Case No. VSO-0244, 27 DOE ¶ 82,797 (H.O. Augustyn March 18, 1999)

Case No. VSO-0244, 27 DOE ¶ 82,797 (H.O. Augustyn March 18, 1999)

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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.

March 18, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:October 21, 1998

Case Number: VSO-0244

This Opinion concerns the eligibility of xxxxxxxxxxxxxxxxxxxxxx (the individual) to retain an access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria for Access to Classified Matter or Special Nuclear Material."(1) As explained 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

For several years, the individual has been employed by a DOE contractor in a position that requires him to maintain a security clearance. In early 1998, the individual reported to the local DOE security office that he had encountered some financial difficulties as the result of his gambling activities. Because this information raised security concerns, the DOE conducted a Personnel Security Interview (PSI) with the individual. Subsequently, the DOE obtained credit reports to examine the individual’s financial situation, and referred the individual to a board-certified psychiatrist (DOE consultant-psychiatrist) for a mental evaluation.

On June 23, 1998, the DOE consultant-psychiatrist examined the individual and determined that he suffered from pathological gambling and a depressive disorder. Shortly thereafter, 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 11, 1998, the DOE issued a Notification Letter to the individual identifying the individual’s gambling activities, depressive disorder, and financial difficulties 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(h) and (l) (Criteria H and L respectively).(2)

Upon receipt of the Notification Letter, the individual filed a request for a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director who appointed me as Hearing Officer in this case. 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 six other witnesses: two supervisors, two persons from Gamblers Anonymous (GA), his Employee Assistance Program (EAP) Counselor, and a certified addictions counselor from an outpatient psychiatric treatment facility. The DOE submitted 34 exhibits, and the individual tendered six. On February 19, 1999, 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 DOE 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 authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. 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 individual must come forward 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)(strong presumption against the issuance of a security clearance).

III. Findings of Fact

Most of the facts in this case are not in dispute. The individual has a 50-year history of compulsive gambling and has suffered major financial consequences as a result of his gambling addiction. Exhibit (Ex.) 10 at 12, 52; Ex. 4 at 2. The individual estimates, for example, that he has sustained lifetime gambling losses of approximately one-half million dollars. Ex. 4 at 2. According to the individual, he gambled at a rate of five to six times per week until 1998. Id.; Tr. at 31. During this time, he spent many hours anticipating gambling games and scheduled all his time around them. Ex. 4 at 2-3. At times, the individual gambled all night and was unable to go to work in the morning. Ex. 4 at 3; Ex. 10 at 20. From 1995 until 1998, the individual lost $20,000 gambling. Ex. 4 at 2. During this same period, the individual also incurred a $900 gambling debt at a social club he frequented. Ex. 10 at 26. To cover these gambling debts, the individual obtained cash advances from his credit card and secured other loans. Ex. 10 at 25-26; Hearing Transcript (hereinafter Tr.) at 12. While the exact amount of money the individual borrowed to pay off his gambling losses is unclear from the record, the individual stated at the hearing that he obtained two loans for these purposes, one in excess of $12,000 and the other in excess of $1,500. Tr. at 12. Currently, the individual’s outstanding gambling debt is approximately $7,500. Ex. A.

During the 1970s and 1980s, the individual abused alcohol and took illegal drugs. Exs. 4, 24.(3)

He achieved rehabilitation from his substance abuse problems after several aborted attempts. Ex. 4.

Both Alcoholics Anonymous and Narcotics Anonymous figured prominently in the individual’s recovery from alcohol and drugs. Id.

The individual sought psychiatric treatment for impulse control and mood disturbances related to his gambling in February 1997. Ex. F. For a six-month period, the individual took Prozac under the supervision of a psychiatrist. Then, in August 1997, the individual ceased taking his medication and terminated his psychiatric care of his own volition. Id. At some point around this time, the individual joined Gamblers’ Anonymous (GA) but discontinued attending meetings as he decided he did not want to follow GA’s dictums. Ex. 34.

By January 1998, the individual had moderated his gambling to twice per week, once at a social club and once at an “illegal apartment game.(4) Ex. 4 at 2. In March 1998, he sought the assistance of a consumer credit counseling group, on the advice of an EAP Counselor.

In June 1998, the individual underwent a psychiatric evaluation by a DOE consultant-psychiatrist who diagnosed the individual as suffering from pathological gambling based upon diagnostic indicators established in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). In addition, the DOE consultant-psychiatrist stated that the individual had a depressive disorder, not otherwise specified in the DSM-IV. The DOE consultant-psychiatrist further opined that the individual’s mental conditions may cause a significant defect in his judgment and reliability. For this reason, the DOE consultant-psychiatrist advised the individual to seek treatment immediately, and suggested ways he might begin the rehabilitative process. The individual ignored the DOE consultant-psychiatrist’s advice and continued to gamble until September 19, 1998. Tr. at 106; Ex. F.

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. Pathological Gambling and Depression

The facts enumerated above establish unequivocally that the DOE properly relied on Criterion H as a basis for suspending the individual’s access authorization. It was reasonable for the DOE to conclude that the individual’s compulsive gambling addiction and his depressive disorder could impair his judgment and reliability and prevent the individual from safeguarding classified matter or special nuclear material. 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), aff’d, Personnel Security Review, Case No. VSA-0154, 27 DOE ¶ 83,008 (1998)(affirmed by OSA, 1998). In this case, the individual suggests that his efforts to date to conquer his depression and pathological gambling should mitigate the security concerns set forth in the Notification Letter associated with Criterion H.

1. Rehabilitation and Reformation

Since receiving the Notification Letter in mid-September 1998, the individual has taken a number of steps to address his mental health issues. First, he spent three days as an inpatient at a psychiatric treatment facility, followed by four months of intensive (2-3 times per week) outpatient psychiatric treatment at the same facility. Ex. 34; Tr. at 44, 105, 125. Recently, he began attending “Aftercare” group sessions at the same outpatient psychiatric treatment facility, a regimen he claims he will follow for the next nine months to one year. Tr. at 105, 125. The individual also actively participates at multiple GA meetings each week, and has a GA sponsor. Id. at 69, 96, 105; Ex. F. In addition, the individual sees his personal psychiatrist regularly and has resumed taking Prozac. Moreover, he reads various books, pamphlets, and daily meditations, and listens to spiritual tapes to assist him in his recovery efforts. Tr. at 108.

At the hearing, the individual candidly admitted that he resumed attending GA in September 1998 only to save his job, not to stop gambling. Id. at 111. He testified that after attending GA a while, a transformation occurred. Id. He began doing what GA said, not what he wanted to do. Id. His account of his gradual acceptance of GA and his gambling problem was corroborated by two witnesses at the hearing, his GA sponsor and another GA member.

His sponsor testified that at first the individual showed no signs of commitment to GA. Id. at 96. The individual then became actively involved in the program, even serving as chairperson of some meetings. Id. The other GA witness related a compelling personal testimonial of the devastation caused by compulsive gambling in his own life and in the lives of others he has assisted in GA. Id. at 69. The witness also provided some insight into the support network GA provides for its members. Specifically, the witness related that GA rescues its members from despair, depression, and the depths of suicidal thoughts and insanity. Id. The witness also observed that many people go to GA with the mind set that they will control their gambling, instead of stopping it. Id. at 89. GA teaches that a compulsive gambler must abstain totally from gambling; he will never be able to control his habit. Id. at 76; Ex. D. The GA member confirmed that at first the individual did not take GA seriously; he wanted to control his addiction, not arrest it. Id. at 88. According to the GA member, the individual decided he wanted to turn his life around in the last four months and began regularly attending GA meetings multiple times each week. Id. at 69, 88. When asked to assess the individual’s current state of recovery from a GA perspective, the GA member stated that the individual is “a healing man.” Id. at 82. The GA member concluded by stating that the individual will only stop gambling through GA by bringing about a progressive character change within himself, and following the 12 basic concepts of the GA Recovery Program. Id. at 89-94; see also, Ex. D.

An on-site EAP Counselor who holds a Masters’ Degree in clinical psychology testified that he has known the individual since 1995. Id. at 29. It was the EAP Counselor who referred the individual to a personal psychiatrist in 1997 for treatment of his depression and compulsive gambling. Id. The EAP Counselor testified that psychotropic medication is an important component of the individual’s recovery process. Id. at 52. He explained that depression causes general compulsive behavior. Id. Often, according to the EAP Counselor, depressed persons have one or two compulsions and they drift from one compulsion to another without dealing with the chemical imbalance that produces the compulsion. Id. The EAP Counselor related that over the last decade the individual was able to recover from his dependence on drugs and alcohol. Id. It is the EAP Counselor’s belief, however, that the individual drifted from alcohol and drugs to gambling because he did not address his underlying compulsive disorder. Id. The EAP Counselor reiterated that the introduction of Prozac helped stabilize the depression that was fueling the individual’s compulsive behavior. The EAP Counselor attested that the highest rate of relapse from addictions occurs in the first 90 days, and thereafter, the chances radically increase that the individual will not relapse. Nevertheless, the EAP Counselor opined that the individual needs at least one year of abstinence from gambling and involvement in GA before he could be considered rehabilitated. Id. at 44.

A certified addictions counselor from the outpatient psychiatric treatment facility the individual attended also testified as to the individual’s recovery from his gambling addiction. The addictions counselor related that when the individual entered treatment, he was minimizing the extent of his problem. Id. at 124. By the end of the outpatient program, the individual’s denial abated and he assumed personal responsibilities for his actions. Id. The addictions counselor believes that 90 days of sobriety from gambling is an excellent start to the individual’s reformation. Id. at 132. He opined that it is essential that the individual continue taking his Prozac to keep his depression and concomitant compulsive behavior under control. Id. at 130. The addictions counselor also believes continued affiliation with GA and monitoring by a psychiatrist are crucial to the individual’s recovery.

The DOE consultant-psychiatrist who is board-certified in a number of disciplines, including addiction psychiatry, testified after listening to the testimony of all the other witnesses at the hearing. According to the DOE consultant-psychiatrist, he believes the individual has the foundation for the three qualities necessary for reformation from a gambling addiction: abstinence, honesty, and stability. Id. at 154. He explained that the individual now acknowledges his illness, accepts the repercussions flowing from his gambling addiction, and is trying to rebuild his life. Id. at 156, 163- 65. Moreover, the DOE consultant-psychiatrist commented on the individual’s honest responses at the hearing, particularly the individual’s articulated self-awareness that he must struggle with his rehabilitation on a daily basis. Id. 151. In addition, the DOE consultant-psychiatrist believes the structure and support the individual receives from GA and his EAP Counselor will provide stability in his life. Id. at 154. He opined, however, that the individual’s four months of abstinence from gambling and treatment for his depression are just not long enough to predict whether he will succeed in achieving reformation. Id. at 161. In the DOE consultant-psychiatrist’s opinion, the individual must remain abstinent for 12 to 18 months before he would consider him reformed. Id. at 162-63. The DOE consultant-psychiatrist believes that the individual’s risk of relapse is fairly high, taking into consideration that the individual relapsed in substance abuse after an 18-month period of sobriety. Id. at 151, 159.

2. Analysis of Evidence Relating to Rehabilitation and Reformation

The record is clear that the individual is taking positive steps to arrest his compulsive gambling addiction and address his depressive disorder. I find his actions in this regard to be highly commendable. After listening to the testimony of his two GA witnesses at the hearing, I understand the severity of the individual’s gambling addiction and appreciate the commitment and self- discipline one needs to overcome a compulsive behavior that is fired by depression. I also applaud the individual’s self-reporting of his gambling problems to the local DOE security office. His actions in this regard show his honesty and also mark the first step in his recovery efforts, i.e., a recognition that he needed professional assistance to overcome his addiction.

Despite these positive factors, I am unable to conclude that the individual is rehabilitated from either his depression or his pathological gambling. In assessing the individual’s rehabilitative efforts to date, I am especially cognizant that the individual has been addressing his problems in earnest for only four or five months. Specifically, he resumed taking Prozac under the supervision of a psychiatrist in August 1998, and placed his last bet on September 19, 1998. Ex. F; Tr. at 105. In my view, the element of time is critical in this case in light of the following facts: (1) the duration of the individual’s gambling addiction (50 years); (2) the severity of his addiction (gambled five to six times per week and obtained loans to cover his gambling loses); (3) his previous unsuccessful efforts to control, cut back or stop gambling; (4) his decision to stop taking Prozac and terminate his psychiatric care after a six-month period in 1997; and (5) his relapses from alcohol and drug sobriety after a considerable period of sobriety almost a decade ago. All the mental health professionals who testified in the case, including the individual’s own witnesses, recognized that sufficient time has not elapsed for them to gauge the likelihood that the individual will conquer his illnesses. Both the DOE consultant-psychiatrist and the EAP Counselor stated that a minimum of one year is required before the individual could be deemed rehabilitated. In fact, the DOE consultant-psychiatrist opined that the individual’s rehabilitation might take as long as 18 months based on the length of time it took him to recover from drugs and alcohol. The DOE consultant-psychiatrist noted that the individual’s sobriety from substance abuse was punctuated by relapses. In particular, on one occasion, the individual relapsed after 18 months of abstinence, taking another 18 months to stop consuming alcohol and taking drugs. In view of the individual’s substance abuse rehabilitation history, the DOE consultant-psychiatrist believes that the individual’s risk of relapse in gambling is fairly high.

Finally, I note that the individual’s depressive disorder and his gambling addiction are intertwined. For this reason, it is crucial that the individual continues his medication for a sustained period of time. Previously, the individual stopped taking his Prozac and terminated his psychiatric care on his own after a six-month period. This fact causes me to question how long the individual will remain faithful to his medication regime, and underscores, in my opinion, the wisdom of the DOE consultant-psychiatrist’s judgment that the individual must continue his abstinence, medication, attendance at GA, and psychiatric care for a total of 12 to 18 months to demonstrate rehabilitation.

Based on the foregoing, I find that the weight of the evidence indicates that the individual is not yet rehabilitated or reformed from his pathological gambling and depression. I find, therefore, that his efforts to date are not sufficient to mitigate the security concerns relating to Criterion H as set forth by the DOE in the Notification Letter.

B. Financial Issues Relating to the Individual’s Gambling

The record establishes that the individual’s gambling has had a negative impact on his finances. Financial problems resulting from a person’s gambling are precisely the conduct or circumstance that “furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of national security” under Criterion L. Personnel Security Hearing, Case No. VSO-0041, 25 DOE ¶ 82,775 (1995), aff’d, Personnel Security Review, VSA-0041, 25 DOE ¶ 83,005 (1996) (affirmed by OSA, 1996). While it may well be true that the individual has not, to date, succumbed to any pressure, coercion, or exploitation because of his financial difficulties, the risk is too great to ignore. Given the facts of this case, I find that the DOE was clearly justified in invoking Criterion L when it suspended the individual’s security clearance.

To mitigate the DOE’s Criterion L concerns, the individual states that he has sought advice and assistance from a consumer credit counseling group in March 1998 to put his financial affairs in order. Tr. at 10-13, 41. Exs. A, B, C. At the hearing, the individual submitted statements from the consumer credit counseling group showing the disbursements the group has made on the individual’s behalf for the months of October, November, and December 1998. Exs. A, B, C. The group pays those financial institutions from which the individual had secured loans to cover his gambling debts. Tr. at 12-13.

Previous opinions issued by OHA Hearing Officers have held that once there is a pattern of financial irresponsibility, the individual must demonstrate a sustained, new pattern of financial responsibility for a period of time that is sufficient to demonstrate that a recurrence of the past pattern is unlikely. Personnel Security Hearing, Case No. VSO-0108, 26 DOE ¶ 82,764 at 85,699 (1996); Personnel Security Hearing, Case No. VSO-0240, 26 DOE ¶ ____ (February 1, 1999). After reviewing all the evidence in the record, I find that the individual has not yet finished the process he started of straightening out his financial affairs. According to the financial records the individual submitted at the hearing, he still owes $7,500 in gambling debts. Even had the individual had all his finances totally in order prior to the hearing, however, I would have been reluctant to find that he had allayed all the Criterion L concerns. Sufficient time has simply not passed for me to predict whether the individual will remain financially responsible, or whether he will resume his past pattern of financial irresponsibility. I am also mindful that the individual’s financial stability is intimately tied to his recovery from his compulsive gambling and depressive disorder. Until that recovery process is complete, it would be difficult for me to find that the individual has mitigated the DOE’s security concerns attendant his financial irresponsibility.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§§710.8(h) and (l) 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 those criteria. In view of Criteria H and L, 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: March 18, 1999

(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 H concerns information that a person “has an illness or mental condition . . . 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). Criterion L concerns information that the individual “has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or which furnishes reason to believe that he maybe subject to pressure, coercion, exploitation or duress which may cause him to act contrary to the best interests of the national security.” 10 C.F.R. §710.8(l).

(3)The individual’s past history of drug and alcohol use is not included in the derogatory information contained in the Notification Letter. The individual’s past history of substance abuse is relevant only insofar as it bears on his rehabilitation efforts from his gambling addiction.

(4)”An illegal apartment game is where poker is played in an apartment rented for the sole purpose of gambling. Ex. 4 at 2. If there is any possibility of getting caught by authorities, the group vacates the apartment and moves to another apartment. Id.