Case No. VSO-0359, 28 DOE ¶ 82,768 (H.O. Schwartz October 27, 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.

October 27, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case:Personnel Security Hearing

Date of Filing:April 6, 2000

Case Number: VSO-0359

This Opinion concerns the eligibility of XXXXXXXXXXXX (the individual) for access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria for Access to Classified Matter or Special Nuclear Material.” A Department of Energy (DOE) office received information that raised questions about his eligibility, and was unable to resolve those questions informally. The individual requested a hearing on this matter, at which I presided. As explained below, it is my opinion that the individual’s access authorization should not be restored.

I. Background

The individual has worked for a DOE contractor and held access authorization for many years. During that period, the DOE security office that has responsibility for the program in which he works has periodically reinvestigated him to ensure that continued access authorization is appropriate. See Transcript of Hearing (Tr.) at 12. During his most recent investigation, the DOE security office received information that indicated that the individual had been arrested in September 1998 for aggravated assault and battery against a household member. Tr. at 13. On the basis of that information, the security office conducted an interview in order to resolve its concerns about the behavior underlying the arrest. During that interview, the individual also explained that he had been referred to the Employee Assistance Program (EAP) for counseling regarding the September 1998 incident. Transcript of Personnel Security Interview, July 30, 1999 (July 30 Tr.) at 156. The individual signed a Recovery Agreement at the EAP, in which he committed to abstain from alcohol for a year (DOE Tab 6, Exhibit 3), and stated during the interview that he had not consumed any alcohol in the ten months since signing that agreement. July 30 Tr. at 237-38. The individual then requested a second interview, in order to inform the DOE about his gender identity issues and to correct some statements he had made three days earlier. Tr. at 14. He admitted, in that second interview, that he had abstained from alcohol for only the first four months of the agreement and then resumed drinking. Transcript of Personnel Security Interview, August 2, 1999 (August 2 Tr.) at 142. Until he made this admission, the DOE security office knew only that he had tested positive for alcohol during a random drug and alcohol test administered in May 1999. August 2 Tr. at 163. He admitted that he had not shared with his EAP counselor his gender issues or the fact that he had intentionally reneged on his Recovery Agreement. August 2 Tr. at 26, 166-67. The interviews did not resolve the security office’s concerns, and the office recommended that the individual be evaluated by a DOE consultant-psychiatrist. Tr. at 14. After evaluating the individual, the psychiatrist diagnosed the individual, in a report to the DOE, as suffering from “Gender Identity Disorder (Transsexuality), Sexually Attracted to Females” (GID), and “Substance Abuse, Alcohol, without adequate evidence of rehabilitation or reformation.” DOE Tab 6, Exh. 5, Psychiatric Evaluation Report (November 23, 1999) (Psych. Report) at 20, 22. Since information creating doubt as to the individual’s eligibility for a security clearance remained unresolved after the psychiatric evaluation, the DOE security office obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

On March 8, 2000, the DOE security office issued a Notification Letter to the individual which identified the derogatory information that cast doubt on his continued eligibility for access authorization. According to the DOE security office, the derogatory information falls within the purview of three subsections of the regulations set forth in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the individual has an illness or mental condition that, in the opinion of a board- certified psychiatrist, causes, or may cause, a significant defect in his judgment or reliability. 10 C.F.R. § 710.8(h) (Criterion H). The DOE security office maintains that this individual meets Criterion H because the DOE consultant-psychiatrist diagnosed him as suffering from GID, “causing both significant distress as well as impairment in social functioning and has contributed towards his substance abuse, alcohol.” Second, the DOE security office alleges that the individual 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.” Notification Letter, citing 10 C.F.R. § 710.8(j) (Criterion J). In this regard, the Notification Letter specifies that the DOE consultant-psychiatrist diagnosed the individual as suffering from alcohol abuse without adequate evidence of rehabilitation or reformation, that he signed the Recovery Agreement but then broke his commitment, that he tested positive for alcohol while at work in May 1999, and that he admitted to the DOE consultant- psychiatrist that he is a binge drinker. Finally, the Notification Letter alleges 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.” Notification Letter, citing 10 C.F.R. § 710.8(l) (Criterion L). The DOE security office bases this concern on the fact that he withheld information about his alcohol consumption from his EAP counselor for many months, as well as on his 1998 arrest and eventual conviction for aggravated assault, and on an earlier arrest, without conviction, in 1981.

The individual filed a response to the allegations contained in the March 8, 2000 Notification Letter together with a request for a hearing regarding those allegations. In that response, the individual outlined the various steps he had taken or intended to take to address the DOE security office’s concerns about his GID and alcohol abuse, including individual and group psychotherapy sessions, attendance at Alcoholics Anonymous meetings, anger management classes, and GID support group meetings. He also offered an explanation for his 1998 conviction and alleged that his relationship with his wife has improved. The DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA) Director. The OHA Director appointed me as Hearing Officer in this case. 10 C.F.R. § 710.25(b). I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative hearing process. At the hearing, the DOE called two witnesses: the consultant-psychiatrist and a DOE personnel security specialist. The individual represented himself, and offered the testimony of his supervisor, a friend and co-worker, his EAP counselor, his psychotherapist, and his wife, and testified on his own behalf. I closed the record after receiving the transcript of the hearing. See 10 C.F.R. § 710.27(e).

II. Analysis

The applicable 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 access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence; and other relevant and material factors.

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. Finally, I note that once the DOE has raised legitimate security concerns, it is incumbent upon the individual to demonstrate 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). After careful consideration of these factors and all the evidence in the record in this proceeding, I recommend that the DOE not restore the individual’s access authorization.

A. Criterion H

The DOE security office first became aware of the individual’s gender identity issues when he volunteered the information during a personnel security interview convened at his request. See, generally, August 2 Tr. at 5-136. When it referred the individual’s case to the DOE consultant- psychiatrist for evaluation, the DOE security office asked him to address only alcoholism issues. Nevertheless, the DOE consultant-psychiatrist offered his professional opinion that the individual has Gender Identity Disorder, meeting the diagnostic criteria for that condition as established in The Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (DSM- IV). Psych. Report at 3. Relying on this diagnosis, the DOE security office informed the individual in its Notification Letter that one of its security concerns was that he has an illness or mental condition that “causes, or may cause, a significant defect in his judgment or reliability,” thus falling within Criterion H of the regulations.

I do not agree with the DOE security office’s allegation that the individual’s GID raises a legitimate concern under Criterion H. The evidence in the record clearly supports a finding that GID is a mental condition recognized in the DSM-IV and that the individual has GID. The record does not, however, support a finding that GID is the type of illness or mental condition that raises the security concern contemplated by Criterion H; that is, the record does not show that GID “causes, or may cause, a significant defect in his judgment or reliability.” 10 C.F.R. § 710.8(h). Rather, the DOE consultant-psychiatrist testified as follows: “[I]t’s my opinion that GID per se is not an illness or mental condition which causes or may cause a significant defect in judgment or reliability.” Tr. at 55. He went on to describe the symptoms of another person with GID he examined for the DOE, in which case he reached the same conclusion. Tr. at 55. He later testified that the individual in the present case had turned to alcohol to help him deal with GID issues, but was emphatic that GID itself did not adversely affect the individual’s judgment and reliability. Tr. at 58. On the basis of this testimony, I find that GID is a stressor in the individual’s life, and the individual has alleviated the GID-induced stress by abusing alcohol from time to time. (This abuse will be addressed in the following section.) Nevertheless, the record contains no factual basis that would support a finding that the individual’s GID is an illness or mental condition that causes or may cause a substantial defect in the individual’s judgment or reliability. Consequently, I find that there is no legitimate security concern under Criterion H in this case.(2)

B. Criterion J

At the hearing, the DOE consultant-psychiatrist testified concerning his diagnosis that the individual suffers from alcohol abuse. He noted that health professionals at a substance abuse treatment center had diagnosed the individual with alcohol abuse. Tr. at 38. From his own observations, he concluded that the individual was exhibiting “some denial and minimization about his alcohol consumption.” Tr. at 40. He also noted, however, that the results of various tests he ordered to quantify the amount of his alcohol consumption were negative. While he explained that negative results from the particular tests do not necessarily rule out alcohol abuse, they do establish that the individual had little if any liver damage caused by his drinking, and that his pattern of abuse, in all likelihood, did not include regularly drinking large amounts of alcohol, i.e., at least four drinks every day for the seven days prior to testing. Tr. at 40–41. On the other hand, the individual admitted to the DOE consultant-psychiatrist that he was a binge drinker and had consumed two cases of beer during the week before the test. Tr. at 42. He also admitted that his wife and he had had disagreements over his drinking, and that she felt his drinking interfered with his household obligations. Tr. at 43. Based on that information and other information he acquired from the individual, the DOE consultant-psychiatrist concurred with the treatment center’s diagnosis of alcohol abuse. Tr. at 43.

The individual’s history includes sporadic alcohol-related events, including some arrests. After a 1971 arrest for driving while intoxicated, the individual apparently decided never to drive after consuming alcohol. Psych. Report at 6. In 1981, he was arrested for resisting arrest after a rock concert. Psych. Report at 4. In approximately 1997, after consuming five or six beers in a bar, he was questioned by a police officer and taken to a hospital for evaluation of alcohol consumption, but no charges were made. Psych. Report at 5. A 1998 incident led to his being charged with Aggravated Assault and Battery Against a Household Member. Tr. at 4. When he reported that incident to his employer, he was referred to the EAP. Because the EAP counselor felt that alcohol use might have contributed to the actions that led to his arrest, she verified that assessment through a questionnaire, and in October 1998 he signed a Recovery Agreement in which he pledged to abstain from consuming alcohol for a year. DOE Tab 6, Exh. 3. Seven months into the agreement period, a random drug and alcohol test revealed that he had consumed alcohol. At that time, he informed his counselor, disingenuously in my opinion, that he had ingested the alcohol unintentionally in a dessert. August 2 Tr. at 163. During the personnel security interview that he requested, he determined to set the record straight by admitting that he himself had made the dessert, so he was aware of its alcohol content.(3) More important, he acknowledged that he had violated the terms of the Recovery Agreement when he resumed drinking alcohol in January 1999, only four months into his agreement period. August 2 Tr. at 166, 139. Finally, there is also evidence that the individual had in the past voluntarily abstained from alcohol for a few years. Psych. Report at 6.

Based on the foregoing, particularly the individual’s admissions and his inability to commit himself to the terms of the Recovery Agreement, I find substantial evidence in the record to support the findings of the DOE consultant-psychiatrist that the individual suffers from alcohol abuse. The Personnel Security Specialist testified that such excessive use of alcohol raises serious security concerns:

The concern with an individual that uses alcohol excessively or abusively [is] that it could affect [his] mind either willingly or unwillingly, which could lead to the disclosure of classified information, secret nuclear materials, [or] release of general information in the position.

Tr. at 17. For these reasons, hearing officers in DOE security clearance proceedings have consistently found that the excessive use of alcohol raises important security concerns. See, e.g., Personnel Security Hearing, Case No. VSO-0308, 27 DOE ¶ 82,840 (2000); Personnel Security Hearing, Case No. VSO-0222, 27 DOE ¶ 82,785 (1998); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995); Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995). I agree with the result in those cases, and find that the individual in this case has abused alcohol to such an extent that his behavior raises legitimate security concerns under Criterion J of the regulations. Accordingly, I will turn next to whether the individual has presented adequate evidence of rehabilitation and reformation, or other mitigating circumstances, to overcome those security concerns.

At the hearing, the individual presented substantial evidence of his efforts to curb his alcohol abuse. First and foremost, he testified that he has abstained from alcohol since January of this year. Tr. at 122. He stated that, at the time of his evaluation by the DOE consultant-psychiatrist, and shortly after his last binge, he had resolved to stop drinking. Tr. at 122. He testified that he drank alcoholic beverages “[m]aybe three, four instances after that” before he reached the decision to stop altogether, in the form of a New Year’s resolution. Tr. at 122. Testimony of a friend and co-worker supports his claim of abstention since January, Tr. at 76, as does that of his EAP counselor, to whom he appears to have owned up to his behavior after deceiving her for many months. Tr. at 80. The individual testified to, and the record contains written evidence of, his participation in one-on-one and group psychotherapy regarding anger management, marriage and alcohol issues. DOE Tab 6, Exhs. 1 and 2; Tr. at 117-119. He also testified about his attendance and serious involvement in Alcoholics Anonymous meetings, including an attendance log. Tr. at 131-32. Based on the record before me, I am convinced that the individual has changed his alcohol consumption habits as he has described. This voluntary action clearly deserves recognition and praise.

Notwithstanding this mitigating evidence, I find that the individual cannot be considered rehabilitated or reformed from his use of alcohol at this time. While it is commendable that the individual has embarked on a difficult yet rewarding path, it is not sufficient to resolve DOE’s concerns for two reasons. First, the DOE consultant-psychiatrist testified that, after considering all of the steps the individual has taken, he felt that two years of abstinence (or three years with no alcohol-related social, family, medical, legal or employment problems, if he chose to drink at all) would be needed to establish adequate evidence of reformation. Tr. at 52, 137-38. As evidence of rehabilitation from alcohol abuse, he would require either 100 hours of attendance at Alcoholics Anonymous meetings, at least once a week for a year, or successful completion of a professionally led alcohol treatment program for a minimum of 50 hours or six months; either of these programs would have to be coupled with a two-year period of no alcohol-related problems as described above. Tr. at 51-52, 137-38.(4) Adhering to the DOE consultant-psychiatrist’s timelines, the individual cannot achieve rehabilitation or reformation in less than two years. Because less than one year has passed since the individual truly committed himself to abstinence, I cannot find that he has reached either of the goals the DOE consultant-psychiatrist determined were appropriate to the individual on the basis of his past history with alcohol.

While I believe that the individual is now dedicated to his recovery from alcohol abuse, his period of commitment to that goal, beginning in January 2000, clearly falls far short of the two-year period that would, in the DOE consultant-psychiatrist’s opinion, be needed to predict with assurance that his recovery was sustainable.(5) The DOE consultant-psychiatrist felt that GID was a continuing stressor in the individual’s life, one that contributed to his bouts of alcohol abuse. Tr. at 44, 48. In explaining his opinion that GID does not involve issues of judgment and reliability, the DOE consultant-psychiatrist testified:

In the subject’s case, [however,] because he was using alcohol to help him deal with the GID, in my opinion it was creating problems with judgment and reliability, but not by itself, only to the degree that . . . he chose to use alcohol to deal with that rather than . . . get counseling, find other support groups or ways to help deal with it.

Tr. at 58. He also expressed his opinion that as the individual faces increasingly more difficult decisions related to his GID, such as whether to take hormones, whether to undergo sexual reassignment surgery, and whether to tell his grown children about it, the likelihood of resorting to alcohol as a coping mechanism remains a concern. Tr. at 137-38. For that reason, the DOE consultant-psychiatrist was unwilling to reduce the time requirements for rehabilitation and reformation, despite the individual’s progress as of the hearing. Tr. at 137-38. I agree with the DOE consultant-psychiatrist’s opinion. Not only has insufficient time passed for his rehabilitation or reformation to be complete, but his unresolved gender issues continue to create stress. He has tried to relieve that stress in the past by abusing alcohol and may try to relieve it in the future in the same manner. Moreover, although he attends Alcoholics Anonymous meetings and GID support group sessions regularly, his family has not come to terms with his GID. His wife testified to her inability to accept the individual as he is and her unwillingness to allow him to tell their children about his GID and his future plans. Tr. at 102-03. Although they are at present estranged, they nevertheless are still integral parts of each other’s, and their children’s, lives. See, e.g., Tr. at 106-08 (testimony of wife). The lack of family support for the individual’s condition does not reassure me that an enormous stress in his life, one which he has in the past chosen to address through alcohol abuse, has been reduced to such an extent that his potential for relapse to alcohol abuse has been mitigated. Consequently, I find that the individual has not sufficiently mitigated the DOE’s security concern under Criterion J in this case.

C. Criterion L

The record in this proceeding contains evidence that the individual engaged in certain behavior that the DOE security office believed to be “unusual conduct” that “tend to show that the individual is not honest, reliable, or trustworthy.” Criterion L. This behavior falls into two categories, criminal offenses and withholding information, the latter of which I find in this case to be of greater concern for national security. By withholding information, the individual failed to be straightforward in his interviews with the DOE security office and with health professionals charged with his evaluation and treatment. In his first personnel security interview, he reported to the DOE security office that he had maintained abstinence in accordance with the terms of his Recovery Agreement. July 30 Tr. at 237-38. Three days later, he admitted that he had in fact broken his commitment to abstinence seven months earlier. August 2 Tr. at 139. Equally important for security purposes, he misled his EAP counselor into believing that he was abiding by his commitment to abstinence, by not admitting to her that he had resumed drinking alcohol four months into his year-long abstinence agreement, and by feigning ignorance of the alcoholic content of a dessert the consumption of which led to a positive random alcohol screening. August 2 Tr. at 142, 166. Moreover, he told the DOE consultant-psychiatrist, during his evaluation, that he had two beers the night before the evaluation and a total of seven during the preceding seven days. Psych. Report at 16. After the evaluation, the individual increased that total to a case of beer. Psych. Report at 18. The day after the evaluation he called the DOE consultant-psychiatrist and reported that he was a binge drinker and had consumed two cases during that seven-day period. Psych. Report at 18.

The record clearly establishes an extensive pattern of misrepresenting the truth, which seriously undermines the DOE’s confidence that the individual is honest, reliable and trustworthy. To the individual’s credit, he has ultimately stepped forward, mainly within the past year, with what appear to be more truthful versions of his alcohol and gender issues. It is my impression that he has undergone a serious change in the way he is now facing his difficulties, perhaps with the assistance of Alcoholics Anonymous or his various support groups. Regardless of how he has achieved this new, more honest, more direct approach to addressing his problems, the individual is to be commended. Nevertheless, it is simply too early to predict, after such a long period of concealing information, whether this new approach will continue to dictate his future behavior. Consequently, I find that the individual has not sufficiently mitigated the DOE’s security concern under Criterion L in this case. (6)

III. Conclusion

As explained in this Opinion, I find no valid security concern under 10 C.F.R. § 710.8(h) with respect to the issues raised by the DOE security office in its Notification Letter. I do find, however, that the DOE security office properly invoked 10 C.F.R. § 710.8(j) and (l) in considering the individual’s request for access authorization. It is my opinion that, within the meaning of Criterion J, the individual has been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse. The individual has failed to provide adequate evidence of rehabilitation or reformation from this condition of the type the DOE consultant-psychiatrist has found to be appropriate for this individual. In addition, it is my opinion that the individual has engaged in unusual conduct that tends to show that he is not honest, reliable or trustworthy within the meaning of Criterion L. The individual has also failed to present adequate mitigating facts or circumstances with respect to this behavior. In view of these criteria and the record before me, I cannot find that restoring the individual’s access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be restored at this time.

The regulations set forth at 10 C.F.R § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

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: October 27, 2000

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).

(2)I note that, on the basis of the DOE consultant-psychiatrist’s testimony, I could conclude that the individual’s alcohol abuse raises a Criterion H concern. However, I need not do so here. The DOE security office did not raise this condition under Criterion H, and in any event it will be addressed fully in the next section.

(3)The DOE consultant-psychiatrist calculated the alcoholic content of the dessert and its biological effects, and determined that two or more servings of the dessert might possibly have led to positive results on an alcohol test. Psych. Report at 10-11 n.24. Consequently, he was unwilling to conclude that the individual was untruthful when he maintained that his positive test resulted from eating a dessert and not from some other source of alcohol. Tr. at 65.

(4) I note the EAP counselor’s testimony that she believed that the individual is in sustained remission from his alcohol abuse, although for less than one year. Tr. at 81-82. She dated the beginning of his reformation to his January 2000 commitment to stop drinking. Tr. at 86. His psychotherapist testified that she believed he has not consumed alcohol since January 2000, and is “progressing well” and has taken his alcohol problems seriously. Tr. at 97. Neither the EAP counselor nor the psychotherapist offered a professional opinion regarding the length of time needed for rehabilitation or reformation that challenges that of the DOE consultant-psychiatrist.

(5)Until the individual began his period of abstinence, he was attending an alcohol treatment program and telling the counselor that he was not drinking, when in fact he was. According to the DOE consultant-psychiatrist, this demonstrates that the individual was not showing adequate evidence of rehabilitation or reformation. Psych. Report at 11 n.28.

(6)The DOE security specialist testified about a small number of offenses that occurred between 1971 and 1981, including a DWI (Driving While Intoxicated) conviction while the individual was a teenager. Tr. at 13. These early incidents were followed by a long hiatus, then by two incidents of assault against a household member in 1997 and 1998, the latter event resulting in a conviction. As I have already concluded that, in my opinion, serious Criterion L concerns exist for other reasons in this case, it is not necessary to consider these offenses.