Case No. VSO-0315, 27 DOE ¶ 82,838 (H.O. Palmer March 22, 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.

March 22, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 11, 1998

Case Number: VSO-0315

This Opinion concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as "the individual") to retain 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)

I. Background

For several years, the individual has been employed by a Department of Energy (DOE) contractor in a job that requires that he maintain a security clearance. In accordance with DOE security policy, the individual notified the local Security Office in the spring of 1999 that he had recently been arrested for Driving Under the Influence of Alcohol (DUI). Because this information raised security concerns, the local Security Office conducted a reinvestigation of the individual to determine whether his access authorization should be maintained. As a part of this reinvestigation, a DOE Personnel Security Specialist interviewed the individual shortly after he reported the DUI. Based on information given by the individual during this Personnel Security Interview (PSI), the local Security Office referred the individual to a board-certified psychiatrist (hereinafter referred to as “the DOE psychiatrist”), for an agency-sponsored psychiatric evaluation. The DOE psychiatrist interviewed the individual and provided a written evaluation to the Security Office.

After reviewing the results of this investigation, the Director of the local Security Office determined that derogatory information existed which cast into doubt the individual’s suitability for continued access authorization. In the fall of 1999, the Director informed the individual of this determination in a letter which set forth in detail the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

The individual requested a hearing on this matter. The Manager forwarded the individual’s request to the Office of Hearings and Appeals and I was appointed the Hearing Officer. The hearing was convened near the individual’s job site. Five witnesses testified at the hearing. A Personnel Security Specialist and the DOE psychiatrist testified for the DOE. Testifying for the individual were two of his co-workers and the individual himself.

II. Statement of Derogatory Information

As indicated above, the Notification Letter included a statement of derogatory information in possession of the DOE that created a substantial doubt as to the individual’s eligibility to hold a clearance. This information pertains to paragraphs (f), (h) and (j) of the criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710 et seq. For purposes of clarity, I will first set forth the DOE’s security concerns under paragraphs (h) and (j). Paragraph (h) defines as derogatory any information indicating that the individual has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” Paragraph (j) refers to information that 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 Notification Letter states that the individual was diagnosed by the DOE psychiatrist as suffering from alcohol abuse and that this constitutes an illness or mental condition which, in the opinion of that psychiatrist, causes or may cause a significant defect in the individual’s judgement and reliability. In support of these conclusions, the Letter cites the DOE psychiatrist’s findings that the individual meets the criteria for alcohol abuse set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and that there is no evidence of rehabilitation or reformation. The Letter goes on to state that during the individual’s PSI, he admitted to the following alcohol-related arrests or incidents: a May 1999 DUI, a February 1998 DWI, a January 1993 DUI(2), a December 1979 arrest for Public Intoxication, Speeding and Running a Red Light, and a 1992 incident during which the individual almost drowned in a pool after drinking two to four beers.

The Notification Letter also sets forth the DOE’s concerns under paragraph (f). Those concerns relate to the DOE’s claim that the individual “has deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for National Security Positions (QNSP).” According to the Letter, on a QNSP dated September 3, 1998, the individual failed to mention a DUI arrest and in-patient alcohol treatment in 1993 (3) and a 1979 arrest for Public Intoxication, Running a Red Light, and Speeding.

III. Findings of Fact and Analysis

The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding in which the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,202 (1996), aff’d, Case No. VSA-0078, 25 DOE ¶ 83,016 (1996) (affirmed by OSA, 1996). 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 the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to produce evidence sufficient 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. After careful consideration of the factors mentioned above and of all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.

As an initial matter, I find that the record in this proceeding amply supports the DOE’s conclusions that security concerns exist with respect to paragraphs (f), (h) and (j) of the criteria for eligibility for access to classified matter or special nuclear material. It is uncontroverted that the individual omitted information concerning his 1983 DUI and 1979 Public Intoxication arrests from the QNSP. Furthermore, he was examined by the board-certified DOE psychiatrist, who concluded that the individual suffers from alcohol abuse, and that this condition causes or could cause a significant defect in his judgement and reliability. DOE psychiatrist’s evaluation at 8-9.

For the most part, the individual does not dispute the factual allegations set forth in the Notification Letter. Instead, he contends that sufficient mitigating factors exist to indicate that restoring his clearance would not endanger national security. Specifically, he contends that he omitted the 1983 DUI arrest and the 1979 Public Intoxication arrest from the QNSP because he believed that he was only required to list such incidents that occurred within 10 years of the date of the QNSP. Regarding the DOE’s security concerns under paragraphs (h) and (j), the individual states that he has stopped drinking and has received treatment for his alcohol abuse.

In response to the DOE’s allegations under paragraph (f), the individual testified that the instructions accompanying the QNSP led him to believe that he only had to provide information concerning his alcohol-related arrests for the previous ten years, and that each of the arrests that he failed to disclose occurred more than ten years prior to the date of the QNSP. Tr. at 22, 66. The individual further stated that the omission of this information was not intended to deceive, since, during previous background investigations conducted by the Office of Personnel Management and the Department of Defense, he had disclosed all of the arrests in question. Tr. at 66.

In attempting to mitigate the DOE’s concerns under paragraphs (h) and (j), the individual contends that the DOE psychiatrist’s diagnosis was based in part on incorrect data. Specifically, he cites the incorrect dates given for his 1983 DUI arrest and subsequent alcohol treatment, and the psychiatrist’s statements in his report to the DOE that the individual has had six alcohol-related arrests or incidents within a 20 year period. DOE psychiatrist’s evaluation at 3-4, 8, 10. The individual stated at the hearing that there have only been five such events. Tr. at 10. (4)

Nevertheless, the individual admitted during the hearing that he has suffered from alcohol abuse, and that after his May 1999 DUI, he sought and received counseling from a clinical psychologist. Tr. at 45-59. He stated that these meetings took place on a weekly basis during the first month, and then on a biweekly basis for an additional two months. Tr. at 54, 76. During these sessions, the individual testified, they discussed “my life, my past use of alcohol, how it affected me and what I intend to do about it . . . .” Tr. at 76. The individual added that after three months, he and the psychologist agreed that he did not need to continue the counseling sessions because “I wasn’t drinking, . . . “ and “[i]t wasn’t really going much farther after three months of seeing her as far as alcohol abuse [was] concerned.” Tr. at 57, 77. In September 1999, the individual said, he began attending “open speaker” meetings at Alcoholics Anonymous (AA) every other week. Tr. at 49, 74. At these meetings, a single speaker discusses the effect that alcohol has had on his life, and what he has done to address his problems. The individual testified that this differs from closed meetings, where each attendee personally participates in implementing the AA’s 12 step program. He added that he did not feel that he could honestly participate in these meetings because to do so, he would have to say that he was alcohol dependent, when he did not believe this to be the case. Tr. at 50, 74- 75. He said that he finds the open speaker meetings to be “helpful,” Tr. at 74, and that he intends to refrain completely from the use of alcohol. Tr. at 72. The individual indicated that his last use of alcohol occurred during a 1999 Christmas party, when he had one beer. Id.

The individual also presented the testimony of two co-workers. These witnesses testified that the individual was an excellent employee, and exhibited no defect in his judgement or reliability. On cross-examination, however, these witnesses admitted that their contact with the individual away from the job site was limited. Tr. at 109-123.

After reviewing this testimony and all of the other evidence in the record, it is clear that the individual realizes that he suffers from alcohol abuse, and has taken some measures to address that problem. There is also substantial evidence that the individual has performed his job capably and has demonstrated sound judgement and reliability in work-related areas. However, for the reasons that follow, I conclude that the DOE’s security concerns under paragraphs (f), (h) and (j) remain unresolved.

As an initial matter, the unequivocal wording of question number 23(d) of the QNSP is inconsistent with the individual’s claim that believed that he was only required to provide information for the preceding ten years, and therefore did not intentionally misrepresent, falsify, or omit significant information with the meaning of paragraph (f) . That question asks: “Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?” (Emphasis added.) Moreover, the accompanying instructions do not direct that answers to this question be limited to the preceding 10 years. The “Supplemental Instructions for the Access Authorization Packet Submission” states, in pertinent part, as follows: “SF86 Questionnaire for National Security Positions (QNSP) . . . Applicants for ?Q’ Access Authorization - Information must be provided for the most recent ten (10) years for questions 9, 10 . . . ,11, 12, 17d., 21, 22, 23e & f, 24a & c, 25, 27a, b, c, &d, 28a, and 29.” (Emphasis added.) In support of his contention that the omission of the 1979 Public Intoxication arrest and the 1983 DUI arrest from his answer to 23(d) resulted from a misunderstanding of the question and was not meant to deceive, the individual correctly points out that during prior investigations conducted by other federal agencies, he disclosed these arrests. Consequently, if I was to consider this omission in isolation from the remainder of the record in this proceeding, I might attribute it to inattention or carelessness, and not to an attempt to mislead. However, the occurrence of other incidents of omission or misrepresentation discussed below undermines the individual’s contention that the omission of these arrests was inadvertent, and leads me to believe that the individual has been less than totally honest in this matter.

During the individual’s PSI, he disclosed that he had used marijuana on three occasions during the years 1979 and 1980. PSI at 5-6. However, when the DOE psychiatrist evaluated the individual and inquired into his past usage of illegal drugs, the individual did not mention marijuana, stating only that in 1983 he took a pill that someone had given him that might have been acid or an amphetamine. DOE psychiatrist’s evaluation at 6. When asked at the hearing to explain this discrepancy, the individual said “. . . if I didn’t mention marijuana, it’s because I wasn’t thinking of it as a drug, even though it is. I don’t know why I didn’t mention it if I didn’t. . . . When I said ?illegal drugs’ in my mind, I was thinking like chemical stuff.” Tr. at 70.

I do not find this explanation to be credible. Two months prior to the evaluation, during the PSI, the DOE Personnel Security Specialist asked the individual to “tell me which illegal drugs you have used?” The individual responded that “I experimented with marijuana . . . maybe three times my entire life” in “. . . probably ?79, ?80.” PSI at 5-6. Moreover, in 1996, the individual was involved in a physical altercation with his ex-wife when he “found a bag of marijuana in her purse one morning . . . and I flushed it down the toilet and threw her purse away because I didn’t want that purse in my vehicle coming on to the [military] base. And she balled up her fists and hit me in the face . . . .” PSI at 45. The individual’s apparent concern that marijuana residue might be detected in his ex-wife’s purse by military authorities on the base, along with his extensive training in law enforcement and security, Tr. at 79-80, lead me to believe that the individual was, and is, acutely aware that marijuana is an illegal drug. I therefore believe that the individual was attempting to minimize his past substance abuse in order to obtain a more favorable diagnosis from the DOE psychiatrist.

This conclusion is supported by another inconsistency between information that the individual provided during the psychiatric evaluation, and information that he provided in the PSI. The DOE psychiatrist asked him “how much he drank when he was arrested the last time [May 1999]. He answered, ?I had four beers and three Jello shots.’ (5) I asked him what his [blood alcohol content] was. He told me ?0.12 and 0.13.’ I told him that on page 61 in the PSI he said that it was .15 and .16. He told me that he didn’t say that because it was .12 and .13.” DOE psychiatrist’s evaluation at 5. At the hearing the individual explained that he erroneously gave the DOE psychiatrist his blood alcohol content readings from an earlier alcohol-related arrest. Tr. at 24. Given the unsupported nature of this assertion and the other incidents of omission or misrepresentation in the record, I accord it little weight. For these reasons, I find that the individual has failed to adequately address the DOE’s security concerns under paragraph (f).

I am similarly unconvinced by the individual’s efforts to mitigate the DOE’s security concerns under paragraphs (h) and (j). As previously stated, those concerns are that the individual has been diagnosed as suffering from alcohol abuse, and that this constitutes an illness or mental condition which causes, or may cause, a significant defect in his judgement or reliability. First, it is evident from the DOE psychiatrist’s testimony at the hearing that his diagnosis was not significantly affected by the erroneous data concerning the individual’s prior alcohol-related arrests. The psychiatrist based his diagnosis on the criteria for substance abuse set forth in the DSM-IV. Tr. at 93. Specifically, he found that the individual met the following two criteria:

* * *

(2) recurrent [within a 12 month period] substance use in situations in which it is physically hazardous (e.g. driving an automobile or operating a machine when impaired by substance use)

(3) recurrent [within 12 months] substance related legal problems (e.g., arrests for substance-related disorderly conduct)

DSM-IV. The psychologist testified that the individual had two alcohol-related arrests within a 15 month period (the February 1998 DWI and the May 1999 DUI). He further noted that the DSM-IV was not intended to be applied mechanistically, but was instead to be used in conjunction with the exercise of a trained clinician’s judgment. Tr. at 93. He added that he thought the 15 month interval between arrests was

close enough to 12 months that, in my professional opinion, he met those criteria. . . . I say that because he had what I thought [were] six alcohol-related arrests or incidents. He’s corrected me by saying that he believes it’s five alcohol-related arrests or incidents. It doesn’t matter to me if it’s five or six, that’s way more than there should be. So given that as a background, I had no problem saying 15 months is close enough to 12 months that he meets the criteria for substance abuse, alcohol.

Tr. at 93-94. He further indicated that, after hearing all of the individual’s testimony, including the corrected dates of his arrests, he continues to stand by the findings in his evaluation. Tr. at 103.

The DOE psychiatrist also testified as to what would constitute adequate evidence of rehabilitation or reformation by the individual. He stated that, given the number of alcohol-related arrests that the individual has had over the last 20 years, he would require documented attendance at either “an active AA meeting at least once a week for a minimum of a hundred hours . . . over the last 12 months,” or “350 hours in a professionally led alcohol treatment program.” If, on the other hand, the individual continued to drink, he would need “a five year period without showing any alcohol-related problems.” Tr. at 98. He concluded that the individual has not met either of these criteria, and has therefore failed to demonstrate sufficient rehabilitation or reformation. Tr. at 95.

I find the DOE psychiatrist’s testimony, which is mostly unrebutted, to be persuasive, and I agree that the individual has failed to produce adequate evidence of rehabilitation or reformation. Specifically, I conclude that the individual has not demonstrated a sufficient commitment to abstinence, or that he can avoid future legal problems if he continues to drink.

I am not at all confident that the individual’s current practice of attending “open speaker” AA meetings on a bi-weekly basis is sufficient to help ensure the individual’s future abstinence. According to the DOE psychiatrist, the individual needs the more active and personal participation of the closed meetings. “I just don’t think that there is any evidence of which I’m aware that going to these open meetings has any effect on . . . later alcohol problems,” he testified, “and there is quite good evidence that voluntary attendance at AA correlates best with an absence of alcohol problems and that means going to the active meetings.” Tr. at 96. The individual’s uncertain commitment to abstinence is also attested to by his ingestion of an alcoholic beverage on at least one occasion, i.e., at a December 1999 Christmas party, despite his stated intention during the psychiatric evaluation to refrain completely from future alcohol use. DOE psychiatrist’s evaluation at 5. (6) I therefore think it unlikely that the individual will remain abstinent in the absence of an intensified and sustained commitment to treatment.

Furthermore, the individual’s two alcohol-related arrests within the last two years, and five arrests or incidents in all, strongly suggest that the individual’s judgment and reliability are significantly impaired by the use of alcohol. That these problems have persisted despite his having undergone inpatient alcohol treatment on at least two previous occasions attests to the intractability of the individual’s alcohol abuse problem. I therefore concur with the DOE psychiatrist’s opinion that if the individual continues to drink, he would have to go five years without an alcohol-related legal problem in order to demonstrate reformation from his alcohol abuse. For these reasons, I conclude that the individual has failed to successfully mitigate the DOE’s security concerns under paragraphs (h) and (j).

IV. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§710.8(f), 710.8(h) and 710.8(j) in suspending the individual's access authorization. I further find that the arguments advanced by the individual in his defense do not adequately mitigate the DOE’s security concerns. Based on the record in this proceeding, I am unable to conclude that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly 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 the 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, 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).

Robert B. Palmer

Hearing Officer

Office of Hearings and Appeals

Date: March 22, 2000

(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 in this Opinion as access authorization or a security clearance.

(2) The individual contends, and the DOE counsel agrees, that the DUI and the alcohol treatment listed in the Notification Letter as having occurred in 1993 actually took place in 1983.

(3)Although prospective clearance holders must disclose alcohol-related arrests regardless of when they occurred, the QNSP only inquires as to alcohol and other mental health related treatment occurring within the past 7 years. Since this alcohol treatment actually took place in 1983, the individual’s omission of it from his QNSP does not raise security concerns. See footnote 2, supra. See also 1998 QNSP, questions 21 and 25.

(4)The DOE counsel did not contest this claim at the hearing, and it appears that the DOE psychiatrist incorrectly listed alcohol-related arrests for the individual in both 1993 and 1983.

(5)A “Jello shot” is a small cube of flavored gelatin that is made using an alcoholic beverage. Tr. at 42.

(6)The record also indicates that the individual probably used alcoholic beverages on another occasion subsequent to foreswearing the use of alcohol. One of the individual’s former co- workers testified that he and the individual had two drinks at a local bar during the summer of 1999, “approximately July or August,” later adding that “it might have been May.” Tr. at 112-113. However, the individual informed the DOE psychiatrist during the July 1999 evaluation that he took his last drink on May 5, 1999, shortly before his last DUI arrest. Therefore, unless the individual had drinks with the co-worker during the first four days of May 1999, the individual ingested alcohol in a bar after stating that he would not drink again, and after specifically saying that he would avoid drinking in bars. PSI at 90-91.