Case No. VSO-0226, 27 DOE ¶ 82,780 (H.O. Goldstein November 13, 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 13, 1998

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: July 31, 1998

Case Number: VSO-0226

A Department of Energy Operations Office (the DOE office) denied the application of XXXXX XXXXXX XXXXX (hereinafter referred to as "the individual") for 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 conclude in this Opinion that on the basis of the evidence and testimony presented in this proceeding, the individual’s application for access authorization should not be granted.

I. Background

On June 23, 1998, the DOE office issued a Notification Letter informing the individual that his application for access authorization had been denied because information in the possession of the DOE created substantial doubt concerning his eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of two of the criteria set forth in 10 C.F.R. § 710.8, subsections (h) and (j). The DOE office alleges that the individual has "[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). Further, the DOE office invoked Criterion (j) on the basis 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.” The Notification Letter specified the DOE consultant psychiatrist’s diagnoses of the individual as alcohol dependent and alcohol abusive.

The DOE office noted the following relevant facts. During a November 3, 1997 Personnel Security Interview, the individual stated that he did not drink between 1983 and 1991 because he considered himself to be a recovering alcoholic. However, in 1991 he resumed drinking and by 1996 was consuming a six-pack of beer every other day. His former spouse and his three daughters have told the individual that his drinking is a problem. The individual has been arrested six times in allegedly alcohol-related incidents: a charge of driving while intoxicated (DWI) in December 1997, domestic violence in May 1996, assault and battery in July 1995, disorderly conduct in April 1984, DWI in August 1982 and another DWI in Summer 1981. As of the time of the Notification Letter, he had never had any counseling for his drinking nor had he ever attended Alcoholics Anonymous (AA) meetings.

The individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). At the hearing, the DOE Counsel called four witnesses: the DOE consultant psychiatrist, a DOE security specialist, a personnel official with the individual’s employer and the individual. The individual called five witnesses: his Employee Assistance Program (EAP) counselor, his union’s business manager, and three supervisors. 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 and shall be cited respectively as "DOE Ex." and “Indiv. Ex.”

II. Findings of Fact and 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 a Part 710 case, we are applying 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 granting 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 access authorization. SeeDepartment of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of access authorizations 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) (strong presumption against the issuance of access authorization). 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).

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. 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 should not be granted access authorization since I am unable to conclude that such a grant 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 DOE office referred the individual to a DOE consultant psychiatrist, with whom the individual met on March 19, 1998, for psychiatric evaluation. In the course of his examination, the DOE consultant psychiatrist interviewed the individual and performed a detailed analysis of the individual's background. DOE Ex. 4. On the basis of the information received, the DOE consultant psychiatrist diagnosed the individual as currently manifesting substance dependence, alcohol, without physiological dependence and in early partial remission. Id. at 27. The DOE consultant psychiatrist stated that this disorder constitutes an illness or mental condition which causes or may cause a significant defect in the individual’s judgment or reliability. Id.; see 10 C.F.R. §§ 710.8(h) and (j).

The individual does not dispute the essential facts listed in the Notification Letter but believes he is now rehabilitated.(2) At the hearing, the individual testified that he had stopped consuming alcohol about two months ago. Tr. at 17. He stated that his abstinence resulted from his beginning counseling and his security clearance problems. Tr. at 17-18. He now believes that he is a recovering alcoholic and is committed to maintaining his sobriety. Tr. at 20, 27. He recently attended two AA meetings and has met with the EAP counselor eleven times during the last two months. Tr. at 18-19. Finally, the individual testified that his family and friends are supporting him in his commitment to sobriety. Tr. at 25.

The individual’s EAP counselor testified that he believes the DOE consultant psychiatrist’s diagnosis of alcohol dependence is accurate. Tr. at 59, 64. He further noted that when the individual began counseling he was still in a state of self-deception about his problem. Tr. at 60. However, the EAP counselor also stated that the individual has begun to recognize the negative consequences caused by his drinking and that he cannot be a controlled drinker. Tr. at 62. The EAP counselor opined that with the individual’s spiritual and family values, there is reason to be optimistic about the individual’s long-term prospects for recovery. Tr. at 68. Most significantly, the EAP counselor stated that it is too early to consider the individual rehabilitated. Tr. at 67.

Based on the individual’s testimony at the hearing, the DOE consultant psychiatrist stated that the individual could not currently be considered rehabilitated. Tr. at 40-41. He stated that at this stage of sobriety, the individual has a 90 percent lifetime chance of beginning to drink again. Tr. at 43-44, 69. He also recommended that the individual complete nine months of therapy consisting of fifty hours of outpatient, professionally-led therapy and some period of after-care. Tr. at 37. He does not consider the individual’s current counseling to be adequate because he believes the individual requires group therapy in order that he may better discern his own problems. Tr. at 47. Additionally, the DOE consultant psychiatrist testified that AA alone is not sufficient in this case because the individual requires professional evaluation which AA cannot provide. Tr. at 48. Finally, he stated that the individual needs to maintain complete abstinence in order to be considered reformed, and if he does so for a year, his chance of resuming the consumption of alcohol decreases to fifty percent. Tr. at 38-39, 43.

The individual presented convincing evidence that he has not consumed alcohol at work and that he is a good employee. However, in this case, his good work habits do not mitigate the security concerns presented by his alcohol problem. See Tr. at 72; Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 at 86,561 (1997).

On the basis of the record, I find that the individual is alcohol dependent. Additionally, I find that the individual has not presented sufficient evidence of rehabilitation or reformation. I am therefore unable to conclude that the individual has mitigated the security concerns of the DOE.

III. Conclusion

For the reasons set forth in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(h) and (j) in denying the individual’s application for access authorization. It is my opinion that, within the meaning of those provisions, the individual has: (1) a mental condition, alcohol dependence, that is of a nature which causes, or may cause, a significant defect in judgment or reliability and (2) been a user of alcohol habitually to excess and has been diagnosed by a board-certified psychiatrist as alcohol dependent. The individual has failed to present adequate evidence of mitigation which would alleviate the security concerns of DOE. In view of these criteria and the record before me, I cannot find that granting access authorization to the individual would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the application for access authorization should not be granted.

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 (OHA), 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

Dawn L. Goldstein

Hearing Officer

Office of Hearings and Appeals

Date: November 13, 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.

(2)The individual does dispute the statement in the Notification Letter that he had been drinking prior to his 1984 arrest for disorderly conduct. Tr. at 16. However, this long ago incident is irrelevant to my analysis of whether the individual is currently rehabilitated.