Case No. VSO-0444, 28 DOE ¶ 82,811 (H.O. Woods July 26, 2001)

For full history of this case, and links to other cases, click here.

* 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 26, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 21, 2001

Case Number: VSO-0444

This Opinion considers the eligibility of XXXXXXX (hereinafter referred to as "the individual") to hold an 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." As explained below, it is my opinion that the individual's request for access authorization should be denied.

I. BACKGROUND

The individual is an employee of a Department of Energy (DOE) contractor, who has requested a DOE access authorization for the individual. As a result of information that he disclosed to the DOE in connection with the his background investigation, the individual was asked for additional information at a Personnel Security Interview conducted in early September 2000 (the PSI). Subsequently, the individual was referred to a psychiatrist (hereafter the “DOE psychiatrist”), who conducted a psychiatric evaluation of the individual in early October 2000. In February 2001, the Manager of the DOE’s local Operations Office issued a Notification Letter to the individual. DOE Exhibit 4. In this Notification Letter, the Operations Office finds that the individual’s information has raised security concerns under Sections 710.8(j) of the regulations governing eligibility for access to classified material. Specifically, the Operations Office finds that the individual has been, or is a user of alcohol habitually to excess, a finding which is supported by the diagnosis of the DOE psychiatrist. As amended by a letter of June 7, 2001, the Notification Letter describes the individual’s excessive use of alcohol as follows:

[The individual] started drinking alcohol excessively when he was in college (1977- 81). In 1992 he received a DUI. In 1994 he was in an outpatient rehabilitation program. His former employer recommended that he attend because he was drinking on the job. He abstained from drinking for a couple of years; however, in 1997 he resumed drinking. Prior to his psychiatric evaluation, he drank a liter bottle of vodka on the weekends.

Amended Enclosure 2 to February 2001 Notification Letter, submitted on June 7, 2001.

In his October 30, 2000 report to the DOE concerning his psychiatric evaluation of the individual (the Psychiatrist’s Report), the DOE psychiatrist finds that the individual suffers from an alcohol related disorder. Specifically, the DOE psychiatrist found that the individual does not meet the Diagnostic and Statistical Manual of Mental Disorder Fourth Edition (DSM-IV) criteria for Alcohol Abuse or Alcohol Dependency, and therefore believes that his condition should be categorized as “Alcohol Related Disorder not otherwise specified.” Psychiatrist’s Report at 6.

The individual requested a hearing to respond to the concerns raised in the Notification Letter. In his pre-hearing submissions, the individual does not deny or contest the information contained in the Psychiatrist’s Report or in the amended Notification Letter. In his May 9, 2001 letter to me, the individual stated that at the Hearing he would attempt “to validate and prove my rehabilitation and reformation of the conditions, allegations and opinions presented to me in the Notification Letter.” He stated that based upon his testimony, letters and his witness testimony, he would support his assertion that he has not consumed alcohol since September 2000. Accordingly, the hearing convened on this matter focused chiefly on the individual’s efforts to mitigate the concerns raised in the Notification Letter. At the Hearing in June 2001, I received the testimony of the individual and three witnesses who testified on his behalf. The DOE presented the testimony of the DOE Personnel Security Specialist who interviewed the individual in September 2000 and of the DOE Psychiatrist.

II. REGULATORY STANDARD

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. §§ 710.21(b)(6) and 710.27(b), (c) and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. The hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The individual must come forward at the hearing with evidence 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); Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA- 0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, we generally expect the individual in these cases to bring forward witness testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

B. Basis for the Hearing Officer's Opinion

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue an Opinion as to whether granting an 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(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 must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing.

III. ANALYSIS

As an initial matter, I have reviewed the Psychiatrist’s Report and find that the DOE Psychiatrist’s diagnosis of the individual’s condition as “Alcohol Related Disorder not otherwise specified” is reasonable. The DOE psychiatrist summarizes his findings in this regard as follows:

[The individual] has exhibited a defect in judgment by resuming his use of alcohol in 1997, considering the extent of his drinking in the past and also the degree of problems he has encountered as a result of his alcohol use. As he has indicated, his substance abuse problem has led to a DUI, problems with a previous employer, affected his school work, and has brought about some tension in his marriage. He said that his wife was not happy with his drinking, and having to go into a rehab program added further stress on their marriage to the point they had to go into counseling.

Psychiatrist’s Report at 6-7. He therefore concludes in the Report that the individual “has been drinking in a maladaptive manner consistent with an Alcohol Related Disorder” during the past three years, and that his “continuing use of alcohol until a month ago indicated a significant defect in judgment and reliability.” Id. at 7. His evaluation is well supported and based on a full and professional assessment of the individual’s personality, medical condition, and case history.

In the administrative review process, the Hearing Officer has the responsibility for making the initial decision as to whether an individual with alcohol and/or drug problems has exhibited rehabilitation or reformation. See 10 C.F.R. § 710.27. The DOE does not have a set policy on what constitutes rehabilitation and reformation from substance abuse, but instead makes a case-by-case determination based on the available evidence. Hearing Officers properly give a great deal of deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (finding of rehabilitation); Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (finding of no rehabilitation).

A. The Individual’s Abstinence

At the Hearing, the individual testified that he has abstained from consuming alcohol since September 7, 2000, and that he has committed himself to maintaining abstinence from alcohol in the future. Hearing Transcript (TR) at 87. The DOE Psychiatrist indicates in his report that, given the individual’s history of alcohol related problems, the consumption of alcohol by the individual is maladaptive and exhibits a defect in judgment. Psychiatrist’s Report at p. 6. Clearly, a commitment to maintaining abstinence from alcohol is a necessary requirement to any showing of rehabilitation by the individual from his “Alcohol Related Disorder” diagnosis. As discussed below, I find that the individual has successfully demonstrated that he has refrained from consuming alcohol since September 7, 2000, and has committed himself to a program aimed at supporting his ongoing sobriety.

The individual testified that he decided to abstain from consuming any alcohol no later than September 7, 2000, following his PSI. TR at 90-91. He testified that the questions concerning his alcohol consumption at the PSI left him “scared” concerning the impact of further alcohol consumption on his ability to obtain an access authorization. TR at 91. At the hearing, he described his decision to stop drinking as follows:

there’s no doubt that the catalyst for me to stop was the DOE hearings. That was the . . . light bulb that popped up, if you will. It made me realize a couple of things: one, I may be heading in[to] trouble again. That was certainly a thought. And also, at the time, I was much heavier than I was. I think I’ve lost about ten pounds since then. I wanted to become healthier. So it was a time, I thought, . . . it’s time to change my life -- get out of the rut that I was in. And it truly was a rut. . . .[My wife] and I had a talk. We talked about a lot of things. And she reinforced.

TR at 76-77. He states that he has made a conscious effort to change his pattern of weekend drinking by becoming more involved in his teenage daughters’ sports activities.

I’ve changed my lifestyle. I hadn’t really coached basketball for a couple of years. I dove right in starting in November. So that got me out of the house. To break patterns, I coached the girls Tuesdays and Thursdays, and I was at the basketball games all day Saturday. . . .

I also, to kind of stay in that pattern after basketball was over in March, I decided to help out with the track team. So I was coaching the long jump. And that really wasn’t that much, it was again all day Sundays, but at least twice a week because the girls and boys practice Monday, Tuesday, Wednesday and Thursday.

TR at 77-78. He also testified, that in November 2000 he started a walking program with a co- worker and that he now walks three to four days a week. He also testified that he has remained very active as a volunteer umpire in an adult softball league. Id. Finally, he testified that he has now started attending AA meetings regularly, and he is committed to attending future meetings on a weekly basis. At the Hearing, he submitted an AA attendance sheet indicating that he had attended four meetings prior to the Hearing, on June 2, 5, 9, and 12, 2001. Individual’s Exhibit 4. In a post hearing submission received on June 27, 2001, prior to the closing of the record in this proceeding, he documented his further attendance at AA meetings on June 18 and 22, 2001.

As corroborative support for his continuing abstinence, he presented the testimony of his wife, a friend, and his supervisor. His wife testified that she has known the individual for about twenty years, and that they have been married for eighteen years. She indicated that she had been aware of the individual’s DUI, his previous alcohol related employment problem, and his previous treatment for an alcohol problem in 1994-95. She also confirmed the individual’s testimony at the PSI that he had abstained from alcohol for about two years following this treatment, and then resumed drinking alcohol in 1997. TR at 46-47. She recalled that in early September 2000, she and the individual “had a long heart to heart” conversation about his alcohol consumption, and that he told her that he was ready to make a commitment to stop consuming alcohol. TR at 44, 48-49. I believe that this testimony tends to corroborate the individual’s assertion that he made a commitment to stop consuming alcohol immediately after his PSI. She further testified that since he made this commitment to stop drinking, she has seen no indication, either directly or through physical or behavior changes in the individual, that would indicate that he has violated this commitment when she is not present. Id. at 45. She also testified that they no longer keep alcohol in their home. Id.

The individual’s friend testified that he has known the individual for seven or eight years. He states that his daughter and one of the individual’s daughters are very good friends, and that he and the individual are both involved in school coaching activities. He states that during school months, he may see the individual about once a week, and a bit less that once a week during the summers. TR at 56-57. He testified that he had not seen the individual drink an alcoholic beverage since September 2000. He testified that he had never observed the individual to appear hung over at any of the Saturday or Sunday morning sports events that they attended together regularly in the last nine months. He also testified that the individual attended a St. Patrick’s Day party at his home in March 2001, and he did not observe the individual consume alcohol at that event, although it was available. He also testified that his wife and daughter spent considerable time at the individual’s home, and that they had never mentioned any concern about the individual and alcohol. Id. at 58-61.

The individual’s supervisor testified that he has known the individual for about two years, and considers him a “very professional, honest, reliable and trustworthy employee.” He stated that he is always on time for work and exhibits excellent judgment on business and personnel decisions. He stated that he had been to lunch with the individual a number of times in the last ten months at places where alcohol was available, and had not seen the individual consume alcohol on those occasions or at any other time. TR at 69-71. He also testified that he has close daily interactions with the individual, whose office is next to his own, and that he has never seen the individual appear hung over or smelling of alcohol. He corroborated the individual’s assertions that, over the past few months, the individual has been taking regular walks and has lost weight. Id. at 71-73.

In addition to the testimony presented at the Hearing, the individual submitted documentary evidence, including an award for his softball umpiring activity, letters of recommendation from an official of the softball league and from the principal of his daughters’ school, and notes from parents and children thanking him for his coaching assistance. Individual’s Exhibit 2, Attachments to the individual’s June 27, 2001 letter.

I find that the individual has provided sufficient corroboration to support his assertion that he has not consumed alcohol since September 7, 2000. As described by the individual at his PSI, his recent drinking occurred chiefly when he was home alone on the weekends. The evidence he has submitted concerning increased weekend activities and increased health consciousness is supportive of his assertions of abstinence. The testimony presented by the individual’s wife convinces me that in early September 2000, he made a decision to stop consuming alcohol and has so far been successful in his efforts. The individual’s wife is a registered nurse who testified that she works twelve hour shifts at an area hospital from 9 a.m. until 9 p.m. every Tuesday, Saturday and Sunday. TR at 50. Although her work schedule keeps her away from home for a large part of each weekend, her professional training and the fact that she arrives at home shortly after nine p.m., convinces me that she would be able to detect any significant amount of alcohol consumption by her husband. Finally, his recent decision to attend AA meetings on a regular basis indicates to me that he is seriously committed to maintaining his sobriety.

Accordingly, I conclude that individual has abstained from alcohol from September 7, 2000 until the June 2001 hearing, a period of just over nine months. As discussed above, the individual has documented his attendance at AA meetings through June 22. That evidence coupled with his declared intention to continue his AA attendance and maintain his abstinence from alcohol convinces me that, as of the date of this decision, the individual has now abstained from consuming alcohol for over ten months.

B. The Individual’s Progress Toward Rehabilitation

As of the date of the closing of the record in the current proceeding, there has not been the passage of sufficient time to fully mitigate the concerns raised by the individual’s prior consumption of alcohol and his diagnosis of Alcohol Related Disorder. In his October 2000 Report, the DOE Psychiatrist stated that the individual was only “in very early remission from his condition of Alcohol Related Disorder, as he only stopped drinking approximately one month ago.” Id. at 6. At the close of the hearing, the DOE Psychiatrist presented his conclusions concerning rehabilitation in light of the testimony of the individual and his witnesses concerning his activities and his continuing abstinence from alcohol. The DOE Psychiatrist stated that the individual’s ongoing abstinence, added weekend activities, and recent attendance at AA meetings are “obviously steps in the right direction.”

The longer it is that he has distanced himself from alcohol, the better the prognosis. And he is making some conscious changes. And again, that’s commendable. The big issue now is how long he will adapt these changes and make them a part of his life from this point on. And nobody can answer that except [the individual]. And he is seeking out and building support systems around him and I think that helps.

TR at 89. While he concluded that “the right steps are being taken now,” the DOE Psychiatrist was not prepared to conclude that as of the date of the hearing the individual had mitigated the concerns raised by his previous level of alcohol consumption and by his diagnosis of Alcohol Related Disorder. He stated that it would be appropriate to hold the individual to the time frame for rehabilitation “that’s accepted by the clinical community, which is twelve months, to see how committed he is.” Id. Earlier in the hearing, the DOE Psychiatrist had discussed the individual’s condition of Alcohol Related Disorder in comparison to the more serious conditions of Alcohol Abuse and Alcohol Dependence. He explained to the individual that the more serious condition of alcohol dependence requires a more intensive level of treatment than Alcohol Abuse or the individual’s diagnosis of Alcohol Related Disorder.

Based on what I’ve observed and gathered during evaluation in October, I would say then that in your situation, the treatment that you are requiring will be lesser or not as intensive as somebody who was dependent on alcohol or using it or abusing it in that manner.

TR at 31. However, the DOE Psychiatrist indicated that in all types of conditions involving alcohol, the accepted clinical standard, based in the DSM-IV, was to require twelve months of abstinence from alcohol in order to establish rehabilitation.

Well, the [DSM-IV] mentions twelve months. Again, this is statistically stated when they are talking about alcohol dependence and alcohol abuse, but in clinical practice we generally go by twelve months for individuals with different kinds of alcohol related disorder.

TR at 34-35.

At the Hearing, the individual offered evidence that the medical community does not always adhere to a twelve month standard in assessing whether someone has demonstrated the ability to successfully abstain from consuming alcohol. The individual’s wife testified that in her professional understanding as a Transfer Center Nurse, the hospital applies different standards of care to people who have a history of abusing alcohol or any liver dysfunction depending on whether they’ve abstained for three months, six months or a year.

In their general clinical practice for certain interventions for either liver damage, liver injury, either mechanical cause or alcohol cause, or some sort of insult to the liver, my understanding is that they generally use a reference of six months.

TR at 54. In response, the DOE psychiatrist stated that the use of this shorter time period was probably due to the goals of the hospital assessment, which is to qualify people to receive essential medical treatments.

I think in the case of clinicians, like gastroenterologists and internists, they are looking mainly at a period of time that they can use to make a decision as to the level of treatment, or the type of treatment that an individual will get. And in the psychiatric community, we’re looking more for a period that can be defined for remission or rehabilitation. And I think the experts, as I mentioned, use twelve months as the defined period for rehabilitation.

TR at 99. I believe that the distinction drawn by the DOE psychiatrist is reasonable and persuasive, and I therefore will accept his use of a twelve month period of sobriety as the appropriate standard for rehabilitation in this case.

As I stated above, the DOE does not have a set policy on what constitutes rehabilitation and reformation from alcohol related disorders, but instead makes a case-by-case determination based on the available evidence, with substantial deference afforded to the expert opinions of psychiatrists and other mental health professionals. In cases filed with this Office, it is very rare for a psychiatrist to find reformation or rehabilitation where an individual has been abstinent for less than one year. See Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996) (Hearing Officer who found individual rehabilitated from alcohol dependency based on a 28-day inpatient treatment program and three months' abstinence was found on appeal not to have considered the psychiatrist's testimony that the passage of time was an important factor in lowering the risk of relapse). This is because, as the DOE psychiatrist stated at the Hearing, a period of one year is generally viewed as necessary to reach a state of sustained remission.

While I am persuaded that the individual sincerely intends to abstain from alcohol, has made significant positive changes in his life, and has begun to attending AA meetings on a regular basis, I am unable to find that there has been sufficient rehabilitation or reformation to mitigate the DOE's security concerns. My position is based primarily on the individual’s ten month period of abstinence and on the expert testimony by the DOE's board-certified psychiatrist that this period of abstinence does not yet establish the individual’s rehabilitation. These same considerations have led Hearing Officers in other recent DOE security clearance cases to find that there was insufficient rehabilitation or reformation. See Personnel Security Hearing (Case No. VSO-0433), 28 DOE ¶ _____ (June 29, 2001) (ten months); Personnel Security Hearing (Case No. VSO-0398), 28 DOE ¶ 82,788 (eleven months); Personnel Security Hearing (Case No. VSO-0154), 26 DOE ¶ 82,794 aff’d, Personnel Security Review (Case No. VSA-0154) 27 DOE ¶ 83,008 (six months); Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (nine months); Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,609, aff'd, Personnel Security Review (Case No. VSA-0029), 25 DOE ¶ 83,003 (1995) (four months); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, Personnel Security Review (Case No. VSA-0018), 25 DOE ¶ 83,006 (1995) (five months). Accordingly, I believe that it would not be appropriate to grant the individual's request for access authorization at this time. With only ten months of demonstrated sobriety, the individual's risk of relapse remains unacceptably high.

In my July 2, 2001 letter to the individual in which I closed the record of this proceeding, I stated that any additional materials that the individual wished to submit concerning his continuing efforts at rehabilitation will be placed in the case file and may be considered by reviewing authorities. I suggest that he submit the following information. On or after September 7, 2001, he should submit a sworn and notarized statement that he has not consumed alcohol for a full year and that he intends to continue abstaining from alcohol. He should also submit a sworn and notarized statement from his wife confirming that, to the best of her knowledge and belief, he has abstained from consuming alcohol for the past year. Finally, he should submit attendance sheets from his AA meetings documenting his continuing participation in that support program. This information would, in my opinion, indicate that he has met the requirements for rehabilitation established by the DOE psychiatrist and mitigated the concerns raised in the Notification Letter.

IV. CONCLUSION

For the reasons set forth above, I find that the individual has been a user of alcohol habitually to excess. Further, I find that this derogatory information under Criterion (j) has not been mitigated by sufficient evidence of rehabilitation at this time. Accordingly, after considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, it is my opinion that the individual has not yet demonstrated that granting him access authorization would not endanger the common defense and would be clearly consistent with the national interest. It therefore is my opinion that the individual's request for access authorization should be denied.

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 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., SW, Washington, DC 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.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: July 26, 2001