<BR>

Case No. VSO-0360, 28 DOE ¶ 82,765 (H.O. Goering October 4, 2000)

For full history of this case, and links to other cases, click here.

* 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 4, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: April 19, 2000

Case Number: VSO-0360

This Opinion concerns the eligibility of XXXXX (the individual) to hold an access authorization(1) 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 individual’s access authorization was suspended by the Manager of a Department of Energy Operations Office (DOE) pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the individual’s access authorization should not be restored.

I. Background

The individual is an employee of a contractor at a DOE facility. He has been employed at that facility since 1988. After the individual was convicted for Driving Under the Influence (DUI) in March 1999, the DOE conducted a Personnel Security Interview (PSI) with the individual on June 2, 1999. See DOE Exhibit 10. Because the security concern remained unresolved after that PSI, the DOE requested that the individual be interviewed by a DOE consultant psychiatrist. The psychiatrist interviewed the individual on July 27, 1999, and thereafter issued an evaluation to the DOE. See DOE Exhibit 11. The DOE ultimately determined that the derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved in a manner favorable to the individual. Accordingly, the DOE suspended the individual’s access authorization, and proceeded to obtain authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter to the individual. 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. The Notification Letter included a statement of that derogatory information and informed the individual that he 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, and the DOE forwarded the individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter.

At the hearing convened pursuant to 10 C.F.R. § 710.25(e) and (g), the individual, the individual's counselor, and the DOE consultant psychiatrist testified. The individual submitted one exhibit and the DOE Counsel submitted eleven exhibits. After the hearing, I kept the record open to provide the individual an opportunity to provide two additional exhibits. I closed the record upon receiving those exhibits.

I have reviewed and carefully considered the evidence in the record. I have considered the evidence that raises a concern about the individual’s eligibility to hold a DOE access authorization. I have also considered the evidence that mitigates that concern. And I conclude, based on the evidence before me and for the reasons explained below, that the security concern has not been resolved.

II. Analysis

A. The Basis for the DOE’s Security Concern

As indicated above, the Notification Letter issued to the individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the individual’s eligibility for access authorization. In the Notification Letter, the DOE characterized this information as indicating that the individual “has been, or 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.” See 10 C.F.R. § 710.8(j). The statement was based on the individual's description of his prior alcohol use and alcohol- related arrests, as well as the diagnosis of the DOE consultant psychiatrist that the individual suffered from “Alcohol Abuse, Ongoing” and “has not shown evidence of rehabilitation or reformation.” DOE Exhibit 3.

The individual does not dispute the following history of his alcohol-related arrests. In June 1987, the individual was arrested and charged with DUI. DOE Exhibit 7; DOE Exhibit 10 at 4. While the charge was eventually reduced to reckless driving, the individual's blood alcohol content (BAC) measured after his arrest was 0.15 percent. DOE Exhibit 10 at 4-5. In August 1989, the individual was arrested a second time for DUI, at which time his BAC was 0.14 percent. DOE Exhibit 8; DOE Exhibit 10 at 5. The individual and his friends were charged with Alcohol Intoxication in June 1995 after police stopped the car in which he was a passenger. DOE Exhibit 9; DOE Exhibit 10 at 5 (June 1999 PSI in which the individual describes the June 1995 charge as “Open Container In a Car”). Finally, in February 1999, the individual was charged again with DUI, and convicted of this offense in March 1999. DOE Exhibit 10 at 14-15. At the time of his most recent arrest, the individual's BAC was 0.14 percent. DOE Exhibit 10 at 8.

Regarding his drinking habits, the individual stated in a February 22, 1988 PSI, that he had last been intoxicated at a 1987 Halloween party. In his May 20, 1993 PSI, the individual stated that he drank on average approximately one-half of a case of beer per week, and that he was last intoxicated in approximately April 1993. The individual stated in a August 22, 1995 PSI that his pattern of drinking had not changed since his 1988 interview. And in his June 2, 1999 PSI, the individual stated that he usually drank about two to three times per week (on his days off), DOE Exhibit 10 at 9, and became intoxicated “[m]aybe two” times per month.

A DOE consultant clinical psychologist gave the individual a test called the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). The psychologist reported that the “all these test results are indicating is that he does possess personality characteristics associated with increase [sic] proneness to having problems with addictive type behaviors around alcohol and/or drugs. It does not indicate whether or not this might cause a significant defect in his judgement or reliability.” DOE Exhibit 11. The DOE consultant psychiatrist interviewed the individual and reviewed the MMPI-2 results and concluded that the individual suffered from “Alcohol Abuse, Ongoing,” noting that he

presents with a history of recurrent alcohol abuse, which has resulted in no fewer than four arrests since 1987. While he does show a history of inability to “learn from past mistakes”, he also appears to exhibit problems in controlling his alcohol use. Use of poor judgment surrounding his alcohol use is particularly problematic as well. In that there has been no attempts at formal alcohol rehabilitation as well as recurrent legal problems secondary to alcohol use, I do feel that [the individual] has not shown evidence of rehabilitation or reformation.

DOE Exhibit 11.

1. Whether the Individual Suffers from Alcohol Abuse

The DOE does not allege that the individual has been diagnosed as alcohol dependent, but does point to the DOE psychiatrist's diagnosis that the individual suffers from “Alcohol Abuse, Ongoing.” DOE Exhibit 3. The individual presented no testimony of a board-certified psychiatrist, other licensed physician, or a licensed clinical psychologist to dispute this diagnosis.

I have, however, reviewed relevant portions of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), upon which the DOE psychiatrist relied upon as a guide in making his diagnosis. Tr. at 29. While I obviously lack the expertise to dispute the diagnosis or arrive at my own, I nonetheless note some discrepancies between the facts in this case and the factual basis that appears to be required under the DSM-IV for a diagnosis of substance abuse. In this regard, the DSM-IV states,

The essential feature of Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. There may be repeated failure to fulfill major role obligations, repeated use in situations in which it is physically hazardous, multiple legal problems, and recurrent social and interpersonal problems (Criterion A). These problems must occur recurrently during the same 12-month period.

DSM-IV at 182 (emphasis added).

Without the benefit of the text of the DSM-IV present at the hearing, I asked the DOE psychiatrist,

And when you look at what’s considered recurrent, do those events, whatever they may be, have to happen within a certain space of time in order for them to qualify in your mind as being recurrent? I mean, if he has, say, a DUI, just hypothetically, in ?99 and then his last DUI was 10 years ago, do you consider that a recurrent problem or is that just too far away in time?

Tr. at 36. The psychiatrist responded,

Well, that would really again, be a judgment call depending on what happened in between. With [the individual’s] case in particular, I looked at two areas. One, were there recurring legal problems; the multiple DUIs.

And those occurred over a span of time that was fairly consistent, over 12 years. And secondly, continuous alcohol use despite a significant medical diagnosis.

Id. The phrase “significant medical diagnosis” refers to the fact, noted in the DOE psychiatrist’s report, that the individual has been diagnosed with “Hepatitis A, felt to be food induced.” DOE Exhibit 11. The DOE psychiatrist testified, “From a medical standpoint, somebody who continues to drink after having had Hepatitis, it’s a problem. He’s setting himself up a significant risk.” Tr. at 44. The individual responded that at the time of his diagnosis, “the gastroenterologist that I saw told me that I would have no problem with drinking alcohol in the future.” Subsequent to the hearing, the individual submitted the July 15, 2000 results of a liver function test and the following statement by his primary care physician: “Alcohol in moderation on occasions will not kill [the individual]. His liver function is normal after a weekend of moderate intake of alcohol. He understands that this is not a ticket to drink excessively or frequently.” Thus, it is unclear whether the individual’s current use of alcohol can be considered “physically hazardous,” or whether the individual was ever aware of any physical hazards associated with his past drinking, based upon the diagnosis of hepatitis.

This leaves the individual’s legal problems related to alcohol use, occurring in June 1987, August 1989, June 1995, and February 1999, as the only certain instances of substance-related legal problems or, given that three of the instances were DUIs, use of alcohol in situations in which it was physically hazardous. Without diminishing the seriousness of these incidents, I note that no two of them occurred within a twelve-month period, while the DSM-IV’s discussion of the features of substance abuse states that such “problems must occur recurrently during the same 12-month period.” DSM-IV at 182.

Were an expert diagnosis necessary for the recommendation I ultimately make in this case, I would feel compelled to take additional testimony from the DOE psychiatrist regarding these apparent discrepancies. I need not reach this issue though, because as I discuss below, the individual’s undisputed past drinking patterns raise an unresolved concern under Criterion J that he has “been . . . a user of alcohol habitually to excess.” And unlike with respect to a diagnosis of Alcohol Abuse, my finding does not require the diagnosis of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist. Personnel Security Review, 27 DOE ¶ 83,030 (2000).

2. Whether the Individual Has Been, or Is, a User of Alcohol Habitually to Excess

Although I have some unanswered questions about the medical diagnosis of Alcohol Abuse, the individual does not dispute that he has in the past experienced problems related to his alcohol use. To his credit, the individual has taken positive steps in response to those problems. Since February 2000, the individual has consulted a counselor. Even though the counselor is not a licensed professional, it is clear that she has regularly interacted with the individual over the past seven months, and she provided thoughtful testimony at the hearing as to the individual’s situation, her approach to addressing it, and the individual’s progress since counseling began:

“[W]e started sessions dealing with the alcohol-related issues. He had told me about the DUIs he had had, and so we started dealing with the drug and alcohol education.

. . . .

His drinking was limited to socializing with friends, and so we dealt heavily with the emotional addiction, the kind of addiction that you think you can only have fun if you drink, you can only relax if you drink, you can only party if you drink. And so we’ve dealt heavily with that.

He’s done -- he’s been in every two weeks. He’s had sessions every two weeks. He’s had homework between each session. Some of the homework that he has done is keeping a drinking log of when he drinks, you know, who he was with, the situation, the circumstances. So he has been doing that.

I understand there were some weekends that he didn’t drink at all. There were some weekends that he would have a few beers. So basically what he’s been doing is understanding and realizing and working on accepting that he can have a good time with friends without the alcohol. So he has been -- he has been doing that.

. . . .

I felt like he fell into the heavy social drinking on the scale, and he agreed. We talked about that at great length. And that says that you have five or more beers two or more times a week, and that’s where he was on that scale.

Some of the changes that he’s made during this time, he’s changed some friends. He’s not running with some of his heavier drinking friends. In fact, some of his best friends now do not drink at all. So he’s learning that he can have fun and he can be with friends and everything without the drinking.

He also -- one of the positive things that he’s done during this time is to get away from the campground. He had a camper at a campground [where] there was a lot of drinking done, so he’s got away from the campground. He’s selling his camper, which I think is a real positive thing.

Also the drinking journal, I think, has been a way for him to -- you know, I think that’s been a real important part of his recovery and everything.

His attitude has been good. He’s been -- he’s shown a little willingness to work on the issues. He’s shown a little openness. He’s shown an accountability, and I believe this is what counseling partially is. It’s an accountability thing.

So that’s what we have been doing since February. I’ve seen a maturing of him as far as a responsible accountability, so I think he’s been doing some good work.

Tr. at 10-13. In a letter submitted after the hearing, the counselor wrote that the individual “continues to keep a drinking and activity log and his accountability and commitment continues. I have stressed, and I feel he understands, this commitment is about more than getting his clearance back---it is about his life.” Letter from Individual’s Counselor to Steven J. Goering, OHA (August 30, 2000).

The individual testified at the hearing that his

goal is for alcohol not to be the contributing factor in my life.

. . . .

I don’t want for it to be, you know, the main thing that I think about all the time. I’m learning that I can go have a good time and socialize and I don’t have to drink, you know, in order to have a good time. And that’s been a big learning process for me, a very big mind set change for me.

Tr. at 70.

The testimony of all three witnesses at the hearing supports a conclusion that the individual “has been” but not “is, a user of alcohol habitually to excess.” The DOE does not allege that the individual’s prior pattern of alcohol use has continued to the present day. The individual and his counselor testified credibly as to the changes the individual has made in his attitude and behavior since he began counseling in February 2000. Based on these essentially undisputed facts about the past and present, I must make a assessment regarding the future, i.e. whether “the grant or restoration of access authorization to the individual would not endanger the common defense and security.”

First, I feel compelled to recognize the individual’s honesty, a character trait that is essential for a holder of a security clearance. In hopes of keeping his clearance, the individual surely could have been less than forthright in describing his drinking habits to the DOE. By all accounts, however, he has been honest throughout, and this honesty has served the national interest by alerting the DOE to a potential security concern. To then revoke an individual’s clearance based in part on information freely provided by that individual may at first glance appear to be punishing the individual for his honesty.

However, the purpose of this proceeding is not to punish or condemn an individual, but rather to safeguard national security. Thus, while on one hand recognizing the individual’s honesty, I cannot ignore the concern raised by the individual’s history of problem drinking. The DOE must depend on the judgment and reliability of a clearance holder at all times. Because the use of alcohol at the very least has the potential to impair a user’s judgment and reliability, individuals who use alcohol to excess may be susceptible to being coerced or exploited to reveal classified matters. These security concerns are indeed important and have been recognized by a number of Hearing Officers in similar cases. See, e.g., Personnel Security Hearing, 27 DOE ¶ 82,792 at 85,762 (1999); Personnel Security Hearing, 27 DOE ¶ 82,770 at 85,628 (1998). Clearly, the individual’s prior and long-standing relationship with alcohol, in which he became intoxicated approximately twice a month, regularly risked impairment of his judgment and reliability, and for a clearance holder this is unacceptable.

Though the individual’s current drinking habits do not raise these concerns, the critical issue is the risk of the individual relapsing into his old behavior. The individual has taken courageous strides since February 2000 toward reducing that risk, and for this he should be lauded. Yet the testimony of the individual and his counselor paints a picture of a work in progress. I believe it likely that the individual will not return to his prior drinking habits, but I also believe that at approximately eight months into the process the risk of such a relapse remains too high. Cf. Personnel Security Review, 27 DOE ¶ 83,008 at 86,534-35 (1988) (noting the views of psychiatrists in prior cases that individuals were not sufficiently rehabilitated until a one year period of abstinence had occurred). This is clearly not an exact science, but if I am to err in making this predictive assessment, I must err on the side of national security. With this in mind, I cannot recommend that the individual’s clearance be restored at this time.

III. Conclusion

Upon consideration of the record in this case, I agree with the DOE that there is evidence that raises a substantial doubt regarding his eligibility for a security clearance, and I do not find sufficient evidence in the record that resolves this doubt. Therefore, because I cannot conclude that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest, it is my opinion that the individual’s access authorization should not be restored. 10 C.F.R. § 710.27(a).

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 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, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Steven J. Goering

Staff Attorney

Office of Hearings and Appeals

Date: October 4, 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). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.