Case No. VSO-0308, 27 DOE ¶ 82,840 (H.O. Schwartz Apri 14, 2000)
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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.
April 14, 2000
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer’s Opinion
Name of Case:Personnel Security Hearing
Date of Filing:October 19, 1999
Case Number: VSO-0308
This Opinion concerns the eligibility of XXXXX XXXXXXX (the individual) for access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria for Access to Classified Matter or Special Nuclear Material.” While investigating the individual’s application for access authorization, a Department of Energy (DOE) office received information that raised questions about his eligibility, and was unable to resolve those questions informally. The individual requested a hearing on this matter, at which I presided. As explained below, it is my opinion that the individual’s access authorization should not be granted.
I. Background
The individual has applied for a position with a DOE contractor. He will need access authorization to perform the duties of that position. In April 1999, the DOE received information concerning the individual that indicated that he drank fairly heavily and that he had been arrested for “Driving While Under the Influence” (DUI) in March 1996. This revelation prompted the DOE to conduct a Personnel Security Interview (PSI) to obtain information regarding the circumstances surrounding the DUI arrest and the extent of the individual’s alcohol use. After the PSI, the DOE referred the individual to a board-certified psychiatrist (DOE consultant-psychiatrist) for a mental evaluation. The DOE consultant-psychiatrist examined the individual, and memorialized his findings in a report dated July 27, 1999 (Psychiatric Report). In the Psychiatric Report, the DOE consultant-psychiatrist opined that the individual suffers from alcohol abuse and does not present evidence of adequate rehabilitation or reformation. Since information creating doubt as to the individual’s eligibility for a security clearance remained unresolved after the mental evaluation, the DOE obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.
On September 23, 1999, the DOE issued a Notification Letter to the individual which identified the derogatory information that cast doubt on his continued eligibility for access authorization. According to the DOE, the derogatory information falls within the purview of subsection (j) of the disqualifying criteria set forth in 10 C.F.R. § 710.8. The Notification Letter alleges that the individual is “a user of alcohol habitually to excess or ha[s] been diagnosed by a board-certified psychiatrist, other licensed physician, or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” Notification Letter, citing 10 C.F.R. § 710.8(j). In this regard, the Notification Letter specifies that the DOE consultant-psychiatrist diagnosed the individual as suffering from alcohol abuse without adequate evidence of rehabilitation or reformation, because he continues to drink heavily. As further support for the DOE’s concern, the Notification Letter lists the individual’s 1996 DUI arrest and his admission, during a May 7, 1999 interview with a DOE personnel security specialist, that he drinks to the point of intoxication once or twice a month.
The individual filed a response to the allegations contained in the September 23, 1999 Notification Letter together with a request for a hearing regarding those allegations. In that response, the individual stated that he had changed his drinking habits since the May 7 interview. The DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA) Director. The OHA Director appointed me as Hearing Officer in this case. 10 C.F.R. § 710.25(b). I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative hearing process. At the hearing, the DOE called two witnesses: the consultant- psychiatrist and a DOE personnel security specialist. The individual represented himself, and offered the testimony of two friends and testified on his own behalf. I closed the record on January 10, 2000, after receiving the transcript of the hearing. See 10 C.F.R. § 710.27(e).
II. Analysis
The applicable 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). In resolving questions about the individual’s access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):
the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence; and other relevant and material factors.
Although it is impossible to predict with absolute certainty an individual’s future behavior, as the Hearing Officer, I am directed to make a predictive assessment. Finally, I note that it is incumbent upon the individual to demonstrate 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. § 710.7(a). After careful consideration of these factors and all the evidence in the record in this proceeding, I find that the individual has not made this showing. Therefore, I must recommend that the DOE not grant the individual’s access authorization.
A. Individual’s Use of Alcohol
The DOE’s concern regarding the individual’s use of alcohol arose from information uncovered in the course of a routine background investigation performed in anticipation of his employment by a DOE contractor. The background investigation indicated that the individual had been arrested for driving under the influence of alcohol (DUI) on March 6, 1996, and also contained a questionnaire that the individual completed on November 24, 1998, concerning his use of alcohol. DOE Exhibit 1. Following receipt of this information, the DOE conducted a PSI and referred him to a DOE consultant-psychiatrist. See DOE Exhibits 2, 3 (Transcript of PSI (PSI Tr.) and Psychiatric Report.) In the course of his examination, the DOE consultant-psychiatrist interviewed the individual, performed a detailed analysis of the individual’s personal background and solicited responses to the CAGE assessment of his degree of involvement with alcohol. The DOE consultant-psychiatrist described the CAGE test as a screening test in which an individual’s responses indicate whether he has attempted to cut down his alcohol use (C); demonstrated anger for being criticized about drinking (A); experienced guilt over his drinking (G); and (4) used alcohol in the morning as an “eye opener” (E). Transcript of Hearing (Tr.) at 19. On the basis of the information he received from the DOE and he solicited at his interview with the individual, the DOE consultant-psychiatrist diagnosed the individual as suffering from alcohol abuse as specified in the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Tr. at 20-21. For the reasons stated below, I find that the record contains ample evidence to support the findings of the DOE consultant- psychiatrist.
The individual started drinking at weekend parties when he was in high school, to the point of intoxication. PSI Tr. at 9. At college, he drank more often, three or four times per week, most times to intoxication. PSI Tr. at 11. While still at college, he was arrested for driving a vehicle while under the influence of alcohol in March 1996. According to the record, the individual registered .16 on a Blood Alcohol Test (BAT) administered at the time of his arrest. PSI Tr. at 5. Following this arrest, the individual was placed in an Accelerated Rehabilitative Disposition Program (ARD), which required him to attend six classes and an Alcoholics Anonymous meeting in addition to paying fines and court costs and having his driver’s licence suspended for 60 days. PSI Tr. at 7-8. After he satisfied the requirements of the ARD, he continued to drink alcohol in the same pattern as before the arrest, which was generally twice each weekend, usually to the point of intoxication. PSI Tr. at 14-15. In the months preceding the PSI, according to the individual, he had cut back his consumption to only once per weekend, usually to the point of intoxication. PSI Tr. at 15. In the alcohol use questionnaire the individual completed in November 1998, he stated that he drinks on weekends, to the point of intoxication two to three times per month. DOE Exhibit 1.
During the examination by the DOE consultant-psychiatrist, the individual described his alcohol use. The DOE consultant-psychiatrist’s report reflects the same pattern of alcohol use as the individual reported at his PSI. At the hearing, the DOE consultant-psychiatrist testified that, in his opinion, the individual met two of the four factors of the CAGE test, having demonstrated both anger and guilt associated with his alcohol use. Tr. at 19-20, 35. He further stated, “I think if you endorse two or more of those items, there’s a strong correlation between that and having significant problems with alcohol or an expectation that you would have future problems with it.” Tr. at 20. On the basis of the information DOE provided to him and the information he solicited during his psychiatric interview, the DOE consultant-psychiatrist concluded that the individual suffers from alcohol abuse. Psychiatric Report at 4. As a result of that diagnosis, the DOE consultant-psychiatrist recommended total sobriety as an appropriate treatment and as the most expedient manner of eliminating DOE’s concern about the individual’s suitability for access authorization. Psychiatric Report at 4.
Based on the foregoing, I find substantial evidence to support the findings of the DOE consultant- psychiatrist that the individual suffers from alcohol abuse. The Personnel Security Specialist testified that such excessive use of alcohol raises serious security concerns:
Use of alcohol can affect an individual’s judgment and reliability, both while under the influence and while sober. The use can impair an individual’s ability to protect classified information, control impulses and also, resist influence, coercion or exploitation by others.
Tr. at 65-66.
For these reasons, hearing officers in DOE security clearance proceedings have consistently found that the excessive use of alcohol raises important security concerns. See, e.g., Personnel Security Hearing, Case No. VSO-0222, 27 DOE ¶ 82,785 (1998); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995); Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995). Accordingly, I will turn next to whether the individual has presented adequate evidence of rehabilitation and reformation, or other mitigating circumstances, to overcome the legitimate security concerns of DOE.
B. Mitigating Circumstances
At the hearing, the individual presented evidence that his pattern of drinking alcohol has changed in the past several months. He testified that since he began dating his current girlfriend in July 1999, he has restricted his alcohol intake to no more than two beers “once or twice a month, at dinner, with my girlfriend.” Tr. at 111. He further testified that he had not been intoxicated since attending a wedding on August 14, 1999. Tr. at 111. As additional evidence of his claim that his drinking habits have changed, the individual presented two close friends as witnesses. These friends, with one of whom he currently shares an apartment, are the individuals with whom he has drunk socially for years. Their combined testimony clearly supports his assertion that he no longer drinks to intoxication but rather in the controlled manner to which he testified. Tr. at 76-109. Based on the record before me, I am convinced that the individual has changed his alcohol consumption habits as he has described. This voluntary action clearly deserves recognition and praise.
Notwithstanding this mitigating evidence, I find that the individual cannot be considered rehabilitated or reformed from his abuse of alcohol at this time. While it is commendable that the individual has embarked on a self-imposed regimen since July 1999, it is not sufficient to resolve DOE’s concerns for two reasons. First, the DOE consultant-psychiatrist testified that, in the individual’s case, he felt that a 12-month period of rehabilitation would be needed to permit a predictive opinion that his recovery from alcohol abuse was sustainable. Tr. at 37. The period from July, when the individual decided to control his drinking, until the December hearing, clearly falls far short of the recommended 12-month period. Second, and more important, is the DOE consultant- psychiatrist’s opinion that the individual abstain from alcohol altogether. Tr. at 22-23. The DOE consultant-psychiatrist explained to the individual at the July 1999 psychiatric interview, and in his report, that a period of abstinence in conjunction with participation in an outpatient program that monitored abstinence (such as Alcoholics Anonymous) would be an appropriate form of rehabilitation. Psychiatric Report at 4; Tr. at 23-24. Without abstinence, and with only four to five months’ passage since the establishment of a new drinking pattern, the DOE consultant-psychiatrist felt that the individual’s progress at the time of the hearing should be considered early, partial recovery rather than sustained complete recovery. Tr. at 29, 37.(2) In view of the likelihood of relapse in such cases of alcoholism, I cannot find that the individual has overcome the legitimate security concerns of DOE. See, e.g., Personnel Security Hearing, Case No. VSO-0099, 25 DOE ¶ 82,759 (1996); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995); Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995).
III. Conclusion
As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. § 710.8(j) in considering the individual’s request for access authorization. It is my opinion that, within the meaning of that provision, 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.” The individual has failed to present adequate mitigating facts or circumstances to erode the factual basis for this finding or otherwise alleviate the legitimate security concerns of DOE. In view of this criterion and the record before me, I cannot find that granting 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 not be granted at this time. I note, however, the individual’s expressed willingness to take any action necessary to resolve DOE’s concerns about his suitability for access authorization. He may want to consider complying with the recommended course of treatment and then pursue his request for access authorization at that time.
The regulations set forth at 10 C.F.R § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:
Director
Office of Safeguards and Security, NN-51
Office of Security Affairs
U.S. Department of Energy
19901 Germantown Road
Germantown, MD 20874
William M. Schwartz
Hearing Officer
Office of Hearings and Appeals
Date: April 14, 2000
(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).
(2)The individual contends that it was physically impossible for him to establish compliance with any 12-month course of rehabilitation or reformation, because only seven months passed from the time of his interview with DOE Security to the time of his hearing. Tr. at 110. We have addressed this issue before. In that case, we stated that “[t]he purpose of this type of administrative proceeding under Part 710 is not to provide the individual with an opportunity to rehabilitate himself, but rather to allow him to show that he is not a security concern.” Personnel Security Review, Case No. VSA-0121, 26 DOE ¶ 83,014 (1997).