Case No. VSO-0426, 28 DOE ¶ 82,809 (H.O. Fishman July 17, 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.

July 17, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 14, 2000

Case Number: VSO-0426

This Opinion concerns the eligibility of XXXXXXXXXXX (the Individual) to obtain a 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) denied the Individual's request for an 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 granted to the Individual. For the reasons stated below, it is my opinion that the Individual's request for an access authorization should be granted.

I. BACKGROUND

The Individual is an employee of a DOE contractor. Pursuant to an investigation(1) as to his eligibility for access authorization, the Local Security Office discovered that the Individual had failed to list various arrests on a Questionnaire for National Security Position (QNSP). The Individual also failed to disclose that he had visited an alcohol abuse counselor. See DOE Exhibit 9 at 15-33. The Local Security Office subsequently conducted a Personnel Security Interview (PSI) with the Individual on September 11, 1996. See DOE Exhibit 9. Because the Individual mentioned that alcohol might have been involved in some of the arrests, the Local Security Office requested that the Individual be interviewed by a DOE Consultant Psychiatrist (DOE Psychiatrist). The DOE Psychiatrist interviewed the Individual on May 10, 2000, and issued an evaluation to the DOE on May 16, 2000, in which he concluded that the Individual has “an illness or mental condition, Substance Dependence, Alcohol, With Physiological Dependence in Sustained Partial Remission.” DOE Exhibit 11. Also, during the interview with the DOE Psychiatrist, the Individual, in contrast to his answers on his 1997 and 1999 QNSPs, stated that he had used cocaine approximately six or seven years previously.

Because of the concerns raised by the Individual’s alcohol use and his failure to disclose his prior cocaine use and his visit to an alcohol counselor, his application for access authorization was denied and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his eligibility for access authorization. See October 24, 2000 Letter from Director, Personnel Security Division, to Individual (October 24, 2000 Notification Letter), amended, March 29, 2001 Letter from Director, Personnel Security Division, to Individual (March 29, 2001 Notification Letter); 10 C.F.R. § 710.21. The March 29, 2001 Notification Letter(2) specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter charges 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. His Alcoholism is an illness or mental condition which in the opinion of a board certified psychiatrist causes, or may cause, a significant defect in the judgment or reliability of [the Individual].

March 29, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(h), (j) (Criteria H and J). The Notification Letter also charges that the Individual has:

deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for Sensitive Positions (QSP), a [QNSP], a personnel security interview, or written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.

March 29, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(f) (Criterion F).

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 and Hearing were subsequently held pursuant to 10 C.F.R. § 710.25(f) and (g). At the Hearing, the DOE Counsel presented four witnesses, including the Individual, the DOE Psychiatrist, the Personnel Security Specialist, and the Individual’s supervisor. The Individual was represented by his wife,(3) who also testified on his 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 granting 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

Criterion F

The first item of derogatory information under Criterion F I will address involves the Individual’s report of his cocaine use.(4) In his many QNSPs (1994, 1996, 1997 and 1999), the Individual stated that he had not used any illegal drug or controlled substance within the past five (for the 1994 QNSP) or seven years of the date of the other QNSPs. DOE Exhibits 14, 16, 17, 18 at 8. However, during his May 10, 2000 interview with the DOE psychiatrist, the individual stated that he had tried cocaine one time approximately six or seven years ago. DOE Exhibit 11 at 16; DOE Exhibit 1 at 2. This response would indicate that his only use of cocaine would have occurred in 1993 or 1994.

In his response to the Notification Letter, the Individual stated that he had used cocaine only once in high school. He explained that his answer to the DOE Psychiatrist was a result of a “time frame mix-up on [his] part due to [his] nervousness during the interrogation.” Response Letter dated November 14, 2000, at 2. At the Hearing, the Individual testified that he tried cocaine one time in high school. He believed it to be in approximately 1985 or 1986. Hearing Transcript at 33 (Tr.). He never tried it again, because he didn’t like it. Id.

I find that the Individual’s answers in his QNSPs regarding his cocaine use to be truthful. The date of the Individual’s admitted use of cocaine was in 1985 or 1986. The Individual’s testimony at the Hearing on this issue was convincing. The pertinent question on his 1994 QNSP only asks about usage in the five years prior to the QNSP. In 1994, when he executed the first QNSP, the cocaine use was more than five years in the past. On each of the Individual’s remaining three QNSPs (1996, 1997 and 1999) the Individual consistently denied cocaine use within the past seven years. Because I believe the latest date of his only cocaine use was 1986, these answers are accurate. I believe that the Individual erred in his answer to the question from the DOE Psychiatrist, without any intent to falsify or misrepresent his use of cocaine. Based upon the individual’s demeanor at the hearing and my strong sense that he was being truthful, I believe that the inconsistent answer made to the DOE Psychiatrist can be attributed to nervousness.

The remaining Criterion F charge involves his attendance at alcohol counseling despite his answers to the contrary on his 1997 and 1999 QNSPs. The Individual explained at the Hearing that he believed he only needed to disclose the counseling if it was court ordered, although the relevant questions on the 1997 and 1999 QNSPs are not restricted to court ordered counseling. The Individual also explained his reasoning at the Hearing, testifying that he went to the counseling program (1) to determine if he was an alcoholic, not because he believed himself to be an alcoholic, and (2) because his girlfriend (now his wife) had asked him to attend. Tr. at 29; see Response to Notification Letter at 3. At the Hearing, the Personnel Security Specialist (PSS) stated that if the Individual had given this explanation during the PSI, the charge concerning the counseling would not have been cited as a basis for the Notification Letter. Tr. at 143. Judging from his demeanor at the Hearing, I find his explanation creditable. I believe that the individual went to the counseling program to determine if he had a problem with alcohol and to appease his wife but not to seek treatment for an alcohol problem. Further, the PSS, a DOE Official, conceded that it would not have been an issue had he been asked about it at his PSI and given the answer he gave at the Hearing. However, he was not confronted about it. Tr. at 143. She also stated that he admitted attending alcohol counseling in responses he gave to questions during his background investigation. Id. at 142. In addition, he attended counseling for only a short time and did not seek enroll in or to complete a treatment plan. Therefore, to the extent the Individual did not disclose the counseling in his 1997 and 1999 QNSPs, I do not believe his misrepresentations were deliberate. Under the circumstances, and taking into consideration the PSS’s statement that his explanation, had he been asked about the situation at the PSI, would have eliminated any security concerns, I believe that the Individual has mitigated the concerns regarding his failure to disclose that he went to the alcohol counseling.

In sum, I find that the individual has mitigated all of the security concerns raised by derogatory information under Criteria F.

Criteria H and J

The DOE 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, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” March 29, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(j). In connection with the Individual’s alleged alcohol dependence, DOE has further asserted under Criterion H that his alcoholism is “an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” March 29, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(h). The Notification Letter bases its Criterion H and J derogatory information on both the DOE Psychiatrist’s evaluation and on events in Individual’s past that he related during the September 11, 1996 PSI and February 22, 2000 PSI. DOE Exhibit 1, Attachment 1 at 1. In his report, the DOE Psychiatrist stated his opinion that the Individual is alcohol dependent and a user of alcohol habitually to excess. DOE Ex. 11 at 21. In making this diagnosis for alcohol dependence, the DOE Psychiatrist relied on The Diagnostic and Statistical Manual of the American Psychiatric Association, IVth Edition (DSM-IV).(5) Id. at 2. Because he diagnosed the Individual as alcohol dependent and the Individual continued to drink, the DOE Psychiatrist asserted that the Individual had a significant defect in judgment. Since the concerns under Criteria H an J both involve alcohol, I will consider these security concerns together.

The DOE Psychiatrist based his diagnosis of the individual on (1) his interview with the Individual, (2) a liver enzyme test conducted immediately following the interview, and (3) the Individual’s Personnel Security file. DOE Ex. 11. The DOE Psychiatrist states he found that the Individual suffered from Alcohol Dependence because the Individual met DSM-IV Criteria 1, 3, 4, 5, 6, and 7, and only three criteria are necessary to make a diagnosis of Alcohol Dependence.(6) DOE Ex. 11 at 20. By the time of the Hearing, however, the DOE Psychiatrist had modified his opinion. He testified that the evidence for the various criteria was “weak.” Tr. at 126-132.

At the Hearing, the DOE Psychiatrist stated that after his interview with the Individual his confidence in his diagnosis of alcohol dependence was moderate. By the time of the hearing his confidence was reduced. The information presented at the Hearing led him to change his assessment of the diagnosis of alcohol dependence from moderate to weak. He elaborated that

“[w]hen you weigh evidence, given my experience in this field, there are some cases where the evidence is very strong, others where it’s moderate and others where it’s weak. I feel that the evidence is weak, but it’s still there, meaning that I show what I used to make the diagnosis, the particular criteria that I scored positive, it’s just not overwhelming evidence, but I felt it was enough evidence that I could use that to make the diagnosis, which is what I did.”

Tr. at 102. When asked whether he would like to change his diagnosis from alcohol dependence to alcohol abuse, the Psychiatrist stated that he would leave it to the discretion of the Hearing Officer to decide whether the Individual was alcohol dependent or not. When asked to review the criteria upon which he based his diagnosis, the DOE Psychiatrist repeatedly stated that the evidence for each DSM-IV criterion was weak.

A. [DSM-IV] Criterion 6 for substance dependence says, “Important social, occupational, or recreational activities are given up or reduced because of substance use.” The fact that that was an issue between he and his wife . . . I felt that that was enough to score the [DSM-IV] criterion positive, but, again, it’s what I would call weak evidence, it’s certainly not strong evidence, but –

Q. I guess my question to that would be how do you define important social, occupational or recreational activities? I mean, because he’s saying he didn’t spend enough time with his kids and his wife, but do they mean in this criteria that he wasn’t going to – I don’t know – weddings or something?

A. Right. Yeah, I don’t really know how they define it, and that’s why I’m saying that that one is weak.

Tr. at 126-27 (emphasis added)

A. So again I felt, by telling me that that’s why he was going [to counseling], he was trying to stop [drinking] again, that it met [DSM-IV criterion 4], but again the weight of the – the quality of the evidence is weak. The evidence is there, but the quality of it is weak evidence.

Id. at 127 (emphasis added).

A. You know, saying that when you drink the following – I mean, I guess what he’s describing is hangovers the next morning, feeling drained, and later he also talked about that and at times I think going to work a couple of times when he felt that way. So I felt that paragraph was weak evidence, but evidence for [DSM-IV] Criteria 3, 4 and 7.

Id. at 131-32 (emphasis added). Repeatedly, he stated that the evidence was weak in regard to a diagnosis of alcohol dependence.

Another reason why the DOE Psychiatrist’s confidence in his diagnosis of alcohol dependence was reduced from moderate to weak dealt with the liver enzyme test he conducted on the Individual at the Interview. In the prior diagnosis of alcohol dependence, the DOE Psychiatrist had apparently placed substantial weight on the fact that the Individual’s liver enzymes were elevated. When it was revealed at the Hearing that the liver enzymes were elevated due to gallstones, Tr. at 106, the DOE Psychiatrist seemed to withdraw from his diagnosis of alcohol dependence immediately, stating at this point that his diagnosis of alcohol dependence was “weak.” Id. Asked whether the Individual shows adequate evidence of rehabilitation or reformation if the diagnosis were downgraded to alcohol abuse, the DOE Psychiatrist stated his opinion that he does. Tr. at 108-09. As to amending his diagnosis, however, the DOE Psychiatrist deferred to the judgement of the Hearing Officer. Tr. at 109.

The Individual asserts that he does not have a drinking problem. His wife testified that in the past he overindulged only with his friends after sporting events. Tr. at 61. He never drank at home. Id. She stated that drinking is socially acceptable where they live. Id. at 62. She further testified that he has changed since they got married and that he has matured. Id. His wife testified that his drinking since 1999 has been minimal, typically one or two beers on a special occasion like a birthday or anniversary. Id. at 64-65. He continues to go to the sporting events, but he does not stay and drink after they are concluded. Id. at 66.

The Individual also presented a report from his physician that indicated that his liver enzymes were most likely elevated at the time of his interview with the DOE Psychiatrist due to gallstones. Ind. Ex. J. In fact, his wife testified that he had his gall bladder removed by emergency surgery in July 2000, two months after his interview with the DOE Psychiatrist. Tr. at 37. The Individual admitted that he did overindulge in alcohol previously, but he stressed that he has significantly decreased his consumption, especially since 1999.

In view of the Hearing Testimony and the full record, I conclude that the Individual likely suffered in the past from alcohol abuse, not dependence. I believe that the DOE Psychiatrist, in making his diagnosis of alcohol dependency, relied heavily on the liver enzyme test that has been successfully challenged by the Individual. After reviewing the report from the individual’s physician regarding his medical problem with gallstones, the DOE Psychiatrist admitted, at the time of his interview with the Individual, that the elevated enzyme levels were probably caused by gallstones. Tr. at 106. Further, I found the DOE Psychiatrist’s testimony in support of his opinion that the Individual suffered from alcohol dependence to be equivocal and tentative. Indeed, when the DOE Psychiatrist reviewed the various DSM-IV Criteria for a finding of alcohol dependence, the DOE Psychiatrist himself repeatedly stated that the evidence in support of each criterion was weak. Id. at 126, 127, 131-32.

Finally, I must address whether the Individual is a user of alcohol habitually to excess or abuses alcohol. I believe that he has in the past been a user of alcohol habitually to excess. The DOE Psychiatrist testified that the evidence that the Individual was a user of alcohol habitually to excess in the 1990s is strong. I agree. There are at least two indications in the record that he overindulged in alcohol. The first is an “arrest” for Careless Driving and No Proof of Insurance in 1992. March 29, 2001 Notification Letter, Attachment 1 at 1. At the Hearing, the Individual did not remember being handcuffed for the arrest or going to court. We discussed whether this was an actual arrest or simply special terminology that the State uses to list a traffic stop on an individual’s record. When asked about the incident at the PSI, the Individual stated that he had “probably” been drinking at the time of the traffic stop. DOE Ex. 9 at 37. The second is a domestic abuse complaint in 1997. Id. The 1997 domestic abuse complaint which led to a restraining order was the last reported incident in which alcohol was a factor.(7)

However, assuming that the individual suffered from alcohol abuse and has used alcohol habitually to excess in the past, based upon the testimony of the individual and his wife, I find that the Individual does not overindulge in alcohol now and has not for some time. The DOE Psychiatrist has testified that he believes the Individual to be reformed and rehabilitated. Tr. at 108-09. I agree. In addition, I believe that the testimony of the Individual’s wife is particularly significant. I believe she testified truthfully about his alcohol use. There is sufficient testimony in the record to prove that she loathed his drinking. Id. at 63. Further, she was a credible witness.

Based on the foregoing, I find that the individual has mitigated the security concerns raised under Criteria H and J. The last alcohol-related incident occurred four years ago. In this regard, the DOE Psychiatrist has opined that if the Individual did suffer from Alcohol Abuse in the past, he would now find that the individual is reformed or rehabilitated. Id. at 108-09. Consequently, I am convinced that the Individual is reformed or rehabilitated from his previous alcohol problem and that the security concerns raised under Criteria H and 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 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, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Janet R. H. Fishman

Hearing Office

Office of Hearings and Appeals

Date: July 17, 2001

(1)The Individual originally completed a Questionnaire for National Security Position (QNSP) on October 17, 1994. See DOE Exhibit 18. However, he was laid off by his employer prior to receiving a security clearance. On two subsequent occasions he completed the QNSP only to be laid off by his employer prior to receiving an access authorization. See DOE Exhibits 16 and 17. Because of these prior applications, some of the derogatory information was uncovered during the previous background investigations.

(2)It was agreed during the prehearing conference call and at the Hearing that we would rely on the amended Notification Letter dated March 29, 2001, as the basis for the derogatory information about the Individual.

(3)I will refer to the Individual’s wife as his wife, although during some of the time periods discussed at the Hearing and in this Opinion, she was not yet his wife.

(4)In the March 29, 2001 Notification Letter, DOE alleged that the Individual falsely stated in a PSI that he had not had a drink in six months. At the Hearing, DOE Counsel stated that there was no longer any Criterion F concern based on this statement and that matter should be omitted from my evaluation. Hearing Transcript at 7.

(5)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.

(6)The DSM-IV lists seven diagnostic criteria for alcohol dependence. According to the DSM- IV , a diagnosis of alcohol dependence may be made if an individual meets three of the criteria in the same 12 month period. See DSM-IV at 181195.

(7)The Individual testified that his wife did not like his drinking and it led to an argument during which she called the police and filed for a restraining order. Tr. at 25. The Individual’s wife testified that she caused the argument that led to the restraining order because she did not like his drinking. She stated that alcohol was a contributing factor to the domestic violence because if he hadn’t been drinking, she wouldn’t have gotten angry. Id. at 68. Although the Individual testified that he consumed alcohol prior to the incident, there is no evidence indicating how much alcohol he had consumed and whether he was intoxicated. At his PSIs, he indicated that he was never arrested because of alcohol use. DOE Ex. 6 at 12.