Case No. VSO-0427, 28 DOE ¶ 82,799 (H.O. Schwartz May 24, 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.

May24, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:December 21, 2000

Case Number: VSO-0427

This Opinion concerns the eligibility of XXXXXXXXXXX (the individual) to maintain a level “Q” 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 local Department of Energy Operations Office (the DOE Office) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the individual's access authorization should be restored. For the reasons stated below, it is my opinion that the individual's access authorization should not be restored at the present time.

I. BACKGROUND

The individual’s access authorization was first suspended in late 1993 on the basis of a psychiatric evaluation that he suffered from alcohol dependence. His access authorization was later restored after he was accepted into a two-year treatment program conducted by the Employee Assistance Program (EAP). He successfully completed the treatment program in 1996. However, because the individual was arrested for an alcohol-related driving offense in March 2000, the DOE Office conducted a Personnel Security Interview (PSI) of the individual on April 18, 2000. This PSI failed to resolve the security concerns raised by the individual’s then recent alcohol consumption. Accordingly, the DOE Office referred the individual to a board-certified psychiatrist (the DOE Psychiatrist) for further evaluation. After reviewing the information that the DOE Office provided to him and conducting an evaluation of the individual, the DOE Psychiatrist determined that the individual was alcohol dependent without adequate evidence of rehabilitation or reformation.

Because the individual was unable to resolve the security concerns resulting from his alcohol use, an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE Office suspended the individual’s access authorization for a second time, and then issued a letter notifying the individual that it possessed information which raised a substantial doubt concerning his eligibility for access authorization (the Notification Letter).

The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter 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.” See 10 C.F.R. § 710.8(j) (Criterion J). Second, the Notification Letter alleges that the individual’s 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. See 10 C.F.R. § 710.8(h) (Criterion H). The individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA), and I was appointed as Hearing Officer.

At the hearing, the DOE Office presented two witnesses: the DOE Psychiatrist and a representative of the individual’s employer. The individual testified on his own behalf and presented four witnesses: his EAP counselor, two friends and coworkers, and his wife. See Transcript of Hearing, Case No. VSO-0427 (Tr.).

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 “[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). 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.

III. FINDINGS OF LAW AND FACT

I will consider concurrently the concerns of the DOE Office under Criteria H and J because they are substantially interrelated: the individual’s sole “mental condition” that the DOE Office alleges may cause a “significant defect in judgment and reliability” under Criterion H is the alcohol dependence that also raises the DOE’s concern under Criterion J. The evidence presented in this proceeding establishes that the individual is clearly alcohol dependent. The DOE Psychiatrist has diagnosed the individual as alcohol dependent, both in 1993 and in 2000. DOE Exhibits 18 and 15 (1993 and 2000 DOE Psychiatrist’s Evaluation Reports, respectively). He further maintained that diagnosis at the hearing. Tr. at 102. The individual’s personal history that underlies in part the diagnoses are six alcohol-related arrests dating from 1981, the last two occurring in 1993 and 2000. The EAP counselor agreed with the DOE Psychiatrist’s diagnosis at the time of the individual’s EAP treatment program and did not refute it at the hearing. Tr. at 48. The individual now considers himself “an alcoholic.” Tr. at 13. Accordingly, the DOE Office has appropriately invoked Criteria H and J. When an individual suffers from alcohol dependence or other alcohol-related conditions, the DOE’s legitimate security concerns stem from the possibility that the individual may improperly divulge classified information or surrender nuclear material when under the influence of alcohol or for the purpose of obtaining alcohol. Although there is absolutely no evidence in the record that this individual has ever acted in that manner, his alcohol-related condition raises the risk that such behavior could occur in the future. Because the individual does not challenge the diagnosis of alcohol dependence, the only question before me is whether the individual has mitigated the security concerns raised by his alcohol dependence.

In his 1993 report, the DOE Psychiatrist outlined what would constitute adequate evidence of rehabilitation and reformation of the individual’s alcohol dependence. Adequate rehabilitation would require successful completion of at least 100 hours of structured alcohol treatment that includes individual counseling, group therapy, and educational and family components, followed by participation in a maintenance program such as Alcoholics Anonymous indefinitely. DOE Exhibit 18 at 23. Adequate reformation would mean remaining alcohol- and drug-free for at least a year following completion of the 100 hours of structured treatment, or two years of sobriety if the individual chose not to participate in structured treatment. Id. After the issuance of the DOE Psychiatrist’s report, the individual was accepted into a two-year Employee Assistance Program Assurance Option (EAPRO) treatment program. In the opinion of the DOE Psychiatrist, this program alone did not provide adequate rehabilitation from alcohol dependence because, while it involved one-on-one counseling, it lacked group, educational and family components. Tr. at 92. Nevertheless, the DOE Psychiatrist observed, the individual was offered the program and satisfactorily completed it. Id.

The most important alcohol-related incident for purposes of this proceeding is the individual’s arrest for driving while intoxicated on March 18, 2000. DOE Exhibit 21 (DWI Citation). Although the record is unclear as to whether the individual refused to take a breathalyzer test at the time of the arrest, it is clear that he did in fact not submit to such a test. DOE Exhibit 21 (Notice of Revocation); DOE Exhibit 5 (Transcript of April 18, 2000 PSI) at 8-10. The individual has testified that he drank two to four nonalcoholic beers, followed by two or three regular beers. Tr. at 17; DOE Exhibit 15 at 9. Regardless of the actual amount of alcohol the individual consumed that evening, it is clear that he failed a field sobriety test. DOE Exhibit 21 (Notice of Revocation); Tr. at 8. It is also clear that the criminal complaint based on this arrest was dismissed not because the individual was adjudged not to be intoxicated, but rather because the “officer [was] unavailable after substantial attempts.” Individual’s Exhibit A (Notice of Dismissal of Criminal Complaint).

Although consumption of two or three beers may or may not have intoxicated the individual, his arrest alone raised a concern with the DOE Office, DOE Exhibit 5 at 27, and for this reason he was interviewed and referred to the DOE Psychiatrist for a new evaluation. Notification Letter at 3. After reviewing the individual’s DOE personnel security file and conducting an evaluation in person in which the individual maintained that he had not consumed alcohol in seven years except once on March 18, 2000, the DOE Psychiatrist diagnosed the individual, for a second time, as alcohol dependent without adequate evidence of rehabilitation or reformation. DOE Exhibit 15 at 17. In his report, the DOE Psychiatrist wrote that to establish rehabilitation, the individual would need to maintain sobriety (complete abstinence from all alcohol and non-prescribed controlled substances) either (a) for one year following a full year of Alcoholics Anonymous participation, including having a sponsor and working on the Twelve Steps of that program, or (b) for one and a half years following six months of a professionally led substance abuse treatment program of at least 50 hours’ duration. Id. at 15. To achieve reformation without participating in either rehabilitation program, the individual would need to maintain his sobriety for five years. Id. at 16. At the hearing, the DOE Psychiatrist explained why he had determined that five years of sobriety was needed under those circumstances:

I made it five years because, in my opinion, at this present state, you’re what I call abstinent. And there is a difference between being abstinent and being sober, or being in a state of recovery. In my opinion, you’re not what the AA community calls being in a state of recovery, you’re simply not drinking. It’s good that you’re not drinking. But if you’re not in what the recovery community call a state of recovery, your chances of relapse are better. And five years is a long time. But given your long history of alcohol problems, I felt that if you had no exposure to the alcoholism treatment community, that I really needed [to require] that long a period of time. And that’s a long period. I’ll state for the record, that’s as long as I’ve ever recommended for anyone, usually I recommend three years. But I felt so strongly that you’re not knowledgeable about alcoholism, and you’re not aware of the issues of alcoholism. And if you had no exposure to that, and exposure could simply mean going to AA for a year, that I wanted five years to show adequate evidence of reformation.

Tr. at 100. At the time of the hearing, more than a year had passed since the most recent DWI arrest. The individual testified that he had consumed no alcohol since the evening of the arrest and had attended no structured treatment program. Tr. at 14. The DOE Psychiatrist acknowledged that the individual had completed a year of abstinence. Tr. at 100. However, because the year of abstinence did not follow any treatment, as he believes is necessary, he did not consider the year of abstinence adequate evidence of reformation. Tr. at 101. Consequently, he did not revise his diagnosis on the basis of the testimony he heard at the hearing.

The individual has offered the following evidence to mitigate the DOE’s concern for national security that his diagnosed alcohol dependence has raised. I will address each of his arguments below. First, he maintains that he no longer consumes alcohol. He informed the DOE during his 2000 PSI, and testified at the hearing, that he has drunk alcohol only one time since his 1993 alcohol- related arrest, on March 18, 2000, the night he was arrested and charged with DWI. See Exhibit 5 at 13-15, 23-24; Tr. 14, 31 (“[O]utside of those times [in 1993 and 2000] there has been no consumption of alcohol.”). Second, the EAP counselor stated that he believed the individual had drunk alcohol only just once since 1993 and coincidently was arrested that one time. Tr. at 43. The counselor stated that the individual is a recovering alcoholic, Tr. at 44, and even those alcoholics who are ultimately successful in remaining sober “slip back” occasionally. Tr. at 47. Third, there is no evidence in the record that the individual may have consumed alcohol more times than he has claimed. Finally, he has stated that he intends not to drink in the future. Tr. at 16.

Even if the individual has disclosed the full extent of his alcohol consumption over the past eight years, I am not convinced that the risk of his drinking alcohol to excess again is below the acceptable threshold for maintaining access authorization. Critical to my conclusion is that the individual is unable to offer any insightful explanation for his most recent “slip.” DOE Exhibit 5 at 15, 17-18. During his 2000 PSI, however, he referred generally to the stress of poor housing and long commutes and the possibility of peer pressure. Id. Nevertheless, he sounded thoroughly bewildered when he offered these possible explanations, and not at all convinced. At the hearing, when asked for a motivation for consuming alcohol on March 18, 2000, he posited similar explanations, with no more conviction. Tr. at 15 (“I mean, I don’t know, stress of life, everything, a slip, whatever you want to call it, it [was] just – stupid.”). In spite of the EAP counselor’s testimony that such “slips” commonly occur among recovering alcoholics, my concern about this individual’s 2000 “slip” is that he lacks the insight to recognize how it occurred. This lack of insight may stem, as the DOE psychiatrist testified, from the individual’s lack of awareness of the “issues of alcoholism.” Tr. at 100. In any event, given the individual’s lack of insight into his most recent “slip,” he cannot provide some degree of assurance that similar incidents will not recur. Because the individual cannot identify the factors that triggered his most recent decision to consume alcohol, he cannot avoid them, either, and therefore I cannot predict with some certainty that he will maintain his sobriety.

Additional evidence in the record that I have considered regarding mitigation of the DOE’s security concerns falls into three categories: testimony of the individual at the hearing, testimony of his wife, and a letter the individual submitted after the hearing. At the hearing, the individual testified that he was born and raised in the military, and with that upbringing, he would never breach the trust he has been given through access authorization, whether sober or under the influence of drugs or alcohol:

[Y]ou have to look at it the way I feel. If you would do it while intoxicated or under drugs or under duress or anything else, you would do it with a straight mind, too. . . . [W]hen you’re born a military brat and you go up through a military life, a lot of things are inherited, and a lot of things are instilled, because it means more to you. . . . And like I said, that’s just my belief. You just– you don’t give up your country. If you’re going to give up your country, you’re going to do it whatever state you’re in.

Tr. at 24-25. It is clear that the individual fervently believes he would not place the national security at risk under any circumstances. Nevertheless, as I clarified at the hearing, the DOE has a legitimate concern that an individual, regardless of his personal beliefs and upbringing, may, unintentionally, divulge classified information or otherwise endanger the national security when intoxicated, because his judgment may be impaired. While I respect the individual’s belief and admire his patriotism, I am not reassured that the individual would not endanger the national security when he is intoxicated.

The individual further testified that the position he held prior to suspension of his access authorization gave him access to very little classified information. Consequently, he would have virtually nothing to reveal even if he were forced to reveal it. Tr. at 28-29. The type or quantity of classified information to which an individual has access is irrelevant and cannot be trivialized. Assuming the information to which he had access was properly classified, then it is need of protection and access to it must be restricted to those with authorization. The individual’s opinion that it would reveal nothing of consequence if it were divulged is irrelevant to the opinion I am charged with reaching.

At the hearing, his wife testified that she does not believe her husband is an alcoholic. She provided strong support for her opinion, based on her life experiences, which included living with a father and a former husband who were both alcoholics. Tr. at 74. Nevertheless, she is not an expert in the area of alcohol-related diseases, and the psychiatrist’s diagnosis of the individual, at odds with her opinion, must be given greater weight.

After the hearing, the individual submitted a letter to me in which he described a consultation he had with a doctor the day following his hearing. As a result of that consultation, the doctor determined that the individual suffered from Post Traumatic Stress Disorder (PTSD). The individual then attended an orientation program, and learned that PTSD sufferers often self-medicate with alcohol or drugs. I find it admirable that the individual has pursued treatment, through which his alcohol- related issues will hopefully be addressed. In the meanwhile, however, it is my opinion that, although this recent diagnosis may perhaps provide some insight into the individual’s alcohol-related arrest, it does not mitigate the DOE’s security concern at this time. After a proper course of treatment and subsequent period of sobriety, it may be appropriate for the DOE to reconsider the individual’s eligibility for access authorization.

IV. CONCLUSION

For the reasons set forth above, I conclude that the individual has not shown that his access authorization should be restored at this time, since the individual has not resolved the security concerns raised under Criteria H and J. The individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion 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 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. 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 the purpose of serving them on the Office of Security Affairs is:

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

United States Department of Energy

19901 Germantown Road

Germantown, Maryland 20874-1290

William M. Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: May24, 2001