Case No. VSO-0230, 27 DOE ¶ 82,789 (H.O. MacPherson January 22, 1999)

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January 22, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:August 18, 1998

Case Number:VSO-0230

This Opinion concerns the continued eligibility of xxxxxx xxxxxx xxxxxx (hereinafter referred to as "the respondent") to hold an access authorization under the "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material," 10 C.F.R. Part 710. (1) As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent's access authorization should be restored.

I. Background

The respondent is employed by a contractor at a DOE facility. She was referred to a DOE- retained, board-certified psychiatrist for evaluation because a Personnel Security Interview (PSI) held on December 2, 1997, was unable to resolve security concerns raised by her use of alcohol that resulted in two arrests for driving under the influence (DUI). One arrest was in November 1997 and the other was fifteen years earlier. A Notification Letter subsequently issued to the respondent on July 14, 1998, specifies that the psychiatrist diagnosed two conditions that create a substantial doubt concerning her continued eligibility for an access authorization: (1) a narcissistic personality disorder that may cause a significant defect in the

respondent's judgment and reliability, and (2) alcohol abuse/dependence. See 10 C.F.R. § 710.8(h), (j). Her access authorization was subsequently suspended.

The respondent requested a hearing to resolve the issue of her eligibility for an access authorization, and the request was forwarded to the Office of Hearings and Appeals on August 18, 1998. At the hearing, the DOE presented the testimony of the psychiatrist and the respondent testified on her own behalf and presented the testimony of her personal physician and her supervisor.

II. The Relevant Facts

Based upon his evaluation, the psychiatrist retained by DOE to evaluate the respondent issued a report in which he concluded "her present course of controlled social drinking is an invitation to disaster and I have concerns that the problem is more significant than [she] is willing to consider. Diagnostically, I see her as Alcohol Abuse/Dependence with a Narcissistic Personality Disorder (moderate)." Psychiatrist Report at 4 (March 10, 1998).

A. Alcohol Abuse/Dependence

According to the respondent, the DUI arrest occurred after she had two or three glasses of wine, two margaritas, and two shots of tequila over a two to three hour period while consuming a minimum amount of food. PSI at 4-5; Psychiatrist Report at 1. After leaving the restaurant, the respondent bumped another car. Although there were apparently no injuries or property damage, the police were called and they administered a breathalyser test. That test showed a blood alcohol content of 0.227 percent. PSI at 5.

With respect to her normal pattern of drinking, the respondent reports that approximately every other day she consumed one or two alcoholic drinks (usually wine or beer).(2) PSI at 7. She may have consumed somewhat more alcohol on weekends when out to dinner or at a party. Psychiatrist Report at 1; Transcript of Hearing at 12 (Transcript) (testimony of psychiatrist). The respondent stated that she occasionally becomes moderately intoxicated, which she explained would be after about four drinks. She answered yes to the question of whether she drank to the point of intoxication fewer than five times during 1997. PSI at 9. The respondent's statements concerning her alcohol consumption are in part corroborated by the testimony of her supervisor and her personal physician, both of whom have observed her a number of times in social situations where alcohol was consumed and did not observe excessive alcohol consumption. Transcript at 78, 91.

The psychiatrist conducted a one-hour clinical interview followed by the written Minnesota Multiphasic Personality Inventory (MMPI-2) and the Millon Clinical Multitaxial Inventory (MMCI). The MMPI scores were within normal limits, but the test showed possible evasiveness.(3) Transcript at 15. The MMCI was consistent with a possible narcissistic personality disorder. The psychiatrist stated that based upon his evaluation, he believes that the respondent minimized her alcohol consumption. He based his diagnosis of alcohol abuse/dependence upon what he assumed was her regular consumption of alcohol to excess, the two DUI arrests and resulting legal consequences, and the times that her memory of events was "fuzzy." Transcript at 17.

In contrast, the respondent's personal physician testified that the respondent does not have an alcohol problem. Transcript at 77. He stated that he has seen the respondent on a regular basis for about ten years. He sees her frequently for allergy-related treatments and gives her physicals every year or so. He has also observed her in social situations where she has consumed alcohol. Transcript at 72-73, 77-78. Her liver function tests have always been normal, and she has not avoided discussing her alcohol consumption. Transcript at 73-74, 79.

B. Narcissistic Personality Disorder

The psychiatrist diagnosed the respondent as having a narcissistic personality disorder (moderate). He stated that while such a personality disorder can be severe enough to affect a person's judgment and reliability, that was not the case with the respondent. He stated that his concern is that the personality disorder would make the respondent reluctant to seek treatment for her alcohol problem, not that the personality disorder alone constitutes a significant problem. Psychiatrist Report at 3-4; Transcript at 16-17, 27. The respondent's personal physician testified that he found no evidence of a narcissistic personality disorder. Transcript at 79.

III. Standard of Review

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding, where 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). 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) and cases cited therein. This standard implies that if there is doubt, the decision should be against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990).

DOE regulations provide that my opinion is to be based on a comprehensive, common-sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a).(4)

IV. Analysis

A. Alcohol Abuse/Dependence

Excessive consumption of alcohol is a concern to DOE because persons under the influence may be careless in their handling of nuclear materials and classified information. In addition, it may lead to other financial, social or legal problems that could leave an individual open to coercion or blackmail. Finally, continued use of alcohol under circumstances that cause an individual significant problems is itself evidence of poor judgment and reliability. Occasional consumption of inappropriate amounts of alcohol, provided there are no adverse consequences, is not a significant concern. Only when an individual habitually consumes alcohol to excess or is diagnosed as alcohol abusive or dependent is there a substantial security concern.

The two medical professionals who testified differ radically in their diagnoses. Normally, I would tend to find the testimony of a psychiatrist who is trained in recognizing alcohol problems to be more persuasive than that of a general physician.(5) However, in this case, the respondent's physician knows her very well. He has observed her consuming alcohol first hand on a number of occasions, and he has monitored her physical condition for ten years. Under these circumstances, I find that he is as qualified to render an opinion on her condition than the DOE psychiatrist who saw her only once. After hearing both of them testify in detail and after carefully considering the testimony of the respondent and her supervisor, I find the physician's opinion to be more persuasive.

Moreover, I do not find the psychiatrist's diagnosis to be persuasive. He assumes, without any convincing basis, that the respondent consumes more alcohol than she admits and that alcohol has caused her additional problems. He relies, in part, on what he perceives as inconsistencies in the respondent's statements. For example, he finds her reported consumption of alcohol on the night of the DUI arrest, up to three glasses of wine, two shots of tequila, and two margaritas to be inconsistent with a blood alcohol concentration of 0.227 percent. Transcript at 32. I find no such inconsistency. People vary in how their blood alcohol content responds to alcohol consumption. Moreover, the size of these drinks was not specified. Margaritas usually contain more alcohol than the average drink, and may contain twice as much. Consequently, the respondent's admitted alcohol consumption on that night could easily amount to eight or nine average drinks. This could be more than enough to bring the blood alcohol content of a relatively small woman up to 0.227 percent. See www.intox.com. Similarly, contrary to the psychiatrist, I do not find anything inconsistent with the respondent's consumption of margaritas and her statement that she seldom drinks hard liquor. Psychiatrist Report at 3. There is nothing inconsistent with disliking most types of hard liquor while liking some varieties. The psychiatrist also bases his assumption that the respondent may be consuming more alcohol than she reports upon instances, in addition to the two DUIs, when her memory of the night before has been "fuzzy." Transcript at 17. Upon cross-examination, he explained that he did not elicit specific details, but that the respondent had alluded to having a fuzzy recollection at times other than the DUIs. Transcript at 46. The psychiatrist's assumption that the respondent must consume more alcohol than she has admitted because she mentioned occasions when her memory may not have been entirely clear appears unwarranted. I believe that the respondent was merely trying to be candid about her occasional inexact recollection of events. She explained that, other than the two DUIs and an occasion several years ago while on vacation that she may have mentioned to the psychiatrist, she has not had difficulty remembering events. Transcript at 69.

Furthermore, I am troubled by the psychiatrist's apparent use of circular reasoning. He assumes that the respondent has an alcohol problem, notes that she either does not consider her alcohol consumption to be a significant problem or admit consequences that he believes should follow from the problem, and then uses her denial to support his assumption that she has an alcohol problem that she is minimizing. For example, the psychiatrist finds support for his opinion from the respondent's denying that her family and friends have criticized her alcohol intake. Transcript at 34-35, 56, 66. In this regard, I note that her supervisor and physician have not criticized her use of alcohol. He also found support for his diagnosis from the fact that while the respondent is concerned with the lapse of judgment that led to her driving under the influence, she does not admit that she has an ongoing problem with alcohol. Transcript at 14, 28-29. The psychiatrist does not appear to consider that his underlying assumption, i.e., that the respondent has minimized the amount she drinks, may be incorrect. For this reason, he appears to lack the objectivity necessary to be believable in this case.

Finally, I note that a diagnosis of alcohol abuse or dependence requires a finding that alcohol has had a significant adverse affect upon an individual's life. For example, for a diagnosis of alcohol abuse, the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), a standard reference work for diagnosing mental disorders, requires a pattern of alcohol use that results within a 12-month period in clinically significant impairment or distress manifested by recurrent use in hazardous situations, failure to fulfill major role obligations, or legal or social problems. DSM-IV at 182-83. See also Personnel Security Hearing, 25 DOE ¶ 82,804 at 85,849-50 (1996). The psychiatrist bases his diagnosis upon her two DUIs and his unsubstantiated assumption that she has had other significant difficulties with alcohol. Transcript at 14. In contrast, the respondent's physician, while agreeing that two DUI's are a serious matter, noted that he would be much more concerned if the respondent's two DUIs were only a few years apart. Transcript at 83. I agree with the physician that the respondent's two DUIs fifteen years apart do not seem to constitute a recurrent pattern of conduct that would be necessary for a diagnosis of alcohol abuse.(6)

Based upon the respondent's demeanor at the hearing, I believe her to be honest, and I find her testimony to be credible. I am also impressed with the candor with which she discussed her DUI and her alcohol consumption at her PSI. The respondent made no attempt to excuse her conduct and freely admits that she exercised poor judgment when she drove her car while intoxicated. Transcript at 68, 86; PSI at 13. She explained that this was very unusual for her and she indicates that she will be more careful in the future. The respondent describes a generally moderate pattern of alcohol consumption.(7) She consumes one or two glasses of beer or wine approximately every other day. At dinners, parties, or other social events she may consume somewhat more alcohol. She admits to drinking to the point of moderate intoxication several times a year. PSI at 9. This would be defined as drinking four to six drinks, not the level of consumption that led to her DUI arrest.(8) This pattern of drinking is corroborated by the testimony of her supervisor and physician who have observed her on a number of occasions when alcohol was being consumed. Consequently, I find this statement of the respondent's drinking pattern to be reliable.

The only incidents in which the respondent's alcohol consumption has caused her a significant problem are her two DUIs. While DUIs are a very serious matter, there is no evidence that these were other than isolated incidents. The testimony of the respondent's supervisor makes clear that her use of alcohol has had no adverse impact on her work. If alcohol were a significant problem in the respondent's personal life, one would expect more adverse events to have surfaced than two DUIs fifteen years apart. As there is no indication of a recurring pattern of conduct that would support a diagnosis of alcohol abuse or dependence, I find the evaluation by the respondent's personal physician is more reliable than that of the psychiatrist. I find therefore that the respondent does not suffer from alcohol abuse or dependence.

B. Narcissistic Personality Disorder

As noted above the respondent's personal physician and the DOE psychiatrist disagree about whether the respondent has a narcissistic personality disorder. However, since the psychiatrist states that the alleged personality disorder would not in any event be severe enough to affect the respondent's judgment and reliability, it is not necessary for me to resolve this disagreement. I find even if the respondent suffers from this personality disorder, it does not constitute an unacceptable security risk.

V. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(j), the respondent does not suffer from alcohol abuse or dependence. I also find, with respect to the allegation under 10 C.F.R. § 710.8(h), that the respondent does not have a personality disorder that would affect her judgment and reliability. I find therefore that the respondent has demonstrated that restoring her clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent's access authorization should be restored.

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

Date: January 22, 1999

(1)Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

(2)The respondent testified at the hearing that she ceased consuming alcohol on August 3, 1998. She stated that she did so "primarily because I wanted to prove to DOE that I did not have a dependency problem, but also to take a look at my own behavior objectively." Transcript at 65-66. The respondent reported that she did not have any withdrawal symptoms or other problems related to her abstention from alcohol. I note in this regard, the ability to abstain from alcohol consumption for a few months does not prove that the respondent does not have an alcohol problem, nor, assuming the respondent does in fact have an alcohol problem, would it be a sufficient period of abstinence to demonstrate rehabilitation.

(3)The indication of possible evasiveness cannot be taken as implying that the respondent has any specific mental disorder. It does indicate, however, that we should not rely upon the test's indication that the respondent has no psychological problems.

(4)The factors I must consider in reaching my determination 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.

(5)Under DOE regulations, any physician is qualified to give an opinion concerning whether an individual has a mental condition or suffers from alcohol abuse or dependence. 10 C.F.R. § 710(h), (j).

(6)In this regard, I noted that 60 percent of men and 30 percent of women have had alcohol related adverse life events, such as DUIs. DSM-IV at 194.

(7)The normality of the respondent's liver function tests, while significant, does not conclusively confirm the respondent's claim to be a moderate drinker.

(8)This occasional excess consumption does not constitute habitual consumption to excess that would raise a sufficient concern to justify denial of a security clearance.