Case No. VSO-0205, 27 DOE ¶ 82,776 (H.O. Wieker October 1, 1998)

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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.

October 1, 1998

DEPARTMENT OF ENERGY

OFF ICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: April 13, 1998

Case Number: VSO-0205

This Opinion concerns the eligibility of xxxxxxxxxx (the individual) for an access authorization. The regulations governing eligibility for access authorization are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual should be granted access authorization.

I. BACKGROUND

During a two week period in 1997 the individual took actions which will hereinafter be referred to as suicide attempt #1 and suicide attempt #2. The day before suicide attempt #1 the individual had a session with his Employee Assistance Program counselor (hereinafter the EAP Counselor). The EAP counselor’s notes indicate that during that session the individual indicated that he and his wife were separated and that she believed he had a bipolar condition and she wanted him to work on his anger before they worked to rebuild their relationship. The notes indicate that during the session the individual admitted that he had been out of control and physically abusive. During that session the EAP counselor provided the individual with the names of programs at which he could receive treatment and help. One of those options was an outpatient program at a local hospital (hereinafter referred to as the treatment facility). EAP Counselor’s notes at 2.

Suicide attempt #1 occurred on the 1st of the month and consisted of the individual’s taking an overdose of Lortab. The overdose, which was significantly below a lethal dose, caused him to sleep for 36 hours. On the 4th of the month the individual was admitted to the outpatient counseling program at the treatment facility recommended by the EAP counselor. On the 11th of the month he was evaluated by the psychiatrist who is in charge of several programs at the treatment facility (hereinafter the evaluating psychiatrist). The evaluating psychiatrist’s report indicates that

the individual reported that his mood has been going up and down. The final stressor was separation from his wife and kids. . . . He had, a week and a half prior to admission, taken an overdose of 20-25 Lortab, gone to sleep, hoping not to wake up. . . . Neurovegetative symptoms are positive for sleep disruption. He normally gets 5-6 hours of sleep, awakening every couple of hours with racing thinking finding it difficult to get back to sleep, not being able to shut off his mind. He has a past history, at times working 2-3 jobs, feeling grandiose about the money he could make, not needing to sleep. He has also been irritable in the past. He has a history of spouse abuse, physically, to get away when he feels under attack and unable to handle.

Evaluating psychiatrist’s report at 1. (1)

The evaluating psychiatrist’s report indicates a diagnosis of bipolar-two disorder. On the basis of that diagnosis, the evaluating psychiatrist initiated a medication and counseling program.

Suicide attempt #2 took place in the individual’s home on the 13th of the month and consisted of his pulling the trigger of a loaded hand gun pointed at his head. The gun did not fire and the individual made no further attempts to fire the gun. After that suicide attempt the individual’s wife called the police, who convinced the individual he needed to receive help from an inpatient hospital program. At their suggestion he agreed to check into the treatment facility. The treatment facility’s admitting physician indicated in his notes that the individual was depressed with suicidal ideations. Tab 12. The individual was discharged from the treatment facility’s inpatient program on the 16th. The treatment facility’s discharge summary was signed by the evaluating psychiatrist. The discharge summary indicated that the individual suffered from bipolar-two disorder which was responding to medication and therapy. Tab 12.

On the 25th of the month, the individual submitted a written report to his contractor employer that indicated that on the day of suicide attempt #2 he had an argument with his wife during which she made the comment that the individual would be better off dead. The report details the events beginning with suicide attempt #2 that led to the individual’s three night inpatient hospitalization at the treatment facility. The report concludes by indicating that he was currently in the third week of a four week rehabilitation program at the treatment facility.

On the basis of the information that the individual provided in his report, the DOE security specialist conducted two security interviews. The first was six weeks after the individual submitted his report describing suicide attempt #2. The second security interview was five months after that report. Soon after the second security interview, the DOE consulting psychiatrist met with the individual for two and a half hours. He submitted a 12 page written report to the DOE (hereinafter the DOE consulting psychiatrist’s report).

In his report the DOE consulting psychiatrist summarized the basis for his diagnosis that the individual suffered from mood disorder and personality disorder with depressive episodes as follows:

[T]he past history of problems related to attitude, behavior, and relationship (interpersonal and work) adjustments, in combination with the subject’s self-image insecurities, fear of rejection (or abandonment), and an intense need to please and to be accepted, has strained the subject’s personality structure. . . . All this has caused many self-defeating situations and events in the subject’s life, beginning in the teen years or earlier and periodically emerging over the years as borderline or overt legal infractions. All this has been associated with depression and anxiety feelings which the subject has experienced much over the past 35 years or so.

DOE consulting psychiatrist’s report at 10.

The DOE consulting psychiatrist’s report indicated that the individual has the capability for proper judgment in a situation where expectations are known. However, the report indicated that:

in distressful, emotionally straining situations, the subject’s self-defeating personality patterns dominate the reaction to the stressor. . . . In my opinion, during these episodes, the subject has, as past behavior shows, acted out in an impulsive manner without considering the consequences.

DOE consulting psychiatrist’s report at 11.

The DOE commenced this administrative review proceeding by issuing a Notification Letter to the individual which identified the derogatory information that cast doubt on the individual’s continued eligibility for access authorization. 10 C.F.R. § 710.21. The Notification Letter indicated three security concerns.

The first concern in the Notification Letter is that the individual “deliberately misrepresented, falsified or omitted significant information from . . . a personnel security interview,” behavior subject to 10 C.F.R. § 710.8(f)(Criterion F). With respect to this criterion, the Notification Letter indicates that during his two security interviews the individual provided different accounts of the events associated with his suicide attempt #2. Notification Letter at I.1. Additionally, the Notification Letter indicates that the individual did not divulge suicide attempt #1 during his first security interview. Notification Letter at I.2. Finally, the Notification Letter supports its finding of a Criterion F concern by indicating the individual did not accurately describe suicide attempt #2 during his second security interview. Notification Letter at I.3.

The second security concern specified in the Notification Letter is based on the DOE consulting psychiatrist’s report finding that the individual has an illness or mental condition which may cause a significant defect in judgment or reliability. Such a finding is a security concern pursuant to 10 C.F.R. § 710.8(h) (Criterion H).

The third security concern indicated in the Notification Letter is that the individual engaged in conduct covered by 10 C.F.R. § 710.8(l) (Criterion L). Criterion L concerns unusual conduct or circumstances that “tend to show the individual is not honest, reliable, or trustworthy . . .” With respect to this criterion, the Notification Letter refers to a number of items including the individual’s two suicide attempts, his violent behavior toward his wife, his failures to be honest about his problems and his failure to deal with his depression and violent behavior.

After receiving the Notification Letter, the individual requested a hearing. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was held. A hearing provides “the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Nine witnesses testified at the hearing. The DOE office called the security specialist and the DOE consulting psychiatrist. The individual called seven witnesses: (i) his evaluating psychiatrist, (ii) his EAP counselor, (iii) his wife, (iv) his wife’s best friend, (v) a union representative, (vi) a co-worker and (vii) himself.

II. HEARING

During this proceeding it has been recognized by both parties that prior to and during the month of the suicide attempts the individual was suffering from significant psychiatric problems. The diagnosis varied between depression, dysthymia and bipolar-two. There is agreement that the symptoms include inability to sleep, overworking, uncontrollable anger, poor communication skills, violence toward his wife and an inability to discuss his problems. Having recognized that the diagnoses of the DOE consulting psychiatrist and the evaluating psychiatrist were very similar, the attorney for the individual indicated in his opening statement that the focus of his presentation at the hearing would be on the individual’s rehabilitation efforts and his current mental condition. During his opening statement he said:

We’re going to look at the mental condition of [the individual] in [the month of the suicide attempts], and we’re going to look at the mental condition of [the individual] today. That comparison will paint a clear picture that although in [the month of the suicide attempts] [the individual] suffered from severe depression . . . he no longer suffers from that condition today.

Transcript at 10.

At the hearing the DOE consulting psychiatrist, the evaluating psychiatrist and the EAP counselor were called as a panel to discuss their diagnoses, the rehabilitation program and the individual’s current condition, including the likelihood of recurrence of unusual behavior that occurred as a result of his mental condition (e.g., inability to honestly answer personal questions, inability to control anger, suicide attempts and spousal violence).

1. Mental condition and its effect on judgment

The evaluating psychiatrist testified that he first saw the indi- vidual during the psychiatric evaluation that he performed at the treatment facility. He testified that during that evaluation he diagnosed the individual as suffering from a bipolar-two condition. According to the evaluating psychiatrist, bipolar-two means the individual has episodes of depression and episodes of other symptoms. The evaluating psychiatrist indicated that the other symptoms included racing thinking, the inability to sleep and grandiosity. Transcript at 47. The DOE consulting psychiatrist testified that he agreed with the evaluating psychiatrist’s diagnosis. Transcript at 48. The evaluating psychiatrist testified that at the time of his diagnosis the individual’s mental condition caused a defect in his judgment and reliability. See Criterion H. In his written evaluation, the DOE consulting psychiatrist concurs with the finding that the individual’s mental condition causes a defect in the individual’s judgment and reliability. While there was additional testimony about the nature of the suicide attempts and the level of domestic violence, there was no further testimony or discussion regarding the proper diagnosis of the individual’s mental disorder.

2. Treatment

The evaluating psychiatrist indicated that his diagnosis of a bipolar-two mental condition was an important distinction. He indicated that the individual had previously received medication on the basis of a diagnosis of depression. This revised diagnosis indicated that the antidepressants that had been prescribed for the individual may have made the individual’s condition worse. On the basis of his diagnosis of a bipolar mental condition (mixed state), the evaluating psychiatrist testified that he

started two medicines at the same time using Wellbutrin, which was an antidepressant, which was the best one for people who have bipolar illnesses, the least likely to get them more agitated, as well as . . . a low dose of lithium in the form of Lithobid.

Transcript at 48. He testified that after he prescribed a combination of a mood stabilizer and an antidepressant the individual reported that the outbursts with the family had disappeared. The individual also reported that he was no longer depressed. Transcript at 53. The evaluating psychiatrist testified that there were issues of initial compliance. However, he testified as time went on the individual has “became a model patient, taking his medication, not altering the doses.” Transcript at 54. The evaluating psychiatrist further testified that he believed that the problems during the early days of treatment have been solved by adjusting the dosage of the medications he had prescribed for the individual. Transcript at 67.

The evaluating psychiatrist further testified that he started the individual on a counseling program at the treatment facility. That counseling program was under the evaluating psychiatrist’s general supervision. Transcript at 65. The counseling at the treatment facility was a one month program. The counseling was primarily performed by counselors in group sessions. There were several individual sessions with a nurse. The counseling was intensive during the individual’s three day hospitalization and several days a week for the four weeks after the individual’s hospitalization. He completed his counseling and was discharged from the treatment facility’s outpatient counseling program four weeks after suicide attempt #2. (2)

Since making his diagnosis of a bipolar-two condition, the evaluating psychiatrist has been responsible for the individual’s medications. Transcript at 53. The evaluating psychiatrist’s testimony and notes indicate that he met with the individual five times during the sixteen month period after his discharge from the treatment facility. Transcript at 74. These five visits consisted of the evaluating psychiatrist’s interview that occurred at the time of the individual’s discharge from the treatment facility and four medication adjustment sessions. Evaluating psychiatrist’s treatment notes. The purpose of the medication adjustment sessions was to consider adjustments to the dosages of the individual’s medications. The evaluating psychiatrist did not have any sessions with the individual that were designed for counseling. During the medication adjustment sessions the evaluating psychiatrist made inquiries as to the individual’s mental status. He was encouraged by the individual’s reports during the medication level review sessions that the individual had developed a good therapeutic relationship with the EAP counselor. The evaluating psychiatrist indicated that his EAP counselor and the individual “worked through many issues. We saw the changes over time.” Transcript at 54. He further indicated:

I think [the EAP counselor] did an excellent job, you know. Every time I would see [the individual] coming back for his medication appointment, I would check to see, you know, how things were going with the marriage, how he was handling new stressors that were coming up. He seemed to be handling them just fine.

Transcript at 55.

The EAP counselor testified that his focus in the sessions he had with the individual were on job performance and productivity. Transcript at 88. He indicated that

the modality that we tend to use is brief therapy, which looks at the presenting problem, tries to do what we can to take care of that presenting problem so that we get the employee back functioning where he’s supposed to be.

Transcript at 88. He further indicated that “typically our role at EAP is assessment and referral.” Transcript at 89. The treatment records of the EAP counselor indicated that he met with the individual four times in the year and a half prior to his two suicide attempts and that he met with the individual six times after his suicide attempts. (3)

The DOE consulting psychiatrist generally indicated that the type of treatment was appropriate. However, he indicated that additional individual counseling and joint marriage counseling with his wife would strengthen the counseling portion of the treatment program.

3. The Individual’s Current Condition

The evaluating psychiatrist testified about the current condition of the individual. He was asked if there is any current impairment in the individual’s ability to answer questions posed to him by the DOE about his personal life. He responded:

I think there’s been a significant change in his ability to be able to answer questions and be truthful. I don’t think that there is any problem at this time.

Transcript at 59.

The evaluating psychiatrist was further asked whether the individual would act differently if he faced the same circumstances that triggered the attempted suicides. The evaluating psychiatrist answered that he had no doubt that the individual would behave differently. He indicated the reasons for his belief were:

I have watched how he has handled the stressors that have come up for him. I watched him go through a neck surgery yet still remain civil within his marriage. I’ve seen him actually working on it during that period of time. I’ve seen him handling his children even when there has been stress. The biggest stressor that he has . . . is actually this hearing and this clearance. And as far as I’ve seen through the process he’s been nothing but reasonable and up front with me about what has been happening even when he’s come into the appointment. So I don’t have any problem.

Transcript at 60.

The evaluating psychiatrist concluded by testifying that if he were to evaluate the individual’s mental condition at this point he would find “adequate rehabilitation. I don’t think [the mental condition] impairs his judgment or reliability at this time.” Transcript at 60.

When the EAP counselor was asked if he had any concerns about the individual’s future performance at work or his truthfulness and honesty, he responded that he did not. He explained that response by testifying in the following manner:

[W]ith anyone in a similar situation, as long as they keep doing what they’re doing I have no concerns. I would have little concern about any kind of a problem developing as long as they keep doing what they’re advised to do. If he continues with the medication, continues with the growth and the progress and the things that he’s been doing, I have no concern about that at all.

Transcript at 97.

The DOE consulting psychiatrist testified that he thought the individual’s attitude is much better and he is in recovery. However, he indicated he was “not sure that [his condition] is at a completely stable stage.” Transcript at 118. He further testified that he believes the individual’s future behavior is unpredictable. Transcript at 118. Finally, he indicated that he had two areas of concern regarding the individual’s candor. The first dealt with the individual’s tendency to “brush off” a number of derogatory events that had occurred since 1972 and the second dealt with the stability of his marriage. Transcript at 119.

III. ANALYSIS CRITERION H

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of proceeding, the standard is designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to demonstrate 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). In this case I am asked to judge whether the individual has been rehabilitated from his serious mental condition. The evaluating psychiatrist and the EAP counselor both testified that the individual was rehabilitated while the DOE consulting psychiatrist testified that the individual’s condition has improved but he is not fully rehabilitated.

When I view the totality of the evidence, I am not persuaded that the individual has shown rehabilitation to the point that he no longer presents a security concern. The four central findings that form the basis for my opinion are 1) I am not convinced by the evaluating psychiatrist’s opinion that the individual is rehabilitated, 2) I am not convinced by the EAP counselor’s opinion that the individual is rehabilitated, 3) I am not convinced that the individual has accurately described the activities that were part of his rehabilitation effort or his current behavior, and 4) I agree with the DOE consulting psychiatrist that the individual’s rehabilitation program has not been sufficient to demonstrate that the individual is rehabilitated.

1. The evaluating psychiatrist’s opinion

The evaluating psychiatrist testified that the individual was rehabilitated. His testimony was clear and specific. He based his opinion on two determinations. The first was a determination that the individual has taken the proper dosage of his prescribed medicines for an extended period of time and a prediction that he will continue to take the proper dosage. The second was a determination that the EAP counselor’s sessions have helped the individual deal with his day to day problems that caused stress and exacerbated his erratic behavior.

With regard to the first area, the evaluating psychiatrist clearly believes that the individual will continue to take his medication. I am not persuaded by his conclusion. The evidence shows that the contact between the individual and the evaluating psychiatrist was limited. During the sixteen months since his discharge the evaluating psychiatrist had four twenty-minute meetings with the individual. Transcript at 61. Those meetings were on an as needed basis and scheduled by the individual. During those meetings the evaluating psychiatrist focused on the levels of the individual’s medication. He asked the individual questions about his mood and asked whether he had any specific problems. The individual self reported his condition and there was no apparent effort by the evaluating psychiatrist to spend sufficient time with the individual to evaluate whether those reports were accurate. I, therefore, do not believe the evaluating psychiatrist was able to get to know the individual well enough to evaluate how the individual was coping with day to day stress. Therefore, I am not convinced that the evaluating psychiatrist’s prediction that the individual will continue to take his medication is based on sufficient knowledge. Accordingly, I do not have confidence in it.

Second, the evaluating psychiatrist’s reliance on the EAP counselor’s sessions was misplaced. The evaluating psychiatrist’s knowledge of those sessions came only through the individual’s own descriptions of them. I do not believe the individual accurately described to the evaluating psychiatrist the counseling he received from the EAP counselor. The individual had only three sessions with the EAP counselor in the 16 months after his discharge from the treatment facility’s outpatient program. However, the evaluating psychiatrist’s testimony referred to the individual’s reports of regular follow up counseling with his EAP counselor. The evaluating psychiatrist’s notes also indicate that the individual reported regular follow up counseling with the EAP counselor. I interpreted that testimony to mean that the individual had a number of sessions that occurred on a regular basis with the EAP counselor. I do not believe that the three sessions within sixteen months that actually occurred constitute regular follow up sessions in a case of this nature where there were two suicide attempts. I believe the evaluating psychiatrist thought there had been more sessions than actually occurred. Since the reports from the individual to the evaluating psychiatrist gave the evaluating psychiatrist the wrong impression, the second basis for his opinion is not well founded.

As indicated by the foregoing, my opinion is that the evaluating psychiatrist’s opinion is not based on full and accurate information. There is an additional reason why I am not convinced by the evaluating psychiatrist’s opinion that the individual is rehabilitated. In general when a psychiatrist testifies that an individual is rehabilitated, he bases that opinion on a current psychiatric evaluation. In this case the evaluating psychiatrist did not do a current evaluation. His initial evaluation of a bipolar-two condition was seventeen months prior to the hearing. Since then, the evaluating psychiatrist had only limited contact with the individual. Therefore, I would have expected a reevaluation before the evaluating psychiatrist would provide a significantly revised prognosis for the individual. (4) In this case I believe his opinion regarding rehabilitation is not convincing because there was no recent psychiatric evaluation to support his finding that the individual has been rehabilitated.

2. The EAP counselor’s opinion

The EAP counselor testified that the individual is rehabilitated. Transcript at 98. He explained that testimony by indicating his opinion that the individual is on the right track and that if he maintains his current pattern of drug therapy he will not get into further trouble. However, his explanation indicates he has not evaluated whether the individual has the ability to stay with his current program. Without an evaluation and thoughtful opinion on that issue, his opinion that the individual is rehabilitated is of limited value.

Moreover, the EAP counselor’s conclusion that the individual’s current program has been effective is not well supported. The EAP counselor had six sessions with the individual after the evaluating psychiatrist’s initial evaluation. Only three sessions took place after the individual’s discharge from the outpatient program at the treatment facility. Those sessions were scheduled by the individual and were limited in scope. Therefore, the EAP counselor did not seem to get to know this individual very well. For example, the EAP counselor indicated that the individual was receiving counseling through the church during the period after discharge from the treatment facility. Transcript at 92. However, the testimony indicated that there have only been two counseling sessions at the church and that counseling occurred several years prior to the suicide attempts. Transcript at 145 and 165. Accordingly, because of the limited knowledge of the EAP counselor, I give very little weight to his opinion.

3. Testimony regarding the individual’s current behavior

The individual has convinced me of certain changes in his behavior. However he has failed to convince me that he has undertaken the rehabilitation activities he described and has failed to convince me that he has eliminated erratic behavior at home. The witnesses that testified about his day to day activities and behavior were his wife, a co-worker who lived down the street from the individual and the best friend of his wife. The wife’s testimony supported the individual’s position that he was regularly taking his medicine. She testified that she heard him in the bathroom every morning taking his medicine. Transcript at 149. She also indicated her strong opinion that the individual will stay on his medicine and that he has “never given me an inkling that he would not.” Transcript at 131. She also indicated that his erratic behavior has not recurred. She testified that there are no blowups. Transcript at 131. “He is an honest person, and he’s learned how to be honest. And I just think it’s remarkable.” Transcript at 131. She also stated that he has stopped working so many hours. Transcript at 138.

The co-worker who knew the individual on and off the job provided support for the position that the individual is currently controlling his behavior on the job. He testified “a couple of years ago he would kind of get angry quickly like he had a short fuse, and I don’t see that in him anymore. He seems very calm by comparison.” Transcript at 209.

The wife’s best friend testified that there were a number of problems including physical violence in the marriage prior to suicide attempt #1. She indicated that “I can see a big improvement in [the individual] over the last year.” Transcript at 219.

In the past the individual has had a tendency to be compulsive in the work environment and he tends to work long hours to compensate for problems. I was convinced by the testimony that he has been successful at reducing the number of hours he works. This clearly indicates that he is much more in control of his daily life. This testimony is clearly in the individual’s favor.

However the testimony that indicated that he is controlling his temper at home and is now able to communicate with others in stressful situations, did not convince me. The wife, co-worker and friend provided testimony indicating improvements in the individual’s behavior. I am convinced by the co-worker that the individual has learned to control his temper on the job. However, the wife’s testimony that the individual has learned to control his temper at home and to be open and honest was not convincing. Her testimony was very general and somewhat contradicted by her testimony that she only learned about suicide attempt #1 through the individual’s attorney. Transcript at 141.

Moreover, there were others who could have provided detailed corroborating testimony about the individual’s behavior at home that were not called by the individual as witnesses. These witnesses include two of the individual’s adult children. One of those children lives at home; the other lives in a nearby town. Also the individual’s parents were involved in his hospitalization and he lived with them during the period he was involved in the treatment facility’s outpatient rehabilitation program. I believe the testimony of the children and the individual’s parents would have provided details that could have corroborated the wife’s general testimony regarding the individual’s day to day behavior during the last sixteen months.

Similarly, the testimony did not convince me that the individual actually spent the time on home study which he reported. The individual testified that he and his wife developed skills to change their behavior by reading books and pamphlets provided by the EAP counselor and the outpatient consulting program. His wife testified that they “went through [the pamphlets] every single day discussing” the concepts. Transcript at 130. In addition their testimony indicated that they spent a great deal of time doing home work exercises suggested by those pamphlets. The testimony suggested that the skills gained through their readings and related exercises have permitted the individual to change his behavior. However, the testimony regarding the nature of the home study work was very general. The testimony did give one brief example of using a technique to organize and structure a discussion with one of their children about a car repair. However, the work they did was not presented. Furthermore, there was no testimony that indicated the number, names, or content of the books and pamphlets. Because of the limited amount of detail they were willing to provide and their reluctance to discus the program, I believe they were not candid and forthright in describing the amount of their home study work. Also, I do not believe that they realistically evaluated the skills they developed from the home study. Therefore, I find the individual has failed to provide sufficient testimony to convince me that his home study resulted in significant improvement in his interpersonal skills.

I also note the same lack of candor in the individual’s response to other questions regarding his past behavior. One example relates to his workmen’s compensation claims. I believe the individual attempted to avoid those questions rather than provide his best recollection about those events. Transcript at 171. A second example relates to the individual’s description of suicide attempt #1. In describing his actions at the hearing he tried to minimize and rationalize his behavior. In my view, he made no attempt to honestly provide his recollection of suicide attempt #1. Transcript at 173-77.

Finally, there is a lack of professional corroboration concerning the individual’s current behavior. The individual has received only one counseling session (the EAP counselor) in the year since the individual’s evaluation by the DOE consulting psychiatrist. Therefore, there was no professional counselor who has an ongoing relationship with the individual who could provide an informed opinion about the individual’s current behavior. This lack of a professional counselor’s testimony constitutes a further weakness in the individual’s presentation about his current behavior.

4. The DOE consulting psychiatrist

I was convinced by the DOE consulting psychiatrist’s opinion that the individual “needs some marital therapy, or I think some of the past stresses and disagreements are going to resurface again. . . .” Transcript at 119. I find the DOE consulting psychiatrist’s reasoning to be well founded. I am troubled by the individual’s failure to obtain such marital counseling when it was recommended by a number of sources that were involved in his rehabilitation effort. For instance the discharge note from the individual’s outpatient program state:

Recommend patient continue independent and marital counseling with [the EAP counselor] and [the EAP counselor’s supervisor] and follow up with the [evaluating psychiatrist] for medical management for depressive symptoms.

Tab 12. Also, the treatment plans and counseling notes from inpatient and outpatient counselors make it clear that the counselors suggested marital counseling. Tab 12. Further, the evaluating psychiatrist’s notes, the EAP counselor’s notes and the testimony of the wife’s best friend (Transcript at 220) all suggested marital counseling. It seems clear that a number of professionals thought such counseling was an essential portion of the individual’s rehabilitation program. His failure to follow through on that recommendation (Transcript at 132, 136 and 145) or to openly admit that he has not followed that recommendation leads me to find that he has not been fully committed to his rehabilitation program and has not fully recognized the serious nature of his problems caused by his mental condition.

I was also persuaded by the DOE consulting psychiatrist’s conclusion that he could not be sure that the individual would behave reasonably in the future. He testified that

. . . I have a hard time feeling that after some thirty- five years . . . of a dysfunctional life style and even some blurring on illegal behaviors, why one can expect a person to change overnight, . . . I can’t be sure that he’s going to always do the best thing in the best interest for him.

Transcript at 122.

I found this testimony to be very strong. Seventeen months ago the individual had a serious mental condition that was characterized by two suicide attempts and violence toward his wife. I agree with the DOE consulting psychiatrist’s opinion that the individual’s activities in the seventeen months since his diagnosis have been insufficient to indicate the individual has reached a level of rehabilitation at which it is highly likely that he will be able to control his behavior in the future.

IV. SECURITY CONCERNS F AND L

During the hearing there was very little testimony related to security concerns F and L. My impression is that the individual believed the actions that led to those concerns were related to his mental condition. He apparently believed that if he showed rehabilitation from his mental condition, the DOE would no longer consider those to be independent security concerns. While it is certain that rehabilitation from his mental condition would be a mitigating factor to the F and L security concerns, I believe that he would need the passage of additional time or significant additional corroborating testimony indicating those erratic behaviors have not recurred in order to mitigate security concerns related to Criterion F and L. I also believe that the individual’s lack of candor described above would indicate these security concerns have not been mitigated. In any event, since I have not found rehabilitation from his mental condition, I can not find that the individual has sufficiently mitigated those security concerns.

V. CONCLUSION

I have not been persuaded by the evidence brought forward in this case that granting the individual access authorization would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of the Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: October 1, 1998

(1)The evaluating psychiatrist’s report is one of the numerous medical records obtained by the DOE from the treatment facility. Those records are located at tab 12 of the DOE exhibit book. The records include counseling notes, treatment plans, psychiatric evaluations, medical evaluations, and discharge notes from the doctors, nurses and counselors that were involved with the individual at the treatment facility. Since the documents are not numbered or organized, the citation to any document contained in that section will be tab 12. Four documents were submitted by the individual. They will be cited by reference to their title. The four documents are the evaluating psychiatrist’s treatment notes, the evaluating psychiatrist’s discharge summary, the evaluating psychiatrist’s report and the EAP counselor’s treatment notes. The evaluating psychiatrist’s report and discharge summary were submitted by both parties.

(2)The evaluating psychiatrist testified that the events that are referred to as suicide attempt #1 and suicide attempt #2 were not actually attempts by the individual to end his life but were intended by the individual to be dramatic gestures to bring attention to his emotional distress. Even with their

different characterizations of the individual’s actions, the two psychiatrists have very similar diagnoses of the individual.

(3)Three of those six sessions were during the month of the suicide attempts. There was one session in each of the next two months. The final session was nine months later. There was also one walk-in meeting with the EAP counselor’s supervisor. That meeting occurred two months prior to the Hearing. EAP counselor’s treatment notes.

(4)He was not asked at the hearing why he did not perform such an evaluation.