* 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 APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: January 30, 2002
Case Number: VSO-0522
This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The local DOE security office determined that information in its possession created substantial doubt about the individual's eligibility for an access authorization under the Department of Energy (DOE) regulations set forth at 10 CFR Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I have concluded that the individual’s access authorization should not be restored at this time.
Background
The individual is employed by a contractor at a DOE facility. His job requires that he have an access authorization. The local DOE security office issued a Notification Letter to the individual on October 3, 2001. The Notification Letter alleges under 10 CFR § 710.8(j) that the individual is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or suffering from alcohol abuse. It further alleges that the individual’s alcohol abuse is an illness or mental condition, which in the opinion of a board-certified psychiatrist has caused a significant defect in the individual’s judgment and reliability. The Notification Letter states that the individual has a history of alcohol related arrests including a Driving Under the Influence (DUI) arrest in 1981 involving an accident, a DUI in 1992, a drunk in public arrest in 1995, and the most recent DUI arrest in March 2001 after an accident in which the individual’s motorcycle collided with another vehicle. In addition, the Notification Letter indicates that the individual participated in the Employee Assistance Referral Program (EAPRO) for three and a half years beginning in February 1995. He relapsed during the first year, but DOE permitted the individual to begin the EAPRO program over again. The individual successfully completed the program in January 1998, at which time he was advised that if he reverted to the abuse of alcohol, he would not be offered another opportunity to participate in the EAPRO program.
The concerns in the present Notification Letter arose in March 2001 when the individual reported to the DOE that he had been charged with DUI. The local DOE security office for the facility where the individual works conducted a personnel security interview (PSI) with the individual in June 2001. After the PSI, the DOE had the individual evaluated by a DOE consultant psychiatrist. The psychiatrist submitted a report to the local DOE security office in July 2001. The psychiatrist’s evaluation was based on his review of information in the individual’s personnel security file, and a personal interview with the individual. The psychiatrist’s report forms the principal basis for the concerns summarized in the Notification Letter. Specifically, he found that the individual suffered from Alcohol Abuse, according to the Diagnostic and Statistical Manual of the American Psychiatric Ass’n, Fourth Edition, also known as DSM-IV. The psychiatrist noted that the individual has “a long history of maladaptive drinking,” and that despite his recurring difficulties brought about by alcohol, the individual continues to drink. Psychiatrist’s Report (DOE Exhibit 13) at 7. He found that the individual’s Alcohol Abuse caused a significant defect in judgment and reliability. Id.
Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns stated in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), and the OHA Director appointed me as Hearing Officer in this case.
At the hearing that I convened, the DOE Counsel called two witnesses: the DOE personnel security specialist who had handled the individual’s case since the 1995 alcohol-related incident, and the DOE consultant psychiatrist who had evaluated the individual three times, most recently in 2001. The individual was not represented by counsel; he did not testify on his own behalf, and he called no other witnesses. The DOE submitted 22 written exhibits, and the individual submitted no written exhibits.
Since there were only two witnesses who testified, the hearing was very short, lasting approximately one hour. However, the short duration of the hearing proved to be a positive attribute, because the court reporter’s transcription equipment failed to record the proceedings when I convened the hearing at the DOE facility where the individual works. With the individual’s agreement, we repeated the hearing over the telephone two weeks later in order to get a transcript for the record. The testimony at the telephonic hearing was virtually identical to the testimony given at the live hearing.
Standard of Review
The applicable DOE 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 CFR § 710.7(a). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):
the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; 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 motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.
A DOE administrative review proceeding under 10 CFR Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 CFR § 710.21(b)(6). Once DOE has presented derogatory information affecting an individual’s eligibility for access authorization, the individual must come forward with evidence to convince the DOE that restoring his or her access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). See, e.g., Personnel Security Hearing (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995), and cases cited therein. For the reasons discussed below, it is my recommendation that this individual’s access authorization should not be restored at this time.
Findings of Fact
The individual did not contest the factual allegations in the Notification Letter, nor did he challenge any of the facts mentioned in the DOE psychiatrist’s report. This case is unusual in that the individual made no effort to mitigate the security concerns, either by showing that he has stopped drinking for a specific period, or by showing that he has made efforts toward rehabilitation or reformation, since he was interviewed by the DOE psychiatrist nearly a year before the hearing. In the pre-hearing conference calls with me and the DOE Counsel, the individual stated that he had stopped drinking (without giving any specific dates), but conceded that he had not yet begun any kind of alcohol rehabilitation program. See Memoranda of March 7, 2002 and April 4, 2002 pre- hearing conference calls. The individual confirmed this again at the hearing. Transcript of Hearing (hereinafter cited as “Tr.”) at 38.
Testimony at the Hearing
The Personnel Security Specialist
The Personnel Security Specialist explained that the DOE offered the individual the option of entering the EAPRO program after his 1995 alcohol arrest, and that although he had a relapse during the first year, he got his drinking back under control and was permitted to begin the program again. Tr. at 10-14. The witness stated that when the individual successfully completed the EAPRO program, he was told that he would not get another opportunity to participate in it if he ever got into trouble with alcohol again. Tr. at 20. The Personnel Security Specialist stated that when the individual was arrested for DUI in 2001, approximately three and a half years after completion of the EAPRO program, she was concerned that his drinking was adversely affecting his judgment and reliability. Id. She was also concerned that the individual had resumed drinking and might be under the influence of alcohol while he had access to classified information. Id. at 21.
The DOE Psychiatrist
In his testimony at the hearing, the DOE psychiatrist reiterated the conclusions he made in his written report that the individual was suffering from Alcohol Abuse, “in early partial remission,” which caused a defect in the individual’s judgment and reliability. Tr. at 30; Report at 7. The DOE psychiatrist stated that in order to show rehabilitation or reformation from his condition of Alcohol Abuse, the individual would have to do the following: (1) maintain abstinence for at least one year, (2) participate in an ongoing alcohol recovery program, preferably a 12-step program such as Alcoholics Anonymous (AA), (3) engage in some kind of individual counseling to resolve other personal issues that may affect the individual’s drinking, and (4) if prescribed by a treating physician, take medication such as Antabuse that would help him maintain his sobriety. The psychiatrist also recommended that the individual maintain his sobriety indefinitely. Tr. at 33-35. Finally, the psychiatrist stated that he had not changed his opinion and diagnosis of the individual since he interviewed him nearly about ten months before the hearing. Id. at 37.
The Individual
Although he did not offer his own testimony during the hearing, the individual did indicate, in response to a question from me, that he was currently looking for an alcohol treatment program through his health insurance, and trying to find a good AA program. Tr. at 38.
Analysis
The record amply supports the concerns set forth in the Notification Letter about the individual’s Alcohol Abuse, and his drinking habitually to excess. The DOE psychiatrist’s written report, submitted some ten months before the hearing, notes the individual’s history of drinking problems, and finds that the individual’s Alcohol Abuse caused a defect in his judgment and reliability. The DOE psychiatrist’s testimony at the hearing explains what the individual can do to achieve rehabilitation or reformation. The record shows that the individual had not begun the recommended treatment regimen at the time of the hearing, and I find that the individual has not shown that he is rehabilitated or reformed from his condition of Alcohol Abuse. The individual did not contest the factual bases and medical opinions in the psychiatrist’s report. I therefore find the DOE properly invoked the criteria in 10 CFR § 710.8(j).
In previous DOE security clearance proceedings, OHA Hearing Officers have consistently found that a diagnosis of alcohol dependency or alcohol abuse raises important security concerns. See, e.g., Personnel Security Hearing, (Case No. VSO-0476), 28 DOE ¶______ (2001), and cases cited therein. The Personnel Security Specialist testified that she was concerned that this individual could not be counted on to protect classified information if he had access to it and he was under the influence of alcohol, in view of his resumption of drinking after completion of the EAPRO program. Tr. at 20-21. Since I have also found that the individual is not rehabilitated or reformed from his Alcohol Abuse, those concerns have not been mitigated.
Conclusion
Based on the entire record in this proceeding, I find that the individual has not resolved the security concerns raised under 10 CFR § 710.8(j). Specifically, I find that he has not resolved the concerns that he is suffering from Alcohol Abuse, or drinks habitually to excess, without adequate evidence of rehabilitation or reformation, and that his Alcohol Abuse is an illness or mental condition which in the opinion of a board-certified psychiatrist causes, or may cause, a significant defect in the individual’s judgment or reliability.
For the reasons explained in this Decision, I find that the individual has failed to show that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I have determined that the individual's access authorization not be restored at this time. The individual may seek review of this Decision by an Appeal Panel under the regulation set forth at 10 CFR § 710.28.
Thomas O. Mann
Hearing Officer
Office of Hearings and AppealsDate: June 22, 2002