Case No. VSO-0263, 27 DOE ¶ 80,207 (H.O. Brown, F. June 15, 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 15, 1999

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: February 18, 1999

Case Number: VSO-0263

This Opinion concerns the eligibility of XXXXXX XXXXXX XXXX (hereinafter referred to as "the individual") to hold 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) A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored. As set forth in this Opinion, I have determined that the individual's security clearance should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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 this instance, DOE granted the individual an access authorization as a condition of his employment with a DOE contractor. However, on November 19, 1998, the DOE Office of Safeguards and Security (DOE Security) initiated formal administrative review proceedings by informing the individual that his access authorization was being suspended pending the resolution of certain derogatory information received by DOE Security that created substantial doubt regarding his continued eligibility. This derogatory information is described in a Notification Letter subsequently issued to the individual on January 13, 1999. More specifically, Enclosure 1 attached to the Notification Letter contains DOE Security’s findings with respect to the individual that fall within the purview of potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. §§ 710.8(h), (j) and (l). The bases for these findings are summarized below.

Enclosure 1 of the Notification Letter alleges initially that the individual has “an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h) (Criterion H). In support of this assertion, Enclosure 1 states that on May 5, 1998, the individual was evaluated by a DOE consultant psychiatrist (DOE Psychiatrist), who diagnosed the individual with “alcohol dependence in sustained partial remission without adequate evidence of rehabilitation” and therefore concluded that the individual “does have a mental illness which causes or may cause a significant defect in his judgment and reliability.”

Secondly, DOE Security asserts that the individual “has been, or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j) (Criterion J). In this regard, Enclosure 1 states initially that on January 27, 1998, a Personnel Security Interview (PSI) was conducted with the individual, revealing that: (1) in 1987, following his divorce from his first wife, the individual voluntarily checked himself into a 22-day alcohol treatment program (Treatment Center), after alcohol consumption during the preceding year approximating “eight beers a day as well as whiskey and mixed drinks,” (2) although the individual was advised not to drink by the Treatment Center as well as by the DOE Psychiatrist who also examined him in 1990 and again in 1992, the individual resumed drinking and his drinking increased during his second marriage in 1991, (3) on October 26, 1997, the individual was arrested on a charge of Driving Under the Influence (DUI) of alcohol, recording a blood alcohol level of .11. In addition, Enclosure 1 states that the individual has been evaluated by the same DOE Psychiatrist on three separate occasions: (1) on November 14, 1990, at which time the individual was diagnosed as suffering with “Alcohol Abuse - in remission,” (2) on November 4, 1992, when the individual was again diagnosed with “Alcohol Abuse - in remission,” and then (3) on May 5, 1998, when the individual was diagnosed with “alcohol dependence in sustained partial remission without adequate evidence of rehabilitation,” as noted above.

Finally, DOE Security alleges under section 710.8(l) that the individual has “engaged in unusual conduct ... which tends to show that [he] is not honest, reliable, or trustworthy, or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interest of the national security.” 10 C.F.R. § 710.8(l) (Criterion L). The basis for DOE Security’s concern in this respect is the individual’s DUI arrest on October 27, 1997. DOE Security asserts in Enclosure 1 that “[t]his violation of law occurred despite having been placed on notice of the consequences of such a violation through prior security investigations into [the individual’s] excessive use of alcohol.”

In a letter received by the DOE Office of Hearings and Appeals (OHA) on February 18, 1999, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On April 7, 1999, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R. § 710.24, a hearing date was established. At the hearing, the DOE Counsel called as witnesses the individual and the DOE Psychiatrist. The individual elected to call several witnesses, including: 1) his work supervisor (Supervisor); 2) his work department manager (Manager), 3) two co-workers (Co-Worker 1 and Co-Worker 2), and 4) his former wife (Former Wife). The transcript taken at the hearing will be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and will be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard 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). Once DOE Security 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). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't 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).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. 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): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should be restored since I have concluded 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 that I make in support of this determination are discussed below.

A. Criterion H; Mental Condition

DOE Security initially alleges in the Notification Letter that the individual has “a mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). This finding is based upon the opinion of the DOE Psychiatrist who examined him on May 5, 1998, and diagnosed the individual with “alcohol dependence in sustained partial remission without adequate evidence of rehabilitation.” Exh. 8. However, the DOE Psychiatrist’s assessment of the individual has altered substantially since this evaluation. As explained below, the DOE Psychiatrist has not only modified his diagnosis of the individual but also believes that the individual has now established adequate evidence of rehabilitation.

At the hearing, the DOE Psychiatrist initially recanted his diagnosis of Alcohol Dependence, testifying that based upon his review of the individual’s record, the individual should be more properly diagnosed with Alcohol-Related Disorder, Not Otherwise Specified (NOS). Tr. at 16-17.(2) The DOE Psychiatrist explained that the diagnostic classification of Alcohol-Related Disorder NOS is specified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), in circumstances where a person does not fit within the more general categories of Alcohol Abuse or Alcohol Dependence. Id.; Tr. at 34. Notwithstanding this change of diagnosis, the DOE Psychiatrist was resolute in his opinion that Alcohol-Related Disorder NOS poses a serious problem with respect to the individual, and that it constitutes a mental condition which may cause a defect in the individual’s judgment and reliability absent evidence of adequate rehabilitation. Tr. at 20-22, 50-51.(3) With regard to the individual’s rehabilitation, however, the DOE Psychiatrist no longer holds the opinion he expressed following his evaluation of the individual on May 5, 1998. For the reasons brought out at the hearing, the DOE Psychiatrist now believes that the individual has demonstrated adequate rehabilitation.

The individual testified that, by the date of the hearing, he had been abstinent from the use of alcohol for 18 months, since October 1997, when he received the DUI. Tr. at 86.(4) In addition, the individual introduced a letter from his treatment program counselor documenting that, on March 24, 1999, the individual completed six weeks of alcohol treatment, that entailed an “intensive out patient program for three weeks before entering a lower level of care for the remaining three weeks.” Exh. 15. The individual also submitted an Alcoholics Anonymous (AA) Proof of Meeting Attendance schedule showing that since February 1999, the individual has attended a minimum of three AA meetings per week. Id.; Tr. at 78.

It is apparent that the DOE Psychiatrist placed great significance on the individual’s changed attitude with regard to alcohol use. The individual was forthright and convincing in his testimony that the October 1997 DUI arrest, which the individual describes as “a big mistake” and “very embarrassing” (Tr. at 82, 88), was a turning point in his life. The individual asserted that in recent years he had reduced his use of alcohol to moderate consumption on special occasions and during family gatherings, but the DUI incident followed a day of watching football at his son’s house when he admittedly drank too much. Tr. at 88-89. According to the individual, his drinking had not previously caused him any serious trouble and the DUI arrest coupled with the possible loss of his security clearance have led him to conclude that it is best that he stop drinking altogether. Tr. at 81, 84-85.(5) The individual stated that he therefore went through his most recent treatment with “a different mind-set” and “I took it very serious.” Tr. at 85. The individual is convinced that he will be able to maintain his abstinence, but is prepared to maintain regular AA meetings guided by his AA sponsor. Tr. at 85-86.

Upon considering the individual’s treatment documentation, the individual’s persuasive testimony and 18-month period of abstinence, the DOE Psychiatrist stated that “it appears that [the individual] does have adequate evidence of rehabilitation” and that “[the individual] does not have a significant defect in judgment or reliability.” Tr. at 59, 60. The DOE Psychiatrist stated that the individual appeared to be genuine in his sincerity and commitment, and that he was “favorably impressed” with the individual’s rehabilitation efforts. Tr. at 65, 93. According to the DOE Psychiatrist, the individual’s diagnosed mental condition, Alcohol-Related Disorder NOS, “appears to be in remission and, therefore, his judgment and reliability do not appear impaired.” Tr. at 66. Upon questioning by DOE Counsel, the DOE Psychiatrist confirmed that upon reevaluation he would modify that portion of his report to DOE Security concerning a causative defect in the individual’s judgment and reliability. Tr. at 93. On the basis of this expert testimony, I have concluded that the individual has sufficiently mitigated the concerns of DOE Security under Criterion H.

B. Criterion J; Alcohol Use

Next, the Notification Letter sets forth DOE Security’s allegations under Criterion J that the individual “has been, or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). DOE Security’s concerns in this regard are based upon the diagnoses of the DOE Psychiatrist, in 1990, 1992 and 1998, and upon the individual’s past history of alcohol use that includes his voluntary admission to the Treatment Center for 22 days in 1987, and most recently a DUI in October 1997. There are legitimate security concerns on the part of DOE Security that excessive use of alcohol by an individual holding a security clearance may diminish the ability to safeguard national security information because judgment or reliability may be impaired, and that individuals who abuse alcohol may be susceptible to being coerced or exploited to reveal classified matters. These security concerns are indeed important and have been recognized by a number of Hearing Officers in similar cases.See, e.g., Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 at 85,762 (1999);Personnel Security Hearing, Case No. VSO-0200, 27 DOE ¶ 82,770 at 85,628 (1998). However, based upon the record and the testimony of the DOE Psychiatrist, I have determined that the individual has presented sufficient mitigating evidence to overcome the concerns of DOE Security relating to his past use of alcohol.

As noted above, the DOE Psychiatrist withdrew his May 1998 diagnosis of Alcohol Dependence, deeming a diagnosis of Alcohol-Related Disorder NOS more appropriate under the circumstances. The DOE Psychiatrist further conceded at the hearing that his previous diagnoses (1990, 1992) of “Alcohol Abuse - in remission” are dated and no longer accurate. Tr. at 37. While the DOE Psychiatrist believes that there still was “a problem” (Tr. at 50) associated with the individual’s use of alcohol in view of his history and the DUI, the DOE Psychiatrist stated his professional opinion that the individual has now achieved adequate evidence of reformation and rehabilitation. As discussed above, the DOE Psychiatrist accepted during the hearing the individual’s 18- month period of abstinence and treatment program as adequate evidence of reformation and rehabilitation on the part of the individual. Tr. at 59-60.(6) The opinion of the DOE Psychiatrist is consistent with other cases involving diagnoses of excessive alcohol use, finding that DOE Security’s concerns may be mitigated by evidence of the successful completion of a viable alcohol treatment program combined with a minimum of one year of abstention from alcohol. See Personnel Security Hearing, Case No. VSO- 0245, 27 DOE ¶ 82,795 at 85,783 (1999), citing Personnel Security Hearing, Case No. VSO-0167, 26 DOE ¶ 82,801 (1997),Personnel Security Hearing, Case No. VSO-0226, 27 DOE ¶ 82,780 (1998);see also Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 at 85,763 (1999). Accordingly, the evidence before me establishes that the individual has met his burden in this regard.

C. Criterion L; Unusual Conduct

Finally, DOE Security has asserted under Criterion L that the individual has “engaged in unusual conduct ... which tends to show that [he] is not honest, reliable, or trustworthy, or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interest of the national security.” 10 C.F.R. § 710.8(l) (Criterion L). The basis for DOE Security’s concern in this regard is the individual’s DUI arrest despite having been placed on notice of DOE Security’s concerns with his use of alcohol.(7) Again, I have determined on the basis of the record before me that the individual has overcome DOE Security’s concerns.

First, I was persuaded by the individual’s testimony that in recent years, prior to the DUI, his drinking had steadily diminished to the point where he only drank on special occasions and family gatherings. Tr. at 89. This testimony was corroborated by the individual’s Former Wife and Co-Worker 1, a business partner, who see the individual nearly on a daily basis. Tr. at 107, 118. Thus, the DUI arrest, which the individual sincerely regrets, appears to have been an isolated incident rather than the culmination of a pattern of excessive alcohol use. More importantly, however, I find the individual’s actions in response to the DUI, including immediate abstinence and seeking counseling, to be highly commendable and serve to demonstrate his reliability and trustworthiness. Other witnesses called by the individual, including his Supervisor, Manager and Co-Worker 2, were uniform in their high praise of the individual as someone of high integrity, honesty, reliability and trustworthiness. Tr. at 99, 102-03, 113-14. They further concurred that the individual is not someone who would be susceptible to blackmail or coercion. The direct manner in which the individual has confronted the matter of his DUI arrest leads me to agree.

III. Conclusion

As explained in this Opinion, I find that DOE Security properly invoked 10 C.F.R. §§ 710.8(h), (j) and (l) in suspending the individual's access authorization. However, I find that the basis for the DOE Security’s concerns in each of these respects has been eroded, and otherwise overcome by mitigating evidence presented in the record. I therefore find that restoring the individual's access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual's access authorization should 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. 10 C.F.R. § 710.28(b). The address where 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 20874-1290

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: June 15, 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 authorization will be referred to variously in this Opinion as an access authorization or security clearance.

(2)According to the DOE Psychiatrist, he determined that his diagnosis of the individual should be changed less than one week prior to the hearing. Tr. at 26. Thus, the change of diagnosis came as a surprise to this Hearing Officer and counsel for the individual, who objected for lack of proper notice. Tr. at 27.

(3)It has been recognized that a diagnosis of Alcohol Dependence may constitute a “mental condition” so impairing judgment and reliability as to disqualify an individual from holding an access authorization. See, e.g., Personnel Security Hearing, Case No. VSO-0054, 25 DOE ¶ 82,783 (1995). In the present case, the DOE Psychiatrist rescinded his diagnosis of Alcohol Dependence for lack of any alcohol-related incident during the preceding 12-month period. Tr. at 36-37, 54-55. Nonetheless, the DOE Psychiatrist maintained that the less stringent DSM-IV diagnosis of Alcohol-Related Disorder NOS could also portend a significant defect in judgment and reliability, absent adequate rehabilitation. Tr. at 56.

(4)The individual’s Former Wife has remained the individual’s close friend and sees him nearly on a daily basis: “[The individual] makes dinner for me every night, so I see him at least five or six days a week.” Tr. at 117. The Former Wife testified that in recent years prior to his October 1997 DUI arrest, the individual drank only on special family occasions but since the incident the individual has abstained from all use of alcohol. Tr. at 119.

(5)The individual acknowledged that in 1987 he underwent approximately three weeks of in- house treatment after a period of heavy alcohol use following his divorce from his first wife, at a time when he was laid off from work. Tr. at 75-76. The individual asserted that he voluntarily checked himself into the Treatment Center upon urging by his (second) Former Wife, and not as a consequence of any legal or work-related difficulty. Tr. at 81. The Former Wife confirmed in her testimony that it was she who convinced the individual to seek treatment in 1987, and assisted in making arrangements for the individual’s admission into the facility. Tr. at 116.

(6)At one point, the DOE Psychiatrist stated that a 2-year period of abstinence is preferable in order to show adequate reformation and rehabilitation. Tr. at 64-65. The DOE Psychiatrist later confirmed, however, when I questioned him concerning this matter that in the case of the individual, 18 months was sufficient based upon his “clinical judgment” and “look[ing] at the whole picture.” Tr. at 68.

(7)The individual informed DOE Security of his 22-day stay at the Treatment Center upon being rehired by the DOE contractor in August 1989, after a period of being laid off. Tr. at 75. This information led to the individual being referred to the DOE Psychiatrist for evaluation in 1990 and 1992.