Case No. VSO-0309, 27 DOE ¶ 82,843 (H.O. Adeyeye April 18, 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 18, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 20, 1999

Case Number: VSO-0309

This Opinion concerns the eligibility of XXXXXXXXXXXXX (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.” A Department of Energy Operations Office (DOE 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 presented in this proceeding, the individual’s access authorization should be restored. As set forth in the Opinion, I recommend that the individual’s security clearance not be restored.

I. Background

The individual is employed by a contractor at a DOE facility, and held an access authorization. The DOE suspended the individual’s access authorization as a result of derogatory information that was not resolved during a personnel security interview. That information is set forth in the Notification Letter, and is summarized below.

The Notification Letter states that the derogatory information regarding the individual falls within 10 C.F.R. § 710.8(j). The DOE Operations Office invokes Criterion J, on the basis of information that the individual has been or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, or other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. In this regard, the Notification Letter contends that the individual: (1) acknowledged three alcohol-related arrests, two in the previous seven years; (2) continues to consume alcohol; and (3) was diagnosed by a DOE consultant psychiatrist as suffering from alcohol abuse.

In a letter to DOE Personnel Security, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On October 22, 1999, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE counsel, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE counsel called two witnesses, the DOE consultant-psychiatrist (DOE psychiatrist) and a DOE personnel security specialist. The individual testified and also elected to call his supervisor, substance abuse therapist, psychologist, and two co- workers as witnesses. The transcript taken at the hearing shall 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 shall be cited as “Ex.”

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 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). 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. There is a strong presumption against the granting or restoring of a security clearance. See Department 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 not be restored as I cannot conclude that such restoration would not endanger the common defense and security or 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. Findings of Fact

The facts in this case are uncontested. The individual has been employed by a DOE contractor for a number of years in a job that required that he maintain a security clearance. Tr. at 172. The individual received his clearance in 1981, and was arrested for Driving While Intoxicated (DWI) in 1982. Tab 5, Ex. 2 at 12. The individual pled guilty and attended a court-ordered DWI school, but did not participate in any further treatment. Id. at 13-14. In June 1992, the individual was again arrested for DWI, and he promptly reported the incident to DOE security. Tab 5, Ex. 2 at 9-10; Tab 4, Ex. 3. In July 1992, DOE security conducted a Personnel Security Interview (PSI) with the individual. Tab 5, Ex. 2. The individual also met with an EAP counselor for three sessions, and the counselor did not recommend any further treatment. Id. at 24.

On May 22, 1998, police stopped the individual at a checkpoint in another state, and asked him to take a sobriety test after smelling alcohol on his breath. Tab 5, Ex. 1 at 11 (PSI 1998). The individual had shared a bottle of wine with his girlfriend 30 minutes prior to being stopped by the police. PSI 1998 at 13-15, 32. He failed four field sobriety tests and was arrested for Driving Under The Influence (equivalent to DWI in his home state). PSI 1998 at 10-12. The individual notified DOE Security promptly of his arrest. Tab 4, Ex. 1. He met with an EAP counselor, and signed a Recovery Agreement on July 23, 1998 that mandated six months of random alcohol tests and one year of abstinence from alcohol. Tab 3, Ex. 1 at 5. Two months later, the individual reported to his EAP counselor that he had consumed one or two beers on one weekend. Tr. at 175-176. According to the individual, the counselor dismissed the incident, but advised him not to drink during the week or on Sunday, in view of the random alcohol tests. Tr. at 176. On August 11, 1998, DOE Personnel Security conducted a second Personnel Security Interview with the individual in order to resolve the derogatory information. Tr. at 120-123; PSI 1998 at 1; Tab 5, Ex. 1. During the interview, the individual agreed to be evaluated by a DOE psychiatrist. PSI 1998 at 43. At a court hearing in November 1998, the individual pled guilty to a lesser charge of alcohol-related reckless driving, and received a suspended sentence, a fine, and 12 months probation. Tab 3, Ex. 1 at 4. The terms of the probation stated that the individual must not have any similar offense or operate a motor vehicle while using an intoxicant. Tab 2, Ex. 8.

In April 1999, the DOE psychiatrist evaluated the individual, who admitted that he was still drinking and driving. Tab 3, Ex. 1 at 8. The individual also tested negative for drugs and alcohol in blood and urine tests. Id. at 7. At the conclusion of the interview, the psychiatrist determined that the individual fulfilled two criteria for alcohol abuse and diagnosed the individual as an alcohol abuser. Id. at 8-9. The psychiatrist opined that, given the individual’s denial and resistance to treatment in the past, the individual would need to complete a 12-month outpatient program, such as the substance abuse counseling offered through EAP or Alcoholics Anonymous (AA). Tab 3, Ex. 2. On August 17, 1999, the manager of the DOE Operations Office suspended the individual’s access authorization. Tab 2, Ex. 3. On August 18, 1999, the individual began to abstain from alcohol. Tr. at 183.

B. Evidence of Rehabilitation and Reformation

As evidence of his rehabilitation and reformation, the individual presented testimony from two mental health professionals: (1) the counselor in charge of an outpatient substance abuse program that he successfully completed in January 2000, and (2) a psychologist who had worked with the individual on family issues from 1990 to 1998.

1. The Outpatient Program Counselor

In November 1999, the individual entered an outpatient program at the recommendation of an EAP counselor, and completed 24 three-hour sessions in eight weeks. Tr. at 52. According to the outpatient counselor, a very credible witness, the individual was an open, cooperative, and receptive group member. Tr. at 54-58. The counselor testified that the individual “was not the typical client” because he was not alcohol dependent, and she also was convinced that the individual was abstinent throughout the program. Tr. at 54, 60. The individual also began to attend AA at her recommendation. Tr. at 68. According to the counselor, the individual is in “early full remission,” he is in his first year of abstinence, and she believes that the remission will continue. Tr. at 59, 60. She also testified that there was a low likelihood of relapse, based on her observation that the individual did not experience any difficulties abstaining from alcohol. Tr. at 65.

2. The Psychologist

The individual began to meet with the psychologist in January 2000 for assistance with issues surrounding the suspension. Tr. at 13. Initially, the psychologist expressed reservations during the hearing about the DOE psychiatrist’s diagnosis of alcohol abuse, explaining that he would have performed more thorough testing of the individual prior to rendering this diagnosis. Tr. at 16-17. The psychologist testified that it appears that the individual is attempting to reform or rehabilitate and that the individual “was certainly well on his way in early remission to achieve complete sobriety.” Tr. at 17-21, 27. However, the psychologist had never talked to the EAP counselor or the outpatient program counselor. Tr. at 18. In addition, after reviewing the definition of alcohol abuse in the DSM-IV during the hearing, the psychologist agreed that the individual “clearly has had a problem with alcohol abuse.” Tr. at 26. Further, after reviewing the EAP Recovery Agreement, he admitted that the individual had breached the agreement by drinking two months after signing the document. Tr. at 30-31. Finally, the psychologist testified that breach of the EAP agreement and breach of the terms of the probation “may be” compelling evidence to show that six months of abstinence is not sufficient for the individual to prove rehabilitation and reformation. Tr. at 32, 34.

C. The Individual’s Challenge to the Accuracy of the Record

During the course of this proceeding, the individual challenged the accuracy of the record. DOE Counsel and the Hearing Officer consented to a postponement of the hearing so that the individual could submit corrections and clarifications to DOE counsel. Tr. at 136-139. DOE counsel then had the DOE psychiatrist review the corrections and reconsider his diagnosis. Tab 3, Ex. 2. The diagnosis did not change; in fact, the psychiatrist successfully used the letter to demonstrate the high level of the individual’s denial. Tr. at 136-139.

The individual and his supervisor submitted a document in December 1999 that was intended to correct alleged “discrepancies and inaccuracies that made [the individual’s] offense seem more than it really was.” Individual’s Ex. 1 at 2. The document begins with a glowing characterization of the individual’s work habits and relationships. The record is clear that the individual has been an exemplary employee--trustworthy, willing to work long hours, and never showing any signs of intoxication. Id. Two of the individual’s colleagues also testified very credibly and sincerely on his behalf that they had never seen him drink alcohol to excess, nor had they seen any sign of an alcohol problem. Tr. at 71-82; 82-89. However, the supervisor’s testimony that the individual is sober and reliable on the job, although credible, does not overcome the security concerns in this case. Tr. at 33-34. Personnel Security Hearing, Case No. VSO-0121, 26 DOE ¶ 82,775 (1997). Excessive alcohol consumption off the job still raises a security concern that the individual may say or do something under the influence of alcohol that violates security regulations. Personnel Security Hearing, Case No. VSO-0106, 26 DOE ¶ 82,767 (1997).

After carefully reviewing the “corrections” and the entire record in this case, I find that the “correction” letter provides further evidence of the individual’s denial concerning his alcohol problem. Tab 3, Ex. 2. The letter contains a list of relatively minor (and sometimes inaccurate) items that purport to correct the record. Id. Three examples follow. First, the letter alleges that because the third arrest was reduced from DWI to alcohol-related reckless driving, the psychiatrist’s evaluation (three DWIs) is incorrect, and the individual does not meet the criteria for alcohol abuse. Id. at 3. However, Criterion A3 for alcohol abuse in the DSM-IV is “recurrent substance-related legal problems.” Tab 3, Ex. 1 at 8. Thus, the lesser charge also qualifies. Second, the letter states that during the third arrest, the police were “trying to get [the individual] to fail and were giving him progressively more difficult [sobriety] tests.” Tab 3, Ex. 2 at 2. There is no evidence that all four tests were unfair. Moreover, this comment does not demonstrate the sense of personal responsibility that the DOE psychiatrist maintains is required for rehabilitation and reformation from alcohol abuse. Tr. at 134-136, 150. See also Personnel Security Hearing, Case No. VSO-0130, 26 DOE ¶ 82,779 at 85,709 (1997); reversed, 26 DOE ¶ 83,017, reversed (OSA Jan. 7, 1998) (DOE psychiatrist testimony about importance of personal responsibility to rehabilitation). Third, the supervisor writes that the individual “indicates that he drinks in moderation and drives only with legal blood alcohol levels. The recovery agreement . . . does not dictate that [the individual] does not drink, but that he not abuse alcohol.” Tab 3, Ex. 2 at 3. That statement is not true. The EAP Recovery Agreement, signed in July 1998, required the individual to abide by the contract terms, which include abstinence from alcohol, until July 1999. Tab 3, Ex. 3; Tab 3, Ex. 1. The evaluation took place in April 1999. Tab 3, Ex. 1. Therefore, I conclude that the individual’s letter of December 1999 supports the DOE psychiatrist’s conclusion that the individual was in denial about his alcohol problem.

D. Testimony of the DOE Psychiatrist

At the hearing, the DOE psychiatrist testified that he was very impressed with the testimony of the individual’s counselor, that he highly respected her professional judgment, and he agreed that the individual is “well on his way” to reformation.(1) Tr. at 143-146. He also testified that the individual’s alcohol problem was not severe, and that denial had decreased since the April 1999 evaluation.(2) Tr. at 134. Nonetheless, his final conclusion was the same--that the individual has not shown adequate evidence of reformation and rehabilitation, which in this case would require at least one year of abstinence, along with a weekly substance abuse program and sessions with a therapist. Tr. at 141- 142, 149. In addition, the psychiatrist testified that the individual had a medium risk of relapse due to a “huge amount of external motivators.” Tr. at 146. The psychiatrist gave four reasons for reaching his conclusion. Tr. at 134-136. First, the individual had a high level of denial during the psychiatric evaluation in April 1999. Tr. at 134. According to the psychiatrist, denial interferes with rehabilitation because a person who cannot admit a problem will not attempt to rectify the problem. Id. Second, the individual broke two written agreements related to his alcohol use. The EAP Recovery Agreement called for 12 months of abstinence, and the individual began drinking two months after the program began. Tr. at 175-176. The individual’s November 1998 probation agreement called for him to avoid a repeat of the same or similar offense, and banned the use of intoxicants in a motor vehicle for the next year. Tab 2, Ex. 8. However, the individual continued to drink even when he knew that he would be driving later. Tr. at 194. Third, despite increasingly severe sanctions and warnings, the individual did not seek treatment or stop drinking until DOE suspended his clearance. Tr. at 145. Finally, the psychiatrist found that the denial was still evident in December 1999 when the individual submitted a “disconcerting” letter purporting to correct inaccuracies in the record. Tr. at 136. See discussion in Section II.C.

E. The Individual Has Not Presented Adequate Evidence of Reformation or Rehabilitation

I found the testimony of the outpatient program counselor to be credible, and I accept her diagnosis that the individual is in early full remission. I am also impressed with the rigorous treatment program that the individual has designed for himself. There is no evidence that he has had a relapse, he continues to attend AA meetings, and he meets with private therapists. This voluntary action and his dedication clearly deserves recognition and praise. His testimony seemed sincere, and he has an unblemished work record. Based on the record before me, I am convinced that the individual has abstained from alcohol since August 1999 (seven months of abstinence at the time of the hearing), and that his level of denial has decreased since December 1999 when the “correction letter” was written.

Notwithstanding this mitigating evidence, I find that the individual cannot be considered rehabilitated or reformed from his use of alcohol at this time.(3) Despite the rigor of his treatment program, it is not sufficient to resolve DOE’s security concerns. After a review of the entire record, I find the conclusions of the DOE psychiatrist valid. Even though the DOE psychiatrist found many positive things to say about the individual’s progress, he was still concerned with the level of the individual’s denial and how that denial could interfere with the treatment program. Tr. at 134-140. I also find that the individual’s history of breaking agreements relating to his alcohol use has raised some questions about his personal commitment to abstinence. Thus, at this stage in the individual’s rehabilitation, with seven months of abstinence, a medium risk of relapse, evidence of denial, and a history of breaking agreements related to alcohol use, I cannot find that the individual is rehabilitated or reformed. See Personnel Security Hearing, Case No. VSO-0130, 26 DOE ¶ 82,779 (1997), reversed, 26 DOE ¶ 83,017 (1997), reversed (OSA Jan. 7, 1998) (despite recommendation of 12-month abstinence to alleviate security concerns, hearing officer recommended that clearance be restored after six months of abstinence based on updated psychiatric diagnosis of remission, low probability of relapse, and absence of denial).

III. Conclusion

As explained in this Opinion, I find that the DOE Operations Office properly invoked 10 C.F.R. § 710.8 (j) in suspending the individual’s access authorization. The individual has failed to present adequate mitigating factors or circumstances to erode the factual basis for these findings or otherwise alleviate the legitimate security concerns of the DOE Operations Office. In view of these criteria and the record before me, I cannot 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 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 Avenue, 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 the purpose 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

Valerie Vance Adeyeye

Hearing Officer

Office of Hearings and Appeals

Date: April 18, 2000

(1)It is important to note that the psychiatrist testified that were the individual to continue with his current treatment program, maintain 12 months of abstinence, and have negative lab and liver tests, the individual would have a better prognosis at that time, and the psychiatrist’s evaluation might then change. Tr. at 147.

(2)According to the DOE psychiatrist, “alcohol abuse kind of expires after 12 months. It is not a diagnosis that stays with you forever. . . [W]hen the conditions go away the diagnosis is not there.” Tr. at 140.

(3)DOE Counsel asked whether the individual could be afforded the opportunity to bring forth additional evidence of ongoing rehabilitation and reformation. Tr. at 200. This office has, in the past, permitted an individual a reasonable amount of time to supplement the record. See e.g., Personnel Security Hearing, Case No. VSO-0258, 27 DOE ¶ 80,206 (1999), affirmed (OSA Aug. 12, 1999) (individual with 11 months of abstinence was permitted to supplement the record to prove 12 months of abstinence). However, I must be mindful of the delay to closure of a proceeding that can result from allowing several months for an individual to supplement the record. See Personnel Security Review, Case No. VSA-0014, 25 DOE ¶ 83,002 at 86,511 (1995), affirmed (OSA Sept. 15, 1995).