* 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 27, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer’s Decision
Case Name: Personnel Security Hearing
Date of Filing: January 10, 2002
Case Number: VSO-0517
This Decision concerns the eligibility of XXXXXXXX (hereinafter referred to as "the individual") for 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."(1)
I. Background
The individual is employed by a Department of Energy (DOE) contractor in a position that requires a security clearance. In late August of 2001, the individual informed the local DOE security office that on August 17, 2001, he had intentionally slashed his own wrist after a highly emotional argument with his father in law, and that two days later, he was arrested after “heated verbal altercations . . . at two different bars,” during which he threatened to slash his wrists again. Individual’s letter to DOE security, DOE Exhibit 14. The individual indicated that he had had “several beers” prior to each incident. Id.
Upon receipt of this information, the local DOE security office conducted a Personnel Security Interview (PSI) of the individual and referred him to a local psychiatrist (hereinafter referred to as “the DOE psychiatrist”) for an agency-sponsored evaluation. After reviewing the transcript of the PSI and the DOE psychiatrist’s report, the Manager of the local DOE Office determined that derogatory information existed which cast into doubt the individual’s eligibility for access authorization. The Manager informed the individual of this determination in a letter which set forth in detail the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.
The individual requested a hearing on this matter. The Manager forwarded the individual’s request to the Office of Hearings and Appeals and I was appointed the Hearing Officer. The hearing was convened near the individual’s job site, and ten witnesses testified. A Personnel Security Specialist and the DOE psychiatrist testified for the DOE. Testifying for the individual were his psychologist, his wife, four co-workers, his next door neighbor and the individual himself.
II. Statement of Derogatory Information
As indicated above, the Notification Letter included a statement of derogatory information in possession of the DOE that created a substantial doubt as to the individual’s eligibility to hold a clearance. This information pertains to paragraphs (h) and (j) of the criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. Paragraph (h) defines as derogatory any information indicating that the individual has “[a]n illness or mental condition of a nature which, in the opinion of a psychiatrist or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” In support of its finding under this paragraph, the Notification Letter cites evaluations of the individual by the DOE psychiatrist in 1993 and in 2001. In 1993, the DOE psychiatrist concluded that the individual did not have an impairment in his judgement. However, he also said that
[the individual] does appear to have a depressive disorder that is now being treated appropriately with antidepressants and lithium carbonate. There is some question about him becoming irritable and at times showing some degree of explosive personality behavior, but with his mood being stabilized at this point, he appears to have exhibited good control.
In his 2001 evaluation, however, the DOE psychiatrist found that the individual suffered from alcohol abuse, and that this caused a significant defect in his judgement and reliability. The letter also relied on information provided by the individual during the PSI about the August 17 and August 19 incidents. According to the individual, prior to slashing his left wrist on August 17, he drank approximately one six pack of beer. Afterwards, he was taken to a local psychiatric hospital for treatment and overnight observation. Two days later, the individual was arrested for his obstreperous behavior at local bars and for threatening to slash his wrists again and readmitted to the psychiatric hospital. He was then transferred to another psychiatric facility, where he was held for a mandatory 72 hour observation period before leaving against doctor’s advice. The individual also admitted during the PSI that he had become intoxicated approximately eight times during the preceding 12 months. He acknowledged that he has “anger and rejection issues,” and that these become more severe and intense when he is under the influence of alcohol. Notification Letter at 3.
Paragraph (j) refers to information that the individual has “[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” Under this paragraph, the Letter refers to the DOE psychiatrist’s 2001 diagnosis, in which he found that the individual suffered from alcohol abuse, and that he exhibited poor judgement by mixing alcohol with his anti-depressant, Effexor, and by driving after he had consumed alcohol. The Letter also cites the individual’s 1984 arrest for Driving under the Influence of Alcohol, and the August 19 incident, during the course of which the individual consumed at least 8 beers. The individual stated that he was given a Breathalyzer test after his August 19 arrest, and his blood alcohol level registered at .14.
III. Findings of Fact and Analysis
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 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). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to produce evidence sufficient 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. After careful consideration of the factors mentioned above and of all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.
For the most part, the individual does not dispute the factual allegations set forth in the Notification Letter. Instead, he contends that sufficient mitigating factors exist to indicate that restoring his clearance would not endanger national security. Specifically, he contends that he has stopped drinking and is currently undergoing treatment for his alcohol abuse and depression. He also claims that joint counseling sessions with his wife have reduced the domestic stressors that contributed to his alcohol abuse.
The individual’s psychologist testified in support of these claims. He stated that he has been treating the individual for depression and alcohol abuse, and has been conducting joint marital counseling with the individual and his wife, since December 2001. The individual is making “good progress” in his alcohol abuse and depression treatment, the psychologist testified, and has a good understanding of how his domestic problems have adversely affected his emotions in recent months. Hearing Transcript (Tr.) at 64-65. The individual has “taken some necessary steps in improving [his marriage] . . . . And he’s also seriously addressing his alcohol abuse problems.” Tr. at 65. The psychologist explained that he was accomplishing this by “realistically assessing the issue, and also attending [Alcoholics Anonymous] meetings.” Id. He opined that the individual currently “does not suffer from a serious defect to his judgement.” Id. The incidents on August 17 and August 19 were caused primarily by conflicts in the marital relationship, the psychologist said, which has now “greatly improved.” Tr. at 66-67. However, the psychologist also testified that the individual’s alcohol use was a contributing factor in the incidents, Tr. at 69, and that the individual needs to continue in treatment for his alcohol abuse and depression. Tr. at 67.
The individual testified that he had his first alcoholic beverage on his eighteenth birthday, and engaged in “social” drinking from then until about a year and a half ago. Tr. at 74-75. At that time, he began drinking more heavily to escape from his marital problems. He stated that these problems also led to his depression. Tr. at 76. The individual and his wife separated in April 2001, and he had moved back in with her just prior to August 17. At the time, he added, he was still drinking and still having marital problems. Tr. at 78-80. On the afternoon of August 17, the individual testified that he was at home drinking beer and preparing for his daughter’s birthday party. When the expected guests had not arrived by the designated time, the individual began to get angry. When his sister-in- law called and said that her family was not going to attend, the individual said, “by then I’d had a few beers and I was getting real nasty and I started deriding [her] for that.” Tr. at 80. He then got into a heated argument with his father-in-law. After his father-in-law left, his mother-in-law announced that the father-in-law’s cancer had returned. The individual testified that
everything that had been going on just sort of came to a head right there. The marriage thing, the kid thing, the in-law thing. And . . . the things I had said to him . . . and everything just popped . . . I took out a knife and just . . . popped.
Tr. at 81-82. The individual said that although he made a deep cut on his wrist, he did not intend to kill himself. “I have two pistols,” he explained. “My wife took them away after that, but they were there and I could have used those. . . . I wasn’t thinking anything, I was just thinking 'misery,' you know.” Tr. at 82. He was taken to a local hospital where he was treated and held overnight for observation.
Two days later, the individual drank two 24 ounce cans of beer at a local ball field. Not wanting to go home after leaving the field, the individual explained, he stopped at a nearby bar, “went in and started chugging beers again.” Tr. at 84. After drinking “about three more there,” he started arguing with the bar’s occupants. He then left after the bartender called the police. Id. After walking to another bar, he said, he entered and eventually got into a heated exchange with the patrons there, as well. Tr. at 85. He was asked to leave, and when he refused,
they called the cops again. And when they did that, I think I said something [like] 'Well, I’ll cut my wrist again.' I showed them the stitches, you know, and said something like that; I was crazy by then, you know.
Id. While walking back to his car, the individual added, he was arrested and taken to a local psychiatric hospital, where he was held for 72 hours, after which he left against doctor’s advice. Tr. at 86-87.
Shortly after these events, the individual enrolled in an intensive 30 day outpatient alcohol treatment program and then began attending AA meetings on an average of three times a week. Tr. at 91. He also began discussing alcohol-related issues with the psychologist whom he had been seeing for his depression since the early 1990s. Tr. at 92-93. The individual indicated that the psychologist prescribed the antidepressant Effexor, and that he had been taking it for “a couple of years,” a period of time during which the individual was admittedly drinking heavily. Tr. at 93. He said that the psychologist did not warn him against mixing alcohol and Effexor and there was no such warning on the bottle. However, the individual admitted that there was such a caution on the sheet of instructions and warnings that came with the medication, but that he had been mixing the two for so long that he didn’t give it a second thought. Tr. at 95. The individual concluded by saying that he is not drinking now and doesn’t intend to drink in the future, and that he will continue seeing his psychologist and attending AA meetings. “I’m an alcoholic and I have to watch it. But I feel it’s under control at this time . . . . The thought of drinking scares me.” Tr. at 96.
The individual’s wife testified that their marriage has been getting better since the incidents in question. Previously, she said, there was a lot of conflict and tension over the amount of time that the individual spent playing the guitar and drinking. Tr. at 106. However, since the individual began attending AA meetings and they began joint counseling with the psychologist, their relationship has improved markedly. Tr. at 106-107. The individual’s wife also stated that she has seen no evidence that the individual has had any alcoholic beverages since August 2001. Tr. at 108.
The individual’s co-workers testified that the individual is a good worker who has demonstrated sound judgement and reliability, and that they have seen no evidence of alcohol use since August 2001. Tr. at 109-134. The individual’s next door neighbor also said that, to the best of his knowledge, the individual had abstained from drinking. Tr. at 137.
After reviewing this testimony and the other evidence of record, I conclude that the individual has made significant progress in addressing his alcohol abuse problem. (2) Specifically, I find that as of the date of the hearing, the individual had abstained from drinking for almost eight months. He has also vigorously pursued his rehabilitative efforts through AA and through counseling sessions with his psychologist and has taken steps to decrease his level of stress by improving his marital relationship. However, the record also indicates that the individual has repeatedly exhibited poor judgement concerning his use of alcohol, and that the risk of relapse in his current stage of recovery remains unacceptably high.
In December 1984, for example, the individual was arrested for Driving Under the Influence of alcohol. PSI at 44. On that occasion, the individual ran a red light after ingesting approximately eight to ten beers. DOE psychiatrist’s report at 5. On the day of the individual’s arrest in August 2001, he drove from a ball field to a bar shortly after drinking two 24 ounce cans of beer. PSI at 24. Then, after drinking at least five more beers at two bars, the individual returned to his car and would in all likelihood have driven it while admittedly intoxicated had he not been arrested. PSI at 24-30. The individual has also had great difficulty in controlling his emotions while under the influence of alcohol. In addition to the events of August 2001 described above, “similar things over the years have happened before where . . . there have been a couple of incidents where I got enraged and did not control myself because I had been drinking.” PSI at 10. Finally, the individual has exhibited poor judgement by drinking up to two six packs of beer a week, PSI at 11, while continuing to use a series of prescribed antidepressants when he knew, or should have known, about the potential effects of such combinations. Tr. at 94-95.
I further conclude that the risk of relapse remains unacceptably high given the individual’s current stage of recovery. At the Hearing, the DOE psychiatrist revisited his evaluation of the individual after the testimony presented by the individual and his witnesses. He stated that the individual’s alcohol abuse is now in “sustained partial remission. It is not in full remission yet because 12 months have not passed since his last drink of alcohol, and our standards, . . . using the DSM-IV criteria, is that 12 months must pass before we can designate a person as being in sustained full remission.” Tr. at 139. The DOE psychiatrist explained the significance of the 12 month period of abstinence as being relevant to the individual’s chances of suffering a relapse, i.e., that “having distanced himself from alcohol for a longer period would ensure [the individual] a better chance at maintaining that remission.” Tr. at 143. Accordingly, when asked whether the individual’s judgement and reliability was still subject to question, the DOE psychiatrist indicated that this would continue to be the case until the individual could demonstrate abstinence for the full 12 month period. Tr. at 141. I also find that a relapse could have particularly troublesome consequences for the individual given his history of depression and poor impulse control. The events of August 2001 demonstrate that, when intoxicated, the individual poses a danger to himself and, potentially, to others. As the DOE psychiatrist stated,
alcohol will surely aggravate [the depression] and cause an exacerbation of the symptom. Alcohol is a depressant, and whatever depression an individual has worsens with alcohol. And then the other thing also is, alcohol lessens the individual’s inhibition. And . . . Mr. Harris . . ., having problems with impulse control, the really worst you could do is to lubricate it with alcohol, you totally lose your impulse control.
Tr. at 144. For these reasons, I conclude that the individual has failed to successfully resolve the DOE’s security concerns under paragraphs (h) and (j).
IV. Conclusion
As explained in this Opinion, I find that the information presented by the individual does not adequately address the DOE’s security concerns. Based on the record in this proceeding, I am therefore unable to conclude that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be restored.
Robert B. Palmer
Hearing Officer
Office of Hearings and AppealsDate: June 27, 2002
(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Opinion as access authorization or a security clearance.
(2)Although the DOE psychiatrist diagnosed the individual as suffering from both depression and alcohol abuse, he testified that the depression, by itself, would not cause such a defect in judgement and reliability to be a security concern. Tr. at 143-144. My analysis will therefore focus primarily on the individual’s efforts toward recovery from alcohol abuse.