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Case No. VSO-0330, 28 DOE ¶ 82,766 (H.O. Adeyeye October 5, 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.

October 5, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: January 11, 2000

Case Number: VSO-0330

This Opinion concerns the eligibility of XXXXXXXXXX (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.” The individual has applied for an 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 granted. As set forth in the Opinion, I recommend against granting the individual a security clearance.

I. Background

The individual is employed by a DOE contractor. The contractor requested an access authorization for the individual in order that he have access to classified documents at a DOE facility. However, during the individual’s background investigation, derogatory information was reported and that information was not resolved during a personnel security interview (PSI). The derogatory 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) and (h) (Criterion J and Criterion H). 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) was diagnosed by a DOE consultant psychiatrist as meeting the criteria for alcohol abuse and there is no evidence of reformation or rehabilitation; and (2) continues to consume alcohol.

The DOE Operations Office also invokes Criterion H on the basis of its finding that the individual has “an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, or other licensed physician causes or may cause, a significant defect in his judgment or reliability.” 10 C.F.R. § 710.8(h). In this regard, the Notification Letter cites the DOE consultant psychiatrist’s conclusion that the individual’s alcohol abuse may cause a significant defect in judgment and reliability.

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 January 11, 2000, 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. That date was rescheduled for good cause at the request of DOE counsel. At the hearing, the DOE counsel called one witness, the DOE consultant psychiatrist. The individual elected to call two supervisors, one co-worker, and his wife as witnesses, and the individual also testified. The transcript taken at the hearing shall be hereinafter cited as “Tr.” Various documents that were submitted by the DOE counsel during this proceeding constitute exhibits to the hearing transcript and shall be cited as “Ex.”

II. Analysis

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 provides 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).

A DOE administrative review proceeding under 10 C.F.R. Part 710 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 Operations Office 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 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). This standard implies that 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) (the “clearly consistent with the national interest” test indicates that “security-clearance 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 granted since I am unable to conclude that such a grant 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 following facts are uncontested. While attending college in 1985, the individual ran a red light, failed a field sobriety test and a Breathalyzer test, and was then arrested for Driving Under the Influence (DUI). PSI at 22. In 1991, the individual drove through a permanent barricade at the end of an access road. PSI at 24. He failed a Breathalyzer test (at 0.13) and was again arrested for DUI. PSI at 25. In 1997, the individual reported to a nuclear power plant at around 7:00 a.m. for work, but was asked to leave after a security guard smelled alcohol on his breath. PSI at 26-28. He tested 0.08 on a Breathalyzer. PSI at 28. Shortly thereafter, in June 1997, a human resources manager at the individual’s employer recommended that the individual be evaluated by an alcohol counselor. PSI at 28-30. According to the individual, the counselor interviewed the individual for two hours, concluded that he had no alcohol problem, and did not recommend any treatment. Id. In August 1998, the individual began working for his present employer, a DOE contractor. PSI at 3, 6.

The contractor applied for access authorization for the individual and, in April 1999, the individual was interviewed by DOE security regarding the security concerns triggered by his alcohol use. PSI at 6. In May 1999, after fishing on a lake with a friend one evening, the individual wrecked both his truck and his boat while pulling the boat from the lake. Tr. at 43-45; 55; 64; 77-79. The individual was then arrested for DUI. Tr. at 91. In June 1999, the individual’s wife arrived home from work to find him intoxicated and sleeping at home. Upset with his behavior, she called his parents, who live two hours away. Tr. at 72. The parents drove to the individual’s home, implored him to stop drinking, and returned home after the individual promised to do so. Tr. at 21, 72, 81; Ex. 7 at 3. After they left, the individual became infuriated with his wife. Tr. at 72. He rented a limo, purchased a six-pack of beer, and rode around town all night drinking the beer, eventually spending the night at a hotel. Id. at 72-73. Three days later the individual again became intoxicated at home. Tr. at 20-21.

In July 1999, the DOE consultant psychiatrist evaluated the individual and diagnosed him as meeting the criteria for alcohol abuse, without evidence of rehabilitation or reformation, even though the individual did not mention his May 1999 DUI arrest during the interview. Tr. at 13, 17, 92. In September 1999, the individual accompanied his wife to the wedding of her co-worker, where he became intoxicated. Tr. at 76. The individual’s wife was so angry with his behavior that he spent the night with his parents, instead of at home with his wife. Id. At the hearing, a friend of the individual testified that he saw the individual intoxicated during a weekend outing that took place the previous month. Tr. at 49-50; 54.

B. Criteria H and J

The facts as set forth clearly above support the DOE Operations Office’s finding that valid security concerns exist with respect to Criteria H and J. As stated above, the DOE consultant psychiatrist diagnosed the individual as suffering from alcohol abuse. He also testified at the hearing that when a person is “drunk or even tipsy,” he is vulnerable to defects in judgment or reliability. Tr. at 24-25. Such lapses are supported in the record by accounts of the individual’s alcohol arrests, intoxication at a social event that resulted in the embarrassment of his wife, and banishment from a nuclear power plant for excessive alcohol use. Tr. at 76; PSI at 22-27.

Furthermore, I find that the individual has not presented any evidence of rehabilitation or reformation that would allay the security concerns set forth in the Notification Letter. The psychiatrist based his diagnosis on the individual’s alcohol-related legal difficulties and the family problems caused by the individual’s alcohol use. Tr. at 17. At the hearing, the individual admitted that he continues to drink and that he has not participated in any alcohol treatment program. Tr. at 95-98. He also denies that he has an alcohol problem, and minimizes the negative effects that his alcohol consumption has had on his life. Tr. at 90-95. For example, neither DOE counsel, the hearing officer, or the DOE psychiatrist were aware of the individual’s May 1999 DUI until the individual’s witnesses referred to the incident in hearing testimony. The individual then admitted under cross-examination by DOE counsel that he had not reported the arrest in a timely manner to DOE, and that he had not mentioned the arrest at all to the psychiatrist, even though the interview took place only two months after the incident. Tr. at 91-92. The individual tried to minimize the arrest, and said that it “slipped his mind” (even though charges were still pending at the time of the hearing) because he expected to be found innocent of the charges. Tr. at 92. He testified that he refused to take a Breathalyzer test at the time of the arrest because he “has had trouble with Breathalyzer machines in the past.” Tr. at 93. In addition, he explained the incident at the power plant by saying that the smell on his breath was not due to intoxication that morning but rather that “alcohol comes through his pores.” Tr. at 74; PSI at 27. The testimony that follows supports my conclusion that there is no evidence of rehabilitation or reformation:

A. The only evidence [of rehabilitation or reformation] that I have is the testimony of my wife that sees me probably more than anyone. And I haven’t been in trouble since May of 1999, but that is pretty weak. ... I have quit drinking a whole lot at one time.

Q. But you are not abstinent? You still drink?

A. That’s right. I made the decision after I saw [a psychologist who evaluated the individual at the request of the individual], am I going to shell out seven to ten thousand dollars and quit drinking for a year for somebody like him to say I don’t have a drinking problem. I decided I would not do that. I didn’t feel like that was realistic. Even if you get him to say you don’t have a drinking problem in a year, you know, I still feel like it can crop up all your life. And yeah, am I going to quit drinking forever for a national security clearance? The answer would be no.

Tr. at 97-98.

In previous personnel security administrative review proceedings, OHA hearing officers have generally found that, absent unusual circumstances, individuals who suffer from alcohol abuse cannot be considered to be rehabilitated in any meaningful sense without total abstinence of at least one year. Personnel Security Hearing, Case No. VSO-0245, 27 DOE ¶ 82,795 (1999). These findings have been based on a careful evaluation of the facts of each case, with great deference paid to the expert opinions of psychiatrists and other mental health professionals. Personnel Security Hearing, Case No. VSO-0298, 27 DOE ¶ 82,828 (2000). The psychiatrist in this case testified credibly that there is no evidence of rehabilitation or reformation. Tr. at 13, 17. By his own admission, the individual denies that he has a drinking problem, continues to drink alcoholic beverages and refuses to consider abstinence or an alcohol treatment program. Tr. at 97-98. Therefore, I find that the security concerns set forth in the Notification Letter have not been mitigated.

III. Conclusion

As explained in this Opinion, I find that the DOE Operations Office properly invoked 10 C.F.R. § 710.8 (h) and 710.8 (j) in denying 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 granting the individual’s access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be granted.

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: October 5, 2000