol content exceeded legal limits. Ex. 5 at 4-8. After this arrest, appropriate authorities revoked the individual’s driver’s license. Id. at 7; Ex. 4 at 13-14.

In January 1997, the individual consumed eight or nine beers in a four to five-hour period before driving home. Tr. at 59-60. En route home, the police stopped the individual because his vehicle was weaving. Ex. 4 at 7. After smelling alcohol on the individual’s breath and ascertaining the individual was driving with a revoked driver’s license, the police arrested him. Id. at 8; Tr. at 9-10.(4) The individual was released from police custody on a bond that required him to take Antabuse, a drug that induces vomiting if the individual consumes alcohol. Id. at 95.

In March 1997, a DOE consultant-psychiatrist who is board-certified in psychiatry, adolescent psychiatry, forensic psychiatry and addiction psychiatry examined the individual and opined that he is alcohol dependent and is a habitual user of alcohol to excess. Tr. at 18; Exs. 3 and 11. To support his diagnosis of alcohol dependence, the DOE consultant-psychiatrist explained that the individual has placed himself and others at risk when he drinks and drives. Ex. 3 at 6-7. The DOE consultant- psychiatrist also pointed out that the individual (1) has shown an inability in the past to moderate his alcohol consumption, (2) has been unsuccessful in attempts to abstain from alcohol despite his efforts in this regard, (3) has consumed more alcohol than he intends to at times, (4) feels guilty about his drinking, and (5) has shown marked tolerance for alcohol. Id. It was the DOE consultant- psychiatrist’s opinion that the individual must participate in an intensive outpatient alcohol rehabilitation program, followed by Alcoholics Anonymous (AA) for one year, to be considered in remission. Id. Further, the individual might need up to two years of sobriety to achieve rehabilitation, according to the DOE consultant-psychiatrist. Id.

In August 1997, the court fined the individual and sentenced him to 180 days in jail based on the January 1997 arrest. Exhibit C; Tr. at 70-71. The individual agreed to enter an intensive alcohol- treatment program, the Multiple DUI Offender Program (MOD Program), in exchange for a reduction in his 180-day jail sentence. Id. The individual completed a 90-day jail term on April 9, 1998 and remains on probation until August 1998. Id. The individual expects to complete the MOD Program on January 2, 1999. Exhibit A.

IV. Analysis

I have thoroughly considered the record of this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. 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). After due deliberation, it is my opinion that the individual’s access authorization should not be restored. I cannot find that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make in support of this recommendation are discussed below.

A. Derogatory Information

The derogatory information in this case arises from the individual’s long history of alcohol-related problems as exemplified by his nine alcohol-related arrests, his one failed attempt at rehabilitation, his two involuntary trips to detoxification centers, his broken promises to curtail or cease his alcohol consumption, and his recent jail term resulting from his 1997 alcohol-related arrest. The severity of the individual’s alcohol affliction is confirmed by a DOE consultant-psychiatrist who diagnosed the individual as a user of alcohol habitually to excess and alcohol dependent.

Based on the foregoing, the record demonstrates unequivocally that the DOE properly relied on Criterion J as a basis for suspending the individual’s access authorization. It was reasonable for the DOE to conclude that the individual’s extensive history of alcohol use could impair his judgment and reliability and prevent the individual from safeguarding classified matter or special nuclear material. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse, alcohol dependence, and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing, (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996) (affirmed by OSA, 1996); Personnel Security Hearing, (Case No. VSO-0042), 25 DOE ¶ 82,771 (1995) (affirmed by OSA, 1996); Personnel Security Hearing, (Case No. VSO- 0014), aff’d, 25 DOE ¶ 83,002 (1995) (affirmed by OSA, 1995).

B. Mitigating Factors

A finding of derogatory information does not, however, end the evaluation of the evidence concerning the individual’s eligibility for access authorization. See Personnel Security Hearing, Case No. VSO-0154, 26 DOE ¶ 82,794 (1997), appeal filed. In this case, the individual suggests that his efforts to maintain sobriety during the 16 months preceding the hearing, his participation in the MOD program, and his exemplary job performance should mitigate the security concerns associated with his past dependence on alcohol. I will address the mitigating circumstances the individual has advanced in turn.

1. Rehabilitation

In his defense to the allegations contained in the Notification Letter, the individual asserts that he (1) has not consumed any alcohol since January 1997, (2) has been taking Antabuse since February 1997, and (3) has been participating in the MOD Program since January 1998. Tr. at 57, 59. He further claims that it is his intention to continue abstaining from alcohol completely in the future. Id. at 107.

The individual also submitted into evidence a report prepared by his MOD Counselor that explains the MOD program generally and the individual’s progress in the program specifically. (MOD Report). Ex. B. The MOD Counselor reports that the individual began the MOD Program on January 15, 1998 and has been an active and cooperative participant in the program. Id. According to the MOD Counselor, the MOD program is a year long program, with three phases. Id. The first phase, which the individual has completed, is 12 weeks in duration and consists of one and one-half hours of therapy five days per week. The second phase is also 12 weeks long. Id. The individual is currently in phase two of the MOD Program. During this phase, the individual takes monitored Antabuse, is subject to random drug testing, and attends group therapy three times each week. Id. The third phase is six months in length. Id. During the last phase, the individual will continue to take monitored Antabuse and be subject to random drug testing as well as attend group therapy twice each week until the last few months of the program when the group therapy changes to social club once each week. Id. The MOD Counselor states that the individual “appears to be progressing in the program” and expects him to graduate on January 2, 1999 if he continues to participate in the program. Id.

At the hearing, the DOE consultant-psychiatrist remained in the hearing room to listen to the individual’s testimony. Subsequently, the DOE consultant-psychiatrist reaffirmed under oath his opinion that the individual is alcohol dependent and not yet reformed or rehabilitated from that condition. Tr. at 94. According to the DOE consultant-psychiatrist, the individual’s efforts at rehabilitation to date are not of sufficient duration, noting that the individual has completed slightly more than one-third of the MOD Program. Id. at 98. The DOE consultant-psychiatrist further testified that while the individual appears to be significantly better than when he examined him in March 1997, the individual still exhibits some denial, appears not to be taking responsibility for his alcohol-related problems, and fails to appreciate the gravity of his alcohol problem. Id. Finally, the DOE consultant-psychiatrist also expressed concern that the individual did not heed his advice in March 1997 to enter an alcohol treatment program, a fact suggesting that the individual has not taken his alcohol problem seriously. Id. at 39.

In the administrative process, it is the Hearing Officer who has the responsibility for assessing whether a person with an alcohol problem has presented sufficient evidence of rehabilitation or reformation to allay security concerns. See Personnel Security Hearing, Case No. VSO-0106, 26 DOE ¶ 82,767 (1997), aff’d, Personnel Security Review, Case No. VSA-0106, 26 DOE ¶ 83,009 (1997). The DOE does not have a set policy on what constitutes rehabilitation and reformation from alcohol dependence, but instead makes a case-by-case determination based on the available evidence. See Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), appeal filed. However, hearing officers accord great deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See e.g., Personnel Security Hearing, Case No. VSO-0146, 26 DOE ¶ 82,788 (1997), appeal dismissed, (affirmed by OSA, 1998); Personnel Security Hearing, Case No. VSO-0027, 25 DOE ¶ 82,764 (1995) (affirmed by OSA, 1995); Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995) (affirmed by OSA, 1995).

Based on the evidence in the record, I am unable to conclude that the individual is rehabilitated. As noted below, in making this finding, I accorded much weight to the testimony of the DOE consultant-psychiatrist whose testimony I found to be clear, carefully considered, and convincing.

As an initial matter, like the DOE consultant-psychiatrist, I am troubled by the individual’s seeming inability to grasp the extent and seriousness of his alcohol problem. At the beginning of the hearing, the individual testified that he was not addicted to alcohol. Tr. at 49. Shortly thereafter, the individual asserted that if he has a problem with alcohol, “it’s getting behind the wheel.” Id. at 51. Later, under questioning, the individual admitted reluctantly that he has an alcohol problem, but quickly added he has the problem under control. Id. at 67. These transcript excerpts support the DOE consultant-psychiatrist’s observation that the individual remains in denial regarding the extent of his alcohol dependence.

I also find it significant that the individual failed to heed the DOE consultant-psychiatrist’s advice in March 1997 to enter an alcohol rehabilitation treatment program. It was not until he was sentenced to jail for his most recent DUI conviction that he entered a rehabilitation program in January 1998. Even then, he entered the MOD Program to reduce his jail time from 180 days to 90 days. Id. at 56. It appears to me that the individual’s participation in the MOD Program, like his participation in the 1982 court-ordered alcohol treatment program, was not motivated by his personal desire to address his dependence on alcohol. Rather, the record suggests that it was the criminal court system that mandated the individual’s two rehabilitative efforts to date. These facts cause me to question seriously how successful the individual’s forced rehabilitation will be.

In addition, I find that the individual’s 16 months of sobriety alone are insufficient to show he has been rehabilitated from his alcohol dependence. As an initial matter, I defer to the DOE consultant- psychiatrist who is board certified in a number of disciplines, including addiction psychiatry, who believes that in this case the individual needs up to two years of sobriety to achieve rehabilitation. Ex. 3. Moreover, it is not clear to me whether the individual’s abstinence is motivated by his choice to cease drinking or the knowledge he will become ill if he mixes alcohol with the Antabuse he is required to take. I point out that the length of the individual’s sobriety corresponds exactly with the length of time he has been taking Antabuse. Given the individual’s current state of denial and his previous unsuccessful court-ordered rehabilitation effort in 1982, I am not convinced the individual will maintain sobriety, particularly when he is no longer required to take the Antabuse. Further, I am mindful that in 1981 and again in 1993, the individual represented under oath that he had either stopped or intended to stop drinking completely. As subsequent events disclose, the individual was unable to abstain despite efforts in this regard.

Even if I were to accept that the individual’s sobriety is genuinely motivated by a desire to curtail his drinking permanently, I could not find that the individual was rehabilitated. Abstention alone is not sufficient to demonstrate rehabilitation. See Personnel Security Hearing, (Case No. VSO-0168), 26 DOE ¶ 82,803 (1997) (affirmed by OSA, 1998). According to the DOE consultant-psychiatrist, it is the combination of alcohol abstention plus appropriate alcohol treatment that provides the foundation for rehabilitation in this case. Ex. 3. The individual has neither been abstinent for two years, nor completed his alcohol treatment program. Ex. B; Tr. at 99. Accordingly, I find that the individual is not rehabilitated at this time.

As explained above, it is difficult for me to accept the individual’s assurances regarding his future intentions with respect to alcohol abstention and treatment. These factors, coupled with the short duration of the rehabilitative treatment he has received thus far, prevent me from concluding that the individual has mitigated the DOE’s concern regarding his past alcohol-related use and a current diagnosis of alcohol dependence.

2. Job Performance

The individual contends that his excellent job performance should mitigate or resolve the DOE’s security concerns about his off-the-job alcohol use. In this regard, the individual’s supervisor testified that the individual’s work performance has been outstanding at the facility. Tr. at 102.

It appears from the supervisor’s testimony that the individual’s alcohol dependence has not, to date, affected his ability to perform his job responsibilities. Sobriety and reliability on the job, however, do not overcome the security concerns. Excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that compromises national security. See Personnel Security Hearing, VSO-0106, 26 DOE ¶ 82,767, aff’d, 26 DOE ¶ 83,009 (1997) (affirmed by OSA, 1997), and cases cited therein. The fact that this has apparently not occurred in the past is no guarantee that it will not occur in the future. For this reason, I cannot find that the individual’s work record alone resolves the alcohol- related concerns advanced by the DOE.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§710.8(j) in suspending the individual's access authorization. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying that criterion. In view of Criterion J and 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, in my opinion, the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: July 1, 1998

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)Criterion J concerns information that a person 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.” 10 C.F.R. § 710.8(j).

(3)At the hearing, the individual stipulated to 15 allegations contained in the Notification Letter, thereby admitting to an extensive history of alcohol-related problems. Transcript of xxxxxxxxxxxx Hearing (hereinafter Tr.) at 9-10. The individual refused, however, to stipulate to the allegation that he was arrested in August 1968 for drunk driving. Tr. at 10. Under questioning at the hearing, the individual claimed he had no recollection of the incident. Id. at 79. The individual admitted, however, that he had completed a Personnel Security Questionnaire (PSQ) on January 19, 1970 on which he listed an arrest for drunk driving in August 1968. See Ex. 10. Since the individual signed the PSQ under oath within 18 months of the alleged drunk driving incident, I find that the information on the PSQ is entitled to more weight than the individual’s current hazy recollection of an event that occurred 30 years earlier.

(4) The individual later admitted to the DOE that he had driven at least 20 times while his driver’s license was revoked. Id. at 14.