* 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.
April 30, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: December 6, 2001
Case Number: VSO-0511
This Decision 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. As explained below, the Individual has not resolved the DOE's security concerns. I therefore find 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).(1) Consequently, the DOE suspended the Individual’s access authorization. The Individual then requested a hearing.
BACKGROUND
The Individual has been arrested three times for driving under the influence of alcohol (DUI). In 1995, he was stopped after leaving a pool hall, and a Breathalyzer test administered by the police showed him to have a blood alcohol content of 0.14 per cent by volume. He pled guilty to a lesser charge and was ordered to attend DUI school.(2) During a subsequent Personnel Security Interview (PSI), the Individual estimated that he had been intoxicated five times in the previous twelve months.(3) He stated that in the future, he intended to restrict his alcohol consumption to a couple of drinks once a week.(4) In a second PSI three months later, the Individual stated that he had significantly reduced his consumption of alcohol since the arrest.(5)
In 1999, the Individual was again stopped by police after leaving a pool hall. The Breathalyzer test indicated a blood alcohol content of 0.185 per cent by volume.(6) After the arrest, the facility's security office sent the Individual a Letter of Interrogatory with questions concerning his alcohol consumption. In his response, the Individual stated that his current level of alcohol consumption was two to three drinks, once or twice a week. He described his future intentions with regard to alcohol as "to stay in control if or when I drink."(7)
Several months after the Letter of Interrogatory, the Individual was given another PSI. He stated in the PSI that he had been intoxicated twenty times in the previous six months.(8) He also stated that he intended to "cut down or cut back" on his alcohol consumption.(9)
In 2001, for the third time, the Individual was arrested for DUI. He was again stopped by the police as he left a pool hall. He was given a field sobriety test, which he apparently failed.(10) He refused to take the Breathalyzer test, and is currently contesting the DUI charge.(11)
The Individual was referred to a DOE consulting psychiatrist for an examination. The consulting psychiatrist diagnosed the Individual with alcohol abuse, and issued a report detailing his findings. In the report, the consulting psychiatrist concluded:
It would seem to me that we have a man [i.e., the Individual] who does not drink copious amounts of liquor but does drink unwisely. All three DUI's occurred essentially under the same circumstances - late night pool playing and drinking. Although he acknowledges that after his previous DUI's he had intended to curb his drinking because he had "learned my lesson," we do not really see a significant change in the pattern.... His track record suggests very strongly that he does fit the diagnosis of someone with alcohol abuse and there is no indication that he had "learned his lesson." Two alcohol-related incidents in two years does not lead me to suggest a good prognosis.(12)
After receiving the consulting psychiatrist's report, the facility suspended the Individual's access authorization.(13) The Individual then requested a hearing to provide evidence in support of restoring his access authorization.(14)
HEARING TESTIMONY
At the hearing, the Individual presented the testimony of two friends and testified in his own behalf. The DOE presented the testimony of the consulting psychiatrist.
The Individual
The Individual testified that he had met with a psychotherapist before the hearing. He stated that the psychotherapist concurred with the consulting psychiatrist's report, and diagnosed him with alcohol abuse. He also stated that the psychotherapist declined to testify, because he would not have anything to add to the consulting psychiatrist's report.(15)
Despite the agreement of the psychotherapist and the consulting psychiatrist, the Individual testified that he did not think he suffers from alcohol abuse because he does not "drink that much."(16) He testified that, although he has never undergone any treatment for an alcohol disorder, nor participated in any twelve- step group, he has made a New Year's resolution to abstain from alcohol. He stated that he was able to keep his resolution until mid-February, when he had a single drink. He also testified that his drink in mid-February, approximately three weeks before the hearing, was the last alcoholic drink that he consumed. He was ambivalent about whether he intended to drink again, stating that it is hard to quit, and he would like to quit, but he may occasionally drink a beer at a social event.(17) In addition, the Individual stated that he is a loyal American citizen who would not do anything to harm the nation.(18)
The Individual's Witnesses
The Individual offered the testimony of two witnesses who are his social companions. The first witness is a coworker and friend who stated he has known the Individual for about two years.(19) He testified that he has participated in social activities with the Individual about twenty or thirty times.(20) He stated that he has never seen the Individual drink any alcoholic beverage.(21) He also stated that the Individual told him about his New Year's resolution to quit drinking alcohol. He described the Individual as dependable.(22)
The Individual's other witness was his current girlfriend. She has been a social companion of the Individual for fourteen months, seeing him on average twice a week.(23) She testified that she has seen the Individual drink alcohol on several occasions. She also testified that she has seen him become intoxicated six or eight times, most recently three months before the hearing.(24) She stated that she saw him have a drink six weeks before the hearing, although he did not become intoxicated on that occasion.(25)
The Individual's girlfriend also testified that the Individual is currently avoiding social situations that include drinking alcohol.(26) She stated that the Individual has told her he intends to stop drinking alcohol entirely.(27) She also stated that the Individual told her he has learned from experience that continuing to drink alcohol would destroy him.(28)
The Consulting Psychiatrist
The consulting psychiatrist testified that he diagnosed the Individual with alcohol abuse, which he defined as the use of alcohol sufficient to cause problems for an individual. He expressed the opinion that for the Individual to demonstrate adequate rehabilitation or reformation from his alcohol disorder, he would have to remain abstinent from alcohol for five years.(29)
The consulting psychiatrist further testified that, currently, the prognosis for the Individual was poor. He stated that he based this prognosis on his impression that the Individual lacks motivation to stop drinking.(30). He testified that he thought, given the Individual's lack of motivation, it is more likely than not that he would continue drinking.(31)
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, the Individual does not fully accept the diagnosis of alcohol abuse. He has not, however, offered any evidence to suggest that the consulting psychiatrist's diagnosis is incorrect. I conclude, therefore, that the Individual was properly diagnosed with alcohol abuse.
The Individual has not offered any evidence that he has participated in a therapeutic program for this disorder. He attempts to mitigate the security concern by claiming that he will abide by his decision not to drink, and that he is a loyal citizen. I find that neither claim resolves the security concerns in this case.
At the time of the hearing, the Individual had abstained from alcohol for a few weeks. This period of time is insufficient for me to conclude that he will be able to continue abstinence. See Personnel Security Review, Case No. VSA-0154, 27 DOE ¶ 83,008 (1998).
Furthermore, the Individual has previously given the DOE assurances that he would control his drinking - twice in PSI's and once in response to a Letter of Interrogatory. He was unable to keep these assurances and avoid driving while intoxicated.(32) His most recent attempt to quit drinking occurred when he made a resolution to abstain from alcohol consumption on the last New Year's day. He was able to keep the resolution for only six weeks. Taking into consideration the short period of abstinence, and the Individual's history of failing to keep his assurances to control his drinking, I find that he remains at risk of relapse and therefore has not resolved the security concern raised by his alcohol abuse.
The Individual asserted that he is a loyal American who has never harmed his country. The issue in this case, however, is the Individual's alcohol abuse. I need not find evidence of disloyalty to deny access authorization to an individual. Molerio v. FBI, 749 F.2d 815, 824 (D.C. Cir. 1984); Personnel Security Hearing, Case No. VSO-0029, 25 DOE ¶ 82,766 (1995). I therefore find that loyalty and patriotism are not sufficient to resolve the concern raised by the Individual's alcohol abuse.
CONCLUSION
I find that the Individual suffers from alcohol abuse and has not provided adequate evidence of rehabilitation or reformation to convince me that he has overcome his problem. 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 find that the Individual's access authorization should not be restored.
Warren M. Gray
Hearing Officer
Office of Hearings and AppealsDate: April 30, 2002
(1) 10 C.F.R. § 710.8(j) defines as derogatory information concerning an individual who has "been, or is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse."
(2) Hearing Exhibit (Exh.) 7, Transcript of Personnel Security Interview (PSI), at 5-9; Exh. 8, PSI at 4-5; Exh. 12, Report of Consulting Psychiatrist, at 2.
(3) Exh. 7, PSI, at 12.
(4) Exh. 7, PSI, at 13.
(5) Exh. 8, PSI, at 6.
(6) Exh. 9, PSI, at 4-5.
(7) Exh. 10, Letter of Interrogatory, at 2.
(8) Exh. 9, PSI, at 11.
(9) Exh. 9, PSI, at 12.
(10) Exh. 11, PSI, at 6.
(11) Exh. 11, PSI, at 4-6.
(12) Exh. 12, Report of Consulting Psychiatrist, at 4-5.
(13) Exh. 3, Notification Letter.
(14) Exh. 4, Request for Hearing.
(15) Transcript of Hearing (Tr.) at 19.
(16) Tr., at 25-26.
(17) Tr., at 24-25.
(18) Tr., at 56.
(19) Tr., at 50.
(20) Tr., at 51.
(21) Tr., at 51, 52.
(22) Tr., at 53.
(23) Tr., at 43.
(24) Tr., at 44.
(25) Tr., at 44-45.
(26) Tr., at 47-49.
(27) Tr., at 45, 49.
(28) Tr., at 47.
(29) Tr., at 36.
(30) Tr., at 37.
(31) Tr., at 38.
(32) The Individual's last DUI arrest occurred after he indicated, in a PSI and the Letter of Interrogatory, that he would control his drinking. The Individual is contesting in court the last DUI charge, and denies that he was intoxicated when his car was stopped. He has not, however, brought forth any evidence to dispute the allegation of DUI. Since he admits drinking alcohol before the traffic stop and failed a field sobriety test, I conclude that he was intoxicated at the time of his last arrest, and thus failed to live up to his promise to control his drinking.