Case No. VSO-0404 (H.O. Fishman February 19, 2002

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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.

FEBRUARY 19, 2002

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 26, 2000

Case Number: VSO-0404

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (the Individual) to retain his DOE 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 Department of Energy (DOE) suspended his access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the access authorization should be reinstated to the Individual. For the reasons stated below, it is my opinion that the Individual's access authorization should be reinstated.

I. BACKGROUND

The Individual is an employee of a DOE contractor. On August 25, 1999, he reported to the Local Security Office on a Questionnaire for National Security Position (QNSP) that he had been arrested for Driving Under the Influence (DUI) on August 21, 1999. See DOE Exhibit 11 at 9. The Local Security Office subsequently conducted a Personnel Security Interview (PSI) with the Individual on September 21, 1999. See DOE Exhibit 12. Because alcohol was involved and the Individual had two previous DUIs, the Local Security Office requested that the Individual be interviewed by a DOE Consultant Psychiatrist (DOE Psychiatrist). The DOE Psychiatrist interviewed the Individual on February 8, 2000, and issued an evaluation to the DOE on February 10, 2000, in which he concluded that the Individual has “alcohol abuse by history.” DOE Exhibit 13. The DOE Psychiatrist continued that the Individual “has taken steps to modify his usage pattern of alcohol which at this point seems successful. . . . This continued pattern over time would be evidence of sufficient rehabilitation and/or reformation.” Id.

Because of the concerns raised by the Individual’s alcohol use, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE issued a letter notifying the Individual that information the DOE possessed created a

substantial doubt concerning his eligibility for access authorization. See August 30, 2000 Letter from Local Security Office to Individual (August 30, 2000 Notification Letter); 10 C.F.R. § 710.21. The August 30, 2000 Notification Letter specifies one area of derogatory information described in 10 C.F.R. § 710.8. The Notification Letter charges that the Individual is or has been “a user of alcohol habitually to excess, or [has] been diagnosed by a board-certified psychiatrist, or other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” August 30, 2000 Notification Letter, Enclosure 1 at 1; 10 C.F.R. § 710.8(j) (Criterion J).

The Individual filed a request for a hearing. This request was forwarded to the Office of Hearings and Appeals, and I was appointed Hearing Officer. A telephone conference was held prior to the Hearing. 10 C.F.R. § 710.25(f). The Hearing was held pursuant to 10 C.F.R. § 710.25(g). At the Hearing, the Local Security Office presented the DOE Psychiatrist. The Individual was represented by his union committeeman and presented five witnesses: his counselor, two co-workers, one co-worker who is also a friend, and one friend. He also testified on his own behalf.

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 the access authorization decision “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. After reviewing the record in this case, I find that the Individual has convinced me that restoring his security clearance would not endanger the common defense and would be clearly in the national interest.

III. CONCLUSIONS OF LAW AND FINDINGS OF FACT

The Local Security Office has asserted under Criterion J that the Individual “is a user of alcohol habitually to excess, or [has] been diagnosed by a board-certified psychiatrist, or other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” August 30, 2000 Notification Letter, Enclosure 1 at 1; 10 C.F.R. § 710.8(j). The

Notification Letter bases its Criterion J derogatory information on the DOE Psychiatrist’s evaluation and on events in the Individual’s past that he related during the September 21, 1999 PSI and on his August 25, 1999 QNSP and previous Personnel Security Questionnaires (PSQ).(1) DOE Exhibit 1, Enclosure 1. In his report, the DOE Psychiatrist stated his opinion that the Individual is an alcohol abuser by history. DOE Ex. 13 at 2. In making this diagnosis of alcohol abuse, the DOE Psychiatrist relied on The Diagnostic and Statistical Manual of the American Psychiatric Association, IVth Edition (DSM-IV).(2) Id. at 2. The DOE Psychiatrist did not find a defect in the Individual’s judgement or reliability when not under the influence of alcohol. Id.

DOE Psychiatrist

The DOE Psychiatrist based his diagnosis of the individual on his February 2000 interview with the Individual and testing performed in his office. DOE Ex. 13. The DOE Psychiatrist states he found at that time that the Individual suffered from alcohol abuse because of his history of alcohol use. Hearing Transcript (Tr.) at 12. He did not feel the Individual’s alcohol abuse was ongoing. Id. The DOE Psychiatrist testified that the Individual did not meet the criteria for a diagnosis of alcohol dependence. Id. at 15. The DOE Psychiatrist further stated that he was encouraged by the Individual’s behavior modification in regard to alcohol use at the time of his interview. Id. at 17. He further opined that if he were interviewing the Individual on the date of the Hearing, he would find the Individual to be rehabilitated or reformed. Id. at 19.

Individual’s Counselor

The Individual presented his counselor. He was referred to the counselor by the Employee Assistance Program (EAP) after his DUI in 1999. The counselor testified that he first met with the Individual in August 2000. He did not find either alcohol addiction or habitual abuse. Ind. Ex. A. Further, he stated that he referred the Individual to Alcoholics Anonymous (AA) in order for the Individual to see where his continued use of alcohol could lead. Tr. at 29. The counselor stated that he sends everyone he sees with a possible alcohol problem to AA. Id. Such referral is not an indication that the Individual’s problem is serious. Id. The counselor indicated that he has seen the Individual in September 2000, October 2000, November 2000, January 2001, and August 2001. Ind. Ex. A. At all these meetings, the Individual told the counselor that he had continued to maintain his abstinence and attend AA. Id.; Tr. at 30. The counselor found the Individual to be credible about his abstinence. Tr. at 30.

Individual’s supervisors and co-worker

The Individual presented his prior and current supervisor. Both indicated that he is a good worker and very reliable. They never saw him either come to work under the influence of alcohol or consume alcoholic beverages during work hours. Tr. at 46, 52, 53. The Individual also presented a co-worker with whom he also socializes outside of work. This witness testified that he has not seen the Individual consume any alcoholic beverages since before the suspension of his access authorization. He estimated that it was over two years before the date of the Hearing that he last saw the Individual consume alcoholic beverages. Id. at 60. He also testified that he stops by the Individual’s house unannounced and that he has not seen any alcohol in his house since the Individual stopped drinking. Id. at 63. Further, this co-worker witness testified that the Individual has been his primary care-giver since he had a heart attack about a month prior to the Hearing. Id. at 60.

Individual’s Friend

Finally, the Individual presented the testimony of a friend. The friend stated that he has known the Individual for 25 years, they are like brothers, and they socialize together. The friend noticed that the Individual stopped drinking alcoholic beverages in August 1999. Tr. at 39. He also testified that he has not seen alcoholic beverages in the Individual’s house since that time. Id. at 41. The witness stated that prior to August 1999, if he was drinking, the Individual would also be drinking. Id. at 43. Now, the Individual does not drink. Id.

Individual

I believe the Individual was honest and forthright throughout the proceeding. He stated that he told the DOE Psychiatrist he had a drink the week before the interview in February 2000 because he had consumed half a beer. Tr. at 74. Other than that half a beer, he has not consumed any alcohol since August of 1999. Id. He determined at that time that he did not want to be arrested for another DUI, although there had been a period of 15 years between his first DUI and his third. He stopped drinking in August 1999 after attending a 20-hour class required to recover his driver’s license. Unlike the previous occasion that he took the class, this time the class affected him deeply. Id. at 76.

One of the Individual’s witnesses, with whom he formerly drank, testified that he noticed the Individual stopped drinking in approximately August or September 1999. Another witness, with whom he also works and drank with very infrequently, testified that he noticed in the winter of 2000 that the Individual had stopped drinking. Both of these witnesses corroborate what the Individual stated. Based upon this testimony and the testimony of both the Individual and the Individual’s counselor, I believe that the Individual has committed to refrain from drinking and has succeeded in upholding that commitment since August 1999 with the exception of the half a beer 19 months prior to the Hearing.

According to his testimony and the testimony of his witnesses, the Individual has been totally abstinent for well over 19 months. He testified that he consumed a half a beer in the six months prior to his current abstinence. The DOE Psychiatrist’s diagnosis of Alcohol Abuse by History occurred 19 months prior to the date of the Hearing. Even at that time, the DOE Psychiatrist thought that the Individual was on the correct path to rehabilitation. I agree. At the hearing, the DOE Psychiatrist opined that given the circumstances in existence at the time of the Hearing, he would find the Individual to be rehabilitated or reformed. Tr. at 19. I also find this assessment to be persuasive.

Based on the foregoing, I find that the individual has mitigated the security concerns raised under Criteria J. The last alcohol-related incident occurred in August 1999. As of the Hearing date, the Individual has not consumed any alcoholic beverages since February 2000, a period of 24 months ago and 19 months before the Hearing. I believe he is rehabilitated. Personnel Security Opinion, 28 DOE ¶ 82,812 (2001) (restoring access authorization where DOE Psychiatrist changed recommendation at hearing from three years of abstinence to two years seven months). The Individual was, and is, sincere in his desire not to drink again. Given the Individual’s 19 months of abstinence, the DOE Psychiatrist also believes he is rehabilitated. Consequently, I am convinced that the Individual is reformed or rehabilitated from his previous alcohol problem and that the security concerns raised under Criteria J have been mitigated.

IV. CONCLUSION

For the above-stated reasons, after consideration of all the relevant information, favorable and unfavorable, I 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. 10 C.F.R. §§ 710.7(a), 710.27(a).

The review procedures applicable to proceedings under Part 710 were revised effective September 11, 2001. 66 Fed. Reg. 47061 (September 11, 2001). Under the prior procedures, the review of a Hearing Officer opinion was performed by the Director, Office of Hearings and Appeals. 10 C.F.R. § 710.28(a). Under the revised procedures, the review is performed by an Appeal Panel. 10 C.F.R. § 710.28(b)-(e). The final rule preamble provides that in any pending case not already appealed to the Director of the Office of Hearings and Appeals, an individual seeking review of a Hearing Officer Decision may select either the revised procedures or the prior procedures. 66 Fed. Reg. at 47061. Accordingly, the individual in this case may seek review under either the revised or the prior regulation set forth at 10 C.F.R. § 710.28.

Janet R. H. Fishman

Hearing Officer

Office of Hearings and Appeals

Date: February 19, 2002

(1)In 1986, the Individual completed a Personnel Security Questionnaire on which he revealed that he had been cited for DUI in 1984. DOE Exhibit 7. On June 3, 1989, the Individual completed a Questionnaire for Sensitive Positions in which he revealed that he had been arrested for DUI on May 5, 1989. DOE Exhibit 9 at 9.

(2)The DSM-IV is a standard reference source, the purpose of which is to provide a guide for diagnosis of psychological conditions for use by clinical practitioners. DSM-IV at xxiii.