Case No. VSO-0326, 27 DOE ¶ 82,841 (H.O. Goldstein April 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

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: December 27, 1999

Case Number: VSO-0326

A Department of Energy Operations Office (the DOE office) suspended the access authorization of XXXXXXXXXXXXXXX (hereinafter referred to as "the individual") 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 conclude in this Opinion that on the basis of the evidence and testimony presented in this proceeding, the individual’s access authorization should be restored.

I. Background

On June 2, 1999, the DOE office issued a Notification Letter informing the individual that her access authorization had been suspended because information in the possession of the DOE created substantial doubt concerning her eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of 10 C.F.R. § 710.8, subsection (j) (Criterion J). The DOE office invoked Criterion J on the basis 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.” In support, the Notification Letter referred to the DOE consultant psychiatrist’s diagnosis of the individual as suffering from the condition of alcohol abuse and her arrests for driving under the influence of alcohol (DUIs) in March 1998 and November 1998. The DOE office also noted that at the time of her evaluation by the DOE consultant psychiatrist in March 1999, she was still consuming three glasses of wine and two beers per week, despite the fact that her court-ordered probation required her to maintain sobriety. See DOE Ex. 19.(2)

The individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). (3) At the hearing, the DOE Counsel called two witnesses: the DOE consultant psychiatrist and a DOE security specialist. The individual called five witnesses: herself, her Employee Assistance Program (EAP) psychologist, her husband, co- worker and sister.

II. The Hearing

The individual does not dispute the essential facts listed in the Notification Letter but believes she is now rehabilitated. During a Personnel Security Interview, she explained that she became extremely depressed when a long-term relationship broke off in October 1997. Her drinking intensified and she went from drinking light beer to drinking stronger beer and hard liquor. Transcript of Personnel Security Interview (PSI Tr.) at 28-29. It was not however until the second DUI, in November 1998, that she realized the impact alcohol was having on her life. At that point, the judge sentenced her to ten days of jail time because she had not submitted proof of having followed the court-imposed requirements arising out of her first DUI conviction. She began seeing the EAP psychologist in December 1998 because she realized she needed professional help. Tr. at 42.

At the hearing, the individual testified that at the beginning of therapy, she did not see herself as an alcoholic and did not realize the significance of her consumption of even one alcoholic drink. Therefore, she had one drink before Christmas 1998 and drank non-alcoholic beer, as well. PSI Tr. at 34. Then, she stated at the hearing that in March 1999, she had one glass of wine on one occasion and on an earlier occasion she had two beers. See Tr. at 72-73. But see DOE Ex. 5 at 2 (according to DOE consultant psychiatrist’s report, she reported drinking three glasses of wine and two glasses of beer per week.)(4) She then realized it was wrong to take even one drink, and stopped drinking completely. She now believes that she is a recovering alcoholic and is committed to maintaining her sobriety. Tr. at 76-77. She has been in therapy with the EAP psychologist between two and four times per month for the last fifteen months. Tr. at 46. They meet for about an hour each time. She has attended Alcoholics Anonymous (AA), her court- ordered alcohol treatment program, and has been randomly tested for drug and alcohol use. See Indiv. Ex. 1; Tr. at 77. She further explained that she started dating her husband one year ago (after knowing him three years previously) and they married about seven months ago. She described her husband as a very stabilizing influence. They live on his farm, and they spend a great deal of time taking care of cattle and the rest of the ranch. These activities keep her busy enough to keep her focus away from alcohol. Tr. at 73, 76, 82-3. When she gets stressed, she likes to feed a baby calf. She testified that her husband is fully committed to her sobriety. Tr. at 74, 80.

The individual’s EAP psychologist testified that she believes the DOE consultant psychiatrist’s diagnosis of alcohol abuse was accurate at the time it was made. She further noted that when the individual began counseling she was still in a state of denial about her problem, and that they have had many discussions about the individual’s candor during the program and about commitment to sobriety. She appeared quite surprised to hear about the individual’s December 1998 and March 1999 slips. However, she felt that the individual was currently in a state of full remission, although she also noted that it is possible for anyone with a substance abuse problem to relapse. Tr. at 88. Overall, she felt that the individual had made the changes in her life necessary to achieve sobriety, especially with the greater stability brought to her life by her new husband. Tr. at 49.

Based on his observation of the individual’s testimony and witnesses during the approximately three-hour hearing, the DOE consultant psychiatrist stated that the individual could now be considered in full remission and rehabilitated. Tr. at 131. He explained that he saw the six to twelve months of sobriety, higher level of social and work functioning, 12-step program attendance and the future commitment to sobriety necessary for him to change his diagnosis. He noted that when he saw her one year previously, she was very depressed and tearful, whereas at the hearing, despite the stress of the event, she was quite calm and functioning. I asked him whether he recalled precisely what she had said about the extent of her drinking in March 1999 or the period immediately beforehand. He could not recall and did not retain any notes from the evaluation. He did believe that he had transcribed her words in a verbatim manner fairly soon after he met with her. Tr. at 132-3. Despite this discrepancy between his report of her drinking and the individual’s hearing testimony as to the extent of her slip in March 1999, he was still convinced that she is now in full remission. Tr. at 137. In addition, he expressed his opinion that the candor issues identified by the EAP psychologist were common among substance abusers, and did not invalidate his new findings regarding the individual. Tr. at 136. (5)

Finally, the individual presented convincing evidence from her husband, co-worker and sister, that she has in fact not consumed alcohol since March 1999. Tr. at 97. Her husband explained that the two of them spend a lot of time going to events called “round- ups” where cattle are branded. Although alcohol is freely available there, she never drinks at these events, nor is she pressured to drink. He also noted that although his wife had experienced a lot of ups and downs with the clearance process in the last year, she is more optimistic and stable than a year ago. Tr. at 102. Her sister and co-worker also testified that she seems to be in a much better and happier frame of mind now than she was a year or so ago. Tr. at 115-16; 125-26.

IV. 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 a Part 710 case, we are applying 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 the DOE 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 granting 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 access authorization. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of access authorizations 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) (strong presumption against the issuance of access authorization). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

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. 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 should be granted access authorization since I conclude that such a grant would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

On the basis of the record, I find that the DOE brought forth sufficient derogatory information to raise a security concern regarding Criterion J. Additionally, I agree with both the EAP psychologist and the DOE consultant psychologist that the individual has presented sufficient evidence of her remission from that condition, and that for a significant period of time, she has been seriously committed to a new sober and stable life-style, thereby demonstrating rehabilitation. As found by the DOE consultant psychiatrist, the individual appears to have gone beyond simply remaining abstinent, by committing to an entire program of sobriety, including improving her work and social functioning, participating in AA and alcohol education classes, getting therapeutic help for more than one year, and committing to maintaining her sobriety in the future. I note especially that the individual’s EAP psychologist appeared to give a very candid assessment of the individual, noting the difficulties the individual has experienced but still finding her condition to be in full remission. (6) Although there is conflicting evidence as to the precise amounts the individual was drinking in the March 1999 period (and in the time period preceding that month), the individual has established, with the aid of her character witnesses, that she has remained abstinent for approximately the past twelve months. Her husband struck me as being very forthright and honest, and I do not believe she could drink without her husband’s being aware of it. I further find that she now has a support system, which includes her husband and therapist, in place to deal with stressors, and thus avoid the depression/alcohol loop she formerly found herself in. I believe she is committed to maintaining her sobriety in the future. I therefore conclude that the individual has mitigated the security concerns of the DOE.

V. Conclusion

For the reasons set forth in this Opinion, I find that DOE properly invoked 10 C.F.R. § 710.8(j) in suspending the individual’s application for access authorization. It is my opinion that, within the meaning of those provisions, the individual has been a user of alcohol habitually to excess and has been diagnosed by a board-certified psychiatrist as alcohol abusive. However, the individual has also presented adequate evidence of mitigation of the security concerns of DOE. In view of these criteria and the record before me, I find that lifting the suspension of 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 OH 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

Virginia A. Lipton for

Dawn L. Goldstein

Hearing Officer

Office of Hearings and Appeals

Date: April 14, 2000

(1)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.

The transcript taken at the hearing held in this case shall be hereinafter cited as “Tr." Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits and shall be cited respectively as "DOE Ex." and “Indiv. Ex.”

(2)The Notification Letter also referred to her court-ordered alcohol treatment program requiring her to maintain sobriety. At the hearing, the security specialist clarified that according to that program, she was required to attend the program fully sober, but at all other times only recommended sobriety. See DOE Ex. 20.

(3)Dawn Goldstein, the Office of Hearings and Appeals (OHA) hearing officer originally appointed by OHA Director George Breznay to hear this matter, is no longer with the Office. Prior to leaving OHA, Ms. Goldstein drafted the instant Opinion. However, the transcript of the hearing was not available prior to her departure. She was therefore not able to include citations to the transcript in her draft. After her departure, I was appointed as Hearing Officer in this case. The OHA then received a copy of the transcript. I have reviewed the transcript and, on Ms. Goldstein’s behalf, I have included appropriate references to the transcript in this Opinion. I have made no other material emendations to her draft opinion, with which I agree, other than to sign it below.

(4)The individual did not tell her EAP psychologist at the time about these slips. She explained that she thought she was leaving DOE at the time and therefore did not think it was necessary.

(5)Earlier in the hearing, the individual testified that during her first DUI in March 1998, she was driving 96 miles per hour in a suicide attempt. I asked the DOE consultant psychiatrist whether this suicide attempt raised any kind of security concern. He replied that he believed that both at the time he saw the individual initially in March 1999 and at the hearing, that the individual’s depression problems are well under control and in remission.

(6)Before the hearing, I suggested to the individual that she submit her records from her EAP counseling, including the treatment notes of her EAP psychologist, in order for her to better corroborate the progress of her therapy as well as her abstinence. See Record of Telephone Conversation between Individual and Hearing Officer (March 9, 2000) and Electronic Mail from Hearing Officer to Individual (March 10, 2000). She did submit records of her AA attendance and negative drug and alcohol tests. Indiv. Ex. 1. After the hearing, the individual informed me that she wished to maintain the confidentiality of the treatment notes. See Electronic Mail from Individual to Hearing Officer (March 23, 2000). Despite a provision in 10 C.F.R. § 710.6(a) regarding full cooperation by the individual, I do not believe the absence of these records in this particular case is a bar to recommending restoration of access authorization. In this case, where the individual’s EAP counselor has testified fully and frankly about the individual’s treatment progress and prognosis, this testimony is sufficient on the relevant issues.