Case No. VSO-0353, 28 DOE ¶ 82,782 (H.O. Klurfeld January 4, 2001)

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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.

January 4, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: January 27, 1999

Case Number: VSO-0353

This opinion concerns the eligibility of XXXXXXXXXX (hereinafter referred to as the individual) for access authorization. The regulations governing an individual’s eligibility are codified in Part 710 of Title 10 of the Code of Federal Regulations, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” In this opinion, I will consider whether, based on the record before me, the individual’s access authorization should be reinstated. For the reasons stated below, I am of the opinion that the individual’s access authorization should not be reinstated.

The individual works for a contractor at one of the Department of Energy’s sites and has held an access authorization for approximately 15 years. As a part of his job, he is subject to random alcohol testing. In 1998 the individual reported to DOE security that he had been arrested for Driving Under the Influence (DUI). DOE security interviewed him and resolved the matter in his favor. However, DOE security cautioned the individual that if his conduct becomes a repeated behavior, further action would be taken. Personnel Security Interview at 41. At that time, the individual stated: “I guarantee, guarantee you’ll never have another one of these interviews.” Id. at 42. Approximately one year later, as the individual arrived at the work site, he was required to take an alcohol test, which he failed. The individual’s alcohol test revealed levels of .059 and .053, significantly higher than the .02 permitted. DOE personnel security investigated this and referred the individual to a DOE consulting psychiatrist (hereinafter referred to as the Psychiatrist) for evaluation. The Psychiatrist examined the individual and diagnosed that he suffered from alcohol abuse and had not at the time of the evaluation shown adequate evidence of rehabilitation or reformation. Because of these conclusions, DOE suspended the individual’s access authorization and requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement specifying that the derogatory information falls within subsection J of 10 C.F.R. § 710.8. Subsection J covers information that shows that an individual drinks alcohol to excess or has been diagnosed by a physician or licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.

The individual requested a hearing. That request was forwarded to the Office of Hearings and Appeals, and I was appointed the Hearing Officer in this matter. I convened a hearing at the DOE field site where the individual works. Twelve witnesses testified at the hearing: the individual, his wife, a personnel security specialist, the Psychiatrist, a psychologist, a personal friend, and six co-workers. The transcript of that hearing is hereafter cited in this opinion as Tr.

At the hearing, the first person to testify was a personnel security specialist. She testified that in a previously conducted personnel security interview, the individual told DOE security that he would probably just quit drinking until the time when he was eligible for retirement. Tr. at 12. Despite being in trouble related to alcohol consumption in both 1998 and 1999, and telling DOE security in 1999 that he would likely stop drinking, he disclosed that he had drunk alcohol on two occasions since then. Tr. at 12. She further testified that she relied exclusively on the opinions of the Psychiatrist to conclude that the individual suffers from alcohol abuse and has not shown adequate evidence of rehabilitation. Tr. at 17-19.

The Psychiatrist testified that after his evaluation he diagnosed the individual as suffering from alcohol abuse. At the time of the evaluation, which was five months prior to the hearing, the Psychiatrist did not believe that the individual had shown adequate evidence of rehabilitation or reformation because he was not seeking allies, treatment, and a social network to overcome the power of alcohol and seemed to minimize the extent of the problem. Tr. at 45. The Psychiatrist further testified that the historical medical records the individual submitted just prior to the hearing tended to confirm his diagnosis. Those records showed high gamma-Glutamyl Transferase (GGT) enzyme levels and elevated triglyceride levels for medical tests done in 1992, 1995, 1996 and 1997. The Psychiatrist noted that it was possible that the elevated triglyceride levels caused the high GGT levels. The Psychiatrist also noted that a doctor wrote on the individual’s test results in 1992 that the individual had recently gained weight and that weight gain could have been the cause of the elevated GGT levels. However, the Psychiatrist, while noting that weight gain and elevated triglyceride levels can possibly cause high GGT levels, testified that in his opinion it was not likely. Tr. at 39-41. The Psychiatrist explained that typically only significant obesity would cause the type of liver damage that would be reflected in elevated GGT levels, and he noted that the individual was not what he would describe as significantly obese. Next, the Psychiatrist explained that if elevated triglyceride levels were causing high GGT levels, they would typically be extremely elevated; the individual’s triglyceride levels were only mildly elevated. Tr. at 39. The Psychiatrist also noted that the individual’s medical records indicated an elevated Mean Corpuscular Volume (MCV) in 1997, which would not be caused by elevated triglycerides but would be consistent with excessive drinking. Tr. at 40. The MCV measures the size of red blood cells. Those cells typically enlarge in people who drink excessively because their nutrition intake lacks certain vitamins that maintain the correct size of red blood cells. The Psychiatrist concluded his testimony by stating that the historical medical test data that had been provided shortly before the hearing “confirmed [his] impression that [the individual] has a history of excessive alcohol use, which was causing him some medical problems which may or may not have been pointed out to him by his physician at the time.” Tr. at 41.

The individual presented a psychologist who had evaluated him. The psychologist did not agree with a number of statements the Psychiatrist made in his report to DOE. The psychologist pointed out why he disagreed with the Psychiatrist’s interpretation of the Minnesota Multiphasic Personality Inventory (MMPI) test results. Nevertheless, the psychologist agreed with the diagnosis of alcohol abuse. Tr. at 131. The psychologist testified that the individual reported on tests the psychologist administered that he used alcohol and that “as a result of that use of alcohol, he has had some trouble in his life.” Tr. at 127. See also Tr. at 128. The psychologist also believes the individual is a good candidate for rehabilitation for a number of reasons: he recognizes that the use of alcohol has led to problems in his life; he has been cooperative in the past in participating in an alcohol abuse program; and he had no other evidence of psychological disturbance that would complicate matters. Tr. at 127.

At the conclusion of the psychologist’s testimony, the individual’s second-level supervisor testified at my request. As noted earlier, the individual had failed an alcohol test immediately after he arrived at the work site. The second-level supervisor told the individual that he had failed the alcohol test and memorialized that conversation in a memorandum. Exhibit 4-3. The supervisor testified that the memorandum were notes of an interview he had with the individual after the positive test. The supervisor explained that the individual’s immediate supervisor was unavailable that morning, so he, as the supervisor’s supervisor, met with the individual. Tr. at 141. The memorandum noted that the individual told the supervisor that he had consumed only two beers and that he had not drank any alcohol for ten or eleven hours prior to the test. Tr. at 142. The supervisor confirmed that that was what the individual told him that morning. Id.

Five co-workers testified in support of the individual. All had known and worked with the individual for years and spoke very highly of him and his abilities. All had no hesitation to work closely with him. All are in a position to know and testified that the individual had no alcohol related issues on the job. An additional five co-workers appeared and were willing to testify for the individual. DOE Counsel and the attorney for the individual stipulated that their testimony would be consistent with the testimony of the five co-workers who did testify.

It is clear that the individual is held in high regard by his colleagues. There is no question of that. However, these facts do not mitigate the security concerns raised by the individual’s alcohol abuse. Eligibility for access authorization involves a determination concerning national security concerns that are different from standards of employee performance evaluation. Security concerns involve an individual's judgment, reliability, and trustworthiness twenty-four hours a day, seven days a week, not merely behavior and performance in the workplace. Personnel Security Hearing, VSO-0365 (2000). While the individual’s conduct and lack of any alcohol related incidents at work are relevant to a judgment in this case, that commendable conduct does not detract from the fact that the individual has been diagnosed as suffering from alcohol abuse and that the last incident in the record in which the individual failed an alcohol test was in fact in the workplace. The security concern exists despite this evidence of good job performance. Personnel Security Review, VSA-0174, 27 DOE ¶ 83,005 (OHA), aff’d (OSA 1998).

The individual and his wife also testified at the hearing. The individual testified that his drinking pattern has changed significantly. He testified that he had not drunk alcohol since January 1, 2000. Prior to that time, he reports that he would “normally” have a couple of beers before going to sleep, Tr. at 189, although he sometimes consumed three to four to six beers. Tr. at 190. He further testified that he had not been informed about the damage he may have been doing to his liver as reflected in abnormally high GGT enzyme levels over the last eight years, Tr. at 201, although he appears to be concerned now that he is aware of the possible damage. The individual has attended a 12-session alcohol counseling program, as well as a few sessions of Alcoholics Anonymous. In addition, he has attended some sessions with a psychologist and a counselor.

It is clear from the record that the individual suffers from alcohol abuse. Both the DOE consulting psychiatrist and the individual’s psychologist agree on that point. The medical evidence the individual submitted just prior to the hearing suggests and confirms an alcohol related problem because the reports indicate that the individual’s GGT enzyme levels have been elevated for eight years and that on one test the size of his red blood cells was abnormally large. While there may possibly be other causes, elevated GGT liver enzyme levels are typically caused by excessive use of alcohol where other common causes are ruled out. Personnel Security Hearing, VSO-0334 (2000). The DOE regulations require that I make specific findings “as to the validity of each of the allegations contained in the notification letter . . . .” 10 C.F.R. § 710.27. In this administrative review proceeding, the individual has not disputed the evaluation and conclusions of the Psychiatrist. Thus, I find that the derogatory information set forth as an appendix to the notification letter is accurate and calls into question the individual’s eligibility for access authorization.

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). After carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the individual has not presented sufficient evidence that mitigates the derogatory information set forth as an appendix to the Notification Letter. The individual has not achieved one year of abstinence, which the Psychiatrist stated the individual needed in order to show rehabilitation or reformation. The individual appears to have modified his behavior to support sobriety, since he claims that he has not had a drink since January 1, 2000. However, the motivation for that change appears to arise from his concern about losing his job and not from a concern about his alcohol consumption, although he now says that he is concerned about the effect drinking may have on his liver. Nevertheless, after listening to the individual’s testimony, I believe that he is not fully aware of or has not fully admitted the extent of his alcohol problem. He seems to believe that it is a problem only in so far as it gets him into trouble at work. This is the most persuasive argument against finding the individual rehabilitated. Personnel Security Hearing, VSO-0334 (2000). See also Personnel Security Hearing, VSO-0309, 27 DOE ¶ 82,843 (2000), aff’d, 28 DOE ¶ 83,006 (OHA), aff’d (OSA 2000),

In addition, his wife’s support for his sobriety comes from the same concern:

Hearing Officer: I’m trying to ascertain what can you tell me about how much support you will give him in making sure that this does not occur again?

Answer: I know what [the individual’s] job means to him and I know what all he has been through now and I know what all we have been through now and I think to keep my family from having to go through it again and to help [the individual] keep his job, I think we would do just about anything.

Tr. at 181-82. Despite this, the individual’s wife admitted that there still are alcoholic beverages in their house. Tr. at 180. The presence of alcoholic beverages in the individual’s home is troubling, given the individual’s alcohol abuse issues. Compare Personnel Security Hearing, VSO-0258, 27 DOE ¶ 80,206 (1999), aff’d (OSA 1999) (wife stopped drinking and no alcohol in house).

At the end of the hearing, I noted that the individual told a personnel security specialist a year before that he would stop drinking and that he would never again be the subject of an interview about alcohol consumption. After the individual asked that I “give [him] one chance on this you will never see me again,” Tr. at 210, I asked the individual why I should believe him at the end of the hearing when he said the same thing one year earlier during a personnel security interview. The individual responded that he feared for his job and that he was not going to drink again. Tr. at 211. This is precisely what he said one year earlier at the personnel security interview. It is not convincing.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I conclude that there exists derogatory information that is accurate and calls into question the individual’s eligibility for access authorization. I have also concluded that the individual has failed to mitigate that information. Thus, I cannot find that granting the individual 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 reinstated.

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 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, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals

Date: January 4, 2001