Case No. VSO-0219, 27 DOE ¶ 82,779 (H.O. Lipton November 9, 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.

November 9, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: July 6, 1998

Case Number: VSO-0219

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold an access authorization.(1) 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 record testimony and other evidence presented in this proceeding, the individual’s suspended access authorization should be restored.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a detailed statement of the derogatory information. The DOE concern involves information indicating that the individual has been or is a user of alcohol habitually to excess, and has been diagnosed by

a board-certified psychiatrist as alcohol dependent. 10 C.F.R. § 710.8(j) (hereinafter Criterion J). (2)

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual represented himself, and was assisted by a union representative. The individual testified on his own behalf, and presented testimony of two co-workers, his sister, the manager of the Employee Assistance Program at the individual’s work site, and that of the head of the aftercare program that the individual attended (hereinafter referred to as the individual’s counselor). The DOE Counsel presented the testimony of a consultant psychiatrist (DOE psychiatrist).

II. Statement of Derogatory Information

As stated above, the area of concern identified in the Notification Letter involves the individual’s use of alcohol. The letter also sets forth details giving rise to this concern. Specifically, the Notification Letter refers to the DOE psychiatrist’s evaluation that the individual is alcohol dependent, and, at the time of that evaluation, had not shown adequate evidence of rehabilitation. The Letter also states that the individual admitted himself to a hospital, reporting a long history of alcohol dependence. At the time of admission he had a blood alcohol level of .332. Moreover, the Letter indicates that at the time he admitted himself into the hospital, the individual stated that his alcohol use amounted to a fifth of schnapps plus a case of beer per day. However, the Letter points out that the individual denied this level of consumption during his interview with the DOE psychiatrist, and that the psychiatrist expressed concern in his evaluation that the individual was minimizing his level of usage. Finally, the Letter states that in 1994, the individual was arrested for driving under the influence of alcohol.

III. The Hearing

At the Hearing, the individual admitted to having had an alcohol dependence problem and major depression. He also testified about his rehabilitation efforts. He stated that in July 1997 he voluntarily admitted himself into a hospital for treatment. He stated that he spent seven days in the hospital, and then for a two-month period he attended outpatient meetings three times a week. These sessions each lasted three hours. He indicated that he is still regularly attending these sessions once a week, as well as participating in an Alcoholics Anonymous program one or two times a week. He stated that he has not used alcohol since admitting himself into the hospital for treatment for alcohol dependence. Transcript of Hearing (hereinafter Tr.) at 13-16.

The individual further testified that he has a support group that includes friends from the outpatient program, his sister who lives with him and several co-workers. He indicated that if he found himself in a stressful situation in which he were tempted to use alcohol, he would call on one of these people for assistance. He further asserted that he intends never to use alcohol again and to continue attending the outpatient care. He also referred to new interests that he has been pursuing during his period of abstinence from alcohol. These include gardening, hiking, and returning to school to study computers. Tr. at 20-23.

After hearing the individual’s testimony, the DOE psychiatrist was asked his opinion as to whether he considered the individual to have demonstrated that he was rehabilitated from his alcohol dependence. In responding to this question, the DOE psychiatrist first provided some background information as to what he believes to be the hallmarks of addiction. He stated that these are usage, dishonesty, and a chaotic living situation. Conversely, in assessing whether an individual is rehabilitated from addiction, he looks for abstinence, honesty, and stability. Tr. at 26. Therefore, in order to assess whether the individual was rehabilitated, the DOE psychiatrist asked the individual about his life style, his attendance at counseling sessions, whether he was using alcohol and his desire for alcohol. In response, the individual reiterated many of the details he had provided in his earlier testimony. Tr. at 27-34.

After listening to the individual, the DOE psychiatrist concluded that the individual’s alcohol dependence was in full remission because he had not used alcohol for more than one year. He also stated that the time frame on rehabilitation is not established, and that it varies from case to case. He testified that the individual “certainly meets the criteria of honesty, stability and abstinence . . . at this time.” Tr. at 46. The DOE psychiatrist pointed out that to the individual’s credit he is acknowledging the severity of his illness, that he is capable of relapsing, and trying to maintain his program to keep that from happening. He believes that the individual’s current level of therapy is more than sufficient. He considers the individual’s support group to be adequate. He recommends that the individual seek out a psychiatrist, rather than his general physician, to monitor his level of anti-depression medication. Tr. at 46-49. (3) Overall, the DOE psychiatrist found the individual to be eager, honest and serious about his rehabilitation. Tr. at 58. His conclusion was that the individual is showing adequate evidence of rehabilitation and reformation from alcohol dependence. Tr. at 47.

Thus, based on the individual’s testimony, the DOE psychiatrist concluded that the individual appeared to be rehabilitated. However, before giving a definitive judgment on this issue, the psychiatrist indicated that he wished to hear the testimony of other witnesses in this case in order to be certain that their testimony was consistent with that of the individual. Tr. at 58.

The individual’s counselor stated that she has known the individual for a year and believes him to be “truly exemplary.” Tr. at 60.(4) She indicated that he has “stayed with the program 100 percent from the first time he walked in the door at the hospital.” Tr. at 61. She found him to be open and honest, and did not know of any relapses. She was particularly impressed by the fact that the individual was eager to help others in the program. Tr. at 62-64.

Two of the individual’s co-workers also testified. Both indicated that they had no reason to believe that the individual had used any alcohol in the past year. Both of these co-workers indicated that the work record and the attendance record of the individual has been exemplary during the past year. Tr. at 65, 75-76. One of the co-workers stated that he had visited the individual at home on several occasions and had never seen any signs of alcohol, even when he arrived unannounced. Tr. at 67. He also stated that he had spent a week with the individual at an out-of town training course. He indicated that during that time he never saw the individual use alcohol. Tr. at 68.

The individual’s sister, who has been living with the individual for the past six weeks, confirmed that she has not seen him use alcohol during that time, and that there is no alcohol in their household.(5) She indicated that he has found new interests since entering the rehabilitation program. These include walking, camping, remodeling their home, and gardening. She confirms that he takes his anti-depression medication regularly. Tr. at 84-87.

Finally, the manager of the Employee Assistance Program (EAP) at the site where the individual is employed testified. It is his responsibility to monitor the individual’s treatment. He gave his view that the individual has shown good rehabilitation and is aware of the importance of avoiding alcohol. Tr. at 90-95.

The individual also presented a written evaluation of his current rehabilitation status, prepared by the same psychiatrist who admitted him to his rehabilitation program. This psychiatrist, who re-evaluated the individual shortly before the hearing, believes the individual’s alcohol dependence and depression to be in remission. He further indicated that the individual has “shown evidence of rehabilitation.” Individual’s Exhibit 1. (6)

After hearing this testimony, and reviewing the evaluation letter of the individual’s psychiatrist, the DOE psychiatrist confirmed his original opinion that the individual has been avoiding alcohol use, and has adopted an honest, stable life-style constituting rehabilitation. Tr. at 99. The DOE psychiatrist stated that the prognosis for the individual is good. Tr. at 47.

IV. Analysis

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 case, we are dealing with a different standard, which is 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). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting or 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

In rendering my judgment in this case, I must consider whether there are factors present to mitigate the DOE's security concerns. Among the factors that I am to consider are those set forth at 10 C.F.R. § 710.7(c). See also 10 C.F.R. § 710.27(a).

The DOE psychiatrist diagnosed this individual as alcohol dependent. This diagnosis is consistent with that given at the time the individual was admitted to his rehabilitation program. Further, the individual admits that he was alcohol dependent. Thus, it is clear that there is sufficient evidence for the DOE to have invoked Criterion J in suspending the individual’s access authorization. Once a security concern has been found to exist, the individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff’d, 25 DOE ¶ 83,013 (1995)(VSA-0005).

As is evident from the testimony at the hearing described above, there was agreement by all witnesses that this individual has shown a remarkable reformation in his behavior.(7) In listening to the testimony of the individual, I was impressed by his candor regarding his alcohol problems, his acceptance of his responsibility for those problems and his efforts to resolve them. I was also impressed by his enthusiasm and eagerness to maintain his sober life-style. The individual’s character witnesses corroborate that he has maintained his abstinence. I also note that all the expert witnesses are in agreement that not only is the individual’s alcohol dependence in full remission, but also that for a significant period of time he has been seriously committed to a new sober and stable life-style, thereby demonstrating rehabilitation. Given these facts, I find that the individual has brought forward sufficient information from which I can conclude that he has mitigated the security concerns raised in the Notification Letter.

V. CONCLUSION

I have been persuaded by the evidence brought forward in this case that restoring the individual’s access authorization will not endanger the common defense and will 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 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 with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: November 9, 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.

(2)Criterion J includes information that the individual has “been 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.”

(3)The individual indicated that he was willing to adopt that approach. Tr. at 41, 50. The DOE psychiatrist indicated that he did not believe that the individual’s depression would cause any defect in his judgment or reliability. Tr. at 82.

(4)This testimony was given by telephone.

(5)This testimony was provided by telephone.

(6)The DOE psychiatrist interpreted this statement as giving the individual a “clean bill of health regarding his alcohol use.” He stated that he agreed with this evaluation. Tr. at 81. The individual also submitted other documentary evidence at the hearing. These included statements from (i) his psychotherapist; (ii) his personal physician; and (iii) a counselor at his outpatient program. These statements were all consistent with the testimony discussed above to the effect that the individual has steadfastly demonstrated a commitment to sobriety and rehabilitation.

(7)As stated above, the Notification Letter referred to the individual’s denial that he consumed a fifth of schnapps and a case of beer per day. This raised concerns that the individual may have been untruthful about his level of use. The representation that the individual was consuming alcohol at this level was made by the psychiatrist who initially evaluated the individual when he entered the hospital for his alcohol rehabilitation program. That psychiatrist subsequently reviewed his notes and in a June 16, 1998 letter addressed to the EAP manager at the individual’s work site, indicated that this assertion regarding the individual’s alcohol use was an error. See also Tr. at 82-83. Accordingly, I will not give any further consideration to this aspect of the Notification Letter.