Case No. VSO-0355, 28 DOE ¶ 82,759 (H.O. Gray August 30, 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 30, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:March 31, 2000

Case Number: VSO-0355

This Opinion concerns the eligibility of XXXXX (the Individual) to hold access authorization. The regulations governing the Individual's eligibility are found at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, it is my opinion that the Individual’s access authorization should not be restored.

A. Background

In 1998, the Individual was arrested for driving while intoxicated. This arrest triggered a review of the Individual’s eligibility for access authorization, including a personnel security interview (PSI) and a psychiatric examination.(1) When the review failed to resolve doubts about the Individual’s eligibility, the Department of Energy (DOE) facility where he worked suspended his access authorization. In a Notification Letter sent to the Individual, the DOE facility listed three separate categories of derogatory information that create substantial doubts concerning his eligibility. The three categories are listed below.(2)

1. The Individual has used marijuana. This is identified as derogatory information at 10 C.F.R. § 710.8(k) (Criterion K).
2. The Individual was diagnosed by a board-certified psychiatrist as suffering from alcohol abuse. This is identified as derogatory information at 10 C.F.R. § 710.8(j) (Criterion J).
3. The Individual was diagnosed by a board-certified psychiatrist as suffering from bipolar disorder, a mental condition which causes or may cause a significant defect in his judgment or reliability. This is identified as derogatory information at 10 C.F.R. § 710.8(h) (Criterion H).

The Individual requested a hearing to respond to the derogatory information in the Notification Letter.(3) At the hearing, the Individual represented himself, and testified on his own behalf. He also presented the testimony of a psychiatrist who evaluated him (the Individual’s psychiatrist), and an acquaintance. The DOE presented the testimony of a consulting psychiatrist and a personnel security specialist.

B. Analysis

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).

In the present case, the DOE brought forward three items of derogatory information. I will discuss each item separately.

1. Criterion K

Two incidents form the basis of the Criterion K charge. The first incident occurred during the Individual’s 1998 arrest for driving while intoxicated. While searching the rental car that the Individual was driving, police found a film cannister, which they said smelled like marijuana, and an item they identified as “drug paraphernalia.” The police charged the Individual with driving while intoxicated and possession of a controlled substance. Ultimately, the Individual accepted a plea bargain under which he pled guilty to driving under the influence and the possession charge was dropped.(4)

Approximately a year and a half later, the Individual was referred to a DOE consulting psychiatrist for an evaluation of a suspected alcohol disorder. During the evaluation, which is discussed below, the psychiatrist administered a drug test, in which the Individual tested positive for marijuana.(5)

The Individual’s response to these incidents is simply to assert that he has never used marijuana.(6) He denies any knowledge of how drugs or drug paraphernalia got in the rental car, and speculates that either the car was not cleaned after the previous renter returned it, or someone else placed the drug-related items in the car when he was not looking. He was unable to bring forth any evidence to support these speculations.(7)

The Individual responded to the positive drug test by claiming he had passively inhaled marijuana smoke. He testified that, shortly before the test was administered, he sat in the cab of a pickup truck with five other persons, two of whom were smoking marijuana.

Prior to the hearing, the Individual was requested to bring forward any of the other persons who were in the pick up truck, to corroborate his claim of passive exposure. He failed to bring forward any witnesses, and could not explain his failure to do so.(8) His inability to corroborate this story indicates that it is a fabrication. Moreover, a quantitative analysis of the Individual’s drug test specimen showed a level of 233 nanograms per milliliter of marijuana metabolites, a level that far exceeds any previously-recorded result for passive inhalation of marijuana.(9)

I find that there is a security concern related to the Individual’s use of marijuana. Other than his unbelievable denials, he has made no attempt to address any of the security concerns associated with marijuana use. Consequently, I find that the Individual has failed to resolve the security concern arising under Criterion K. In addition, I believe that his denial of marijuana use before the drug test is a clear falsehood, and calls into question the credibility of his testimony in general.(10)

2. Criterion J

The Individual’s alcohol disorder came to the DOE’s attention as the result of his three arrests for driving while intoxicated (DWI), in 1989, 1992 and 1998. After the 1992 arrest, the Individual was warned that any future alcohol-related incident could result in the suspension of his clearance.(11) After his 1998 arrest, the Individual was referred to a DOE consulting psychiatrist for an evaluation.(12)

As a result of the evaluation, the consulting psychiatrist diagnosed the Individual as suffering from alcohol abuse, based on the criteria set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). The main evidence of alcohol abuse is provided by the three alcohol-related arrests.(13) In addition, testing showed that the Individual had an elevated level of liver enzymes in his blood, which indicated that he was drinking alcohol in amounts sufficient to damage his liver.(14) The consulting psychiatrist also noted that the Individual had been diagnosed in 1992 with alcohol abuse or alcohol dependence by two substance abuse counselors.(15)

After the consulting psychiatrist’s report was issued, the Individual sought a second opinion from a psychiatrist of his own choosing. The Individual’s psychiatrist diagnosed the Individual with alcohol dependence, a more serious condition than alcohol abuse.(16) The Individual’s psychiatrist noted that:

I believe [the Individual] does meet the criteria for alcohol dependence, based on the fact that he has continued to consume alcohol in spite of the fact that it has created significant problems for him, i.e., [he] has been charged [three times] with DWI, he also has continued to consume alcohol even though he has been advised ... by his physician ... to abstain from alcohol ... when [he] was recovering from acute hepatitis B.... His defensive posturing regarding his alcohol use is indicative of a person with a significant alcohol problem, in denial. Additionally ... he clearly admits that his tolerance to alcohol has progressively increased over time.(17)

Despite the unanimous expert testimony that he has an alcohol disorder, the Individual simply asserts that he does not have one.(18) He supports his position by defining an alcoholic as “someone who cannot say no to a drink, ... [he] will drink [alcohol] like [he] would be drinking water.... [he drinks] in a casual manner, like all the time ... during the week and weekends, not someone who just drinks when they’re at a party ... or ... where it might be expected to drink.(19)

The Individual states that he does not meet this definition, because he has been able to stop drinking as part of a weight-loss plan.(20) Therefore, the Individual claims, he does not have an alcohol disorder. The Individual’s definition of an alcohol disorder, however, is far more restrictive than the definition employed in the DSM-IV, and is not supported by any expert testimony. I therefore find, based on the unanimous opinion of four mental health professionals, that the Individual has an alcohol-related disorder.

Both psychiatrists recommended that, as a minimum condition for rehabilitation, the Individual abstain from alcohol for at least one year and participate in an alcohol counseling program.(21) Neither condition has been met. The Individual stated at the hearing that he had abstained from alcohol for approximately five months.(22) However, his reason for abstinence is to lose weight.(23) He does not intend to continue abstaining after he has lost his desired amount of weight.(24) He has attended meetings of an educational group for persons with alcohol problems, but states that he has gotten little from the meetings other than the feeling that the other participants have worse problems than he has.(25) The Individual’s attitude toward the group meetings supports the observation of the DOE psychiatrist, who noted that the Individual strenuously denies problems with alcohol and is resistant to treatment.(26) Given the Individual’s denial, lack of insight, and unwillingness to undergo therapy, I find that he is not rehabilitated from an alcohol disorder. I therefore conclude that the Individual has not resolved the security concerns arising under Criterion J.

3. Criterion H

The Criterion H security concern is based on a series of incidents that occurred approximately twelve years before the hearing. After the deaths of his father, an uncle, and aunt in the course of a few months, the Individual manifested what the consulting psychiatrist described as a “classic” manic episode.(27) He became “psychotic, losing touch with reality, [and] having delusional concerns.(28) Because of the Individual’s extremely irrational behavior, his family obtained a court order to have him involuntarily committed to a mental hospital.(29)

The Individual was at the hospital for about two and one-half weeks. During that time he was diagnosed as having bipolar affective disorder and was prescribed lithium carbonate. At the time of discharge, the attending physician noted that the Individual’s prognosis was excellent with proper medical compliance, but poor without proper medical compliance.

Soon after his discharge from the hospital, the Individual stopped taking lithium carbonate. He claimed that he did this on the advice of another physician, but he has provided no corroboration for this. He has not received any medication or other treatment for bipolar affective disorder since his discharge from the hospital.

The Individual claims that the episode was merely the reaction to a very stressful situation, and that the absence of any recurrence of bipolar symptoms resolves the security concern raised by the original incident.(30) I find neither claim plausible. At least five different psychiatrists have concurred that the 1987 episode is a sign of bipolar disorder. While the Individual did face significant stress in 1987, the irrational and paranoid aspects of his behavior are outside the course of normal reactions to the deaths of family members. I therefore conclude that there is a significant security concern related to the Individual’s mental condition.

Testimony from the consulting psychiatrist established that, while in typical cases episodes of untreated bipolar disorder would manifest themselves at least several times a year, it is possible for the condition to lie dormant for years before reappearing.(31) The Individual’s psychiatrist testified that, if the Individual lived long enough, it was a virtual certainty that he would experience another bipolar episode.(32) Since the Individual does not acknowledge that he needs any psychiatric treatment, I find that he has not resolved the security concern arising from his bipolar episode.

C. Conclusion

As discussed above, there is significant derogatory information in the possession of the DOE which raises serious concerns under Criteria K, J and H as to the Individual’s eligibility for access authorization. The Individual’s responses to the derogatory information are not credible and fail to resolve security concerns raised by his conduct. 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.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: August 30, 2000

(1) Transcript of Hearing (Tr.), 116.

(2) Hearing Exhibit Book (HEB), Tab 2, Exh. 7, Notification Letter.

(3) HEB, Tab 2, Exh. 1, Letter from Individual.

(4) HEB, Tab 1, Exh. 5, Individual’s Incident Report.

(5) HEB, Tab 3, Exh. 1, Report of Consulting Psychiatrist.

(6) Tr., 141.

(7) Tr., 64-66.

(8) Tr., 137-40.

(9) Tr., 18; 24-26; 50-52.

(10) The Individual’s psychiatrist expressed this same opinion, when he stated at the hearing that “there is no way you can get a level [as was shown on the quantitative results report] by passive exposure. So that confirms to me that [the Individual] was ... lying to me about at least that .... And if he was doing that, then that renders everything else he told me suspect, in my opinion.” Tr., 24.

(11) Tr., 6.

(12) Tr., 6-8.

(13) Tr., 41-42.

(14) Tr., 43-44.

(15) Tr., 41; Hearing Exhibits, Tab 3, Exh. 2.

(16) Tr., 41.

(17) Individual’s Hearing Exhibit 9, Report of Individual’s Psychiatrist, 5.

(18) Tr., 89; 141.

(19)” Tr., 136-37.

(20) Tr., 136.

(21) Tr., 20; 44-45.

(22) Tr., 119.

(23) Tr., 119-20. In the Report of the Individual’s Psychiatrist, the Individual is reported as saying he began abstaining when he was advised to do so by his physician, because of his elevated liver enzymes.

(24) Tr., 121.

(25) Tr., 121-22.

(26) Tr., 21; 46.

(27) Tr., 23; 53.

(28)” Tr., 53.

(29) Ibid.

(30) Tr., 70-71.

(31) Tr., 72.

(32) Tr., 23-24; 30.