* 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 5, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 5, 2002
Case Number: VSO-0524
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as "the individual") to retain 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.” A Department of Energy (DOE) Operations Office determined that reliable information it had received raised substantial doubt concerning the individual's eligibility for access authorization under the provisions of Part 710. The issue before me is whether, on the basis of the evidence and testimony in the record of this proceeding, the individual's access authorization should be granted. For the reasons stated below, the individual's access authorization should not be granted.
I. BACKGROUND
The present proceeding arose after the individual completed a Questionnaire for National Security Positions (QNSP) as part of his application for access authorization. In response to one of the questions on the QNSP, the individual stated that he had been arrested and convicted of Driving Under the Influence (DUI) in 1992. To investigate this issue in more detail, the DOE conducted a Personnel Security Interview (PSI) of the individual. During the PSI, the individual disclosed his alcohol consumption patterns over the years, and other alcohol-related behavior that resulted in sanctions by his employer and substance abuse treatment. He also disclosed that he had been intoxicated most recently at a retirement party held when he left his former employer. The PSI failed to resolve DOE’s security concerns about the individual. The individual was referred to a DOE consultant psychiatrist (DOE Psychiatrist), who evaluated him in person and reviewed his personnel files. The DOE Psychiatrist’s report states that the individual suffers from alcohol dependence.
On the basis of that information, the DOE issued the individual a letter (notification letter) in which it informed him of its specific security concerns regarding his eligibility for access authorization and his procedural rights, including his right to a hearing. The individual then filed a request for a hearing. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as hearing officer. A hearing was held under 10 C.F.R. Part 710. At the hearing, the DOE called two witnesses: the DOE Psychiatrist and the individual. The individual called four witnesses-- his present supervisor, a former supervisor, his pastor, and a co-worker-- and testified on his own behalf. The record of this proceeding was closed when I received a copy of the transcript of the hearing (Tr.).
II. STANDARD OF REVIEW
The hearing officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a). Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable and unfavorable, as to whether the granting or continuation of access authorization will not endanger the common defense and security and is clearly consistent with the national interest. Any doubt as to the individual’s access authorization eligibility shall be resolved in favor of the national security." 10 C.F.R. § 710.7(a). I have considered the following factors in rendering this decision: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the voluntariness of the individual's participation; 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; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.
When reliable information reasonably tends to establish the validity and significance of substantially derogatory information or facts about an individual, a question is created as to the individual's eligibility for an access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve that question by convincing the DOE that granting his access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). In the present case, the individual has not convinced me that granting his security clearance will not endanger the common defense and will clearly be in the national interest.
III. FINDINGS OF FACT
The individual began drinking beer as a teenager, with no apparent alcohol-related problems until December 1990. At that time, he was involved in an automobile accident and was arrested for Driving Under the Influence of Alcohol (DUI). He pled guilty and was fined. The court ordered him to attend driving school and counseling sessions. His employer required him to attend Alcoholics Anonymous meetings, which he did in order to retain his job. DOE Exhibit (Ex.) 8 at 2 (Report of DOE Psychiatrist). He states that he was not ready to change his lifestyle and continued to drink at home on weekends. Id.
In 1993, after drinking beer the night before, the individual reported to work with alcohol on his breath. His blood alcohol content that morning registered .07 or .08. According to the DOE Psychiatrist, this was a significant reading, because it indicates that he had either consumed substantial quantities of alcohol the previous night, before sleeping for several hours, as he claimed, or consumed a somewhat lesser amount and not stopped drinking until shortly before leaving for work. Id.; Tr. at 29-30. His employer suspended him and ordered him into inpatient rehabilitation, where he remained for 28 days. Upon release, he was to continue outpatient treatment by attending Alcohol Anonymous and taking Antabuse, a medication that renders a person ill if he consumes alcohol. He reports that he still “wanted to be like everybody else,” id., and would stop taking Antabuse a few days before the weekend so that he could drink over the weekend. Id. at 3.
In 1994, the individual sideswiped a telephone pole with an employer-owned vehicle. Although he maintains that he had not been drinking at the time, he feared that his employer would assume he had been, so he filed a false report, in which he claimed the vehicle had been damaged while it was parked. Id. Uncomfortable with this fabrication, he then explained the truth to his employer. He was suspended from work for a month without pay, and had to pay to repair the damage to the car. Id.
In 1998 or 1999, the individual appears to have begun serious consideration of his alcohol consumption and the lifestyle that accompanied it. He received some informal counseling from two members of the clergy, one at work and one at a church with which he became more and more involved over time. Although he did not stop drinking beer, he reports that he cut down his consumption markedly. Id. His supervisor during this period testified that this new behavior was positive and stable. Tr. at 92. However, at his retirement party in 2001, the individual got intoxicated, which according to the individual is the last time he has done so.
At the hearing, the individual testified that he no longer associates with the friends with whom he drank regularly. Tr. at 58, 101. He explained that his goal is to not consume alcohol at all. Tr. at 60. He admits, however, that at the present he still does drink some beer, though in relatively small amounts. Tr. at 58, 66 (last beer consumed within past month). He emphasized that he is older and wiser, and now realizes how detrimental his behavior has been. Tr. at 59-60. He also stated that he now has a more stable life than in the past, spending more time with his fiancee, children and grandchildren. Tr. at 58-59. He contrasted his present attempt at sobriety with those in his past, when, though at the time he thought his efforts were sincere, he now realizes he in fact was not committed to change, wanting “to be like everybody else,” and not realizing “what [my behavior] was doing to me.” Tr. at 61. He also contrasted his current stable life with more stressful periods, during which he drank heavily. Tr. at 97-99 (divorce, difficulties with son, financial problems). He acknowledges that he is not “cured,” but maintains that he has his alcohol problem under control, and prefers his present, stable life to his old ways. Tr. at 101-03. The individual also testified that he has been an exemplary employee, Tr. at 7-8, and the record uniformly supports that testimony. Tr. at 12 (testimony of coworker); Tr. at 20-22 (testimony of current supervisor); Tr. at 91-92 (testimony of former supervisor); Letters of commendation submitted into the record on March 20, 2002.
The individual’s pastor also testified at the hearing. The individual has had some counseling with his pastor, which was informal for the most part. They have met for two formal sessions since the individual first admitted his alcohol problem to the pastor three or four years ago. Tr. at 74, 78. They do maintain frequent contact, however, speaking briefly after church services. Tr. at 78. From these encounters, the pastor maintains that the individual drinks infrequently and in small amounts, and is disciplined in his efforts at moderation, and is willing to receive help. Tr. at 76, 80-81. His opinion of the individual’s last intoxication is that he succumbed to peer group pressure while his usual support system was absent. Tr. at 88.
The DOE Psychiatrist reviewed the DOE’s personnel security file on the individual, evaluated him in person, issued an evaluative report in September 2001, and testified at the hearing. In his report, he diagnosed the individual as alcohol dependent. DOE Ex. 8 at 4. His basis for that diagnosis included the incidents described above as well as the individual’s self-report of hangovers, blackouts, and possibly tremors. He further stated that, on the basis of the individual’s intoxication three months earlier, the individual “was not out of the woods at this time.” Id. At the hearing, the DOE Psychiatrist heard the individual testify that he felt he was in control of his alcohol problems, and that he had not been intoxicated since his retirement party. Tr. at 8, 65. While noting the individual’s sincerity and apparent success in his pursuit of a non-alcohol lifestyle, the DOE Psychiatrist expressed his opinion that the nine months that had passed since the individual’s last intoxication was too short a period of time to permit him to change his medical judgment that the individual is still alcohol dependent. Tr. at 71-72. When questioned how long an individual would need to abstain from alcohol before he would be convinced that the individual was likely to remain abstinent, the DOE Psychiatrist stated that it would take five years. Tr. at 47. His reasoning was based on data that roughly 35 percent of those who attempt abstinence fail in the first year, and roughly ten percent of those still abstinent fail in each successive year. Tr. at 43-44.
IV. ANALYSIS
The Notification Letter states that a board-certified psychiatrist evaluated the individual and diagnosed him as alcohol dependent. See 10 C.F.R. § 710.8(j). The individual maintains instead that his alcohol problems now lie in his past. Tr. at 6. He states that circumstances in his past life caused him to consume alcohol to excess, but that he is now in control of his life. Id. at 6-7. He does not dispute the facts listed in the Notification Letter that concern his alcohol consumption since 1990, including an alcohol-related collision, three alcohol-related suspensions from work, and at least one hospitalization for alcohol abuse. This derogatory information creates serious security concerns about the individual.
Excessive consumption of alcohol, even off the job, raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that violates security regulations. See Personnel Security Hearing (Case No. VSO-0479), 28 DOE ¶ _____ (May 14, 2002); Personnel Security Review (Case No. VSA-0174), 27 DOE ¶ 83,005, affirmed (OSA 1998). In this case, the risk is that the individual’s excessive use of alcohol might impair his judgment and reliability to the point that he will fail to safeguard classified matter or special nuclear material. It is appropriate for the DOE to question a person’s reliability when that person excessively consumes alcohol, operates a motor vehicle while mentally impaired, and gets arrested. See, e.g., Personnel Security Hearing (Case No. VSO-0476), 28 DOE ¶ 82,827 at 85,864 (2001).
Since there is reliable, derogatory information that creates a substantial doubt concerning the individual's continued eligibility for access authorization, I need only consider below whether the individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE's security concerns under Criterion J arising from his alcohol abuse. Because the hearing officer may grant an individual’s access authorization only if it “will not endanger the common defense and security and will be clearly consistent with the national interest,” 10 C.F.R. § 710.27(d), the individual must provide convincing evidence mitigating those security concerns. In the present case, there are a number of factors I have considered in determining whether the questions raised under 10 C.F.R. § 710.8(j) are resolved. All of the individual’s alcohol-related arrests and suspensions occurred within the years from 1990 to 1994. He was no longer a youth at the time and therefore the import of these events cannot be mitigated as youthful indiscretion. Nevertheless, a considerable period of time has passed– more than seven years– since the last of these events. Since then he has cut back severely on his alcohol consumption. He has stated, however, that he continues to drink, despite his history of adverse consequences from drinking to excess. Another serious consideration is the fact that he maintains that he is in control of his alcohol problem, despite the demonstration to the contrary at his 2001 retirement party. Although he may be exercising better control and judgment than in the past, and although he may have better family support than in the past, I believe he is in denial of the serious nature of his alcohol dependence when he contends that this problem lies only in his past.
Moreover, the DOE Psychiatrist’s diagnosis and finding of no rehabilitation or reformation must be given substantial weight. Personnel Security Hearing (Case No. VSO-0476), 28 DOE ¶ 82,827 at 85,864 (2001) (and cases cited therein) (great deference given to expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation). At the hearing, the DOE Psychiatrist based his opinion on a number of factors. He noted that the individual had attempted to control his alcohol consumption a number of times, and failed in those attempts. Tr. at 32, 37, 38. He also observed that the individual was still drinking alcohol at the time of his evaluation. Tr. at 45. (The individual testified, in fact, that he had drunk alcohol within a month of the hearing. Tr. at 66.) He was of the opinion that the individual was not in control of his drinking, even though the individual thought he was:
He feels that he has it under control. I don’t know that he’s motivated at this point. If he were motivated, . . . after the retirement party, he would have said, “I’ve got to get this under control.” He feels he has it under control. And, you know, I cannot say whether he has or has not, but I say that from a security standpoint, I think there’s an insufficient amount of time to reach that conclusion.
Tr. at 38. The DOE Psychiatrist determined that the individual was not a candidate for further rehabilitative efforts. DOE Ex. 8 at 4. As stated above, he testified that he would feel comfortable about the individual’s sobriety only after the passage of five years from his last intoxication. Tr. at 47.
In the present case, however, less than one year has passed since the individual’s last intoxication, and no more than a month has passed since his last drink. On the other hand, the individual has a history dating back to 1990 that includes numerous traffic- and work-related incidents involving alcohol as well as several failed attempts to gain control over his alcohol dependence. Moreover, the individual has not committed himself to abstaining from alcohol even though he appears to understand the negative effect it has had on his life. Under the facts presented to me, insufficient time has passed since his last intoxication for me to conclude that the individual is in control of his alcohol problem to such a degree that the risk that he will drink to excess in the future is acceptably small. I am concerned that the individual is incorrectly convinced that he is in control of his alcohol dependence, and for that reason has not seriously confronted this issue. I cannot find that the individual is rehabilitated or reformed from his alcohol dependence at this time. Consequently, the individual has not mitigated the DOE’s security concern under Criterion J regarding his history of alcohol dependence.
V. CONCLUSION
For the reasons set forth above, I conclude that the individual has not presented evidence that warrants granting his access authorization. Since the individual has not resolved the DOE’s allegations under Criterion J, he has not demonstrated that granting his security clearance will not endanger the common defense and will be clearly consistent with the national interest. Therefore, the individual's access authorization should not be granted.
William M. Schwartz
Hearing Officer
Office of Hearings and AppealsDate: June 5, 2002