Case No. VSO-0301, 27 DOE ¶ 82,830 (H.O. Fine January 24, 2000)

* 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.

January 24, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 13, 1999

Case Number: VSO-0301

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as "the Individual") to obtain a level “L” 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.” The Department of Energy's XXXXXXXXXXXX (the Operations Office) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be granted at the present time.

I. BACKGROUND

The events leading to the present proceeding began when the Individual underwent an investigation of his eligibility to obtain a DOE access authorization. Because this investigation revealed information which raised security concerns, a Personnel Security Interview (PSI) of the Individual was conducted on December 15, 1998. This PSI failed to resolve the security concerns raised during this investigation. Accordingly, the Individual was evaluated by a board-certified psychiatrist at the Operations Office's request. The Psychiatrist's evaluation consisted of an interview of the Individual, a review of his security file and the administration of five standardized psychological tests, the Minnesota Multiphasic Personality Inventory II-R (the MMPI- IIR), the Millon Clinical Multiaxial Inventory - III (MCMI-III), the Alcohol Use Inventory (AUI), the Michigan Alcoholism Screening Test (MAST), and the Physician's Guide to Helping Patients with Alcohol Problems (the Physician's Guide).

Because the evaluation and investigation failed to resolve these security concerns, an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The Operations Office then issued a letter notifying the Individual that it possessed information that created a substantial doubt concerning his eligibility for access authorization (the Notification Letter). The Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges 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.” 10 C.F.R. § 710.8(j). Second, the Notification Letter alleges that the Individual has "an illness or mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). Third, the Notification Letter charges 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] may be 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). The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the Operations Office presented three witnesses: the consultant psychiatrist, a Personnel Security Specialist and the Individual. The Individual presented six witnesses: a drug and alcohol counselor, as well as the Individual's spouse, mother, father and current supervisor. The Individual also testified on his own behalf. See Transcript of Hearing, Case No. VSO-0301 (hereinafter cited as “Tr.”).

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). 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). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's 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 continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c); § 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

III. FINDINGS OF LAW AND FACT

A. Criterion H

In the present case, the Notification Letter charges that on November 29, 1997, the Individual had been charged with driving under the influence of alcohol. Moreover, additional information indicated that on June 26, 1993, the Individual was charged with disturbing the peace. By the Individual's own admission, he was under the influence of alcohol when the incident that lead to this latter charge occurred. On the basis of these incidents and the Individual's own description of his alcohol use and extensive history of involvement in fights, the Operations Office requested that the Individual be evaluated by a DOE consultant psychiatrist. On March 24, 1999, the DOE Psychiatrist conducted a psychiatric examination of the Individual and administered five standardized psychological tests.

The standardized interpretation of the MMPI-2R administered to the Individual found his test results to be valid and within normal limits. MMPI-2R Interpretive Report at 3. However, the DOE psychiatrist's report concludes that the MMPI-2R "results demonstrate that the [Individual] had a need to portray [him]self in a favorable/acceptable manner and was defensive about admitting having any psychological problems." Psychiatrist's Report at 6.

The standardized interpretive report for the AUI administered to the Individual indicates that none of the criteria for alcohol dependence or alcohol abuse were met. AUI Interpretive Report at 7. However, the DOE psychiatrist's report states that he has difficulty accepting this conclusion. Psychiatrist's Report at 7. Moreover, the AUI Interpretive Report concludes that the Individual has "several alcohol-related conditions which should be addressed." AUI Interpretive Report at 7.

The standardized interpretive report for the MCMI-III administered to the Individual found that the test was valid but with considerable and significant denial and minimization of adverse or deleterious clinical traits. The MCMI-III Interpretive Report concludes that "it may be reasonable to assume that the [Individual] is exhibiting psychological dysfunction of mild to moderate severity." MCMI-III Interpretive Report at 2.

The Individual scored a 3 (non-alcoholic) on the MAST, which does not support an alcohol abuse pattern. Psychiatrist's Report at 8. However, the DOE Psychiatrist's Report expresses concern about the accuracy of the Individual's MAST score. Id. The Psychiatrist's Report further states:

From my assessment and from other information I know and some I suspect, I feel that a realistic MAST score would be more in the range of 8 or 9, with even a 16 possible. Scores above 5 indicate an alcoholism problem.

Id. Based upon his review of the interpretive reports, the underlying test data, his review of the Individual's security file and his psychiatric interview of the Individual, the DOE Psychiatrist concluded that the Individual "has an alcohol use problem with self-defeating behaviors." Psychiatrist's Report at 9. The DOE Psychiatrist specifically diagnosed the Individual with Alcohol Abuse "with suspected alcohol dependence of a psychological nature and alcohol induced exaggeration of self-defeating personality patterns and behaviors, none of which are acknowledged by the [Individual]." Id. In addition, the DOE Psychiatrist diagnosed the Individual with "Adult Antisocial Behaviors (Attitudes); personality patterns related to [alcohol abuse] and perhaps best described as characterological patterns of self-defeating attitudes and behaviors." Id.

After reaching these diagnoses, the DOE Psychiatrist provided the following Global Assessment of (current) Functioning: 70 to 75, indicating transient or mild symptoms. However, the DOE Psychiatrist's Report expresses a concern that the Individual's functioning could decline to 60, indicating moderate symptoms, if his alcohol abuse becomes chronic.

At the Hearing, the Individual presented the testimony of a certified alcohol and drug counselor (the Counselor) who had, at the request of the Individual, evaluated and counseled the Individual. The Counselor testified that while there was alcohol abuse in the Individual's history, he was not addicted or dependent. Tr. at 69, 77. The Counselor further testified that he was concerned that the Individual had continued to drink in light of negative consequences. Id. at 70. The Counselor testified: "Typically, bad things happened when [the Individual] drank alcohol. He experienced legal problems, trouble with the police, those particular kinds of things." Id. at 71. On the other hand, the Counselor, who currently maintains a DOE access authorization, specifically testified that he didn't think that the Individual constituted a security concern. Id. at 74.

The record does not support the application of Criterion H. Apparently, none of the standardized psychological assessments used to evaluate the Individual specifically indicated that a diagnosis of alcohol abuse or dependence is currently appropriate. Nor does the record contain clear evidence that the criteria for alcohol abuse or dependence, as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual - IV, have been met. While it is true that the highly capable and experienced Psychiatrist who evaluated the Individual was concerned that the Individual was minimizing his alcohol use and therefore diagnosed him with alcohol abuse, I find that this diagnosis was based upon speculation that is not sufficiently supported by objective evidence in the record to support the Notification Letter's charges under Criterion H.

B. Criterion J

The record supports some of the Notification Letter's charges under Criterion J. Specifically, the record, as set forth above, supports the Notification Letter's contention that the Individual has been, or is, a user of alcohol habitually to excess.

In addition to his arrest for driving under the influence of alcohol and the findings of the AUI, it is significant that both of the expert witnesses that testified at the hearing expressed concerns about the Individual's alcohol use. Moreover, the Individual's own description of his past use is of concern. For example, the Individual recalled that at one time he would typically spend from $25 to $100 at bars on weekend nights. PSI at 22. The Individual indicated that he would consume 6 to 12 beers in a typical night of drinking. Id. at 24. Moreover, the Individual indicated that he would sometimes consume as many as 20 beers in a 24 hour period. Id. at 31.

Since the Notification Letter properly found serious security concerns under Criterion J, I must now consider whether these concerns have been sufficiently mitigated. I am convinced that the Individual's testimony that he has significantly reduced his consumption of alcohol since his marriage in 1997 is both truthful and accurate. Unfortunately, however, the Individual has failed to recognize or acknowledge that his use of alcohol is, or has been, harmful. Tr. at 56-57. Had the Individual exhibited an appropriate level of insight into his circumstances I might have concluded that the security concerns raised by his alcohol use had been resolved. Instead, the Individual has not acknowledged that he has a problem with alcohol that needs to be addressed. This failure to recognize or acknowledge his condition raises doubt on my part about his ability to maintain a DOE access authorization. This lack of insight or minimization on the part of the Individual indicates that the security concerns under Criterion J raised by his excessive use of alcohol have not yet been resolved.

C. Criterion L

Criterion L refers to information that an individual has “[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; or which 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 the national security.” 10 C.F.R. § 710.8(l).

In addition to the unresolved security concerns raised by the Individual's misuse of alcohol, the Record indicates that the Individual has been involved in an inordinately large number of physical confrontations during his young life. This pattern of involvement in fights raises concerns about the Individual's judgment and reliability.

However, I find that the security concerns raised by the Individual's involvement in numerous fights have been sufficiently mitigated. Specifically, I find that the passage of time (over 7 years since his last fight) and the young age at which these fights have occurred are factors which mitigate this concern. Most importantly, the Individual's testimony convinced me that he now recognizes the necessity of resolving his differences in a mature and non-violent manner. Tr. at 50. I therefore find that the Individual has resolved the Criterion L security questions raised in the Notification Letter.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not shown that he warrants an access authorization. The Individual has resolved the doubts raised under Criterion H and L. Since the Individual has not resolved the Operations Office’s allegations under Criterion J, however, I conclude that the Individual has not demonstrated that granting his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be granted at this time.

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 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.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: January 24, 2000