Case No. VSO-0258, 27 DOE ¶ 80,206 (H.O. Klurfeld June 11, 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.

June 11, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: January 27, 1999

Case Number: VSO-0258

This opinion concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as the individual) for access authorization. The regulations governing an individual’s eligibility are set forth at Part 710 of Title 10 of the Code of Federal Regulations, entitled Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material. In this opinion, I will consider whether, based on the record before me, the individual’s access authorization should be reinstated. For the reasons stated below, I am of the opinion that the individual’s access authorization should be reinstated.

The individual works for a contractor at one of the Department of Energy’s sites. While working for a previous employer the individual held access authorization. That authorization ended when the individual left the employ of that contractor. The individual’s current employer has requested that his access authorization be reinstated.

As a part of the reinstatement request, the individual completed standard forms and disclosed that he had seen a mental health professional. As a routine matter, DOE personnel security investigated this and referred the individual to a DOE consulting psychiatrist (hereinafter referred to as the Psychiatrist) for evaluation. The Psychiatrist examined the individual and diagnosed that he was alcohol dependent and had not at the time of the evaluation shown adequate evidence of rehabilitation or reformation. Because of these conclusions, DOE security personnel did not approve the request for access authorization and requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession

of the DOE created a substantial doubt concerning his eligibility for access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement specifying that the derogatory information falls within subsection j of 10 C.F.R. § 710.8. Subsection J covers information that shows that an individual drinks alcohol to excess or has been diagnosed by a physician or licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.

The individual requested a hearing. That request was forwarded to the Office of Hearings and Appeals, and I was appointed the Hearing Officer in this matter. I convened a hearing at the DOE field site where the individual works. Four witnesses testified at the hearing: the individual, his wife, a personnel security specialist, and the Psychiatrist. The transcript of that hearing is hereafter cited in this opinion as Tr.

At the hearing, the first person to testify was the Psychiatrist. He testified that after his evaluation, he concluded that the individual was alcohol dependent with partial remission and had an adjustment reaction with depression. Tr. at 9. At the time of the evaluation, which was five months prior to the hearing, the Psychiatrist did not believe that the individual had shown adequate evidence of rehabilitation or reformation. Id. To show rehabilitation, the Psychiatrist testified that the individual would have to be abstinent for one year, be honest, have a stable life, and have gone through an out-patient program such as Alcoholics Anonymous (AA) or the Employee Assistance Program. Tr. at 10. “The most important feature would be that after about a year of abstinence, he would need to be without the hallmark features of addiction, and those hallmark features are . . . dishonesty and instability and usage. So he needs to be free from those at the end of a significant period of time not shorter than one year.” Tr. at 10. As for depression, the Psychiatrist concluded that the depression that the individual had suffered in the past did not rise to the level that would cause a defect in judgment or reliability, so he did not think the depression was an issue. Tr. at 11. “The only issue we were left with was then the alcohol dependence.” Id.

During this proceeding, the individual has not disputed the diagnoses of the Psychiatrist. Rather, the individual maintains that he has now shown adequate evidence of rehabilitation or reformation. The individual claimed that he has abstained from drinking alcohol since May 1998. Tr. at 13. Lab results at the time of the evaluation conducted by the Psychiatrist in November 1998 did not indicate alcohol dependence. Tr. at 14. The individual testified that after meeting with the Psychiatrist he started seeing a counselor, who established a program that included meeting with him on a weekly basis for counseling, random breathalyzer testing that would be done approximately twice a week, and attendance at AA meetings on a weekly basis. Tr. at 37-38. The individual further testified that his lifestyle has significantly improved since he stopped drinking alcohol. Tr. at 38. According to his testimony, his attitude has brightened, he has become very involved in his church, his relationship with his wife has greatly improved, his sleep patterns have improved, and he is happy, not depressed or anxious. Tr. at 39. The individual continued that he now has a positive outlook on life rather than dreading the weekends, which was typically when he would abuse alcohol. Tr. at 39-40. The individual testified that his wife supports him and no longer drinks. Tr. at 52. Finally, the individual pointed out that his abstinence from alcohol was not related to his request to obtain access authorization, which had not been filed when he stopped drinking alcohol in May 1998. Rather, it was related to his own desire to stop drinking alcohol. Tr. at 61.

The individual’s wife also testified at the hearing. She testified that she believes her husband has not drunk alcohol since May 1998 because of the way he has acted toward her and towards others. Tr. at 65. She testified that for the first six months of his sobriety she watched very carefully to see if his behavior was changing. Id. According to his wife, a tell-tale sign that the individual was drinking alcohol was that he would get easily upset with her and not want to associate with friends. Id. She testified that she has not seen any behavior on his part that she associates with the behavior he had exhibited when he was drinking. Tr. at 68. She also testified that he no longer has nervous habits that he had when he was drinking alcohol. Tr. at 72. Finally, she confirmed that she no longer drinks alcohol, Tr. at 70, and that there are no alcoholic beverages in their house. Id. (She was not present in the hearing room during her husband’s testimony.)

At the hearing, the Psychiatrist reviewed a statement that the individual’s counselor wrote about the individual’s situation and progress. He also reviewed breathalyzer records, which were all negative, Tr. at 19, as well as records of attendance at AA meetings for 2½ months. Id. Those records indicate that within two months of the evaluation, at which the Psychiatrist told the individual that he needed to follow a formal treatment plan, Tr. at 21, the individual started two rehabilitation programs. Id. “[T]o his credit is that after I told him what a treatment plan would look like, he did initiate one within a reasonable amount of time.” Tr. at 25. The Psychiatrist also noted that at the time of the evaluation, the individual had both family stability and job stability. Tr. at 25.

After asking the individual additional questions and hearing what the individual had accomplished since his November 1998 evaluation, the Psychiatrist opined:

[A]side from being short on time, he sounds like he is on the road of reformation and rehabilitation. He seems very dependable, very reliable. He’s proud of himself. He acknowledges that he does have some thoughts about drinking, which I guess would – I would consider a mild craving. He is not lying about a dream that he had. He’s attending his meetings. He’s acknowledging that he’s an alcoholic. . . . He’s proud of what he’s done.

. . . It does seem like he’s on the path towards recovery, of reformation and rehabilitation.

Tr. at 54-55. According to the Psychiatrist, the individual’s risk of relapse is much lower than when he was first evaluated by the Psychiatrist, and in his opinion it is lower than it has been during the course of this whole investigation. Tr. at 58. The Psychiatrist concluded that:

[a]mongst the population of people who I’ve seen with alcohol problems, who’ve come to administrative hearings, he’d probably be at the low-risk part of that group. There are people who come to hearings who are continuing to drink, who haven’t taken any recommendations, who started a program a month ago, who are not acknowledging their alcoholism. So he’s – he’s, at this point, doing better than – better than many people. And so in terms of risk, he’s certainly at the low end of risk . . . .

Tr. at 59-60.

The Psychiatrist indicated several times that in this case he believed that the individual would have to achieve one year of abstinence, together with the indices of honesty and stability, in order to be considered rehabilitated or reformed. Since the hearing occurred when the individual had achieved eleven months of abstinence, I requested that the individual submit documents indicating breathalyzer results, continued attendance at AA meetings, and continued counseling. I allowed him to submit this information when the transcript of the hearing became available so as not to delay the processing of this case. On May 21, 1999, the individual submitted these documents. They confirm continued negative breathalyzer results, weekly attendance at AA meetings, and continued counseling. Thus I find that the individual has achieved one year of abstinence from drinking alcohol.

In conclusion, the DOE regulations require that I make specific findings “as to the validity of each of the allegations contained in the notification letter . . . .” 10 C.F.R. § 710.27. In this administrative review proceeding, the individual has not disputed the evaluation and conclusions of the Psychiatrist. Thus, I find that the derogatory information set forth as an appendix to the notification letter is accurate and calls into question the individual’s eligibility for access authorization.

The 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). After carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, for the reasons stated above I find that the individual has presented evidence that mitigates the derogatory information set forth as an appendix to the Notification Letter. The individual has achieved one year of abstinence and has the other indices, namely honesty and stability, which the Psychiatrist stated the individual needed in order to show rehabilitation or reformation. The individual has clearly modified his behavior to support sobriety and has a wife who supports his sobriety as well.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I find that granting the individual access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should be reinstated.

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. 10 C.F.R. § 710.28(b). The address to which 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

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals

Date: June 11, 1999