Case No. VSO-0246, 27 DOE ¶ 82,802 (H.O. Breznay May 5, 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.

May 5, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 29, 1998

Case Number: VSO-0246

This Opinion concerns the eligibility of XXXXXXXXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing an 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." In a Notification Letter dated September 23, 1998, the manager at the individual’s work site suspended the individual’s access authorization. This Opinion will consider whether, based on the written record and oral testimony presented in this proceeding, the individual’s suspended access authorization should be restored.

I. NOTIFICATION LETTER

The September 23, 1998, Notification Letter suspended the individual’s access to classified matter or special nuclear materials based upon findings made pursuant to the criteria set forth in 10 C.F.R. §710.8(j) and (l). In summary, the Notification Letter informed the individual that DOE is in possession of derogatory information which indicates that the individual may not be eligible for access authorization. This information involves the

individual’s habitual use of alcohol and consequent issues involving the individual’s judgment, reliability and trustworthiness.(2) The letter also contains a summary of the individual’s history while employed at the DOE facility, provides the identify of the psychiatrist in charge of evaluating the individual’s mental state, and lists the reasons the psychiatrist has concerns that warrant access authorization suspension. The Notification Letter states that the individual has the right to a hearing to resolve the access eligibility issue, explains that the individual may or may not chose to be represented by legal counsel, and identifies the DOE attorney designated as DOE Counsel for this proceeding. Pursuant to the Notification Letter, the individual requested a hearing to review the access eligibility issue.

II. BACKGROUND

According to the uncontested factual record in this proceeding, the individual has a long history of alcohol abuse. The individual was arrested for driving under the influence of alcohol, (DUI) in August 1972, November 1992, December 1994 and March 1998. See the September 23 letter, enclosure 2. After the third DUI arrest in December 1994, the DOE required a psychiatric examination of the individual. At that time the psychiatrist diagnosed the individual as alcohol dependent. Transcript of Hearing (hereinafter Tr.) Tr. at 35-37. The individual was allowed to retain an access authorization conditioned upon (i) enrollment in an Employee Assistance Program (EAP) for alcohol rehabilitation and (ii) total abstinence from alcohol consumption.(3) The individual did not consume alcohol between April 1995 and April 1997, and was enrolled in the EAP during that period. However, in December 1997, the individual began drinking alcohol again, mostly on weekends. The individual’s alcohol consumption at this time was limited to brandy and wine with dinner.(4) The individual also began cooking with wine at this time. Despite his obligation to do so, the individual failed to report this behavior to his EAP counselor. See the September 23 letter, enclosure 2.

Then, on March 23, 1998, three months after the individual began drinking again, the individual consumed alcohol to the point of intoxication, operated a motor vehicle, ran a stop sign, drove the car through an intersection, and crashed into a moving flatbed truck. The automobile was destroyed and the individual was arrested for the fourth time and charged with DUI. At DOE’s directive, a psychiatrist examined the individual again to assess his psychological state. Based upon this examination, the individual was diagnosed as being no longer alcohol dependent, but as drinking in a maladaptive pattern. Id. At this point DOE concluded that the individual’s access authorization should be rescinded and issued the September 23, 1998, Notification Letter.

III. THE HEARING

At the hearing which I held in this matter, the DOE Counsel called as a witness the Personnel Security Specialist assigned to the individual’s case, who presented the factual circumstances described above and reviewed the DOE’s practices and policy regarding access authorization. Tr. at 10-15. The DOE Counsel also introduced as a witness the Board Certified Psychiatrist who had examined the individual in 1994 and 1998. The psychiatrist reviewed in some detail the factual record, and discussed the circumstances, considerations and conclusions reached after his 1994 evaluation of the individual. The psychiatrist then described, explained and affirmed his 1998 diagnosis (drinking in a maladaptive pattern) and elaborated upon his conclusions in light of testimony presented at the hearing. Tr. at 37-40. In conclusion, the psychiatrist stated that he was favorably impressed with aspects of the individual’s persona, noting that honesty, lack of denial, and apparent determination make the individual a good candidate for rehabilitation. However, the psychiatrist also indicated that for purposes of access to secure material, the individual’s judgement and reliability are still questionable. Tr. at 93-96, 97-101.

Appearing pro se, the individual called as a witness a personal counselor who is a licensed, practicing clinical psychologist, specializing in substance abuse problems. Tr. at 47-48. The counselor stated that she has known the individual for a number of years and had served as the individual’s personal therapist during the 1995-1997 EAP enrollment. She is also counseling the individual now. Tr. at 45-47. She further indicated that since the individual has been under her care, the individual has progressed from a state of denial regarding the seriousness of the alcohol problem, to the point where the therapist believes that the individual now truly understands the nature of the problem and is fully committed to containing the problem through abstinence. Tr. at 53, 56-59. The counselor pointed to the relapse the individual had in December 1997, as a example of a defect in judgment which is typical of alcohol abusers. After a period of abstinence, problem drinkers often becomes convinced that they can drink on a social basis without consequences. The counselor focused much of her attention however upon a more recent relapse, this one occurring in December 1998. What impressed the counselor was the fact that immediately after the most recent relapse, which involved the consumption of two glasses of wine at the individual’s home, the individual reported the incident in detail to her. Tr. at 100. The counselor judged this action, immediately after the relapse, to be an indication of the individual’s good intentions and improving judgement. The counselor stated her belief that the individual has made important progress over time and was a good candidate for rehabilitation. Tr. at 51-54.

The individual’s testimony, together with the written record, described how the destructive effects of a failing marriage, a very ill child and serious financial difficulties combined with physical exhaustion and stress from a demanding work schedule left the individual vulnerable to inappropriate alcohol use. Tr. at 40. The individual also stated, however, that since the successful completion of the two year EAP, sobriety has been maintained on an on-going basis with only two exceptions: the DUI in March 1998, and the incident in December 1998 when two drinks were consumed along with dinner. Tr. at 77-81. The individual expressed certainty that the structure provided by the EAP, if made available again, and related activities - e.g. AA - will be sufficient to keep the need for total abstinence sharply defined and in focus. The individual testified that the fear of the consequences of a failure to avoid alcohol will also have a very strong deterrent effect. Tr. at 71- 72, 86-88. The individual’s testimony painted a picture of a person changed by bitter experience, increased self-knowledge, supportive friends and family. Tr. at 74. The individual expressed the intention to remain in a recovery program on a permanent basis. Tr. at 82. In addition, this testimony also explored recent spiritual development, improved relationships with spouse and family, and changes in work responsibilities which promise to reduce the life stressors which triggered the problem drinking. Tr. at 68, 82-83. The individual noted that although the decision to drink in December 1998 was wrong, the fact that the act was immediately reported to the counselor indicates a powerful commitment to self-healing and to trustworthiness, since the solitary drinking could not have been otherwise known. Tr. at 85- 89, 102.

On behalf of the individual, two co-workers who appeared as witnesses testified under oath that the individual never consumed alcohol on the job site. Tr. at 111, 127. They also testified that the individual is a reliable and honest person. Tr. at 137- 139. Each witness has served as the individual’s supervisor; and each stated that he believes the individual is a person he can rely upon to handle difficult, complex tasks which require initiative and sound judgment. Tr. at 127-128. They also discussed the individual’s extraordinary productivity. Tr. at 106-108. Neither of the co-workers had witnessed the individual consume alcohol, even when they socialized together after working hours. Tr. at 105-115, 124-135.

IV. CONSIDERATION

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 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 Dept. 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 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). I am called upon to render a common sense judgment based upon the facts before me, risks to national security, possibly mitigating circumstances, the credibility of the individual, the nature and extent of the individual’s psychological problems, and the degree to which these problems have been overcome.

After serious consideration I cannot recommend the restoration of the individual’s access authorization. It is evident to me from the written record and from testimony at the hearing that the individual has made a determined effort at self-rehabilitation. It is particularly noteworthy that the DOE psychiatrist acknowledged the individual’s improved self-image and heightened self-awareness, status as a good candidate for rehabilitation and apparent trustworthiness. Also of importance is the determination by the individual’s counselor that over time the individual has abandoned denial and seems to truly understand the nature of the affliction which must be overcome and the need not only to avoid abusing alcohol but for total abstinence.

I was favorably impressed by the individual’s introspective clarity, expanding self-knowledge and striking honesty in assessing past inappropriate behavior, motivations and personal weaknesses. I was also heartened by the positive changes which have been implemented in the individual’s personal life, apparent deep spirituality and obvious commitment to rehabilitation. I agree with the final prognosis of the mental health professionals that the individual is a prime candidate for successful rehabilitation.

However, given the presumption against the restoration of access authorization discussed above, the facts in this case do not favor the individual. The long-term pattern of bad judgment and alcohol abuse so clearly established by the record in this proceeding has convinced me that it would be a mistake to entrust the individual with access authorization at this time.

Currently the individual’s alcohol problem is in remission. The combination of factors which in the past have contributed to the individual’s alcohol abuse, including a daughter’s health problems, sour relations with a spouse, job-related pressures and financial difficulties, have recently diminished in intensity. However, nothing now in the record permits me to conclude that these stressors will not intensify at some time in the future. If that were to occur, it is reasonable to fear that the individual would go back to the previously established pattern of drinking to excess and thereby endanger the national security. Furthermore, when I review the individual’s “track record” from 1992 to the present, I am concerned by the repetitive nature of the failures of judgment and inappropriate behaviors. I was particularly disturbed by the fact that after the latest DUI arrest, after being served with the Notification Letter and losing access authorization for problem drinking, the individual still decided to drink in the privacy of home. While the mental health specialists focused upon the immediate reporting of the relapse as a good sign, I am concerned by the relapse itself. Excessive drinking in response to stress seems to be deeply ingrained in the individual and, in the absence of convincing evidence that this link has been severed, the individual cannot be trusted with access authorization.

It seems worth noting that access authorization is a privilege not a right, and that the high standards of behavior, reliability, trustworthiness and sound judgment necessarily associated with access authorization far exceed standards we ordinarily demand. Because I am unable to conclude that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest, 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 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 within 20 days of receipt of the statement.

George B. Breznay

Hearing Officer

Office of Hearings and Appeals

Date: May 5, 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.

(2)The Office of Security relied upon regulatory guidelines found at 10 C.F.R. §710.8(j) and (l). 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.” Criterion L addresses behavior which tends to show an “individual is not honest, reliable, or trustworthy . . . .Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” The individual’s access authorization was suspended based upon reference to these criteria.

(3)When DOE employees with access authorization who have an alcohol problem come to the attention of the Office of Security, that Office has the option of offering the employee a conditional second chance. This means permitting the employee to retain access authorization in return for the employee’s enrollment in a drug treatment program, a counseling regime and the pledge of total abstinence. The individual’s enrollment in the EAP in April 1995, is an example of such an arrangement.

(4)This is the individual’s testimony during a Personnel Security Interview on March 12, 1998.