Case No. VSO-0214, 27 DOE ¶ 82,777 (H.O. Palmer October 15, 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.

October 15, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 11, 1998

Case Number: VSO-0214

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXXXX (hereinafter referred to as "the individual") to retain 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)

I. Background

For a number of years, the individual has been employed by a Department of Energy (DOE) contractor in a job that required that he maintain a security clearance. Because information was provided to the local DOE Security Office that raised security concerns, a reinvestigation of the individual was conducted in 1997. As a part of this reinvestigation, a DOE Personnel Security Specialist interviewed the individual on XXXXXXXX. Based on information given by the individual during this Personnel Security Interview (PSI), the local Security Office referred the individual to a board- certified psychiatrist (hereinafter referred to as “the DOE psychiatrist”), for an agency- sponsored psychiatric evaluation. The DOE psychiatrist interviewed the individual and provided a written evaluation to the Security Office.

After reviewing the results of this investigation, the Manager of the DOE facility determined that derogatory information existed which cast into doubt the individual’s suitability for continued access authorization. On XXXXXXXXXX, the Manager informed the individual of this determination in a letter which set forth in detail the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

The individual requested a hearing on this matter. The Manager forwarded the individual’s request to the Office of Hearings and Appeals and I was appointed the Hearing Officer. A prehearing telephone conference was held, and the hearing was convened at the individual’s job site. Ten witnesses testified at the hearing. A Personnel Security Specialist and the DOE psychiatrist testified for the DOE. Testifying for the individual were six of his co-workers, a psychiatric social worker (psw), and the individual himself.

II. Statement of Derogatory Information

As indicated above, the Notification Letter included a statement of derogatory information in possession of the DOE that created a substantial doubt as to the individual’s eligibility to hold a clearance. This information pertains to paragraphs (h) and (j) of the criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § § 710 et seq. Paragraph (h) defines as derogatory any information indicating that the individual has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” Paragraph (j) refers to information that the individual 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 states that the individual was diagnosed by the DOE psychiatrist as suffering from alcohol abuse and that this constitutes an illness or mental condition which, in the opinion of that psychiatrist, causes or may cause a significant defect in the individual’s judgement and reliability. In support of these conclusions, the Letter cites the DOE psychiatrist’s findings that the individual “suffers from Alcohol Abuse . . . which could create a significant defect in his judgement and reliability . . . his open admission of drinking while driving is of great concern, and demonstrates poor judgement.” The Letter also cites the psychiatrist’s findings that the individual continues to use alcohol habitually and lacks adequate evidence of rehabilitation and reformation. The Letter goes on to state that during PSIs conducted on XXXXXXXXXX, XXXXXXXXXXX and XXXXXXXXXXXX, the individual admitted to the following alcohol-related arrests: a “Minor in Possession” arrest in 1967; a DWI arrest in June 1982; a “Public Intoxication/DWI” arrest in February 1984; a DWI arrest in April 1985; and a Public Intoxication arrest in September 1997.

III. Findings of Fact and Analysis

The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).

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 produce evidence sufficient 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. After careful consideration of the factors mentioned above and of all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.

As an initial matter, I find that the record in this proceeding amply supports the DOE’s conclusions that security concerns exist with respect to paragraphs (h) and (j) of the criteria for eligibility for access to classified matter or special nuclear material. The individual was examined by the board-certified DOE psychiatrist, who concluded that the individual suffers from alcohol abuse, and that this condition causes or could cause a significant defect in his judgement and reliability. DOE psychiatrist’s evaluation at 8.

The individual does not dispute the DOE psychiatrist’s finding of alcohol abuse. Instead, he contends that sufficient mitigating factors exist to indicate that restoring his clearance would not endanger national security. Specifically, he states that he has stopped drinking and has sought treatment for his abuse, that any lapses in judgement and reliability have occurred only while he was drinking and have not affected his job performance, and that four of his five alcohol-related arrests occurred 13 or more years ago, with a period of 12 years between his April 1985 and September 1997 arrests.

With regard to his arrests during the years 1982 through 1985, the individual testified that at that time he was going through the stress of a divorce and was experiencing financial problems, which to some extent were caused by his alcohol usage. Hearing Transcript (Tr.) at 53. He stated that in 1985, he entered into a 30-day inpatient substance abuse treatment program with outpatient follow up, and that subsequently, he stopped drinking for approximately one and one half to two years. Tr. at 53-54. He then began a pattern of what he considered at the time to be social drinking, but which he now concedes was a continuance of his alcohol abuse. Tr. at 54-55. Despite his continuing alcohol use, the individual stated that he had no problems at work, and that he had no alcohol-related legal problems from 1985 to 1997. Tr. at 56. He further indicated that he had attended Alcoholics Anonymous meetings sporadically during this time, stating that he did not like to go because of the offensive language that was used there. Tr. at 56-57. With regard to his 1997 Public Intoxication arrest, the individual testified that during his return from a visit with his brother, he stopped and purchased a 12-pack of beer in one town, and consumed three beers during the two hour drive to another town. When he pulled over to the side of the road to urinate, a police officer pulled up behind him and arrested him for Public Intoxication. Tr. at 66. The individual stated that he did not feel that he was intoxicated at the time, or that he had been operating the vehicle in an impaired state. Tr. at 58. Two weeks before the hearing, the individual began seeing the psw for counseling and evaluation as a prelude to the individual’s entrance into an intensive substance abuse treatment program. Tr. at 64. Finally, the individual testified that he last consumed an alcoholic beverage two or three weeks prior to the hearing, and that it is currently his intention to abstain permanently from further alcohol use. (2) Tr. at 62.

The psw also testified on the individual’s behalf. He stated that he concurred with the DOE psychiatrist’s evaluation that the individual currently suffers from alcohol abuse, and that he therefore intended to refer the individual to a substance abuse treatment program consisting of six weeks of intensive outpatient therapy with an unspecified number of weekly follow-up sessions. Tr. at 76, 81. With respect to the individual’s behavior between the years 1985 and 1997, the psw testified that the individual’s ability to avoid legal problems, function satisfactorily at work and to maintain a stable relationship with his second wife demonstrates that he was not alcohol dependent and that he was able to manage his alcohol use with some degree of effectiveness. Tr. at 78. Although he conceded that the individual’s alcohol-related arrests demonstrated poor judgement, he testified that he did not believe the individual’s judgement and reliability to be impaired absent the use of alcohol. Tr. at 81. In this regard, the psw stated that there was no evidence of poor judgement or lack of reliability with respect to the individual’s job performance. Tr. at 79. Finally, when asked about whether there was a minimum period of abstinence that an alcoholic would have to achieve in order to be considered rehabilitated, he indicated that there was no such period. Tr. at 82. However, when asked whether he considered the individual to be rehabilitated from his alcohol abuse problem, he said, “No, I think he’s just starting [his rehabilitation].” Tr. at 84.

The individual also presented the testimony of six of his former co-workers. These witnesses each testified that the individual was an excellent worker and that they did not believe him to be a security risk.

After reviewing this testimony, I do not doubt that the individual has performed his job admirably. Moreover, I find the individual’s realization that he has an alcohol abuse problem, and his expressed intention to enter into a substance abuse treatment program, to be positive developments. However, I do not find the mitigating evidence submitted by the individual to be sufficient to allay the serious security concerns set forth in the Notification Letter.

As an initial matter, I find that the individual’s preliminary steps toward seeking treatment and his two to three-week period of abstinence fall far short of any type of showing of rehabilitation from alcohol abuse. In her evaluation of the individual, the DOE psychiatrist recommended that the individual either (i) attend “100 AA meetings over a one year period, with a minimum once weekly attendance,” or (ii) successfully complete “an outpatient substance abuse program with a minimum of 50 hours of professionally led therapy occurring once at least in a six month period.” DOE psychiatrist’s evaluation at 8. The psw agreed with this recommendation, and testified that the program to which he intended to refer the individual meets these requirements. Tr. at 80. The individual has not undergone any such intensive treatment since the recurrence of his alcohol abuse in the late 1980's, and in fact, both the DOE psychiatrist and the psw testified that the individual still suffered from alcohol abuse, without adequate evidence of rehabilitation. Tr. at 70, 84. The DOE psychiatrist also testified at the hearing that the individual could not be considered to be rehabilitated in any meaningful sense without total abstinence from alcohol use of at least one year’s duration. Tr. at 71. These conclusions are in accordance with the testimony of other substance abuse treatment professionals in a number of other DOE Personnel Security Hearings. See, e.g., Personnel Security Hearing, Case No. VSO- 0170, 26 DOE ¶ 82,802 (1997), affirmed, 27 DOE ¶ 83,004 (1998) (affirmed by OSA, 1998); Personnel Security Hearing, Case No. VSO-0177, 27 DOE ¶ 82,752 (affirmed by OSA, 1998).

I find the one year abstinence standard for rehabilitation to be particularly applicable in the individual’s case. On at least two previous occasions, he has permanently forsworn the use of alcohol, only to return to an abusive pattern of consumption. XXXXXXXXXXX PSI at 23. One of these occasions was during the individual’s participation in an inpatient substance abuse treatment program in 1985. Subsequent to his completion of the residential portion of that program, the individual remained abstinent for approximately one and one-half to two years. Tr. at 54. After that time, the individual resumed his alcohol use, a relapse that I believe was caused in part by his inability or unwillingness to aggressively pursue a follow up treatment program, including regular attendance at AA meetings or their equivalent. Given this history, I have little confidence in the individual’s ability to maintain his sobriety in the absence of a sustained commitment to treatment. There is insufficient evidence of such a sustained commitment in the record before me.

I also find the lack of alcohol-related arrests between the years 1985 and 1997 to be of little mitigating value. This is because, during that period, the individual repeatedly consumed alcoholic beverages while driving. DOE psychiatrist’s evaluation at 6-7, XXXXXXXXXXXX PSI at 21. It therefore appears that the lack of alcohol-related arrests during these years was due more to good fortune than it was to any significant change in the individual’s behavior. This behavior demonstrates a serious defect in the individual’s judgement. The individual repeatedly jeopardized his safety and the safety of others by engaging in an act that he knew to be illegal. XXXXXXXXXXXX PSI at 21. It is true that the individual testified he did not believe that he had consumed enough beer on the occasion of his 1997 arrest to cause intoxication or an impairment of his driving ability. Tr. at 58. However, the individual was arrested after consuming three beers in two hours, and only after the administration of a field sobriety test. XXXXXXXX PSI at 7-8. I find sufficient evidence in the record to conclude that the individual’s driving ability was impaired at the time of his arrest, and that he again exercised poor judgement regarding alcohol and the operation of motor vehicles.

IV. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§710.8(h) and 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 adequately mitigate the DOE’s security concerns. Based on the record in this proceeding, I am unable to conclude that granting the individual access authorization would not endanger the common defense and security and would be clearly 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 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, 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).

Robert B. Palmer

Hearing Officer

Office of Hearings and Appeals

Date: October 15, 1998

(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 be referred to in this Opinion as access authorization or a security clearance.

(2)The individual stated that he had two beers at dinnertime on that occasion.