Case No. VSO-0446, 28 DOE ¶ 82,812 (H.O. Gray July 30, 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 30, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:March 22, 2001

Case Number: VSO-0446

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 a concern about his eligibility for access authorization. 10 C.F.R. § 710.21(3)(ii). As explained below, I believe the Individual has resolved the concern. It is therefore my opinion that his access authorization should be granted.

The Individual applied for access authorization at a facility (the facility) operated by the Department of Energy (DOE).(1) The DOE obtained reliable information indicating that he suffers from alcohol abuse. Consequently, the DOE did not grant the Individual’s application for access authorization.(2) 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

During the previous twenty-one years, the Individual has been arrested five times for driving while intoxicated (DWI). The last arrest occurred approximately two years and seven months before the hearing. Four of the arrests took place while the Individual held access authorization.

The Individual has participated in several alcohol rehabilitation programs, but was not participating in one at the time of the hearing. He participated in the facility's Employee Assistance Program (EAP) from 1995 to 1998, and an intensive outpatient counseling program at a local counseling center in 1998 and 1999.(3) In addition, he reported that he attended meetings of Alcoholics Anonymous (AA) for approximately two years, attending his last session in March 2000.(4)

In the last seven years, the Individual was examined four times by a Department of Energy consulting psychiatrist. After each examination, the consulting psychiatrist reported that the Individual suffered from an alcohol-related disorder.(5) In the report from the last examination, which occurred approximately seven months before the hearing, the consulting psychiatrist stated that the Individual suffered from alcohol abuse, as defined in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV). He gave his opinion that the Individual would require three years of abstinence to establish a satisfactory degree of reformation.(6)

HEARING TESTIMONY

The Individual did not dispute the diagnosis of alcohol abuse. The sole purpose of the hearing was to provide the Individual with the opportunity to present evidence of rehabilitation or reformation from his alcohol disorder in order to resolve the security concern.(7)

At the hearing, the Individual testified on his own behalf, and presented the testimony of two friends. The DOE presented the testimony of the consulting psychiatrist and a personnel security specialist.

The Consulting Psychiatrist

The consulting psychiatrist explained that at the time of the last examination, the Individual had completed two years of abstinence. However, it was the belief of the consulting psychiatrist that three years of abstinence was necessary for the Individual to demonstrate reformation. This requirement is longer than the usual period of abstinence necessary to demonstrate reformation. The consulting psychiatrist testified that he believed three years was appropriate because "the Individual had already been through two separate programs and seriously relapsed... And as soon as he started drinking again, he relapsed into problem drinking, and he didn't have the mind set of somebody that is in a true state of recovery.... He wasn't ... willing to admit that he had an alcohol abuse disorder. So I felt for all those reasons ... three years [of abstinence] was reasonable. Because ... I'm looking at ... the risk of relapse. The longer one is abstinent, the lower the probability of relapse."(8)

During the last examination the consulting psychiatrist testified that the Individual denied having an alcohol disorder. In addition, the consulting psychiatrist believed the Individual had stopped drinking because the legal and employment problems it caused him were a "hassle," but the Individual had not internalized the values of a person in recovery from an alcohol disorder.(9)

In his report of the examination, the consulting psychiatrist did not suggest that the Individual participate in additional rehabilitation programs. The consulting psychiatrist explained his reasoning at the hearing, stating that the Individual "had already been through two programs.... It was going to be ... redundant for him to go through the program again. He needed to ... internalize what they were trying to teach him" in the previous programs.(10)

At the hearing, the consulting psychiatrist explained why he did not require the Individual to further participate in a twelve-step group such as AA. He testified that the Individual is "a very independent person, and he's a very private person. He is not the kind of person that likes to share his inner feelings with other people. And I just don't think he felt comfortable with that in AA. I accept that. There are people that don't feel comfortable going to AA, and that's why I don't require it."(11)

At the hearing, the consulting psychiatrist was asked whether the Individual's additional seven months of abstinence since the last psychiatric examination was sufficient to demonstrate reformation. He testified that it was a sufficient period of reformation.(12)

The consulting psychiatrist explained that he had shortened the period he believed was necessary to demonstrate reformation to two years and seven months. He testified that "the time period of three years is not absolute ... it's ... a guideline.... I'm willing to say that if ... he's been abstinent [for the last two years and seven months], I'd be willing to say that he is now showing adequate evidence of reformation."(13) In regard to the Individual's overall judgment and reliability, the consulting psychiatrist further testified that "the only time that I felt he has shown problems with judgment and reliability is when he's drinking.... When he's not drinking, there has never been evidence of defects in judgment or reliability."(14)

The consulting psychiatrist summarized his view of the Individual by stating that "I think he's very sincere right now in wanting to gain back his [access authorization], and to do what he needs to do to do that. And ... I believe that [he is] sober, I don't have any doubt that [he is] being honest with us about that. And ... I admire [him] for turning [his] life around...."(15)

The Individual

The Individual testified that he last drank an alcoholic drink two years and seven months before the hearing, at the time of his last DWI arrest.(16) He stated that he now realizes the harmful effects that alcohol has had in his life, and he intends to permanently abstain from alcohol, regardless of whether he needed to abstain to keep his access authorization at the facility.(17) He testified that he no longer goes to bars or keeps alcohol in his house.(18)

The Individual testified that he formerly believed that, while he occasionally had problems arising from drinking, he was not an alcoholic. He revised that opinion after he reviewed the DSM-IV and concluded that he does in fact have an alcohol disorder.(19) He further testified that his heavy drinking occurred when he was having problems with a family member, and he learned in AA meetings to accept the problems as situations he cannot control.(20)

Witness 1

Witness 1 has known the Individual for about thirty years and engages in social activities with him about once a week.(21) He has observed the Individual using alcohol in the past, but clearly stated that he has not seen the Individual use alcohol in the last three years.(22) The Individual and he have discussed the Individual's problems with alcohol. Witness 1 stated that he believed the Individual when the Individual told him that he intends to abstain from alcohol.(23) They have attended a number of events where alcohol was served, and Witness 1 has observed the Individual consistently refuse to drink alcohol.(24) He also testified that the Individual has been more "easy going" since he began abstaining.(25)

Witness 2

Witness 2 testified that he has known the Individual for about fifteen years.(26) He currently socializes with the Individual two or three times a week.(27) He describes himself as an alcoholic with twenty-two years of sobriety.(28) He testified that he and the Individual have discussed the Individual's alcohol problem, and the Individual has expressed remorse for his alcohol problems.(29) He has never seen the Individual drink alcohol.(30) He believes the Individual understands the problems that alcohol has caused for him, and that he will not return to drinking.(31)

The personnel security specialist

The personnel security specialist was present throughout the hearing. After all the above witnesses had testified, she stated that she believed the concern regarding the Individual's judgment and reliability had been addressed and resolved. She added that she had reviewed the Individual's security file, and "was impressed with the fact that when [the Individual] completed EAP, he went above and beyond what was required of him, and he went an extra year because he wanted to."(32)

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 granting or 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 access authorization. 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).

I believe that the Individual, through the testimony given at the hearing, has met the burden of establishing that granting him access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. In listening to the testimony of the Individual, I was impressed by the reformation in his behavior, and by how much his attitude and insight had changed since his last psychiatric examination. He no longer denied his alcohol condition, but accepted it and took responsibility for dealing with it. He had candidly discussed it with his close friends and had taken steps to eliminate occasions to drink. The Individual’s witnesses corroborated his two years and seven months of abstinence and his attitude of maintaining abstinence, and I believe that they testified truthfully.

I also note that the consulting psychiatrist believes that Individual has demonstrated reformation by remaining abstinent for a significant period of time. Given these facts, I find that the Individual has brought forward sufficient information from which I can conclude that he has resolved the security concern raised in the Notification Letter.

CONCLUSION

I find that the Individual has shown adequate evidence of reformation from alcohol abuse, and has thus resolved concerns about his eligibility for access authorization. Consequently, I believe that the Individual has shown that granting him 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 be granted.

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: July 30, 2001

(1) The Individual had held access authorization at various times in the past.

(2) See 10 C.F.R. § 710.8(j), which identifies information that an individual has "been, or 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" as creating a question as to an individual's eligibility for access authorization.

(3) Hearing Exhibit 5-7, Transcript of 2000 Personnel Security Interview, p. 16.

(4) Hearing Exhibit 3-8, Report of Consulting Psychiatrist, p. 9.

(5) Hearing Exhibits 3-1, 3-2, and 3-6, Reports of Consulting Psychiatrist.

(6) Hearing Exhibit 3-8, Report of Consulting Psychiatrist, p. 19.

(7) The consulting psychiatrist defined "rehabilitation" as "the process of going through some kind treatment or a program.... Reformation, on the hand ... means just ... being in a state of recovery and not drinking, and having a changed mind set, and having other things in your life replace alcohol.... To show reformation, you really don't need to go through any kind of treatment program, you just need to stop drinking...." Hearing Transcript (Tr.), p. 13.

(8) Tr., p. 14.

(9) Tr., pp. 15-16.

(10) Tr., pp. 14-15.

(11) Tr., p. 21.

(12) Tr., p. 24.

(13) Tr., p. 20.

(14) Tr., p. 22.

(15) Tr., p. 28.

(16) Tr., pp. 3-4.

(17) Tr., pp. 30-32.

(18) Tr., p. 29.

(19) Tr., p. 23.

(20) Tr., pp. 25-26.

(21) Tr., p. 33.

(22) Tr., p. 34.

(23) Tr., pp. 35-36.

(24) Tr., pp. 36-37.

(25) Tr., p. 40.

(26) Tr., p. 41.

(27) Tr., p. 42.

(28) Tr., p. 43.

(29) Tr., p. 43.

(30) Tr., p. 42.

(31) Tr., p. 45.

(32) Tr., p. 51.