Case No. VSO-0245, 27 DOE ¶ 82,795 (H.O. Palmer February 26, 1999)

For full history of this case, and links to other cases, click here.

* 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.

February 26, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing: October 27, 1998

Case Number: VSO-0245

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXX (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. In the fall of 1997, the individual was arrested on a misdemeanor charge. Pursuant to an agreement reached between the prosecutor and the individual, the local municipal court ordered that the charge against the individual be taken under advisement for a period of 12 months beginning in November 1997. The court instructed that during this period, the individual was to completely refrain from using alcoholic beverages. The court stated that if this and other conditions were followed, the charge against the individual would be dropped after the period of advisement. See DOE Exhibit 3.

Subsequent to his arrest, the individual was admitted to a local hospital. On that occasion, the attending physician diagnosed the individual as suffering from alcohol

dependence disorder. DOE Exhibit 2. After his release from the hospital, the individual entered into a residential substance abuse treatment program.

Because this information raised security concerns, the DOE security office initiated a reinvestigation of the individual. As a part of this reinvestigation, the individual was interviewed by a DOE Personnel Security Specialist on December 11, 1997. During this interview, the Specialist offered the Employee Assistance Program Referral Option (EAPRO) to the individual. DOE Exhibit 1. Under this option, the individual would be permitted to maintain his security clearance, provided that he abstain from alcohol use and diligently pursue a treatment program that met EAPRO standards. After the Specialist determined that the individual's current treatment program was satisfactory, the individual accepted EAPRO, and signed a document stating that he would abide by the Program's requirements, including abstinence from alcohol use. See DOE Exhibit 7. In July 1998, the Security Office was informed by an EAPRO consultant that the individual had suffered a relapse. DOE Exhibit 10. In response to this development, the Security Office conducted another PSI with the individual on August 17, 1998. During this interview, the individual admitted having consumed alcoholic beverages on six occasions between February and June 1998. August 17, 1998 PSI at 11-24.

The Manager of the DOE facility determined that this information was substantially derogatory in nature, and cast into doubt the individual’s suitability for continued access authorization. The Manager informed the individual of this determination in a letter which set forth the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter.

The derogatory information set forth in the Notification Letter pertains to section 710.8, paragraphs (j) and (l) of the criteria for eligibility for access to classified matter or special nuclear material. See 10 C.F.R. § § 710 et seq. Paragraph (j) defines as derogatory information indicating 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." In this regard, the Notification Letter cites the October 1997 diagnosis of alcohol dependence disorder made by the attending physician at the local hospital, the individual's admission during the December 11, 1997 PSI that he had participated in a previous alcohol treatment program in 1995, and the individual's usage of alcoholic beverages from February through June 1998, in violation of the court order and his EAPRO agreement.

Paragraph (l) refers to information that the individual “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy. . . . Such conduct or circumstances include, but are not limited to, criminal behavior, . . . or violation of any commitment or promise upon

which DOE previously relied to favorably resolve an issue of access authorization eligibility.” Under this paragraph, the Notification Letter again cites the individual's failure to abide by the terms of the court order and his EAPRO agreement.

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 such a hearing. The Manager forwarded this 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. Five witnesses testified at the hearing. A Personnel Security Specialist testified for the DOE. Testifying for the individual were his current supervisor, a previous supervisor, a substance abuse counselor, and the individual himself.

II. Analysis

The criteria for determining eligibility for security clearances set forth at

10 C.F.R. §§ 710 et seq. dictate that in these proceedings, a Hearing Officer must make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must 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 require 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 absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual’s potential for being susceptible to pressure, coercion, exploitation, or duress; 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 (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 (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, the individual admitted at the hearing that he suffers from alcohol dependency, and that the factual underpinnings of the allegations set forth in the notification letter are accurate. Hearing Transcript (Tr.) at 122-23. However, the individual contends that he has recovered from his alcoholism to the extent that he no longer represents an unacceptable security risk, and that his failures to abide by the terms of the court order and the EAPRO agreement were symptoms of his alcohol dependency.

In support of these claims, the individual presented the testimony of a substance abuse counselor who is an employee of the facility at which the individual is currently being treated. The counselor testified as to the nature of the individual's treatment program. He stated that the individual began treatment on an inpatient basis in October 1997. He was discharged after 28 days, and began the outpatient phase of his treatment. Tr. at 88. This phase consisted of attendance at three to five Alcoholics Anonymous (AA) meetings per week, obtaining an AA sponsor and maintaining weekly contact with that person, participating in weekly group sessions at the treatment facility for 52 weeks, reading of sobriety-related materials for 10 to 30 minutes per day, alcohol and drug testing, and individual therapy with another substance abuse counselor. After learning of the individual's relapses in June 1998, the counselor testified, the individual's treatment program was intensified. The individual therapy with the other counselor was replaced with sessions with a psychologist, and the individual began taking Naltrexone, a prescription drug that blocks the euphoric effects of alcohol. The counselor stated that the individual has followed this treatment program, and has made "significant progress." Tr. at 78, 84. Furthermore, the counselor testified that he saw nothing with regard to the individual's alcohol use that would cause him to be any problem in the workplace. Tr. at 84. Finally, he opined that, for the individual, this proceeding has been "a two-by-four between the eyes," and has gotten the individual "on the right track." Tr. at 108. However, on cross examination, the counselor revealed that the individual had suffered another relapse on November 17, 1998. At a group session on that date, the counselor noticed the odor of alcohol on the individual's breath. A subsequent test for alcohol yielded positive results. Tr. at 96.

The individual also testified in support of his continued eligibility for access authorization. He stated that alcohol dependency is a disease, and that periodic relapses are a part of that disease. Therefore, he contends, his drinking with the knowledge that his job was at stake should not be considered evidence of poor judgement on his part. Tr. at 122. He stated that he intends to permanently abstain from further alcohol use. Tr. at 142. When asked why he believes that he can succeed at this when past attempts have failed, he testified that he has progressed farther in

his recovery than ever before and that he is now using Naltrexone. He also agreed with

the counselor's testimony that the prospect of losing his clearance was the "two-by-four that really got my attention." Tr. at 123.

The individual's current and former supervisors testified that his job performance was excellent, that they considered him to be honest and trustworthy, and that they had not observed him ingesting alcoholic beverages or in an inebriated state since he completed the residential phase of his treatment in November 1997. Tr. at 45-74. The individual also submitted documentary evidence in support of his continued eligibility for access authorization. These exhibits included a pharmacy receipt for Naltrexone, and a document from the local municipal court indicating that the period of advisement had ended and the charge against the individual had been dropped.

After reviewing the testimony and exhibits in this proceeding, I find that the mitigating evidence submitted by the individual is not sufficient to allay the serious security concerns set forth in the Notification Letter. Most importantly, the individual has failed to demonstrate that he has recovered from alcohol dependence to the extent that he no longer represents an unacceptable security risk. In previous personnel security proceedings, OHA hearing officers have generally found that, absent unusual circumstances, individuals who suffer from alcohol dependence cannot be considered to be "rehabilitated" in any meaningful sense without total abstinence of at least one year’s duration. These conclusions are in accordance with the testimony of substance abuse treatment professionals in these proceedings. See, e.g., Personnel Security Hearing, Case No. VSO-0167, 26 DOE ¶ 82,801 (1997), affirmed (OSA 1998); Personnel Security Hearing, Case No. VSO-0226, 27 DOE ¶ 82,780 (1998). However, by his own admission, the individual has ingested alcoholic beverages on at least seven occasions since February 1998, with the last such usage occurring on November 17, 1998, less than two months prior to the hearing. I find these relapses to be persuasive evidence of the continued existence of valid security concerns regarding the individual's alcohol dependence.

Accordingly, I find the testimony of the individual and his counselor that this proceeding has been a "two-by-four between the eyes" that will ensure his continued sobriety to be particularly unconvincing. The EAPRO Consent to Participate form, signed by the individual on December 12, 1997, states, in pertinent part, that "if [the individual] fail[s] to meet the terms of the EAP treatment contract . . . , the DOE will be so notified. The DOE will administratively terminate [his] access authorization and [his] employer will be so notified." DOE Exhibit 4. The treatment contract, signed by the individual on January 20, 1998, states that he was to "remain abstinent from any alcoholic beverage (including beer) and any mood altering substances." DOE Exhibit 7. Despite these provisions, the individual continued to ingest alcoholic beverages on a sporadic basis between February and June 1998. Moreover, the individual again

consumed alcoholic beverages on November 17, 1998, less than two months before a security clearance hearing at which he knew that his alcohol use would be the central issue. Finally, the individual's alcohol use was apparently undeterred by the municipal court order, even though he knew that some type of criminal punishment could result. Tr. at 146-47. (2) These facts evince the individual's continuing struggle with his alcohol dependence, and I find it unlikely that the threat of losing his clearance will, by itself, act to ensure the individual's future sobriety.

Similarly, I find the individual's use of Naltrexone to be of little or no mitigating value. When asked about the circumstances surrounding his November 1998 relapse, the individual indicated that he had used the drug during the period leading up to, and on the day of, his ingestion of alcoholic beverages. Tr. at 145-46. For these reasons, I conclude that the individual has failed to present evidence that is sufficient to mitigate the DOE's security concerns under 10 C.F.R. § 710.8(j).

With regard to the security concerns set forth under 10 C.F.R. § 710.8(l), the individual contends that his consumption of alcohol in violation of the court order and his EAPRO agreement were symptoms of his alcohol dependence, Tr. at 122, and should not be taken as evidence of an underlying character flaw. However, as previously stated, I am not convinced that the individual's recovery from alcohol dependence has been sufficient to demonstrate that he is an acceptable security risk. Therefore, even if I was to agree with the individual's contention, I could not conclude that he has successfully mitigated the DOE's security concerns under section 710.8(l). The individual's current and former supervisors testified that they have found him to be honest, reliable, and trustworthy. Tr. at 50, 68. However, it is possible to be reliable and trustworthy in a part of one's life, such as a work environment, and unreliable in others. The individual's failures to abide by the terms of the court order and the EAPRO agreement demonstrate that he has not been reliable, or exercised sound judgement, concerning the use of alcoholic beverages. I therefore conclude that the individual has not adequately mitigated the DOE's security concerns under section 710.8(l).

III. Conclusion

For the reasons set forth above, I find that the individual has failed to adequately address the security concerns set forth in the Notification Letter. Therefore, based on the record in this proceeding, I am unable to conclude that restoring his 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: February 26, 1999

(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 an authorization will also be referred to in this Opinion as a security clearance.

(2)Although the charge against the individual was dismissed, it does not appear that the court was aware of the individual's use of alcohol during the advisement period.