Case No. VSO-0334, 28 DOE ¶ 82,761 (H.O. Gray September 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.

September 5, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:February 2, 2000

Case Number: VSO-0334

This Opinion addresses the eligibility of XXXXXXXXXXXX (the Individual) for access authorization. The regulations governing the Individual’s eligibility are found at 10 C.F.R., Part 710. Pursuant to these regulations, the Individual requested a hearing to resolve concerns about his eligibility for access authorization. 10 C.F.R. § 710.21(3)(ii). As explained below, I do not believe the Individual has resolved the concerns. It is therefore my opinion that his access authorization should not be restored.

The Individual is an employee at a site operated by the Department of Energy (DOE), and has held access authorization for a number of years. The DOE obtained reliable information indicating that he suffers from alcohol abuse. The DOE therefore suspended the Individual’s access authorization, in accordance with 10 C.F.R. § 710.8(j), which defines as derogatory information for a person with access authorization information that the person “has been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse.” After his access authorization was suspended, the Individual requested a hearing to provide evidence in support of his eligibility for access authorization. 10 C.F.R. § 710.21((b)6).

At the hearing, the Individual was represented by a colleague. He presented the testimony of a psychiatrist and a clinical psychologist, both of whom had examined him. The Individual also testified on his own behalf, and presented the testimony of five friends and coworkers. The DOE presented the testimony of a consulting psychiatrist and a personnel security specialist.

I. Background

The Individual’s eligibility for access authorization came into question during a routine background reinvestigation. The reinvestigation revealed that he had been arrested for driving while intoxicated (DWI) in 1989, 1993, 1996, and 1997.(1)

In order to assess the significance the Individual’s history of DWI’s, the DOE referred him to a consulting psychiatrist. After reviewing the Individual’s history and conducting a psychiatric examination, the consulting psychiatrist issued a report in which he diagnosed the Individual as suffering from alcohol abuse, in accordance with the criteria found in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).(2) Among the factors leading to the diagnosis were the Individual’s four arrests for DWI.(3) Another factor was the results of the Individual’s blood test, which showed a significant elevation in the Individual’s level of Gamma GT, a liver enzyme. The consulting psychiatrist noted that elevated levels of Gamma GT in the blood are most commonly associated with alcohol-related liver damage.

The consulting psychiatrist also noted that the Individual acknowledged having six drinks on an occasion ten days before his psychiatric examination. He reported that the Individual told him that he felt no need for treatment and intended to continue drinking. The consulting psychiatrist concluded that there was not adequate evidence of rehabilitation and reformation.

After receiving the consulting psychiatrist’s report, the DOE facility suspended the Individual’s access authorization. The Individual then arranged for examinations by a psychiatrist and a clinical psychologist. The findings of the Individual’s psychiatrist were essentially the same as those of the DOE’s consulting psychiatrist. The Individual’s psychiatrist diagnosed the Individual as having a history of alcohol abuse, and recommended that he undergo therapy with an experienced substance abuse counselor.(4) The clinical psychologist also diagnosed the Individual as having a history of alcohol abuse, but gave the opinion that he was “functioning within normal limits” and had “addressed whatever alcohol problems he may have had in the past in an appropriate and effective fashion.(5)

II. Analysis

A. The Regulatory Standard

A DOE administrative review proceeding under Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In a Part 710 case, the standard is designed to protect national security interests. Once the DOE has made a showing of derogatory information, the burden is on the individual 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). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. 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).

At the hearing, the Individual attempted to resolve the security concerns by claiming that he has not been an abuser of alcohol. He also argued in the alternative that if he had been an abuser of alcohol in the past, he had successfully rehabilitated himself by abstaining from alcohol for the six months preceding the hearing. As explained below, I find that neither claim has been sufficiently established to resolve the security concerns.

B. The diagnosis of alcohol abuse

At the hearing, the Individual disputed the diagnosis of alcohol abuse on two grounds: that (a) his drinking does not rise to the level of alcohol abuse; or that (b) he no longer meets the diagnostic criteria for alcohol abuse as set out in DSM-IV. As explained below, neither claim is persuasive.

(1). The Individual tried to explain the evidence of alcohol abuse - the four DWI arrests and the alcohol-related liver disorder - as instances of “incredibly bad luck” and “stupid choices.(6) The Individual also claimed that his use of alcohol was no more than a reflection of the standards of the community and culture in which he lived. I believe the Individual’s claims fail to resolve the DOE’s security concern. While he demonstrated that there is widespread acceptance of alcoholic beverages in his community, he presented no evidence to show that his community’s standards condoned driving while intoxicated or drinking to the point of sustaining liver damage. On a more fundamental level, the claim is irrelevant. The standards for an individual to hold access authorization are not based on the customs of a particular community, but on the protection of the national defense and security. 10 C.F.R. § 710.7(a).

I find that the Individual has been an abuser of alcohol. As noted above, all three mental health professionals reached this diagnosis. Their assessments were based on the objective evidence of the Individual’s history, including the DWI’s and liver enzyme tests, and their testimony was persuasive.

(2). The Individual claimed that he no longer meets the DSM-IV criteria for alcohol abuse. He points out that the DSM-IV requires that certain criteria, such as DWI arrests, have occurred within a twelve-month period in order to establish a diagnosis of alcohol abuse. The Individual’s argues that because his last DWI arrest was slightly more than three years before the hearing, he no longer meets the criteria for alcohol abuse.

I consider the Individual’s argument to be irrelevant. Although the Individual has not been arrested for DWI during the past three years, he continued to consume alcohol during most of this period. When the Individual was examined by the consulting psychiatrist, approximately nine months before the hearing, laboratory tests indicated the Individual had elevated levels of liver enzymes Gamma GT and ALT in his blood. The consulting psychiatrist noted that “it is most likely that the abnormal elevations in [the Individual’s] liver enzymes ... are caused by excessive use of alcohol.(7)

In a Part 708 proceeding involving a psychiatric diagnosis, the relevant question for the hearing officer is not the precise specification of the diagnosis, but whether the Individual has resolved the security concerns caused by the diagnosis. See Personnel Security Hearing, Case No. VSO-0082, 25 DOE ¶ 82,800 (1996), affirmed, 26 DOE ¶ 83,016 (1997), affirmed by OSA (1997). In the present case, as discussed above, there is no doubt that the Individual has a history of alcohol abuse. I find that the Individual’s ability to avoid an arrest for DWI during the past three years, while continuing to drink heavily, does not resolve the concern arising from the diagnosis of alcohol abuse. Instead, I am persuaded by the testimony of the consulting psychiatrist, who stated that “the question is, did [the Individual] have when I saw him evidence of current ... problems with alcohol, and I thought he did, and the main evidence I had for that was his liver was being damaged by the alcohol.(8)

C. Evidence of rehabilitation or reformation

At the hearing, the Individual claimed that, even if his previous drinking constituted alcohol abuse, he was now rehabilitated. His attempt to show rehabilitation had three components. I will discuss each one separately below.

(1). The Individual testified that he had abstained from drinking alcoholic beverages for the six months before the hearing. He offered corroborating testimony on this point from his character witnesses. He also provided evidence that his liver enzyme count, as measured shortly before the hearing, had declined to the normal range. While this evidence shows that the Individual has significantly reduced his consumption of alcohol, I do not find that it establishes his rehabilitation. I note that the Individual’s drinking was described by all three of the mental health experts as “binge” or “episodic” drinking. He did not drink compulsively or continuously. Thus, the Individual’s current period of abstinence, by itself, may be a typical period of abstinence rather than changed behavior.

(2). The Individual testified that the motivational factors that assure his rehabilitation are his current girl friend, who is opposed to drinking alcohol, and his church, which discourages drinking alcohol. I note, however, that the Individual has lived with his girl friend for a year, and during part of that time continued to drink.(9) I also note that he has been a member of the same church for ten years, and during that time accumulated at least three of his DWI’s. Consequently, I believe that the Individual’s girl friend and church membership, while positive indicators, are not by themselves sufficient evidence of rehabilitation.

(3). Finally, the Individual offered the testimony of the clinical psychologist, who while not definitively stating that the Individual was rehabilitated, said that he had “addressed whatever alcohol problems he may have had in the past in an appropriate and effective fashion.(10) He based his opinion on the Individual’s “long period of functional abstinence, his own self-recognition, and the situation that he’s in [with his church], and [his girlfriend].(11)

The Individual’s psychiatrist and the DOE’s consulting psychiatrist, however, did not agree that the Individual was rehabilitated. The consulting psychiatrist testified that “[for] a person that has a diagnosis of alcohol abuse, it’s overly optimistic ... to say that only five weeks after his last drink, with no treatment whatsoever, to say that this represents an appropriate and effective addressing of a substance abuse problem. I would disagree with that. And I think most people in the substance abuse area would also disagree.(12) The consulting psychiatrist also observed that the clinical psychologist, when he wrote his report about the Individual, was apparently unaware of the Individual’s elevated level of liver enzymes in his blood.(13)

I believe the most persuasive argument against finding the Individual rehabilitated is his lack of awareness that he has a problem with alcohol. The Individual’s psychiatrist, noting this lack of awareness, observed that:

I don’t think [the Individual] completely grasped the significance of ... his drinking when I interviewed him.... I think he has made an effort to change his behavior because he’s in this relationship now [with his current girl friend, discussed above], but I don’t think he fully has insight into how dangerous his behavior was in the past. And I think if he had that type of insight he would be much less likely to repeat it in the future if there were to be some sort of significant stressor like ... the loss of this positive relationship.(14)

This view was shared by the consulting psychiatrist, who testified that:

I felt there [were] a number of problems with [the Individual] as far as his showing evidence of rehabilitation and reformation. The most difficult of which is that when I saw him he didn't seem to think he had a problem.... even in the face of these four DWI’s, and that makes the prognosis not very good. Because, if a person doesn't think there is a problem, then it's really hard for them to work at something. They might do it to humor someone or other, maybe to keep a job or to keep a relationship, but if they don't really in themselves think that there is some problem that they need to correct, the chances that they're going to make a lasting correction of that are not good, the prognosis isn't as good.... [He] didn't seem to be acknowledging that he was continuing to drink heavily, or it would come in ... intermittent admissions. On the one hand, he would seem to say ... that he didn't have much of a drinking problem, but then ... would let slip that he had had five or six drinks the week before... In the PSI, he acknowledged having ... eleven days before, seven or eight drinks, but that would come intermittently with seeming denials that he drank very much. And ... that's not a good prognostic sign in terms of assessing this person in rehabilitation and reformation.(15)

In the administrative review process, the hearing officer has the responsibility for assessing whether a person with an alcohol- related security concern has presented sufficient evidence of rehabilitation or reformation to resolve security concerns. Personnel Security Hearing (Case No. VSO-0106), 26 DOE ¶ 82,767 (1997), aff’d, Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 (1997). In making this assessment, the hearing officer accords great 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- 0146), 26 DOE ¶ 82,788 (1997) (affirmed by OSA, 1997); Personnel Security Hearing, (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995); Personnel Security Hearing, (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995).

In the present case, the Individual’s psychologist believes the Individual is rehabilitated, while the Individual’s psychiatrist and the consulting psychiatrist do not. I believe that the opinion that the Individual is not rehabilitated is based on a more comprehensive consideration of the Individual’s history. I therefore conclude that the Individual has not presented adequate evidence of rehabilitation.

III. Conclusion

In view of the criteria set forth in 10 C.F.R. Part 710, and the testimony and documents in the record, I believe that the derogatory information presented in this case concerning the Individual’s alcohol abuse casts substantial doubt as to whether restoring the Individual’s access authorization would not endanger the common defense and would be clearly consistent with the national interest. The substantial doubt has not been resolved by the administrative review process. It is therefore my opinion that the Individual’s access authorization should not be restored.

The regulations provide that either the Individual or the Department of Energy's Office of Security Affairs may file a written request for review of this Opinion. The request must be filed within thirty calendar days of receiving this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a written statement specifying the issues upon which it seeks to focus the review. The other party may file a written response to the statement of issues. The response must be filed within twenty calendar days of receipt of the statement of issues. See 10 C.F.R. § 710.28.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: September 5, 2000

(1) The Individual had reported only one of the arrests to the local personnel security office.

(2) Exhibit 7, Report of Consulting Psychiatrist.

(3) Breathalyser blood alcohol tests, as noted in the consulting psychiatrist’s report, showed that at the time of two of the arrests, the Individual had blood alcohol levels (BAL) significantly above the minimum level of intoxication. The Individual had a BAL of 0.14 grams percent in 1989 and 0.164 grams percent in 1997. The minimum level for intoxication in the jurisdictions where he was arrested was 0.10 grams percent. BAL results for the other two arrests are not available.

(4) Individual’s Exhibit, Report of Psychiatrist.

(5)” Individual’s Exhibit, Report of Clinical Psychologist.

(6)” Transcript of Hearing (Tr.), 16.

(7)” DOE Exhibit 7, Report of Consulting Psychiatrist, 8.

(8)” Tr., 168.

(9) Tr., 95.

(10)” Tr., 96.

(11)” Tr., 97.

(12)” Tr., 199.

(13) Tr., 198.

(14) Tr., 50-51.

(15) Tr., 170-71.