Case No. VSO-0329, 27 DOE ¶ 82,850 (H.O. Woods May 17, 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.

May 17, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: January 6, 2000

Case Number: VSO-0329

This Opinion considers the eligibility of XXXXXXX (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." As explained below, it is my opinion that the individual's request for access authorization should be granted.

I. BACKGROUND

The individual is an employee of a Department of Energy (DOE) contractor that manages a DOE Area Office. In 1998, this contractor requested access authorization for the individual for use in connection with his employment. The individual previously had possessed a DOE access authorization for several years, but this clearance was suspended in 1991 and terminated in 1992 after admissions of drug use by the individual raised serious questions regarding the individual’s eligibility for access authorization. DOE security personnel conducted an interview with the individual in February 1999 (the 1999 PSI) . In addition, at the request of DOE security, the individual was evaluated by a DOE-consultant psychiatrist (hereafter "the DOE psychiatrist"), who issued a Report containing his findings and recommendations in August 1999 (the “Report”). In December 1999, the Director of Personnel Security of the Area Office (the Security Director) issued a Notification Letter to the individual. The Notification Letter states that the DOE psychiatrist found that the individual "has an illness/mental condition: (1) Substance Dependence, Alcohol, with Physiological Dependence, in Sustained Partial Remission and Substance Dependence. The Letter also presents the DOE psychiatrist’s finding that the individual

is currently drinking, and therefore, does not show adequate evidence of rehabilitation or reformation. This illness/mental condition has caused in the past, and may cause in the future, a significant defect in his judgment and reliability, mainly because he is currently drinking.

Notification Letter, Enclosure 2 at p. 1. The Notification Letter therefore finds that the individual’s alcoholism is an illness or mental condition which is subject to the provisions of 10 C.F.R. § 710.8(h) and (j) [Criterion (h) and Criterion (j)] .

The Notification Letter also identifies a security concern that falls within the regulatory provision set forth at 10 C.F.R. § 710.8(l) [Criterion (l)]. Criterion (l) concerns information that an individual engaged in unusual conduct or is subject to any 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. This concern is described as follows:

Following an administrative review hearing conducted [in 1991], the hearing officer . . . submitted a Statement of Findings and Recommendations [the 1991 SFR] . . ., in which he stated that he was of the opinion that it could endanger the common defense and be clearly inconsistent with the national interest to reissue access authorization to [the individual] at that time. He recommended that Respondent . . . not be reissued access authorization.

Notification Letter, Enclosure 2 at p. 2.

The individual requested a hearing to respond to the concerns raised in the Notification Letter. In the pre-hearing submissions made by the individual’s counsel, the individual did not contest the correctness of the findings of fact made in the 1991 SFR. He indicated that he would present expert evidence aimed at challenging the DOE psychiatrist’s conclusion that his current level of alcohol consumption was causing, or was likely to cause in the future, a significant defect in his judgment and reliability. Accordingly, the hearing convened on this matter focused chiefly on the concerns raised by the individual’s continuing consumption of alcohol, and on the individual’s efforts to mitigate those concerns through the testimony of expert medical witnesses and individuals who are knowledgeable concerning the individual’s pattern of alcohol consumption in recent years. The individual and seven other witnesses, two presented by the DOE and five by the individual, testified at the hearing.

II. REGULATORY STANDARD

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. §§ 710.21(b)(6) and 710.27(b), © and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. The 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). The individual must come forward at the hearing with evidence 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). Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA- 0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, we generally expect the individual in these cases to bring forward witness testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

B. Basis for the Hearing Officer's Opinion

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue an Opinion as to whether granting an 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(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 must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing.

III. ANALYSIS

A. CRITERIA (h) and (j) CONCERNS

In this case, the DOE psychiatrist concluded in his Report that, based on the individual’s admitted past behavior in connection with alcohol and drugs, the individual “meets the DSM-IV criteria for Substance Dependence Alcohol, Cocaine, and Marijuana during a several year period in the late 1980's.” (1) With respect to the diagnoses of cocaine and marijuana dependence, the DOE psychiatrist accepts the individual’s assertion that he has not used cocaine, marijuana or other illegal drugs since 1990, and concludes that “[t]he subject’s Substance Dependence Cocaine and Marijuana appears to be in Sustained Full Remission.” Report at 10 and 18.

However, with respect to alcohol, the DOE psychiatrist found that the individual should be diagnosed as Substance Dependence, Alcohol, with Physiological Dependence, in Sustained Partial Remission, based on the individual’s admission that he has been consuming moderate quantities of alcohol from 1990 to the present time. In his Report, the DOE psychiatrist recounted the following statements by the individual concerning his current use of alcohol:

I asked the subject if he is currently drinking alcohol, to which he answered, “My doctor tells me that I should drink a glass of red wine each day for cholesterol reasons.” I asked him if he has high cholesterol, to which he answered, “moderately high, just over 200.” I asked him if he were on any medication to lower his cholesterol. He said, “no.”

I asked the subject to describe for me his current pattern of drinking. He told me that “I usually have a drink when I get home from work, a glass of red wine or a beer.” I asked him, “one?” He said, “On weekdays, yes. On weekends, a couple of beers. I asked him what was the most he has had to drink in a 24-hour period in the past year? He said, “Weekends at home, 3-4 beers in an afternoon.” I asked if he drinks hard liquor, to which he responded, “Yes, an occasional Margarita.” . . .

I reviewed the subject’s “Past Medical History” with him. . . . I asked the subject why he is currently drinking with Hepatitis C, since one of the most damaging things that one can do to your liver with Hepatitis C is to drink alcohol. I asked him if he was sure that [the individual’s Personal Physician] recommended this, especially since he has a known history of alcohol and drug problems. He was evasive in answering this question.

Report at 12-14. The DOE psychiatrist provided the following explanation of his diagnosis of Substance Dependence:

Substance Dependence is a time-independent trait, compared to Substance Abuse, which is a time-dependent state. What this means is that once one has a diagnosis of Substance Dependence, one always has the diagnosis, even if the disorder is in Sustained Full Remission in a state of “recovery.” . . .

Therefore, the critical issue is that the subject met the DSM-IV criteria for Substance Dependence, Alcohol in the late 1980's, which establishes that he is (not was) an alcoholic. He is, therefore, still an alcoholic, even though his alcoholism is in Sustained Partial Remission.

Report at 19. He therefore concluded that, because the individual is still drinking, there is inadequate evidence of rehabilitation and reformation from his alcoholism.

[The subject] is an “alcoholic,” and he is currently drinking, albeit allegedly in “moderation.” However, the only acceptable drinking for someone who [ever] met the DSM-IV criteria for Substance Dependence, Alcohol, is complete, 100% abstinence from alcohol and all non-prescribed controlled substances. With his self- report of cholesterol of 149, which is very low, it makes no sense that someone with his alcohol history and history of Hepatitis C should be drinking one drink a day “to keep his cholesterol down.” However, he is drinking more than one drink a day, anyway. Because he meets the DSM-IV criteria for Substance Dependence, Alcohol, any drinking is evidence that there is not adequate evidence of reformation.

Report at 20. The DOE psychiatrist concluded that the individual’s Substance Dependence causes or may cause a significant defect in judgment or reliability.

Were the subject not currently drinking, one could make an argument that his Substance Dependence for Alcohol, Cocaine, and Marijuana have all been in Sustained Full Remission for 9 years, and that this is long enough to be a mitigating factor for his illness/mental-condition-related, significant defect in judgment and reliability in the past. However, by the fact that he is currently drinking, he has to be considered a currently-controlled, drinking alcoholic. His risk for alcohol-related problems [is] higher than someone without this diagnosis and his risk for relapse into Substance Dependence Cocaine and Marijuana [is] higher than if he were not currently drinking.

Report at 21. Under direct and cross examination at the hearing, the DOE psychiatrist reiterated these findings and conclusions contained in his Report, and further discussed the bases for his diagnosis of Substance Dependence, Alcohol. Tr. at 93-132.

Through his own testimony and the testimony of his witnesses, the individual attempted to show that his nine years of moderate alcohol use provided a reasonable basis for concluding that the concerns raised by the DOE Psychiatrist’s diagnosis of Substance Dependence, Alcohol had been mitigated. He testified that his drinking from 1990 until the present has been moderate, with a gradual lessening in frequency during that period. Tr. at 44-45.

Well, if you look at the last four months, it’s been about three drinks a week. If you look prior to that, one drink in the evening after work and maybe two drinks on weekends, on a Saturday or a Sunday.

Tr. at 45. As corroborative support for his position that he has been drinking moderately since 1990, he presented the testimony of his wife and a friend/co-worker. His wife testified that she first met the individual in late 1991, and has lived with him since October 1992. She testified that his drinking has always been moderate and has declined since the birth of their daughter in September 1995. Tr. at 63-70.

. . . [W]e’re trying to set as good an example as we possibly can for her, . . . and he wants to be healthy enough to see her grow. With the heart disease in his family and high cholesterol and all that stuff, he wants to be around for a while.

Tr. at 70. The friend/co-worker testified that he and the individual have been close friends for nine or ten years and that they share an strong interest in riding motorcycles

[H]is family and myself and part of my family . . . , we do camping trips during the summertime, one or two camping trips a year. We [also] ride motorcycles together, that’s his wife and myself and other folks.

Tr. 82. The friend/co-worker testified that he had seen the individual affected by alcohol in social situations, but not to the point where he had been concerned for the individual or those around him. Tr. at 84 and 87. He testified that the most recent instance of heavy social drinking had been “at least a year time frame, maybe more.” Tr. at 84. He also testified that aside from one episode, in the early 1990's, the individual has been careful not to drink and drive.

[T]he last time I saw [the individual] driving any kind of a motor vehicle to where I thought he might be impaired was in the early '90's.

Tr. at 85. He further stated that “there was a case in the early '90's that I saw that one time, and since then, I have not.” Tr. at 86. Under questioning, he recalled that this incident occurred in 1993. Tr. at 90.

The testimony of his wife and friend/co-worker generally supports the individual’s assertion that he has been drinking at a generally moderate level in recent years, and that his alcohol use has been gradually declining. However, the friend/co-worker’s recollection of a possible drunk driving incident in 1993 is disturbing and cannot be reconciled with the individual’s assertion that he was in full control of his use of alcohol at that time. Based on this testimony, I find that individual’s assertion that he drinks in moderation can only be sustained beginning in 1994. The testimony at the hearing therefore permits me to conclude that he has been a controlled drinker for approximately six and one half years.

The individual also presented evidence on whether his current level of drinking was hazardous to his health and therefore indicative of ongoing substance abuse. A February 23, 2000 letter from the individual’s Personal Physician indicated that both he and a Consulting Physician had advised the individual that one drink per day would not aggravate the individual’s Hepatitis C infection.

[The individual] has been my patient since 1983. Although he has a history of Hepatitis C infection, he has no current evidence of Chronic Hepatitis C. Repeated blood tests since December, 1984 have shown normal liver function tests (GGT, ALT, SLT). He has previously been advised by [the Consulting Physician] and by me that one alcoholic drink per day should not increase the risk associated with his previous diagnosis of Hepatitis C, particularly in light of the fact that he is monitored with blood tests at yearly intervals and understands the symptoms of hepatitis.

Individual’s Exhibit I. The individual’s Consulting Physician also presented evidence through an affidavit and appearance at the hearing. In his affidavit, he stated that daily consumption of the alcohol found in one glass of wine (approximately 15 grams) would not risk exacerbation of the individual’s Hepatitis C condition, and would actually be preferable to prescription drugs in treating the individual’s elevated cholesterol.

At first blush one might conclude, . . . that there is no reason for [the individual] to use alcohol for the benefits he claims - that he can get the same result by using prescription drugs instead. But some such drugs - statins, for example - can cause a rise in liver enzymes, not to mention other potentially deleterious side effects. (Though actual liver disease as a side effect of such drugs is rare, elevated liver enzymes can confuse the clinical picture in patients who are being followed for Hepatitis C.) Moreover, statins, which address only heart disease, may not yield the same overall mortality reduction as does a single daily drink of alcohol.

Assuming that there are no other risk factors, it is therefore probably preferable for [the individual] and his physician to use alcohol to lower his cholesterol levels, rather than drugs. The greatest concern would be that [the individual’s] alcohol consumption be strictly limited to one, and only one, drink per day, due to his previous history of substance abuse, and to the presence of Hepatitis C virus.

March 9, 2000 Affidavit of the individual’s Consulting Physician.

At the hearing, the Consulting Physician testified that up to 30 grams of alcohol per day is not associated with the progression of liver disease in patients with Hepatitis C.

Therefore, my bottom line recommendation to [the individual] was that as long as he was consuming less than two-and-a-half drinks a day, to be precise, that the cardiovascular benefits were clear and demonstrable, particularly in his high-risk group, and that there was no progression of Hepatitis C.

Tr. at 187-88. He noted that the recommendation in his Affidavit that the individual restrict himself to a single drink per day was based solely on his previous history of substance abuse, and not on any risk to the progression of Hepatitis C. Tr. at 196. Based on the evidence from the individual’s Personal Physician and his Consulting Physician, the individual appears to have been encouraged to drink a moderate amount of alcohol for his cardiovascular health, despite his Hepatitis C infection. Accordingly, I find no indication that the individual consciously consumed alcohol in disregard of a health risk posed by his Hepatitis C infection. It therefore appears that, for the last six and one half years, the individual has been consuming alcohol in a moderate and controlled manner.

Finally, the individual presented the testimony of the Consulting Psychiatrist, who testified concerning the diagnosis made by the DOE Psychiatrist and concerning the individual’s prognosis for controlling his alcohol and drug consumption in the future.(2) At the individual’s request, the Consulting Psychiatrist had conducted a Psychiatric Evaluation of the individual and he submitted his written report of this evaluation (the “Evaluation”) at the hearing (the Individual’s Exhibit F). In rendering his assessment of the individual’s current level of risk for future problems relating to alcohol, the Consulting Psychiatrist first acknowledged that the individual “has fully admitted that he used alcohol, marijuana, and cocaine in a manner that met the DSM-IV criteria for substance dependence in the past.” Evaluation at 4. He therefore does not challenge the DOE Psychiatrist’s diagnosis for the individual of “Substance Dependence, Alcohol, Marijuana and Cocaine,” but uses that as the basis for evaluating the individual’s current status.

Once a diagnosis of substance dependence is made by DSM-IV standards the diagnosis persists for the rest of his or her life. If the subject no longer meets the requirements for substance dependence then the disease is considered to be in remission. Sustained full remission is defined as meeting none of the criteria for substance dependence or abuse for a period of twelve months or longer. If some of the criteria are met (but not enough to invoke the diagnosis), then the subject is considered to be in sustained partial remission.

Id. The Consulting Psychiatrist finds that the individual’s use of alcohol “over the past few years” has not resulted in any of the symptoms of substance dependence or abuse. In this regard, he discusses the individual’s use of alcohol in light of his Hepatitis C infection. He concludes that “it appears that [the individual] is not placing himself in a position to exacerbate a physical condition, as his use [of alcohol] since learning of the diagnosis of Hepatitis C can be classified as low, averaging less than one and one half drinks per day.(3) Id. He therefore finds that the individual’s current use of alcohol is healthy, and that he possesses a strong motivation to continue to limit his alcohol consumption.

Research has indicated that the consumption of one glass [of beer or wine] daily significantly lowers the risk of hear disease and cerebral vascular accidents. Given his familial history of cardiovascular disease, this strategy is of particular importance to him. Therefore, the amount of alcohol he has been consuming over the past four years, on the balance, appears to be beneficial to his health. In addition, he cites the strongly motivating factor of the birth of his daughter. With her presence in his life, he has made a genuine commitment to maintaining his health and well being. This includes not using drugs and not using alcohol to excess.

Id. at 4-5. The Consulting Psychiatrist therefore rendered a diagnosis of “Possible Substance Dependence in full remission: alcohol, marijuana and cocaine.”

At the hearing, the Consulting Psychiatrist discussed the issue of whether someone who has met the criteria for alcohol dependence can be considered to be in full remission if he continues to drink even a moderate amount of alcohol. He concluded that the individual’s performance over the last several years indicates that he can handle moderate alcohol consumption in spite of his diagnosis.

So I think that even though he’s drinking at this time, that the fact that he’s gone eight years without drinking to abuse is very significant. We need to look at the reality of the situation, not what our theories are or not what happened over ten years ago. . . .

Now, I agree with [the DOE psychiatrist] , as a physician, that if [the individual] had come into my office back in 1990 -- and I actually may have supervised one of the people who saw him back in '91 -- I would have said, “Yes, abstinence is the way to go,” but he’s proven that he’s gone and done very well without abstinence. In fact, I think one would argue that he’s probably had a better outcome than the majority of people who go through treatment. Basically, eight years without any evidence of problems is better than you would expect with people who you refer for treatment if you make the diagnosis of dependency. So I think he’s demonstrated that he has had a good outcome and therefore that lowers the risk of having a relapse based on, again, his last eight years.

Tr. at 147-48. He also indicated that, given his demonstrated ability to control his drinking, his risk of relapse to alcohol or drug abuse was not significantly greater than someone with his diagnosis who was attempting to maintain sobriety.

I’ve certainly treated people who have been abstinent for 15, 20 years who have relapsed. So I think he would have probably an equal amount of risk, and then that risk would probably be more dependent on things like social support, you know, if you have some -- let’s say his marriage were to end, if he has other people he can turn to, that would probably be a bigger factor than whether he’s drinking two drinks a day or not drinking anything.

Tr. at 163. When asked to quantify the individual’s risk of relapse over the next ten years, the Consulting Psychiatrist pegged the risk at less than fifty percent.

Given the 50 percent criteria, I would say that it’s less than 50 percent . . . that he certainly over the past ten years has not demonstrated a difficulty with the way that he’s drinking, that he most likely over the next ten years will not either.

Tr. at 171. While the DOE Psychiatrist initially maintained that the individual had a greater than fifty percent chance of abusing alcohol in the next ten years, he modified his position at the close of the hearing.

Again, it’s hard to quantitate high, medium or low [risk]. You had said 50 percent before, and my statement was that I thought there was at least a 50 percent chance in ten years, if he continues to drink, that he’ll get into trouble one way or another with alcohol, but I would say it’s somewhere between a 25 and 50 percent risk if he drinks.

Tr. at 223. The DOE Psychiatrist also stated at the close of the hearing that he continued to believe that anyone diagnosed with Substance Dependence, Alcohol cannot be in a state of reformation “even if he’s drinking in a controlled way.” Id. However, he now felt, having heard the testimony of the individual and his witnesses, that “an element of gray” had been introduced concerning the individual’s current diagnosis. He conceded that it is possible that the individual has achieved a state of “complete remission” from alcohol dependency as opposed to the diagnosis of “partial remission” from alcohol dependency set forth in the DOE Psychiatrist’s Report. Tr. at 221-22.

In the administrative review process, it is the Hearing Officer who has the responsibility for making the initial decision as to whether an individual with alcohol and/or drug problems has exhibited rehabilitation or reformation. See 10 C.F.R. § 710.27. The DOE does not have a set policy on what constitutes rehabilitation and reformation from substance abuse, but instead makes a case-by-case determination based on the available evidence. Hearing Officers properly give a great deal of deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (finding of rehabilitation); Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (finding of no rehabilitation). In the present case I find that the individual has successfully mitigated the concerns of alcohol and drug dependency raised by his actions prior to 1991. He states that he has not used illegal drugs since 1990, and he has been diagnosed as in complete remission for “Substance Dependence, Marijuana and Cocaine” by both the DOE Psychiatrist and the Consulting Psychiatrist. The individual’s use of alcohol has been controlled and moderate for the last six and one half years, and particularly since of the birth of his daughter four years ago. Both psychiatrists have placed his risk of relapse over the next ten years at less than fifty percent. Of course, these figures are only estimates that cannot be precisely relied upon. Far more convincing to me is the testimony of the Consulting Psychiatrist, presented above, concerning the importance of several years of moderate drinking in establishing the ability of the individual to consume alcohol in a responsible fashion. It is clear from this testimony that the Consulting Psychiatrist firmly believes that the individual has demonstrated reformation from his condition of alcohol dependency. I find the Consulting Psychiatrist's evaluation to be reasonable and persuasive, and accept his conclusion that reformation has occurred. The DOE Psychiatrist, although not fully convinced that anyone diagnosed with alcohol dependency should ever attempt to consume alcohol, was sufficiently impressed with the evidence of reformation presented at the hearing to call his own diagnosis of “partial remission” into question.

Accordingly, I find that the individual has successfully mitigated the Criterion (h) and (j) concerns set forth in the Notification Letter.

B. Criterion (l) Concerns

With respect to Criterion (l), the Notification Letter cites the 1991 SFR, in which the Hearing Officer recommended against restoring the individual’s access authorization, as the basis for the DOE’s concerns regarding the individual’s honesty, reliability and trustworthiness. Notification Letter, Enclosure 2 at p. 2. In the 1991 SFR, the Hearing Officer found that in 1986 the individual completed a PSQ [the 1986 PSQ] on which he indicated he that had never used illegal drugs. However, during a Personnel Security Interview conducted in early 1991 [the 1991 PSI], the individual admitted to the frequent use of illegal drugs, including marijuana and cocaine, from 1973 through November 1990. 1991 SFR at 2. At his 1991 hearing, the individual denied that he deliberately falsified the 1986 PSQ, because at that time he was in denial concerning his drug use. The Hearing Officer rejected this contention and found that the individual’s false answer was deliberate. Id. at 12-13. The Hearing Officer also found that the individual had not yet demonstrated rehabilitation or reformation from illegal drug use. He indicated that additional abstention, counseling and participation in group activity was needed before a favorable finding of rehabilitation or reformation would be warranted. Id. at 13.

In light of the recent diagnoses by both the DOE Psychiatrist and the Consulting Psychiatrist that the individual’s “Substance Dependence, Marijuana and Cocaine” is in “Sustained Full Remission,” I find that the individual has adequately mitigated the concerns raised by his extensive use of illegal drugs prior to December 1990. However, the finding that the individual deliberately falsified his 1986 PSQ raises serious and continuing Criterion (l) concerns regarding the individual’s honesty, reliability and trustworthiness.

At the recent hearing in this matter before me, the individual admitted that he lied on the 1986 PSQ when he checked a box indicating that he had never used illegal drugs. He acknowledged that “I knew I was making a lot of bad decisions in those days.” Tr. at 51. He stated that “for a two and a half year period” in the late 1980's, his uncontrolled use of illegal drugs and alcohol was causing him to make “a lot of bad decisions, and [falsifying the 1986 PSQ] was probably the worst one.” Tr. at 52.

One thing that I remember when I was answering that question was that even though the lifestyle that I was leading back then was totally wrong, I didn’t want it to change.

Tr. at 53. At a later point in the hearing, he reiterated that his uncontrolled dependence on alcohol and illegal drugs at that time prompted his false statement, and that in normal circumstances he is an honest and trustworthy person.

I can’t explain why I answered that question falsely. I don’t consider myself to be an untrustworthy person. I don’t like it when people lie to me and I try never to lie to anybody else, but the circumstances around me answering that question were very excruciating.

Tr. at 217.

It is clear that the individual gave false information about his illegal drug use in his 1986 PSQ. However, the evidentiary record indicates that since his drug use ended in 1990, the individual’s conduct of his professional life has not raised additional concerns regarding his honesty, reliability and trustworthiness. The individual’s supervisor, who has worked with the individual for approximately fifteen years, testified at the hearing that since 1990, the individual has presented no problems “whatsoever” with regard to his reliability and competence in the workplace. Tr. at 15. Although the supervisor was aware of the individual’s falsification of his 1986 PSQ with respect to his drug use, he nevertheless testified that he unreservedly supported the individual’s efforts to have his access authorization restored. “I have no - I have no qualms - I have no concerns about his capability of handling and maintaining [restricted] information.” Tr. at 18. The individual’s friend/co-worker also spoke highly of the individual’s personal trustworthiness to handle special nuclear materials and safeguard restricted information.

In my line of work, with some of the materials that I deal with and am responsible for, . . . I have to make sure that the people that are going to be working with me -- that I can trust them, that there are not going to be any mistakes at any given time. . . . There is zero room for mistake. . . . In that light, I would trust [the individual] without a doubt, if he were trained in the type of work, and from any other standpoint, I would trust [the individual] without a doubt.

Tr. at 88-89.

Previous Office of Hearings and Appeals (OHA) opinions in personnel security cases have considered clearance holders who gave false information on security forms and in security interviews. In some cases, there is clear evidence of a pattern of dishonesty which raises very serious concerns with regard to an individual’s character. In one OHA case where restoration of access authorization was not recommended, the individual involved gave false information on a Standard Form 171 (government job application) to DOE claiming that he had received bachelor’s and master’s degrees when in fact he had not. More significantly, the individual in that case failed to disclose on a security form that he had been suspended from the Active Army Reserve for giving false information including altered documents about his prior service record, and his training as a pilot in the Marine Corps which he did not complete. Personnel Security Hearing (Case No. VSO- 0075), 25 DOE ¶ 82,799 (1996), aff’d., 26 DOE ¶ 83,005 (OHA Nov. 8, 1996), aff’d. (OSA Dec. 30, 1996). In that case, the individual denied in a PSI that he had given false information about his credentials, and he also gave vague and evasive answers to questions posed by the interviewer. The Hearing Officer was not persuaded that the individual’s “long history of classified work suggests that he has never compromised his country’s security,” finding that the individual’s past pattern of dishonest conduct outweighed the favorable aspects of his work with DOE. In the present case, the individual only provided a single dishonest answer on his 1986 PSQ. At the 1991 PSI, the individual provided accurate information to his interviewers. Accordingly, the individual in the present case has not exhibited a pattern of dishonest conduct that would indicate a fundamental defect of character.

Measuring the individual’s dishonest answer on the 1986 PSQ against the standards set forth in 10 C.F.R. § 710.7(c), I find that it was serious in nature because it could have made the individual vulnerable to coercion by someone who discovered that the individual was hiding his history of drug use from the DOE. However, that is no longer a concern since the information is now out in the open. In addition, I find that his dishonesty was knowledgeable and voluntary, and that it took place when he was a mature adult in his late twenties. On the positive side, since it involved only one question on a PSQ, I find the individual’s dishonesty was an isolated event. I believe that the individual’s dishonest answer on the 1986 PSQ was related to his uncontrolled use of alcohol and illegal drugs in the late 1980's, and was not typical of his general behavior in other periods of his life and or in his career. Finally, I believe that for a period of more than five years, the individual has shown himself to be reformed his negative behaviors with respect to both alcohol and illegal drugs, and to be fully in control of his life.(4)

The DOE security program is based on trust, and once an individual has breached that trust, a serious question arises as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995), aff’d. (OSA, May 22, 1995). Accordingly, the period following an individual’s confession of making false statements to the DOE must be of sufficient length to demonstrate that the individual will continue to be open and truthful with the DOE in all areas of security concern. In one case involving an individual who had lied about his illegal drug use to the DOE and violated a certification that he would abstain from illegal drugs in the future, the OHA Director found that the individual must “provide corroboration to demonstrate a significant period of truthfulness” before the serious security risks associated with such behavior could be viewed as fully mitigated. The OHA Director therefore reversed the hearing officer’s recommendation to restore access authorization, finding that the period of truthfulness of approximately one year advanced by the individual was inadequate. Personnel Security Hearing (Case No. VSO-0242), 27 DOE ¶ 82,799 (1999), rev’d., 27 DOE ¶ 83,017 (OHA August 25, 1999), aff’d. (OSA November 22, 1999).

In a recent determination, a hearing officer found that, even after 19 months, the individual in her opinion had not yet proved that he was rehabilitated from lying, and therefore had not yet earned back the right to be trusted again with a DOE access authorization. Personnel Security Hearing (Case No. VSO-0289), 27 DOE ¶ 82,823 (1999), request for review pending. In the present case, given the strength of the evidence that the individual has significantly reformed his life and has maintained his efforts for more than five years, I find that he has mitigated the concerns raised by his 1986 false statement that concealed his use of illegal drugs.

IV. CONCLUSION

For the reasons set forth above, I find that the individual suffers from the disorder of “Substance Dependence, Alcohol, Marijuana and Cocaine,” as diagnosed by a board-certified psychiatrist. Further, in resolving the issue concerning the individual's eligibility for access authorization, I find that this derogatory information under Criterion (h) and (j) has been mitigated by sufficient evidence of reformation. I also find that the individual has mitigated the Criterion (l) concerns raised by his dishonest response to a question on his 1986 PSQ and by his previous use of illegal drugs. Accordingly, after considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, it is my opinion that the individual has demonstrated that granting him a clearance would not endanger the common defense and would be clearly consistent with the national interest. It therefore is my opinion that the individual's request for access authorization should be granted.

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., SW, Washington, DC 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.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: May 17, 2000

(1)He also concludes that the individual met the DSM-IV criteria for the less severe diagnosis of Substance Abuse Alcohol, Cocaine, and Marijuana, in the late 1980's. However, he notes that this is a “default diagnosis”, since he also meets the criteria for Substance Dependence. Report at 17-18.

(2)At the hearing, the Consulting Psychiatrist and the DOE Psychiatrist discussed their professional experience in the area of alcohol and chemical dependency evaluation and treatment. They both have extensive experience in these areas.

(3)”This figure is derived from the individual’s assertion that in the last four years he has limited his alcohol intake primarily to one drink per day with an occasional increase to two drinks daily on weekends, and very occasionally three drinks. Id. I find that his level of consumption (over the last four years) is compatible with the individual’s description of his drinking habits to the DOE psychiatrist and with the testimony of his wife and friend/co- worker. His level of consumption appears to have been significantly higher than this in the early 1990's.

(4)As discussed above, the last documented incident of possibly irresponsible behavior, i.e., operating a motorcycle while appearing to be under the influence of alcohol, was reported by the friend/co-worker to have taken place about six and one half years ago.