Case No. VSO-0434 (H.O. Gray September 12, 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.

September 12, 2001

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:February 21, 2001

Case Number: VSO-0434

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 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).

BACKGROUND

The Individual has been arrested twice for driving while intoxicated (DWI), in 1998 and in 2000.(1) Each time the Individual refused to take a Breathalyzer test at the scene of the arrest. He admitted during a personnel security interview, however, to drinking a large quantity of alcohol before each arrest.

After the second arrest, the Individual was directed by the court to attend a five-month alcohol education and group counseling program.(2) A counselor at the program diagnosed the Individual with alcohol abuse.(3)

After the Individual reported his second DWI to the DOE, the personnel security office referred the Individual to a consulting psychiatrist for an evaluation. The consulting psychiatrist concluded that the Individual suffers from alcohol abuse without adequate evidence of rehabilitation or reformation. On the basis of the consulting psychiatrist's report, the Individual's access authorization was suspended.

HEARING TESTIMONY

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

The Individual does not dispute the diagnosis of alcohol abuse.(4) The sole question at the hearing was whether the Individual has demonstrated rehabilitation or reformation, thereby resolving the security concern. The Individual claims that he has not consumed alcohol since his last DWI arrest and has thus been abstinent for approximately eighteen months.

Expert Testimony

As noted above, both the DOE's consulting psychiatrist and the individual's treating psychologist testified at the hearing. They were in substantial agreement about the nature and extent of the Individual's alcohol problem. Both agreed that the Individual suffers from alcohol abuse, and that he requires additional treatment before he can be considered rehabilitated.

The consulting psychiatrist testified that he diagnosed the Individual with alcohol abuse on the basis of the criteria in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV). He further testified that he did not believe the Individual had achieved rehabilitation. He testified that the Individual would require two years of abstinence and treatment in order to attain rehabilitation from alcohol abuse. He discussed what he termed "negative prognostic signs" exhibited by the Individual that led him to conclude that two years of rehabilitation were required. The negative prognostic signs included the Individual's state of denial about his condition, his resistance to participation in a twelve-step group, a family history of alcohol disorders, and the fact that the Individual ended his relationship with several counselors after only a short period of treatment.(5) On the basis of these negative signs, the consulting psychiatrist recommends two years of treatment and abstinence for the Individual to achieve rehabilitation.(6) He also felt that two years were necessary for the Individual to deal with stressful emotional issues that had triggered binge drinking in his past.(7)

The consulting psychiatrist also testified that he doubted the Individual had been completely abstinent for the past eighteen months. The consulting psychiatrist's doubts arise from the results of a blood test that he administered during his examination of the Individual approximately eight months before the hearing. The blood test indicated that the Individual's levels of two liver enzymes, gamma glutamyl transpeptidase (GGT) and alanine aminotransferase (ALT), were elevated.(8) The consulting psychiatrist noted that the most common cause for an elevation of these enzymes is heavy alcohol consumption. Concerning GGT, he cited the DSM-IV, which states that "one sensitive laboratory indicator of heavy drinking is an elevation of GGT.... At least 70 percent of individuals with a high GGT level are persistent heavy drinkers, i.e., consuming eight or more drinks daily on a regular basis." The consulting psychiatrist noted that there are other possible causes for elevated liver enzymes, but none were indicated in the Individual's medical history.(9) He stated that the elevated liver enzymes persist for one to two weeks after a session of heavy drinking.(10) Consequently, the consulting psychiatrist believed that the most likely explanation for the elevated liver enzyme level was that the Individual had engaged in heavy drinking within two weeks before the examination.(11)

The Individual's counselor is a psychologist and licensed counselor, with over twenty years experience.(12) At the present time, she sees the Individual every other week for one-on-one counseling. She has also provided alcohol education to the Individual.(13) She has conducted eight sessions with the Individual in early 2000, then resumed sessions again approximately four months before the hearing.(14)

The counselor diagnosed the Individual with alcohol abuse and anxiety disorder.(15) Other than adding anxiety disorder, she does not disagree with the opinions expressed by the consulting psychiatrist in his report.(16)

In the counselor's opinion, the Individual would have to maintain sobriety for two to three years to demonstrate satisfactory rehabilitation or reformation.(17) She expects him to complete the present, primary level of counseling in three to six months.(18) The additional time is necessary, in her opinion, for the Individual to do additional work on dealing with the emotional factors of his alcohol disorder.(19) She recommends that the Individual then participate in some form of follow-up treatment.(20) In addition, she recommends that he completely abstain from alcohol in the future.(21)

The Individual's Testimony

The Individual does not dispute the diagnosis of alcohol abuse. He asserts, however, that he has now attained adequate reformation or rehabilitation.(22) In support of his claim of reformation or rehabilitation, he asserts that he has abstained from alcohol for approximately eighteen months, that he has successfully completed a five-month, court-ordered alcohol education program, and that he has attended sessions with his counselor for approximately eight months. He testified that he has extensively researched alcohol abuse and its treatment. He also testified that, as evidence of his commitment to abstain, he threw away an expensive wine collection.

The Individual describes his social life as going out a couple times a month with friends. He states that he is "not a highly social individual."(23) One of his preferred forms of recreation is hunting and fishing, usually by himself.(24)

According to Individual, he changed from a moderate social drinker to a problem drinker during his wife's bout with severe depression approximately two years before the hearing.(25) He is now divorced.

The Individual claims to have had his last alcoholic drink approximately at the time of his last DWI, approximately nineteen months before the hearing.(26) He testified that he currently intends to permanently abstain from alcohol.(27)

The Individual testified that he decided not to participate in Alcoholics Anonymous because he did not think he would be helped by the concepts of powerlessness and surrender, which he considered the core beliefs of the organization.(28) He also testified that he discussed his elevated level of liver enzymes with his physician, who provided no clear explanation. The physician conjectured that a prescription medication taken by the Individual might have been the cause.(29)

The Individual's Character Witnesses

Witness 1

Witness 1 met the Individual at work and has known him for about twenty months.(30) She sees the Individual once or twice a week at work, and often has lunch with him.(31) In addition, she has been with the Individual four times on social occasions outside of work, most recently approximately two months before the hearing.(32)

Witness 1 has never seen the Individual drink alcohol.(33) She has been present on several occasions when he has been offered an alcoholic drink and refused it.(34) In addition, Witness 1 testified that the Individual told her he would not drink and drive or do anything to jeopardize his access authorization. However, he did not unequivocally state his intention to permanently abstain from alcohol.(35)

Witness 2

Witness 2 has been the Individual's supervisor for a little more than two years.(36) He has known the Individual at work for about six years.(37)

Witness 2 testified that the Individual has played a key role in important projects at the facility, and his job performance has been strong.(38) He has not observed any sign of alcohol-related problems on the job.(39) In addition, he knows of no disciplinary action against Individual.(40) He does not socialize with Individual outside of work.(41)

Witness 2 testified that the Individual immediately told him about his last DWI and the suspension of his access authorization.(42) He stated that the Individual told him that he has given up alcohol.(43) Witness 2 monitors the Individual's sobriety by periodically asking him if he has had any alcoholic drinks. Each time he has asked the Individual, the Individual has denied using alcohol.(44) He last asked the Individual about alcohol use a few days before the hearing, and the Individual told him he had not consumed any alcohol.(45)

Witness 3

Witness 3 is a works closely with the Individual.(46) He has worked with him for the last five or six years.(47)

Witness 3 has been with the Individual on one social occasion outside of work.(48) On that occasiion, the Individual was offered an alcoholic drink. The Individual refused and ordered a non- alcoholic drink instead.(49)

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 or reformation to resolve security concerns raised by his alcohol abuse. I find that he has not done so.

The Individual brought forward no expert opinion to support his assertion that he is rehabilitated. On the contrary, both the Individual's counselor and the DOE's consulting psychiatrist agreed that the Individual requires additional counseling before he can be considered rehabilitated. In light of the expert opinion, I conclude that the Individual has failed to show adequate evidence of rehabilitation from alcohol abuse.

In addition, the Individual has not adequately corroborated his claim of eighteen months of abstinence. The Individual's character witnesses together account for only five events over the eighteen month period. These five events are too sporadic to corroborate the Individual's claim of abstinence. Therefore, I find that the Individual has failed to bring forward sufficient testimony to corroborate his assertion that he has been abstinent for the eighteen months prior to the hearing.(50) Moreover, testimony at the hearing indicated that the Individual's elevated liver enzymes at the time of his psychiatric examination, approximately eight months before the hearing, suggests that he had recently engaged in heavy drinking. The Individual's claim that a prescription medication for heartburn caused the elevation of liver enzymes is not supported by expert testimony and thus does not convince me that it is the cause of his elevated liver enzymes.

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 review procedures applicable to proceedings under Part 710 were revised on July 24, 2001. 66 Fed. Reg 47061 (September 11, 2001). Under the prior procedures, the review of a Hearing Officer's 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). The revised procedures state 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 Opinion may select either the revised procedures or the prior procedures. 66 Fed. Reg. 47061. Accordingly, the Individual may seek review under either the revised or the prior regulation set forth at 10 C.F.R.§ 710.28.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: September 12, 2001

(1) In the 1998 incident, the charges against the Individual were dropped. In the 2000 incident, the Individual pled guilty to a lesser charge. The 2000 incident also included a charge of hit and run driving. The basis for that charge was that the Individual, while at a stop light, backed his vehicle into the one behind him, and then drove away. The jurisdiction where the accident occurred did not press charges for hit and run driving. The Individual explained that because he was intoxicated, and the contact between the vehicles was minor, he was unaware it occurred until after he had been stopped by the police. Consequently, I consider the resolution of the security concern raised by the hit and run charge to be subsumed within the concern raised by his alcohol abuse. Transcript of Hearing (Tr.), pp. 58-59.

(2) Tr., pp. 20; 37; 38; 42.

(3) Tr., p. 144.

(4) Tr., pp. 5; 15.

(5) Tr., pp. 156-164.

(6) Tr., p. 164.

(7) Tr., p. 167.

(8) Tr., p. 149.

(9) Tr., pp. 148-156. The consulting psychiatrist also stated that the prescription medication mentioned by the Individual's physician was not a likely cause of an elevation in liver enzyme levels. Tr., pp. 50; 184.

(10) Tr., p. 151.

(11) Tr., pp. 177-78.

(12) Tr., p. 108.

(13) Tr., pp. 110; 123.

(14) Tr., p. 109.

(15) Tr., pp. 110; 112.

(16) Tr., p. 113.

(17) Tr., p. 114.

(18) Tr., p. 110.

(19) Tr., pp. 127-28.

(20) Tr., p. 110, 116.

(21) Tr., p. 113.

(22) Tr., pp. 5-6.

(23) Tr., p. 63; 166.

(24) Tr., p. 64.

(25) Tr., p. 33.

(26) Tr., p. 6; 36.

(27) Tr., p. 67.

(28) Tr., pp. 50-51.

(29) Tr., p. 25.

(30) Tr., pp. 71; 81.

(31) Tr., pp. 76; 81.

(32) Tr., pp. 74; 84.

(33) Tr., pp. 81; 84.

(34) Tr., pp. 83-84.

(35) Tr., pp. 78-81.

(36) Tr., pp. 91-92.

(37) Tr., p. 93.

(38) Tr., p. 95.

(39) Tr., p. 101.

(40) Tr., p. 94.

(41) Tr., p. 101.

(42) Tr., p. 100.

(43) Tr., p. 102.

(44) Tr., p. 102.

(45) Tr., p. 106.

(46) Tr., p. 134.

(47) Tr., p. 135.

(48) Tr., p. 138.

(49) Tr., p. 136.

(50) The Individual was informed at the pre-hearing telephone conference about the necessity of corroborating his claim of abstinence. Memo of Telephone Conversation; Tr., pp. 6-7. When it was pointed out to the Individual at the hearing that the corroboration was weak, he said it was because he does not socialize frequently. Tr., p. 186.