Case No. VSO-0332, 28 DOE ¶ 82,751 (H.O. Chapman July 7, 2000)

Case No. VSO-0332, 28 DOE ¶ 82,751 (H.O. Chapman July 7, 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.

July 7, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case:Personnel Security Hearing

Date of Filing:February 4, 2000

Case Number: VSO-0332

This Opinion concerns the eligibility of XXXXXXXXXXX (the individual) for continued access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria for Access to Classified Matter or Special Nuclear Material.” The individual’s access authorization was suspended by one of the Department of Energy’s (DOE) Operations Offices. As explained below, it is my opinion that the individual’s access authorization should not be restored.

I. Background

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 generally 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).

In this instance, DOE granted the individual an access authorization as a condition of his employment with a DOE contractor. However, the local DOE security office initiated formal administrative review proceedings by informing the individual that his access authorization would be suspended pending further consideration of certain derogatory information received by DOE that created substantial doubt regarding his continued eligibility. This derogatory information is described in a Notification Letter subsequently issued to the individual on January 7, 2000. More specifically, Enclosure (1) attached to the Notification Letter contains DOE security’s findings with respect to the individual that fall within the purview of potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8(j). The bases for these findings are summarized below.

Enclosure (1) of the Notification Letter alleges that the individual “has been, or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8 (j) (Criterion J). Specifically, the Notification Letter alleges that the individual was diagnosed by a board-certified psychiatrist as alcohol dependent. In this regard, Enclosure (1) describes several acknowledgments made by the individual during a DOE Personnel Security Interview (PSI) conducted on December 2, 1999: (1) in 1999, the individual spent an average of between $400 and $500 a month on alcohol, went to work hung-over 25-30 times, over the last couple of months prior to his PSI he routinely threw-up after lunch on Mondays, and consumed alcohol in order to steady his signature; (2) on July 19, 1999, the individual attempted to detoxify himself of alcohol, however he experienced a grand mal seizure as a result of alcohol withdrawal; (3) after entering the hospital subsequent to his seizure, the individual suffered liver damage as indicated by elevated liver enzymes and low platelets; and (4) the individual suffered significant relapses on two occasions, September 29, 1999 and October 14-19, 1999, after which he was admitted to the hospital.

On January 25, 2000, the individual filed a Response to the matters raised in the Notification Letter and requested an administrative hearing to resolve those matters. The DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on February 1, 2000. The OHA Director appointed me as Hearing Officer in this case on February 4, 2000. 10 C.F.R. § 710.25(b). I convened a hearing in this matter. See 10 C.F.R. § 710.25(g). At the hearing, the individual represented himself and testified on his own behalf. In addition, the individual called his wife and two experts, a board certified psychiatrist and a clinical psychologist. The DOE presented two witnesses at the hearing: the DOE consultant psychiatrist and a DOE personnel security specialist.

The Hearing Officer’s role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). In resolving questions about the individual’s access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation of his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

It is the totality of these facts and circumstances that sheds light on whether the individual could fail to perform his security responsibilities adequately. Although it is impossible to predict with absolute certainty an individual’s future behavior, as Hearing Officer in this case, I must make a predictive assessment. In this regard, the burden is on the individual to demonstrate that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. After careful consideration of all the evidence and testimony presented in this proceeding, I conclude that the individual has not met his burden in this case.

II. Analysis

I have thoroughly considered the record in this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. In resolving the question of whether the individual’s access authorization should be restored, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual’s access authorization should not be restored. I find that a restoration would endanger the common defense and security and would be clearly inconsistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make in support of this recommendation are discussed below.

A. Derogatory Information

The derogatory information in this case arises from the individual’s consumption of alcohol. The facts concerning the individual’s consumption of alcohol are largely undisputed by the individual, who acknowledges that he is an alcoholic. (2) The individual began drinking alcohol in 1984 while serving in the Army. Id. at 1. In February 1999, several of the individual’s co-workers became concerned about his apparent problem with alcohol. Id. at 2. The individual reportedly went to work hung-over from alcohol 25 to 30 times in 1999. He was also reported as having “shaky hands” at work and consumed alcohol in order to steady his signature. Id.

In July, after several episodes of drinking, the individual decided to quit drinking by attempting sobriety at home. Id. at 3. On July 20, 1999, he experienced a grand mal seizure from alcohol withdrawal. Id. He voluntarily entered a hospital from July 21, 1999 through July 25, 1999 for detoxification. During his hospital stay, laboratory tests indicated that the individual had elevated liver enzymes and low platelets due to liver damage. Id. at 4. In addition, a psychiatrist diagnosed the individual as suffering from alcohol dependence. Id. On August 6, 1999, the individual, acting on the advice of his supervisor, sought assistance for his alcohol problem through the DOE Employee Assistance Program (EAP). Id. at 5. As part of the EAP program, the individual signed a 12-month Recovery Agreement that required him to maintain total abstinence with a minimum of 12 blood, urine, or breath samples for alcohol testing. Id. The Agreement further specified that the individual attend EAP meetings once a month, continue Alcoholics Anonymous (AA) 12-step meetings and complete a six week Intensive Outpatient Treatment program at a local hospital. Id. During the course of this treatment plan, the individual suffered serious relapses. He consumed a tremendous amount of alcohol on two occasions, September 29, 1999 and October 14-19, 1999. On both occasions, the individual was admitted to the hospital for several days. Id. 6-7. During the course of his hospital stays, several psychiatrists diagnosed the individual as being alcohol dependent.

Based on these facts, I find that the DOE properly invoked Criterion J when it suspended the individual’s access authorization. It was reasonable for the DOE to conclude that the individual’s alcohol use, which began in 1984 and has compromised his physical health, might impair the individual’s judgment and reliability and prevent the individual from safeguarding classified matter or special nuclear material. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse, alcohol dependence and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff’d, 25 DOE ¶ 83,006 (1995); Personnel Security Hearing (Case No. VSO- 0042), 25 DOE ¶ 82,771 (1995). In this case, a DOE consultant psychiatrist confirmed several other psychiatrists’ diagnosis of alcohol dependency.

B. Mitigating Factors

A finding that derogatory information exists does not end the evaluation of the evidence concerning the individual’s eligibility for access authorization. In the present case, the individual maintains that there are mitigating factors that alleviate the agency’s security concerns and justify the restoration of his security clearance. In support of his position, the individual states that he is participating in alcohol rehabilitation in the form of attending AA meetings, attending counseling meetings with the EAP counselor and consulting with a psychologist for his depression and alcohol problems. He further maintains that he has totally abstained from alcohol since October 1999 and that he has no intention to resume drinking.

At the hearing, the individual presented evidence that he is a respected, well-qualified and conscientious employee. Individual’s Exhibit A. The individual’s supervisor wrote that the individual “has always functioned as an outstanding member of our . . . support team.” Id. His supervisor further reported that during his period of rehabilitation, the individual has had no reliability issues, that he has a very good attendance record and has reported to work in excellent physical condition. Id. He added that the individual is well-respected by his customers and by other members of his team. Id.

The individual also offered the testimony of his wife and a written letter from his EAP counselor to further mitigate the agency’s security concerns. The EAP counselor has been providing employee assistance, particularly alcohol counseling, since August 1999 and is licensed and certified as a clinical mental health counselor. He wrote that despite the individual’s early relapses, he has consistently met all of the requirements for his continued rehabilitation and reformation. The EAP counselor indicated that the individual is committed to AA and has exceeded the counselor’s expectations of his involvement in that program. He further wrote that he believes the individual “can safely and reliably perform his work . . . , and given his recovery history of the past 6 months, he is capable of the highest security clearance.” Individual’s Exhibit E.

The individual’s wife provided candid testimony concerning her support for her husband’s sobriety campaign. She testified that she is committed to helping her husband abstain from alcohol and has indicated her willingness to support her husband by accompanying him to AA. The individual’s wife further testified that she has noticed a positive change in her husband’s behavior since he has ceased drinking. Hearing Transcript (Tr.) at 112-113. She noted that he is more interested in spending time with his family and is much more dependable than he has been in the past. Id.

Finally, the individual testified to his sincere commitment to abstain from alcohol and to continue his treatment for his addiction. He stated that his last drink was in October 1999, when he had his second relapse. During the course of the hearing, the individual indicated that he underwent another series of blood tests (including liver function tests) on December 21, 1999. The results of these tests revealed that the individual’s liver enzymes have returned to normal limits. According to the DOE consultant psychiatrist, these test results indicate that the individual is not consuming alcohol at this time. Tr. at 51.

C. Expert Testimony

In the administrative process, it is the Hearing Officer who has the responsibility for assessing whether an individual with alcohol problems has presented sufficient evidence of rehabilitation or reformation. See 10 C.F.R. § 710.27. 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 from alcohol abuse under Criteria J); Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (finding of no rehabilitation from alcohol abuse under Criteria J). Moreover, it is my responsibility as Hearing Officer to ascertain whether the factual basis underlying the psychiatric diagnosis is accurate, and whether the diagnosis provides sufficient grounds, given all the other information in the record, for the denial of a security clearance. See, e.g., Personnel Security Hearing (Case No. VSO-0068), 25 DOE ¶ 82,804 (1996). On the basis of that evaluation, I find that the diagnosis made in the present case has a proper factual basis. I am further persuaded from the testimony of the DOE consultant-psychiatrist, the individual’s psychiatrist and the individual’s psychologist, that the individual is not yet rehabilitated or reformed and is in need of further alcohol treatment.

The three mental health professionals who have consulted with the individual agree that he is alcohol dependent. The DOE consultant-psychiatrist, who testified at the hearing, is board-certified in psychiatry and addiction medicine and has been practicing for many years. He was asked by DOE to prepare a psychiatric report. However, the DOE consultant-psychiatrist did not personally evaluate the individual because several other physicians, including an Emergency Medicine physician, an internist and two Board Certified Psychiatrists, have all diagnosed the individual as alcohol dependent. Thus, the DOE Operations Office felt it was unnecessary for the DOE consultant- psychiatrist to examine the individual once again. Nevertheless, in preparing his report, the DOE consultant-psychiatrist thoroughly reviewed the individual’s DOE Personnel Security file and a collection of his medical records. After a review of these records, the DOE consultant-psychiatrist confirmed that based on the historical information in the individual’s record, the individual meets the DSM-IV criteria for Alcohol Dependence with Physiological Dependence in Early Partial Remission. Psychiatric Report at 6. (3) He also reviewed the individual’s laboratory studies and noted that his liver enzymes were highly elevated. Tr. at 38.

With regard to whether there is adequate evidence of rehabilitation or reformation, the DOE consultant psychiatrist opined that a three-year period of treatment would be necessary for adequate evidence of rehabilitation and reformation in this case, based on the following factors: the individual is suffering from a serious form of alcoholism as evidenced by his withdrawal seizure, alcoholism has caused damage to the individual’s body, and the individual has had two serious relapses even with full knowledge of the implications of alcohol problems on his security clearance. Tr. at 43. He explained that the individual needs to be completely abstinent form alcohol for a minimum of two years and that these two years are in addition to a rehabilitation program such as AA or an Intensive Outpatient Program (IOP). Since the individual has already completed six months of AA, the DOE consultant psychiatrist testified that the individual needs two and a half more years to be considered rehabilitated and reformed. The DOE consultant psychiatrist stressed the need for the individual to continue with AA for a period of a year, at least once a week. Tr. at 45. Although the individual asserts that he attends several AA meetings per week, the DOE consultant psychiatrist testified that the long term requirement of a year of AA must be met to reap the benefits of the program. Id.

In addition to the testimony of the DOE consultant psychiatrist, the individual offered the testimony of another psychiatrist. (4) The individual’s psychiatrist has met with the individual five times during which time he focused his treatment on medication management. Tr. at 74. In his opinion, the individual psychiatrist considers a one-year time period to be adequate to demonstrate rehabilitation from alcohol. Relying on the DSM-IV criteria, he stated that “the first 12 months following alcohol dependence is a time of particularly high risk for relapse . . they designate those first 12 months as being early remission.” Tr. at 67. He further stated that after the one year time period the remission goes from early to sustained. Id. In addition, the individual’s psychiatrist opined that although the individual had a very serious problem, “he took three serious hits to knock him off his drinking course,” i.e, a grand mal seizure, the loss of his security clearance and the incohesiveness of his family due to his alcohol problem. According to the individual’s psychiatrist, it was these three scenarios that caused the individual to realize that he really needed to stop drinking. Because the individual has done well with his treatment program, his psychiatrist believes that his prognosis is good. Tr. at 70.

A clinical psychologist who was initially referred to the individual by DOE also testified on behalf of the individual. He has met with the individual on over 16 occasions and is currently treating him for depression management related to his alcohol problem. The clinical psychologist testified that the individual now has a deeper realization of the seriousness of his alcohol problems. Tr. at 88. He believes that the individual is sincerely committed to his sobriety. Id. The clinical psychologist further testified that he believes the individual could be considered rehabilitated in one year. According to the clinical psychologist, “most people who have maintained sobriety up to two years really are in a very low risk category of having a relapse, . . . the prediction of that maintenance of sobriety is at its best. However, he maintained that “certainly within one year, one has improved one’s reliability of maintaining sobriety at a very high level of probability.” Tr. at 90-91. Based on the clinical sessions conducted with the individual, the clinical psychologist believes the individual is a very reliable and trustworthy person. Id. at 92. He stated that although the individual has only had six months of sobriety, “my opinion is that in this specific case, . . . , that he’s showing an incredible amount of realistic thinking, good judgment, good understanding and good resolve in maintaining abstinence.” Tr. at 97.

D. Summary

Based on all of the evidence before me, I find that the individual has not successfully mitigated the security concerns regarding his alcohol use. While there has been impressive testimony and documentation about the individual’s overall honesty and reliability, as well as the individual’s current sobriety and reliability on the job, these factors do not overcome the security concerns presented in this case. In the past we have stated that excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that violates security regulations. See Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); Personnel Security Hearing (Case No. VSO-0054), 25 DOE ¶ 82,783 at 85,730 (1995) (citing Cole v. Young, 351 U.S. 536, 550 n.13 (1956)). The fact that this has not occurred in the past is no guarantee that it will not occur in the future should the individual again have a relapse.

In addition, while I am persuaded that the individual sincerely intends to abstain from alcohol and has been diligently and actively participating in AA and counseling sessions, I am still unable to find at this time that there has been sufficient rehabilitation or reformation to mitigate the DOE’s security concerns. My finding is based primarily on the relatively short period of time for which the individual has been abstinent (six months), the individual’s diagnosis of alcohol dependence (the more serious addiction to alcohol) and the expert testimony of the DOE consultant-psychiatrist, the individual’s psychiatrist and the individual’s clinical psychologist. While there is a difference in opinion in the minimum time requirement for rehabilitation and reformation, one year versus three years, it is important to note that the individual does not meet either time requirement for rehabilitation and reformation. These same considerations have led Hearing Officers in other DOE security cases to find that there was insufficient evidence of rehabilitation or reformation. See Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996) (five months); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff’d, 25 DOE ¶ 83,006 (1995) (five months); Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (1995) (nine months); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (eight months); Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,609, aff’d, 25 DOE ¶ 83,003 (1995) (four months).

Another important factor in my determination regarding rehabilitation and reformation is that the individual has only recently (six months ago) attempted to overcome his denial of an alcohol problem and begun taking a realistic look at his problem. This is evidenced by the individual’s lack of initiative to seek further help after he went through detoxification as a result of an alcohol withdrawal seizure. In fact, as stated by the individual at the hearing, “after I did get some help, through the detox center, my thoughts prevented me from getting further help as in AA and IOP. I did not think that [DOE employees] went to AA. . . . I thought that I was a rare case and should not deface the [DOE] image because of my alcohol problem.” Tr. at 25. This indicates, at least until very recently, that the individual was unwilling or unable to admit that he has a serious alcohol addiction. Although it is commendable that the individual has now appeared to accept his problem and has taken significant steps to address it, I do not believe he is far enough along in his efforts at rehabilitation for me to find that the agency’s security concerns regarding his alcohol use have been mitigated. Until the individual has progressed further along his course of rehabilitation, which includes his continuation with AA for at least a year, I believe that the security concerns raised by the DOE under Criterion J will continue to be substantial.

III. Conclusion

For the reasons set forth above, I find that the individual has been diagnosed by a board-certified psychiatrist as alcohol dependent. Moreover, in resolving the issue concerning the individual’s eligibility for access authorization, I find that the derogatory information has not been mitigated by sufficient evidence of rehabilitation or reformation. After considering all of the relevant information in a comprehensive and common-sense manner, it is my opinion that the individual has not demonstrated that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored.

The regulations set forth at 10 C.F.R § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Kimberly Jenkins-Chapman

Hearing Officer

Office of Hearings and Appeals

Date: July 7, 2000

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).

(2)The individual disputes one fact stated in the parties’ Proposed Findings of Facts and Stipulations. After being admitted to the hospital for a grand mal seizure, the individual was examined by several doctors, including a family practitioner. In his medical report, this doctor documented the fact that the individual had gone through “many detox programs in the past.” The individual disputes this statement and has no recollection of relaying this information to the doctor. See Proposed Findings of Fact and Stipulations (PFF) at 4.

(3)During the course of the hearing, the DOE consultant psychiatrist corrected his diagnosis of the individual from Alcohol Dependence in Early Partial Remission to Alcohol Dependence in Early Full Remission.

(4)This psychiatrist frequently consults for DOE. However, at this hearing, the psychiatrist testified as the individual’s private psychiatrist.