Case No. VSO-0344, 28 DOE ¶ 82,754 (H.O. Schwartz July 28, 2000)

Case No. VSO-0344, 28 DOE ¶ 82,754 (H.O. Schwartz July 28, 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 28, 2000DEPARTMENT OF ENERGYOFFICE OF HEARINGS AND APPEALS
Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 6, 2000

Case Number: VSO-0344

This Opinion concerns the eligibility of XXXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The individual's access authorization was suspended under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend restoring the individual’s access authorization.

I. Background

The individual is an employee of a contractor at a DOE facility whose access authorization has been suspended. The local DOE security office (SO) issued a Notification Letter to the individual on February 4, 2000. The Notification Letter alleges under 10 C.F.R. § 710.8(j) 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.” The Notification Letter also alleges under 10 C.F.R. § 710.8(l) that the individual “has engaged in unusual conduct or is subject to 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.” These allegations are based on the November 20, 1999 diagnosis of a DOE consultant psychiatrist (the psychiatrist) that the individual “is a user of alcohol to excess, suffering from alcohol abuse,” alcohol-related arrests in 1981, 1983 and 1999, and five incidents involving law enforcement ranging from 1984 to 1999.

Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns in the Notification Letter. The SO transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing.

At the hearing, DOE Counsel called two witnesses, an SO personnel security specialist and the psychiatrist who evaluated the individual for the SO. The individual testified on his own behalf, and called four other witnesses, including his therapist, another mental health professional, and two friends. The SO submitted 12 written exhibits, and the individual submitted eight written exhibits, two of which after the hearing at my request.

II. Standard of Review

The applicable DOE 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). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set forth in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization,” 10 C.F.R. § 710.21(b)(6), i.e., demonstrating 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. § 710.7(a). Although it is impossible to predict with absolute certainty an individual’s future behavior, as the Hearing Officer, I am directed to make a predictive assessment. After carefully considering the factors set out in § 710.7(c) and all the evidence in the record in this proceeding, I find that the individual has made the requisite showing. For the reasons discussed below, I am convinced that this individual's access authorization should be restored.

III. Findings of Fact

The individual admits the facts alleged in the Notification Letter, including the diagnosis of alcohol abuse, and the hearing focused on his assertion that mitigating circumstances warrant restoration of his access authorization. Before turning to the issue of mitigation, it would be helpful to explain the circumstances underlying the concerns in the Notification Letter.

The individual has been arrested three times for Driving Under the Influence of Alcohol (DUI). The first two incidents occurred in 1981 and 1983. The 1981 charge appears to have been reduced to Reckless Driving, to which he pled guilty. DOE Exh. 12 (Case Evaluation 2/5/92). After the 1983 conviction, the individual attended ten hours of court-ordered alcohol education classes. The third arrest occurred more than 16 years later, in June of 1999. The individual was convicted of the June 1999 DUI offense, and sentenced to pay a fine, attend therapy, and perform community service. He has complied with all of these terms. After the individual informed the SO of the 1999 arrest, the SO conducted a personnel security interview (PSI) with the individual and then arranged for the individual to be evaluated by a DOE consultant psychiatrist. On the basis of that November 1999 evaluation, the psychiatrist reported to the SO that the individual, at that time, was a user of alcohol habitually, suffered from alcohol abuse, and had not yet shown adequate evidence of rehabilitation or reformation. Since November 1999 the individual has continued to attend therapy sessions. His uncontroverted testimony is that he has been abstinent since his last arrest in June 1999.

In addition to the alcohol-related arrests listed above, the individual has been involved in five other incidents with law enforcement agencies. The two earliest arrests, Driving with a Suspended License and Urinating in Public, date from 1984 and 1986, respectively. The remaining three incidents, which occurred in 1998 and 1999, all relate to a pending divorce proceeding: having a restraining order issued against him, being charged with Harassment/Intent to Harm, and being charged with violation of the restraining order.

IV. Analysis

Criterion J-- Alcohol Abuse

At the hearing, the DOE consultant psychiatrist testified about his November 20, 1999 diagnosis of the individual. Based on his review of the individual’s personnel security file and his in-person evaluation session with the individual, he concluded the individual had probably been alcohol dependent in the past but was no longer alcohol dependent. Transcript of Hearing (Tr.) at 14. He explained that the individual “had managed to stay free of alcohol problems, abuse or dependence, until recently.” Id. Because the individual resumed drinking and was arrested for DUI in 1999, the psychiatrist reasoned that he was suffering from alcohol abuse. Nevertheless, he did not feel that the individual was suffering a relapse of alcohol dependence, because his use “didn’t reach the level where he had alcohol withdrawal or developed a tolerance. . . . I considered that it was enough time between the past history of dependence and now to not have to revert back to that previous diagnosis.” Id. The psychiatrist felt that the individual’s DUI arrest brought his susceptibility for relapse into alcohol dependence to his attention and “he curtailed it before he developed-- redeveloped the dependence and tolerance.” Tr. at 15. Even though he believed the individual had stopped drinking immediately after the DUI arrest, the psychiatrist testified that only six months had passed between that event and the evaluation. Tr. at 20. In the psychiatrist’s opinion, the individual had not shown adequate evidence of rehabilitation and reformation:

[H]e needs one full year symptom free before the illness goes into full remission-- . . . that’s a given-- and that’s just a remission of the illness, not necessarily reformation or rehabilitation. But without that full year, he’s still going to be . . . [suffering from] alcohol abuse in partial remission. So one full year of abstinence and that should be accompanied by honesty and stability and to accomplish that, I recommended to him that he get into an outpatient program. . . . [T]hat would include DUI classes, DUI therapy, and then followed by AA. At the time . . . his illness goes into remission-- [after] one year of abstinence, honesty, and stability . . . I suggested that he be reexamined for reformation and rehabilitation. There’s a mind set that goes along with that. It’s not just a person who’s abstained but ready to drink again; it’s a person that realizes . . . the consequences of their actions, realizes the need . . . to stop. They might want to use but know that they can’t because it will ruin their lives.

Tr. at 18-19. The psychiatrist then went on to say that, at the time of the hearing, nearly a year had passed since the individual’s avowed last drink. Tr. at 20. He also stated that although the laboratory tests he gave the individual cannot establish conclusively the date of his last drink, “[t]hey supported what he said.” Id. Finally, he testified that the individual “has a tendency to abuse and dependence” and “under stress, he has to be even more alert to the possibility that he will crave alcohol and has to use more adaptive coping mechanisms to keep away from alcohol.” Tr. at 22.

Following the psychiatrist’s testimony, the individual explained the steps he has taken since the psychiatric examination toward recovery from his alcohol abuse. In response to questioning by the DOE Counsel, the hearing officer and the psychiatrist, he testified that the sentence from his 1999 DUI conviction included a component of community service, which he had completed, Tr. at 35, one of alcohol education, which he had also completed, Tr. at 36, and another of 42 hours of therapy of which he had attended 32 hours and fully intended to complete the rest as scheduled. Tr. at 34. In addition, he testified that he had abstained completely from alcohol since the date of the DUI, 11 months before the hearing. Tr. at 38. He further testified that he does not attend Alcoholics Anonymous meetings, but instead intends to participate in an after-care plan at the counseling center where he currently receives his therapy. Tr. at 41. He also responded to questions about the stability of his life, in light of his divorce and the shared custody of his son, and mechanisms he now relies on for talking out his problems and otherwise dealing with stress. Tr. at 49-50.

After hearing the individual’s recount of his efforts toward recovery, the psychiatrist stated that the aftercare program available at the counseling center “would be as good as AA.” Tr. at 50. The psychiatrist’s only concern was that all of the individual’s efforts had taken place under the duress of the legal system and wondered how well the individual would fare after the legal ramifications for failure of compliance were lifted. He resolved this concern in his own mind:

I say that-- he’d be at lower risk for relapse than many people, based on how well he’d done. . . . [H]e didn’t have a significant relapse, [and] it didn’t . . . get to the point of dependence. He caught it early; he stopped when he was told to stop; he’s suffered consequences; he’s facing the consequences; he’s gone through the program. So I’d say that he’s at lower risk to relapse later when he’s no longer under . . . the legal system.

Tr. at 54. He concluded with the following opinion:

So I’d say now he is in full remission, plus or minus a month. . . . And I would say that there’s enough of rehabilitation and reformation at this time. I don’t think that his illness had reached such proportion that he needs another year. . . . I don’t think it would be beneficial to use the 12-month [guideline in the Diagnostic and Statistical Manual for distinguishing full from partial remission from alcohol abuse] as that . . . strict in this respect. I think the 11 . . . months at this point should suffice. There’s every indication that he’ll go the full 12 months.

Tr. at 55, 57. In addition, he explained that he looks for three criteria when considering whether an individual has achieved rehabilitation and reformation: abstinence, stability and honesty. In the case of the individual, the psychiatrist found all three to be present. Tr. at 58-60.

In presenting the SO’s security concerns, the personnel security specialist testified that evidence of abstinence would mitigate its concern about use of alcohol habitually to excess, and a finding by the psychiatrist that the individual was rehabilitated would mitigate its concern about alcohol abuse. Tr. at 65. Based on the evidence produced in this case, and particularly on the testimony received at the hearing, I believe that the individual is rehabilitated and reformed from his excessive use and abuse of alcohol at this time. It is therefore my opinion that the evidence presented in this proceeding has mitigated the SO’s security concerns under Criterion J.

Criterion L-- Arrests and Other Law Enforcement Involvement

In its Notification Letter, the SO enumerated an additional security concern that has arisen from the three DUI arrests discussed above and five additional incidents that involved law enforcement. These incidents, which form the basis for the SO’s concern that the individual had engaged in activities that tend to show that he is not honest, reliable or trustworthy, fall into two discrete categories, those related to alcohol usage and those not related to alcohol usage. I will address each category separately.

The first category included the DUI arrests in 1981, 1983 and 1999, and an additional arrest that dates from 1986 (urinating in public). The individual has admitted to the SO that he had been drinking prior to the 1986 arrest. DOE Exhibit 12 (Case Evaluation 4/29/92). I therefore conclude that all of these offenses were alcohol-related.(1) In 1992 and 1997 reviews of the individual’s personnel security file, the SO determined that the 1981, 1983, 1984, and 1986 arrests were not security concerns because of the passage of time, and recommended continuing his access authorization. DOE Exhibit 12. The 1997 SO review stated that these same arrests were mitigated by time, but should be reevaluated if additional derogatory information surfaced. DOE Exhibit 12. The personnel security specialist testified that at the time of those reviews, the individual’s alcohol use had decreased and, giving him the benefit of the doubt, the SO assumed that his alcohol problems were now in the past. However, the new DUI arrest raised the concern again. Tr. at 69-70.

I agree with the SO that these arrests, when combined with current alcohol abuse or excessive use, would tend to demonstrate a pattern of irresponsible behavior. However, on the basis of the psychiatrist’s opinion in conjunction with the testimony of others, I determined in the preceding section that the individual has mitigated the Criterion J concerns with respect to his most recent bout of alcohol abuse. In the absence of current habitual alcohol use to excess or a current diagnosis of ongoing alcohol dependence or abuse, I find it highly unlikely that the individual will engage in the future in conduct similar to that which led to these alcohol-related arrests. It is therefore my opinion that the individual has mitigated the SO’s concerns about these alcohol-related arrests.

The remaining three instances of law enforcement involvement must be considered in a different light, however. First of all, they are recent, dating from 1998 and 1999. And second, they are not related to alcohol use, but rather to a divorce proceeding, which has not yet been resolved. See, e.g., DOE Exhibit 6 (Transcript of Personnel Security Interview, June 16, 1999) at 27 (no alcohol at time of activity that led to harassment charge). Consequently, they raise concerns about the individual’s judgment that are distinct from the earlier, alcohol-related incidents.

In October 1998 the individual was the subject of a restraining order, which was dropped five days later. From the individual’s testimony at the hearing, it appears that his then-wife obtained the restraining order to ensure his removal from their house. Tr. at 80. It does not appear that any violence fueled the restraining order, but rather that the individual had removed his wife’s gun, the only gun in the house, from the house and turned it in to the police department. She was either not aware or not convinced that he had turned it in, but for whatever reason feared that he might use it. Tr. at 80-81. The SO noted that restraining orders are relatively common in divorce situations and, after receiving information about it from the individual, the SO determined that all security concerns were mitigated as of January 1999. DOE Exhibit 9.

The second recent incident occurred in March 1999. The individual’s then-wife, from whom the individual had by now separated, arrived at his residence with her boyfriend to pick up some items belonging to their son. Tr. at 81. There is some evidence that the wife and the boyfriend did not expect the individual to be at home. Tr. at 94 (testimony of police chief). In any event, the individual met them at the door, angrily told the boyfriend to leave the property, and claims to have unintentionally brushed against his wife. DOE Exhibit 6 (Transcript of Personnel Security Interview, June 16, 1999) at 7-8. The individual’s wife and her boyfriend left the property, and then filed a report with the local police that resulted in a charge against the individual of Harassment/Intent to Harm. DOE Exhibit 8. At the court hearing, the charge was dropped, and prosecution was deferred for one year with an understanding that the individual’s record would be expunged if there were no further incidents. DOE Exhibit 4. The restraining order, however, was reinstated at the time of the harassment charge and was not lifted at the court hearing.

Finally, in September 1999, the individual was charged with violating the restraining order. According to the individual’s testimony at the hearing and the statements he made to the DOE consultant psychiatrist during his evaluation, the restraining order prohibited him from having any contact with his wife, including any communications by mail. The violation occurred because he sent a letter to his ex-wife, allegedly at her request. Tr. at 78; DOE Exhibit 2 (Report of DOE consultant psychiatrist) at 3. He also maintains that the letter concerned, and was written shortly after the March 1999 incident, and that his wife held onto the letter for roughly six months before notifying the police of the violation at a time when they were embroiled in a dispute about their child’s education. Tr. at 79; see also Letter from Individual to Hearing Officer (July 19, 2000) (July 19 Letter).(2) A court hearing on the September 1999 charge took place after the date of the hearing in this proceeding, and according to the individual’s post-hearing submissions, he was given “a 12-month deferred sentence (diversion).” Letter from Individual’s Attorney to Hearing Officer (July 14, 2000).

It is critical to recognize that three recent interactions with law enforcement must be viewed with serious concern. The mere fact that three such incidents occurred within the space of a year clearly calls into question the individual’s judgment and self-control. I agree with the SO that it was entirely appropriate to raise Criterion L concerns based on the information they received. However, I have had the advantage of being presented with more current and more complete information about these incidents. I have studied the record closely, and have reached the conclusion that the individual has mitigated these concerns. First, no violence has been associated with any of the incidents. As discussed above, the individual stated in various documents and at the hearing that the restraining order stemmed from the removal of a gun from the house, the harassment charge from an unintentional touching, and the violation of the restraining order from sending his wife a letter and entering her home, both at her request. I have, moreover, reviewed the letter myself and have determined that it contains no violent content; rather, in it the individual apologizes for his behavior that led to the harassment charge. See Attachment to Letter from Individual’s Attorney to Hearing Officer (July 14, 2000). I believe the individual’s recitation of the facts that underlie these charges. The SO has not disputed his version of the facts, and there is no contradicting evidence in the record. Furthermore, the court-ordered Domestic Violence Evaluation concluded that the individual was not in need of domestic violence counseling. See Domestic Violence Evaluation at 3, attached to July 19 Letter. Second, I note that all three incidents transpired within a highly charged, tightly circumscribed context: a far-from-amicable divorce proceeding involving the custody of a child. Third and most important is that the individual has received counseling concerning his behavior, some as part of his court-ordered DUI counseling, Tr. at 101, 103 (testimony of counselor), and some through family counseling he initiated to improve his relationship with his child. Tr. at 137; Individual’s Exh. E. He also sought and continues to seek counseling from the Employee Assistance Program as needs arise, Tr. at 128, 129 (testimony of EAP director), and has in addition relied on family members to help him deal with his frustrations. Tr. at 50. From his demeanor throughout this proceeding, it is clear to me that the individual has reached an understanding of the legal ramifications of his behavior, and there has been no further involvement with law enforcement. I am convinced that he has learned from his mistakes, and now has acquired the skills and support mechanisms to cope with his divorce-related frustrations appropriately. I therefore find it highly unlikely that the individual will resort in the future to the same sort of conduct in which he engaged in 1998 and 1999.

In reaching this opinion, I also take into account how the SO itself regarded the individual’s divorce- related conduct in 1998 and 1999. Although the criminal justice system declined to punish the individual, the personnel security specialist testified that the SO does not give much weight to whether a charge was dropped, but rather considers the “actual behavior.” Tr. at 73, 76. Nevertheless, the personnel security specialist stated that the SO did not have significant security concerns about the individual’s behavior until the individual reported his DUI arrest. Tr. at 66 (without DUI, divorce-related criminal conduct “could possibly be mitigated”); 83-84 (until DUI arrest came up, “it wasn’t as serious a problem, unless of course, there was actual violence involved”); see also DOE Exhibit 7 (in the case evaluation that preceded the DUI incident, SO determined no action was needed with respect to the individual’s PSAP clearance).

In light of the absence of evidence of violence, the elimination of alcohol abuse as a concern at this time, and my conclusion that the individual has developed the necessary skills and support mechanisms to prevent recurrence of such divorce-related conduct, I believe that the individual has mitigated the derogatory information that formed the basis for the SO’s concerns under Criterion L. Consequently, it is my opinion that the individual’s involvement with law enforcement does not raise a disqualifying security concern at this time.

V. Conclusion

Based on the entire record in this proceeding, I find that the individual has resolved the security concerns raised under 10 C.F.R. § 710.8(j) and (l). Particularly in light of the DOE consultant psychiatrist’s opinion that the individual has now attained rehabilitation and reformation, I conclude that the individual has mitigated the concern that he uses or has used alcohol habitually to excess and suffers from alcohol abuse. I also find that he has mitigated the concern that he engaged in conduct which tends to show that he is not honest, reliable or trustworthy, and 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.

For the reasons explained in this Opinion, I find that the individual has shown that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the 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 to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

William M. Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: July 28, 2000

(1)The 1984 arrest for driving with a suspended license is sui generis. Although it occurred while the individual was urinating outside a convenience store, Id., and therefore reflects the same pattern of behavior as that which occurred while he was drinking in 1986, there is no evidence in the record that he was drinking at the time of this arrest. In any event, the individual testified that he was not driving at the time, though he and a friend were using his car, Tr. at 134-135, and police department records reflect that the district attorney dismissed the case. DOE Exhibit 12 (Case Evaluation 2/5/92). Considering the age and resolution of this case, it is my opinion that it contributes negligibly, if at all, to any security concerns.

(2)In a post-hearing filing submitted at my request, the Individual provided a Domestic Violence Evaluation performed by court order. In that document, it appears that the individual informed the evaluator that another violation occurred shortly after he wrote the letter, when he came to his wife’s apartment to deliver some of his son’s belongings, again allegedly at his wife’s request. Domestic Violence Evaluation, attached to July 19 Letter.