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Case No. VSO-0349, 28 DOE ¶ 82,762 (H.O. Fine September 28, 2000)

* 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 28, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 28, 2000

Case Number: VSO-0349

This Opinion concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as "the Individual") to maintain a level “Q” 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 local Department of Energy Office (the DOE Office) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored at the present time.

I. BACKGROUND

The present proceeding involves an alcohol dependent Individual. Because this Individual indicated that he had recently used alcohol, a Personnel Security Interview (PSI) of the Individual was conducted on October 19, 1999. This PSI failed to resolve the security concerns raised by the Individual’s then recent alcohol consumption. Accordingly, the DOE Office referred the Individual to a board-certified psychiatrist (the DOE Psychiatrist) for further evaluation. After reviewing the information provided to him by the DOE Office and his records of his previous evaluation of the Individual, the DOE Psychiatrist determined that no further evaluation of the Individual was necessary, since he had previously diagnosed the Individual as alcohol dependent. The DOE Psychiatrist opined that since the Individual was alcohol dependent and continued to use alcohol he was neither reformed or rehabilitated.

Because the Individual was unable to resolve the security concerns resulting from his alcohol use, an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The Operations Office then issued a letter notifying the Individual that it possessed information which raised a substantial doubt concerning his eligibility for access authorization (the Notification Letter).

The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, 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, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). Second, the Notification Letter alleges that the Individual has "an illness or mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE Office presented three witnesses: the DOE Psychiatrist, a Personnel Security Specialist and a representative of the Individual’s employer. The Individual presented three witnesses: a substance abuse counselor, his former supervisor as well as a friend and coworker. The Individual also testified on his own behalf. See Transcript of Hearing, Case No. VSO-0349 (hereinafter cited as “Tr.”).

II. STANDARD OF REVIEW

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). The 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). I have considered the following factors in rendering this opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's 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 continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c); § 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

III. FINDINGS OF LAW AND FACT

The Individual is clearly alcohol dependent. The DOE Psychiatrist has diagnosed the Individual as alcohol dependent. Tr. at 85. The Individual’s expert witness also testified that the Individual is alcohol dependent. Tr. at 56. The Individual candidly describes himself as “an alcoholic.” Tr. at 18. Accordingly, the DOE Office has appropriately invoked Criterion J and H. The only question before me therefore is whether the Individual has mitigated the security concerns raised by his alcohol dependence.

The Individual has had a long and extensive history of counseling and treatment for alcohol dependence. His first formal attempt to overcome his problems with alcohol occurred in the late 1980's when he entered an inpatient treatment program at a local detox center. Tr. at 18. After completing this program, he apparently abstained from drinking for about four years. Tr. at 19. In 1995, the Individual was evaluated by the DOE Psychiatrist. The DOE Psychiatrist concluded that the Individual was “Alcohol Dependent” as defined in the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). As a result, he was enrolled in the DOE’s Employee Assistance Program Referral Option or EAPRO program for two years. As part of the EAPRO program, the Individual began attending Alcoholics Anonymous meetings. Tr. at 20. He successfully completed the EAPRO Program in October 1997. Tr. at 12. In 1998, the Individual began, on his own volition, seeing a drug and alcohol counselor for assistance with alcohol related issues. In October 1999, the Individual informed DOE Security that he had used alcohol after graduating from the EAPRO Program on approximately eight to ten occasions. DOE Security again referred the Individual’s case to the DOE Psychiatrist. The DOE Psychiatrist subsequently informed DOE Security that additional examination and testing of the Individual was not necessary since (1) he had already diagnosed the Individual as alcohol dependent and (2) the Individual was continuing to use alcohol.

At the Hearing, there was conflicting testimony about the date of the Individual’s last consumption of alcohol. I attribute this to an honest confusion on the Individual’s part. The Substance Abuse Counselor testified that the Individual had abstained from using alcohol since he had begun treating him in 1998 except for one relapse in June 1999. Tr. at 60. In the October 19, 1999 PSI, the Individual indicated that he had last consumed alcohol in July 1999. PSI at 35, 39. At the hearing, the Individual exhibited some confusion as to when he last used alcohol. Initially, the Individual testified that he had used alcohol 4 to 6 months ago. Tr. at 14. The Individual then testified that he had only used alcohol once since he began seeing the Alcohol Counselor in 1998. Tr. at 14, 15. The Individual then testified that he was unsure of the date of his last relapse. Tr. at 16. He then indicated that the Substance Abuse Counselor would know the date of his relapse. Id. I am convinced that the Individual has not consumed Alcohol during the past 14 months.

After his initial examination of the Individual in 1995, the DOE Psychiatrist diagnosed the Individual as alcohol dependent. Tr. at 84, 85. At that time, the DOE Psychiatrist indicated that in order to reform and rehabilitate himself, the Individual would need to undergo an active alcohol treatment program for a minimum of 50 hours; counseling; group therapy, an educational program and a family program. Tr. at 85. In addition, the DOE Psychiatrist recommended that the Individual participate in the Alcoholics’ Anonymous Program (AA). Id. Even after meeting all of these requirements, the DOE Psychiatrist concluded, the Individual would need a minimum of 2 years of complete sobriety before he could be considered to be reformed. Id. In light of all that has transpired since he initially evaluated the Individual, the DOE Psychiatrist now opines that, in order to show rehabilitation or reformation, the Individual would either need to show that he has remained completely sober for a period of five years or that he has undergone the treatment program described above and remained completely sober for at least 3 years. Tr. at 88-90.

The Substance Abuse Counselor testified that he has been counseling the Individual since March 14, 1999. Tr. at 56. The Substance Abuse Counselor concurred with the DOE Psychiatrist’s finding that the Individual is alcohol dependent. Id. However, the Substance Abuse Counselor further testified that he considered the Individual’s Alcohol Dependence to be in “full remission.” Tr. at 63. The Substance Abuse Counselor also testified that the Individual “is an honest, caring, hard-working fellow who wants to do a good job, [and who] wants to stay sober [for life].” Id. Most importantly, the Substance Abuse Counselor testified that the Individual “is a good bet for continued sobriety . . . .” Tr. at 63.

A number of highly qualified expert witnesses have testified in previous DOE Security Hearings that individuals with substance abuse disorders are not sufficiently rehabilitated until they have abstained from the use of all psychoactive substances for a period of at least 12 months. Personnel Security Hearing, Case No. VSO-0103, 26 DOE ¶ 82,761 (H.O. Fine Oct. 24, 1996), affirmed, 26 DOE ¶ 83,006 (OHA January 15, 1997), affirmed (OSA March 13, 1997), See also e.g., Personnel Security Hearing, Case No. VSO-0063, 25 DOE ¶ 82,789; Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753, affirmed 25 DOE ¶ 83,013, terminated, (OSS June 7, 1995); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755; Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758.

The testimony of these experts reflects a widely held view among substance abuse professionals. This consensus is also reflected in the DSM-IV's diagnostic course specifiers for Chemical Dependency Disorders which distinguish between Early Remission and Sustained Remission. Specifically, the DSM-IV states:

Because the first 12 months following Dependence is a time of particularly high risk for relapse, this period is designated Early Remission. After 12 months of Early Remission have passed without relapse to Dependence, the person enters into Sustained Remission.

DSM-IV at 179. As the quote indicates, this consensus among substance abuse professionals exists because substance dependent individuals present a significantly higher danger of relapse during the first 12 months following their sobriety date. This significantly higher rate of relapse provides a sound and reasonable basis for the experts' consensus opinion that a period of 12 months of abstinence from the use of alcohol and drugs is generally necessary to establish rehabilitation. This 12 month standard is not a hard and fast rule. It therefore must be flexibly applied on a case-by-case basis in the DOE's security clearance proceedings.

In the present case, the DOE Psychiatrist has recommended an unusually long period of sobriety. This deviation from the statement from the DSM-IV quoted above is apparently explained by extra risk factors that the DOE Psychiatrist identified in the case of this individual. Specifically, the DOE Psychiatrist noted that the Individual is a “binge-drinker” and has had several episodes of treatment and relapse. Tr. at 89. The DOE Psychiatrist also noted that the Individual had not complied with several aspects of the treatment program that he had outlined in 1995. After considering the testimony of the Substance Abuse Counselor and the DSM-IV, I do not believe that the Individual needs to have the 5 years of uninterrupted sobriety that the DOE Psychiatrist opines is necessary to conclude that the Individual is fully reformed. However, I am not of the opinion that the Individual has progressed far enough in his recovery for a sufficient length of time to resolve the security concerns. In reaching this conclusion, I not only rely upon the DOE Psychiatrist’s opinion that the Individual is only about a quarter of way down the road of recovery, but also the Individual’s own candid admission that he has a lot more to learn about dealing with his alcohol dependence. Tr. at 100.

Finally, I note that DOE Security has already provided the Individual with a second chance. When the Individual was first diagnosed as alcohol dependent, he did not lose his access authorization. Instead, DOE Security allowed him to participate in the EAPRO Program. Unfortunately, the Individual’s problems with alcohol recurred, despite the DOE’s attempt to provide him with an opportunity to rehabilitate himself .

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not shown that his access authorization should be restored at this time, since the Individual has not resolved the security concerns raised under Criterion H and J. The Individual has not demonstrated that granting his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be granted at this time.

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 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 within 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: September 28, 2000