Case No. VSO-0346, 28 DOE ¶ 82,757 (H.O. Lipton August 29, 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.

August 29, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 15, 2000

Case Number: VSO-0346

This Opinion concerns the eligibility of XXXXXXXXXXXXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual’s suspended access authorization should be restored. As discussed below, I cannot recommend restoration in this case.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a detailed statement of the derogatory information. The DOE concern involves information indicating that the individual has been or is a user of alcohol habitually to excess, and has been diagnosed by a board-certified psychiatrist as abusing alcohol. 10 C.F.R. § 710.8(j) (hereinafter Criterion J). (2)

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual was represented by an attorney. The individual testified on his own behalf, and presented testimony of a clinical psychologist (the psychologist) (3), his girlfriend, and two co-workers/friends. The DOE Counsel presented the testimony of the consultant psychiatrist who provided the evaluation referred to in the Notification Letter (the psychiatrist) and a security officer employed by the individual’s employer.

II. Statement of Derogatory Information

As stated above, the area of concern identified in the Notification Letter involves the individual’s use of alcohol. The letter also sets forth details giving rise to this concern. Specifically, the Notification Letter refers to the psychiatrist’s evaluation letter, stating that the individual has abused alcohol and, at the time of that evaluation, had not shown adequate evidence of rehabilitation. In this regard, the psychiatrist stated that the individual (i) had not sought voluntary treatment, and saw no need to do so; (ii) continued to use alcohol; (iii) had abnormally elevated liver enzymes, suggesting that he currently drinks at levels high enough to cause liver damage; and (iv) would require an intensive outpatient treatment of one to two years to be considered rehabilitated from his condition. The Notification Letter also states that the individual was arrested for Driving Under the Influence of alcohol (DUI) or Driving While Intoxicated (DWI) five times during the period 1988 through 1998.

III. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we apply a different standard, which is designed to protect national security interests. 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). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting or 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. See Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) ("the clearly consistent with the interests of the national security test" 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)(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. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

As I pointed out above, the psychiatrist diagnosed this individual as an abuser of alcohol. (4) The individual has been involved in five alcohol-related arrests in the last 12 years. One of those incidents occurred less than 12 months prior to the psychiatric evaluation. The individual testified that he has “a drinking problem.” Transcript of Personnel Security Hearing (Tr.) at 13. I find that this is adequate evidence of a Criterion J security concern regarding this individual’s use of alcohol.

Once a security concern has been found to exist, the individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff’d, 25 DOE ¶ 83,013 (1995)(VSA-0005). See also, 10 C.F.R. § 710.7(c)

The individual has not had any group or individual alcohol counseling. He maintains, however, that he has been abstinent from alcohol since December 6, 1999, and that this establishes that he has overcome his alcohol abuse problem. Tr. at 22. (5) He therefore believes that the DOE’s security concerns have been resolved.

After reviewing the testimony at the hearing, I am convinced that the individual has corroborated his contention that he has abstained from alcohol use for a period of about 7½ months. The individual’s girlfriend, with whom he has had a relationship for about seven years, testified that she has not observed him consume alcohol since December 1999. In this regard, she stated that she has seen him on a daily basis since the month of April 2000. She also indicated that there has been no alcohol in his home since December 1999. Tr. at 137-140.

One of the individual’s co-workers testified that he and the individual used to consume alcohol together, but did not recall seeing the individual use alcohol in about 6 months. He also stated that he and the individual have been at about 14 union meetings since the individual decided to refrain from using alcohol. At those meetings, alcohol is usually available, but this witness testified that he did not see the individual consume alcohol at those meetings. Tr. at 130. Since there are about two union meetings per month, the 14 meetings took place over a period of about seven months, which is about the length of the abstinence period asserted by the individual. Moreover, I recognize that the witness’ memory may not be perfectly accurate when he asserted that he had not seen the individual use alcohol in six months. I viewed that time frame as an approximation. I therefore find the witness’ statement that he has not seen the individual use alcohol in about six months was not inconsistent with the individual’s own assertion of a slightly longer period. This witness also stated that he drops by the individual’s house from time to time and has not seen the individual use alcohol on those occasions. Tr. at 132. Another co-worker testified that during the period from December 1999 through April 2000, he saw the individual socially several times a month, and that the individual did not consume alcohol during that time. Tr. at 155-160. Finally, both the psychiatrist and the psychologist believe that this individual is presently not an abuser of alcohol. Tr. at 98, 112. (6)

Based on this testimony, I am persuaded that the individual has maintained abstinence from alcohol since December 6, 1999. I believe that he is currently not an alcohol abuser, and that his alcohol abuse is in remission. This is indeed a significant positive step for this individual. However, I do not believe that the individual is rehabilitated, or that the Criterion J security concerns have been fully resolved.

As an initial matter, I note that this individual has had problems associated with alcohol use for at least 11 years, since the 1988 charge of driving while intoxicated cited in the notification letter. Given this extended period, I believe that the 7½ month period of abstinence demonstrated here is, overall, rather short. Personnel Security Hearing (Case No. VSO-0328), 27 DOE ¶ 82,849 (2000). In this regard, the psychiatrist testified that he thought that in the absence of a structured recovery program, a period of two years of abstinence would be necessary here to convince him that this individual was rehabilitated from his abuse problem. Tr. at 59. He indicated that as a rule, in these types of cases, at least one year is necessary, so that an affected individual is able to pass through all of a year’s events that are often associated with alcohol use, such as New Year celebrations, Christmas parties, birthdays, anniversaries and other holidays. He referred to it as having “cleared a year’s worth of social hurdles.” Tr. at 57. (7)

Further, there is a consensus between the two experts that this individual needs to take some additional steps to fully resolve his alcohol problems. The psychiatrist believes that the individual should receive additional treatment from a counselor or a psychologist. Tr. at 113. He recommended weekly sessions, along with some group counseling, such as that offered by Alcoholics Anonymous. Tr. at 92, 114. He believed that the prognosis for rehabilitation is far better if the individual has support through a treatment program. Tr. at 48-49. The psychiatrist stated that without a structured treatment program, the individual would need two years of abstinence to establish reformation. Tr. at 59.

The psychologist also recognized that it is possible for alcohol abusers to be rehabilitated without a formal treatment program. Tr. at 106. He recommended, however, that the individual in this case have monthly sessions with a counselor to review his progress. He believed that such a program would protect both the individual and the DOE’s interests. Tr. at 102-06. (8) He stated that the individual and the DOE needed this monthly program as a “safety net” to respond to “our collective doubts that this stuff [abuse of alcohol] may come back.” Tr. at 108. The psychologist indicated that he sees some risk of relapse here. He testified that supervision of the individual’s situation for 18 months is still necessary “as a safety measure” to “reassure ourselves. . . that we don’t have a false cure here.” Tr. at 110.

It is clear from this testimony that the individual is not fully rehabilitated from his alcohol use problems. There is still a risk of relapse that raises a concern for the psychiatrist and the psychologist. Both experts agree that at this point, the individual needs a counseling program along with his continued abstinence. While the psychiatrist referred to the program as “treatment,” and the psychologist thought of the program as a “safety measure,” I do not attach any significance to this difference in terminology. I need not determine precisely which of the two recommendations is appropriate for this individual. What is clear to me is that both experts believe that in order to be fully reformed, this individual needs to do more than just abstain from alcohol use for a period of 7½ months.

Thus, overall I find that the individual has not brought forward sufficient evidence to fully resolve the DOE’s concerns regarding his alcohol use.

IV. CONCLUSION

As set forth above, I find that there is derogatory information in the possession of the DOE which raises serious concerns under Criterion J as to the eligibility of this individual for access authorization. I have also found that the individual has failed to bring forth sufficient evidence to mitigate the security concerns. I am therefore unable to find that restoring the individual’s access authorization would not endanger the common defense and security 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 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. 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 with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: August 29, 2000

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

(2)Criterion J includes information that the individual has “been or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.”

(3)The individual retained the psychologist for purposes of obtaining an evaluation, and not for treatment. Transcript of Personnel Security Hearing at 95-96.

(4)There was considerable testimony about whether this individual’s behavior met the standard for alcohol abuse set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1995) (DSM-IV). Tr. at 79-90. While the record is not clear on the specific findings that support the conclusion that the individual meets the DSM-IV criteria for alcohol abuse, both the psychologist and the psychiatrist testified that they believe that the individual was in the past an abuser of alcohol. Tr. at 98, 112.

(5)The individual also provided results from three tests performed in the months of September and December 1999 and June 2000 that were negative for alcohol.

(6)The psychiatrist was skeptical of the individual’s claim of abstinence. Tr. at 64-65. However, the psychiatrist did not hear the testimony of the witnesses who corroborated the individual’s position. Overall, I find these witnesses were persuasive, and that their testimony overcomes the psychiatrist’s doubts about the individual’s abstinence.

(7)The psychologist did not testify specifically on the issue of whether 7½ months of abstinence is adequate in this case, although, as discussed in the text below, he does think the individual needs some supervision, in addition to abstinence.

(8)The psychologist testified that the individual does not present a DOE security risk. Tr. at 107. Since the psychologist is not an expert in matters of DOE security, I do not believe he is qualified to provide testimony on this subject. Accordingly, I give no weight to that opinion.