Case No. VSO-0433, 28 DOE ¶ 82,805 (H.O. Gray June 29, 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.

June 29, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:February 8, 2001

Case Number: VSO-0433

This Opinion addresses the eligibility of XXXXX (the Individual) for access authorization. The regulations governing the Individual’s eligibility are found at 10 C.F.R., Part 710. Pursuant to these regulations, the Individual requested a hearing to resolve concerns about his eligibility for access authorization. 10 C.F.R. § 710.21(3)(ii). As explained below, I do not believe the Individual has resolved the concerns. It is therefore my opinion that his access authorization should not be restored.

The Individual is an employee at a facility (the facility) operated by the Department of Energy (DOE), and has held access authorization for a number of years. The DOE obtained reliable information indicating that he suffers from alcohol abuse. See 10 C.F.R. § 710.8(j). Consequently, the DOE suspended the Individual’s access authorization. The Individual then requested a hearing to provide evidence in support of his eligibility for access authorization. 10 C.F.R. § 710.21((b)6).

At the hearing, the Individual represented himself. He testified on his own behalf, and presented the testimony of a clinical psychologist and two friends. The DOE presented the testimony of a consultant psychiatrist and a personnel security specialist.

BACKGROUND

The Individual has been arrested and convicted twice for driving while intoxicated (DWI). The first arrest occurred in 1989, while the Individual was driving after attending a wedding reception. His blood alcohol level at the time of arrest was 0.107. After conviction, the Individual was sentenced to 24 hours of community service,

The Individual's second DWI arrest occurred approximately one year before the hearing, when his car was stopped for weaving. The Individual's blood alcohol level at that time was 0.234. The Individual was convicted of DWI and sentenced to 20 days in jail, 72 hours of community service, and 86 hours of treatment. He began the treatment in July 2000.

After the Individual reported his second DWI, the DOE personnel security office at the facility where he worked conducted a personnel security interview (PSI). During the PSI, the Individual stated that he typically drank on weekends, becoming intoxicated about twice a month.(1) He stated that he intended to limit his future consumption of alcohol to "the two or three [beers], to where I just have that intoxicated [feeling]."(2)

The DOE personnel security office also referred the Individual to a consultant psychiatrist for an evaluation. The consultant psychiatrist concluded that the Individual suffers from alcohol abuse without adequate evidence of rehabilitation and reformation. On the basis of the consultant psychiatrist's report, the Individual's access authorization was suspended. The Individual then requested this hearing.

HEARING TESTIMONY

1. Expert Testimony

At the hearing, the DOE presented the testimony of the consultant psychiatrist who had examined the Individual approximately six months before the hearing. The Individual presented the testimony of a clinical psychologist who met with the Individual for two counseling sessions, the first approximately two months before the hearing. Their opinions concerning the Individual's condition were essentially identical.

The consultant psychiatrist diagnosed the Individual as suffering from alcohol abuse, although the only two indications of alcohol- related problems were two DWI arrests ten years apart. The consultant psychiatrist explained that

if he didn't get the second, no one would even be questioning him at this point. But the second [DWI], within a 10-year period, certainly creates the question of how many times does he actually drink and drive.... Even with [the arrests] spread out... these aren't the only times that he does this. You don't get caught the only two times that you drink and drive.(3)

The consulting psychiatrist also noted that there was no indication in the Individual's history of family problems or other instability that resulted from alcohol consumption.(4) As evidence of rehabilitation for the Individual, the consulting psychiatrist recommended at least one year of abstinence, continued therapy and participation in Alcoholics Anonymous (AA) or a similar program.(5)

The consultant psychiatrist described the rehabilitation process as consisting of several stages. The first stage begins when a person decides not to drink, though he still denies or minimizes the effects that alcohol have had on his life. As the process goes on, the Individual is able to see his condition with increasing honesty and less minimizing and denial, culminating in total honesty about his condition. In terms of this process, the consultant psychiatrist described the Individual in the middle stage.(6)

The clinical psychologist concurred with the consultant psychiatrist in the diagnosis of alcohol abuse.(7) For rehabilitation, the clinical psychologist recommends a minimum of one year of abstinence from alcohol, with at least weekly attendance at meetings of AA.(8) When the Individual asked the clinical psychologist if he was already rehabilitated, the clinical psychologist replied "when we met, I felt like you were ... on a good path.... So on the way to rehabilitation is what I would say."(9) As evidence of the Individual's progress in rehabilitation, the clinical psychologist mentioned that the Individual had attended court-ordered alcohol counseling, had begun attending church, had indicated that he did not desire to return to drinking, and that he had been abstinent for the ten months before the hearing.(10) The clinical psychologist agreed with the consulting psychiatrist that the Individual was in the middle stage of recovery, and still retained some elements of denial.(11)

2. The Individual's witnesses

The Individual provided two witnesses who corroborated his testimony concerning his abstinence and commitment to an alcohol- free life style. Witness 1 has known the Individual for about 2- 1/2 years.(12) They frequently go to movies and restaurants together, and the Individual helps her with chores at her house.(13) Witness 1 testified that the Individual does not frequent bars or attend after-work gatherings of employees which feature alcohol.(14) She is impressed with his involvement and positive attitude toward his group meetings and AA.(15) She has never seen the Individual take an alcoholic drink, and he has told her that he does not intend to resume drinking.(16)

Witness 2 has known the Individual nine or ten years.(17) He socializes with the Individual about once a month, and once a year takes a long trip with him.(18) He has not seen the Individual drink alcohol since the Individual's last DWI arrest.(19) He has observed occasions where the Individual was offered a beer but requested a non-alcoholic drink instead.(20)

3. The Individual's testimony

The Individual does not dispute the diagnosis of alcohol abuse, but claims that he has been rehabilitated.(21) As evidence of his rehabilitation, he points to his ten months of abstinence, his attendance at court-ordered alcohol education and therapy, his return to church with resulting spiritual growth, and his attendance at AA meetings.(22)

The Individual testified that he last drank alcohol at a concert about ten months before the hearing.(23) He currently intends to permanently abstain from alcohol.(24) In support of his abstinence, he has disassociated himself from his former drinking companions.(25) He has also attended twenty-eight weekly sessions of a court-ordered program that combines alcohol education and therapy, and two sessions of AA.(26)

ANALYSIS

A DOE administrative review proceeding under Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. Personnel Security Hearing , Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In a Part 710 case, the standard is designed to protect national security interests. Once the DOE has made a showing of derogatory information, the burden is on the individual to convince the DOE 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. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the interests of national security" standard for the granting of security clearances indicates that determinations should err, if they must, on the side of denials); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).

In the present case, there is no dispute that the Individual suffers from alcohol abuse. The sole question is whether he has provided sufficient evidence of rehabilitation to resolve security concerns raised by his alcohol abuse. I find that he has not done so.

The Individual testified convincingly of his ten months of abstinence, his disassociation from former drinking companions, and his commitment to his therapy programs. In addition, his character witnesses provided credible corroboration for each of his claims. Consequently, I believe that the Individual has remained abstinent for ten months and is committed to further abstinence.

Although the Individual is close to achieving a year of abstinence, neither the consultant psychiatrist nor the clinical psychologist testified that a year of abstinence by itself is enough for the Individual to attain rehabilitation. Both recommended continued counseling and participation in AA. At the time of the hearing, the Individual was making arrangements to continue individual counseling sessions. He had also begun attending AA meetings, although he had not yet begun participating in the AA program. Thus, it is clear that he has not fulfilled the requirements for rehabilitation as stated by the consultant psychiatrist and clinical psychologist.

I find that the hearing testimony confirms the opinion that the Individual needs additional time to attain rehabilitation. The progression of the Individual's understanding of his alcohol condition is clear in the record, and conforms with the description of the stages of recovery given by the consultant psychiatrist. When the Individual underwent a Personnel Security Interview, approximately nine months before the hearing, he stated that after a court-ordered abstinence period ended, he intended to return to drinking three drinks at a sitting once a week, becoming slightly intoxicated.(27) When he was interviewed by the consultant psychiatrist, he had reduced his planned drinking to some wine with dinner.(28) When the Individual met with the clinical psychologist, two months before the hearing, he stated his intention to permanently abstain from drinking. In addition, the Individual rejected recommendations to attend AA that were given to him by his DWI school instructor and the consultant psychiatrist. By the time he met with the clinical psychologist, however, he had come to understand the value of such a program for him.

Thus, I believe that the record clearly shows that the Individual has been able to sustain abstinence and to make significant life style changes in support of his abstinence. I further believe that he is in the beginning stage of understanding his alcohol condition and participating in programs that will help avoid a relapse. Nevertheless, I find persuasive the testimony of the consulting psychiatrist and the clinical psychologist that the Individual is still in a relatively early state of the rehabilitation process. I therefore conclude that the Individual has not presented adequate evidence of rehabilitation.

CONCLUSION

I find that the Individual suffers from alcohol abuse and has not shown adequate evidence of rehabilitation, and has thus failed to resolve concerns about his eligibility for access authorization. Consequently, I believe that the Individual has not shown that restoring his access authorization would not endanger the common defense and security, and would be clearly consistent with the national interest. I therefore recommend that the Individual's access authorization not be restored.

The regulations provide that either the Individual or the Department of Energy's Office of Security Affairs may file a written request for review of this Opinion. The request must be filed within thirty calendar days of receiving this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a written statement specifying the issues upon which it seeks to focus the review. The other party may file a written response to the statement of issues. The response must be filed within twenty calendar days of receipt of the statement of issues. See 10 C.F.R. § 710.28.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: June 29, 2001

(1) Exhibit 5, Transcript of PSI, pp. 23; 29. The Individual defined intoxication as a "light buzz" he got after consuming three beers. Ibid., p. 30.

(2) Exhibit 5, Transcript of PSI, p. 36.

(3) Hearing Transcript (Tr.), p. 19-20.

(4) Tr., p. 16, 21.

(5) Tr., p. 20.

(6) Tr., p. 72-3.

(7) Tr., p. 39.

(8) Tr., p. 40, 43.

(9) Tr., p. 36.

(10) Ibid.

(11) Tr., p. 42.

(12) Tr., p. 84.

(13) Tr., p. 89, 90.

(14) Tr., p. 85.

(15) Tr., p. 88.

(16) Tr., p. 88, 91.

(17) Tr., p. 94.

(18) Tr., p. 95, 98.

(19) Tr., p. 99.

(20) Tr., p. 97-98.

(21) Tr., p. 51.

(22) Tr., p. 52.

(23) Tr., p. 54.

(24) Tr., p. 53.

(25) Tr., p. 54-5.

(26) Tr., p. 56. The program consists of a total of forty-three sessions.

(27) Exhibit 5, Transcript of PSI, p. 36.

(28) Tr., 28.