Case No. VSO-0005, 24 DOE ¶ 82,573 (H. O. Wieker Feb. 9, 1995)

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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 XXXXX.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer Opinion

Name of Petitioner: Albuquerque Operations Office

Date of Filing: October 19, 1994

Case Number: VSO-0005

This matter concerns the eligibility of Ms. XXXXX (hereinafter "the individual") for continued "Q" access authorization,<1>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." The Department of Energy's XXXXX Operations Office (DOE/XXXXX) recently suspended the individual's access authorization under the recently revised provisions of Part 710.<2> This Opinion will consider whether, based on the record of testimony and other evidence presented in this

proceeding, the individual's access authorization should be restored.

I. Regulatory Background

The Part 710 procedures govern the resolution of questions concerning the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, and DOE access permittees; and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance. Part 710 lists twelve broad categories of information which may be regarded as derogatory and which might create questions as to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review all determinations regarding access authorization.

The regulations provide an opportunity for hearing and review in cases where an individual's eligibility for access authorization cannot be favorably resolved by interview or other action. This determination is initially made by the Local Director of Security, who submits the matter to the Operations Office Manager. 10 C.F.R. §§ 710.9(a), 710.10(a). If the Manager agrees with the determination of the Local Director, the Manager submits a request to the Director, Office of Safeguards and Security, for authority to conduct an administrative review proceeding. Id. §§ 710.9(a), 710.10(a),(d). In cases where the individual holds an access authorization, the Manager may authorize the suspension of the individual's access authorization pending final determination of the individual's eligibility. Id. § 710.10(b).

When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a notification letter is sent to the individual. This letter sets forth the information which creates a substantial doubt regarding the eligibility of the individual for access authorization, and states that the individual may file a request for a hearing in writing with the Manager. Id. § 710.21(a), (b)(2), (b)(4). If the individual requests a hearing, the Manager assigns an attorney to act as DOE Counsel, and forwards the request to the Office of Hearings and Appeals (OHA). Id. §§ 710.24(a), 710.25(a). Upon receipt of the hearing request, the Director of the OHA appoints a Hearing Officer. Id. § 710.25(b). The hearing is required to be held within 90 days of the receipt of the hearing request by the OHA, unless an extension is approved by the OHA Director. Id. § 710.25(g). The OHA issues the opinion of the Hearing Officer within 30 days of the receipt of the hearing transcript by the Hearing Officer, or the closing of the hearing record, whichever is later, unless the OHA Director grants an extension of time. Id. § 710.27(e).

II. Background

This administrative review proceeding was commenced by the issuance of a Notification Letter dated September 2, 1994. In that letter, the individual was informed that information in the possession of the DOE/XXXXX created a substantial doubt concerning her eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification letter included a statement of the derogatory information in the possession of the DOE/XXXXX that created the substantial doubt concerning the individual's eligibility for access authorization. In particular, it specified five areas of derogatory information under the criteria set forth in Section 710.8. The DOE/XXXXX's allegations concerning these criteria may be broadly summarized as follows:

(1) The individual has deliberately misrepresented, falsified, or omitted significant information from her Personnel Security Questionnaire (PSQ), her Questionnaire for Sensitive Positions (QSP), and from a personnel security interview. See Section 710.8(f).

(2) The individual has an illness or mental condition, i.e., "Psychoactive Substance Dependence Disorder, Alcohol and Marijuana, Active, Mild," which in the opinion of a psychiatrist, causes or may cause a significant defect in her judgment or reliability. See Section 710.8(h).

(3) The individual has been a user of alcohol habitually to excess, without adequate evidence of rehabilitation or reformation. See Section 710.8(j).

(4) The individual has trafficked in, possessed, and used a drug or other substance, i.e., marijuana, listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970 where such use or possession was not prescribed or administered by a physician. See Section 710.8(k).

(5) Through her use of marijuana and her association with others who use marijuana, the individual has engaged in unusual conduct and is subject to circumstances which tend to show that she is not honest, reliable, or trustworthy; and which furnishes reason to believe that she may be subject to pressure, coercion, exploitation, or duress which may cause her to act contrary to the best interests of the national security. See Section 710.8(l).

The Notification Letter also informed the individual that she was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding her eligibility for access authorization. On September 21, 1994, the individual requested a hearing and submitted a response to the DOE/XXXXX's allegations (the Response) in which she argued that the concerns raised by the DOE/XXXXX were mitigated by the success of her efforts at alcohol and drug rehabilitation, and by her exemplary record as a DOE employee. The individual's request for a hearing was forwarded by the DOE/XXXXX to the OHA. On November 9, 1994, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. §§ 710.25(e) & (g), the hearing was convened in XXXXX New Mexico, on XXXXX. <3>

At the hearing on XXXXX, the individual was represented by her attorney, XXXXX. The following witnesses were called to testify: (i) XXXXX, DOE Personnel Security Specialist; (ii) the individual; (iii) Dr. XXXXX, Psychiatrist for the DOE; XXXXX, a state certified alcohol and drug abuse counselor; and XXXXX, a state certified alcohol and drug abuse counselor; (iv) XXXXX, supervisor; (v) XXXXX, co-worker; (vi) XXXXX, co-worker; (vii) XXXXX, supervisor; and (viii) XXXXX. I scheduled the witnesses' testimony in this particular order so as to most fairly and efficiently develop all of the facts in this case.

III. Findings of Fact

The facts in this case are not in dispute. Based on an examination of the entire record of this proceeding, the relevant facts of this case may be stated as follows.

The individual is a DOE/XXXXX employee with 23 years of service with the agency and its predecessors. The issue of the individual's continued eligibility for "Q" access authorization first arose in March 1991, when the individual reported that she had been arrested for Driving While Intoxicated (the 1991 DWI). At a June 19, 1992 Personnel Security Interview (the 1992 PSI), the individual stated that she was a self-admitted alcoholic, and had voluntarily attended alcohol-related counseling with different organizations sporadically since approximately the early 1980's. She stated that she had not used alcohol since her 1991 DWI, that she had no future intentions to drink alcohol, and that she planned to continue counseling to cope with stress and conflict constructively. Based on these statements, the DOE/XXXXX determined that the individual could retain her "Q" access authorization. See 1992 PSI; Letter from XXXXX, Chief, Analysis and Adjudication Section, Personnel Security Operations Division, to the individual (August 10, 1992).

On January 9, 1994, the individual was arrested a second time for Driving While Intoxicated (the 1994 DWI). Her reporting of this incident to the DOE/XXXXX on January 13, 1994 prompted another evaluation of her "Q" access eligibility. At a May 11, 1994 Personnel Security Interview (the May 1994 PSI), she declined to answer any questions aimed at explaining and mitigating the DOE/XXXXX's areas of concern raised by the second DWI arrest. However, she agreed to submit to a psychiatric examination conducted by a physician designated by the DOE/XXXXX. This examination, conducted by XXXXX, M.D., took place on June 14, 1994. At the time of the interview, Dr. XXXXX arranged for the individual to submit to a drug test. The test yielded positive results for marijuana. At a June 20, 1994 Personnel Security Interview (the June 1994 PSI), the individual admitted that she had used marijuana on June 7, 1994, stating that she had started to use marijuana on a regular basis in April of 1994 as a substitute for alcohol. (June 1994 PSI at 12-27). She also admitted that she had occasionally purchased and used marijuana for about twenty years, but denied that she ever used amphetamines or cocaine. (June 1994 PSI at 28-46). Based on this testimony, the DOE/XXXXX immediately suspended the individual's "Q" clearance and requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding. Pending the outcome of this proceeding, the individual was detailed to a work assignment that does not require access authorization.

On June 25, 1994, Dr. XXXXX issued a report concerning his psychiatric evaluation of the individual (the Psychiatric Report). The report contains his diagnosis and his professional recommendations for what would constitute adequate evidence of rehabilitation or reformation.

In her September 21 Response to the Notification Letter, the individual stated that in February, 1994 she admitted herself to a chemical dependency program at XXXXX, which is owned and operated by XXXXX. After two days of inpatient treatment, she was transitioned into XXXXX's Day Treatment Program where she actively participated in alcohol and drug abuse therapy until her discharge on March 18, 1994. She stated that she attends the chemical dependency aftercare program at XXXXX weekly, attends meetings of Alcoholics Anonymous, and also participates in the XXXXX program, a self-help program sponsored by XXXXX in order to maintain her sobriety.

In her September 21 Response, the individual also stated that although she denied using illegal drugs other than marijuana at her June 1994 PSI, she had in fact used amphetamines and cocaine, and was addressing the use of these drugs in her rehabilitation program. This admission prompted the DOE/XXXXX to conduct another Personnel Security Interview with the individual on November 14, 1994 (the November 1994 PSI). At this interview, the individual stated that she used cocaine a couple of times a month for approximately an eight month period in 1982. She further stated that she sporadically used amphetamines to lose weight from about 1973 until about 1987. She stated that marijuana was the major drug that she had used for years, and that she last used marijuana on June 7, 1994. November 1994 PSI at 18. At this interview, she acknowledged that she consumed alcohol on four occasions in October 1994, and that she last consumed alcohol on November 5, 1994, when she consumed vodka and tequila to the point of intoxication. Id. at 21-26.

At the same time that she submitted her Response, the individual requested the opportunity to participate in the DOE/XXXXX's Employee Assistance Program Referral Option (EAPRO). The EAPRO procedures were developed by the DOE Office of Safeguards and Security in order to provide some individuals with substance abuse problems the opportunity to complete their effort at rehabilitation or reformation instead of having their cases referred for administrative review under 10 C.F.R. Part 710. EAPRO procedures generally require participating individuals to abstain totally from alcohol as well as illegal drugs, and to submit to random monthly drug testing. This request was rejected by the Director of Security, DOE/XXXXX in a November 23, 1994 letter. Since that time the individual has continued her personal rehabilitation program, and has arranged her own drug tests on five dates (November 10 and December 1, 10 and 27, 1994, and January 6, 1995) in order to establish that she is abstaining from the use of marijuana, cocaine and amphetamines.

IV. Analysis

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the DOE/XXXXX and the individual, and to render an opinion based on the weight of that evidence. In this regard, it is appropriate to discuss the relative burdens of persuasion placed on the DOE/XXXXX and on the individual.

The DOE/XXXXX counsel must present a reasonable level of evidence to support the derogatory allegations (i.e. present a prima facie case). The individual then has the burden of going forward with evidence to rebut, refute, explain, extenuate, or mitigate the allegations. The ultimate burden of persuasion as to whether the individual's access authorization should be granted or restored lies with the individual. The Hearing Officer must render an opinion as to whether granting or restoring the individual's access authorization would not endanger the national defense and be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). This standard implies that there is a strong presumption against the granting or restoring of a security clearance when derogatory information raises security concerns that have not been resolved. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (Department of Navy's "clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials."); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)(strong presumption against the issuance of a security clearance). Consequently, given the significant potential national security issues concerned and the resulting implied presumption against the issuance of a security clearance, it is most appropriate to place the burden of persuasion on the individual.

The 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 C.F.R. § 710.7(a). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of her conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; her age and maturity at the time of the conduct; the voluntariness of her participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for her 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). As discussed below, after carefully considering the record in view of these regulatory standards, it is my opinion that the derogatory information presented by the DOE/XXXXX in this case is sufficient to support a denial of access authorization, and that the individual has failed to present sufficient evidence of rehabilitation to mitigate that derogatory information.

A. The Nature and Extent of the Individual's Conduct

In its submissions in this proceeding, and through the testimony of witnesses at the Hearing, the DOE/XXXXX has thoroughly documented the factual basis for its findings that the individual's past statements and conduct raise serious questions concerning her eligibility for access authorization. The DOE/XXXXX has presented sufficient factual evidence to establish a prima facie showing that derogatory information supports its invocation of 10 C.F.R. §§ 710.8(f), (h), (j), (k), and (l) as grounds for revoking the individual's access authorization. As summarized above, the individual now has acknowledged purchasing and using marijuana over a period of twenty years, and has admitted using cocaine and amphetamines during briefer time periods. In addition, she repeatedly denied using illegal drugs prior to her positive drug test for marijuana, and continued to deny her use of cocaine and amphetamines in the PSI following that drug test. These facts fully support the DOE/XXXXX's adverse findings under Section 710.8(f), (k) and (l). Similarly, her acknowledged history of alcohol abuse and the diagnosis of Dr. XXXXX supports an adverse finding under Section 710.8(h) and Section 710.8(j).

In her Response and at the Hearing, the individual has offered explanations aimed at mitigating the DOE/XXXXX's adverse findings. In particular she states that she is engaged in an alcohol and drug rehabilitation program that will permit her to function in a manner fully consistent with the responsibilities of DOE access authorization. She states that her lack of honesty with the DOE concerning her use of illegal drugs was a symptom of her chemical dependency problems, and that in all other respects she has been an honest employee. She asserts that her exemplary record of achievement as a DOE employee of longstanding should mitigate the DOE's concerns with regard to her reliability, honesty and trustworthiness. I will consider these arguments below.

B. The Adequacy of the Individual's Rehabilitation Effort

Any evaluation of the individual's rehabilitation effort must begin with a valid assessment of the extent of her alcohol and drug dependency problems. I find that Dr. XXXXX's July 1994 Report provides a reasoned professional appraisal of the individual's condition. In that Report, Dr. XXXXX bases his appraisal on his study of the individual's problems with alcohol as detailed in her security file, on his personal examination of the individual, and on the individual's positive drug test for cannabinoids (marijuana). Dr. XXXXX notes that during the interview, which occurred prior to administering the drug test, the individual freely discussed her history of alcohol problems, but denied ever using illegal drugs.

In his report, Dr. XXXXX concludes that the individual has "Psychoactive Substance Dependence Disorder, Alcohol and Marijuana, Active, Mild." He finds that this disorder causes the individual to have a significant defect in judgment. Specifically, he finds that "[t]he subject's repeated resumptions of drinking, in spite of problems for her caused by her drinking, demonstrate a significant, although circumscribed defect in her judgment." Report at 15. He also cites her use of marijuana and her deception in the interview regarding drug use as further evidence of a defect in judgment.

Dr. XXXXX also finds that as of the time of his evaluation, the individual had not shown adequate evidence of rehabilitation or reformation for purposes of Section 710.8(h) and (j). He lists the components that he would want to see in a rehabilitation program as including the following: (1) individual counseling, (2) group therapy with other persons with psychoactive substance use disorders, (3) a family component, where her children could participate, and (4) an educational component. He recommends that this outpatient program should contain approximately 100 hours of therapy. Upon completion of this program, he finds that she could make an adequate demonstration of rehabilitation by remaining abstinent from all psychoactive substances for a period of one year. With regard to reformation, he states that "[s]hould the subject choose not to go through such a [rehabilitation] program, I would want to see her 100% abstinent from all psychoactive substances for a two year period." Report at 14-15.

At the Hearing, the individual's counsel questioned Dr. XXXXX concerning his recommendations for a rehabilitation program. At that time, Dr. XXXXX stated that the time periods he considers appropriate to support a showing of rehabilitation/reformation are a year of total abstinence following the conclusion of his recommended professional counseling, or two years of total abstinence, whichever comes first. Dr. XXXXX also stated that during the year of abstinence following the end of professional treatment, the individual should be in some kind of treatment like Alcoholics Anonymous (AA). Hearing Transcript at 85-86.

The subsequent testimony of the individual's therapists, Ms. XXXXX and Ms. XXXXX, indicates basic agreement with Dr. XXXXX's diagnosis. The testimony of the two therapists makes clear that while some key elements of Dr. XXXXX's recommended program are currently being addressed by the individual, others are not. Hearing Transcript at 68-86. Ms. XXXXX and Ms. XXXXX generally concurred in the recommendations made by Dr. XXXXX concerning the need for the individual to have additional individual counseling, group therapy, and family counseling, as well as attending a peer support group such as AA. Ms. XXXXX stated that the educational component of a rehabilitation program, especially relapse prevention, was covered by the XXXXX program that the individual attended in February and March 1994. Hearing Transcript at 77. She has been actively involved in group therapy through the XXXXX's aftercare program (Hearing Transcript at 73), and in November 1994 she joined a XXXXX women's group dealing with broader topics such as family alcohol and abuse issues. Hearing Transcript at 76. However, since March 1994, she has only had about three one-to-one sessions with a counselor. Hearing Transcript at 92. She has not engaged in family counseling with her children. She has not attended AA meetings on a regular basis, and a support group that she was using as an alternative to AA, XXXXX, was disbanded in 1994. Hearing Transcript at 105. Her therapists agreed that further individual counseling, family counseling and sponsorship at a local AA meeting would all be useful additions to her rehabilitation program. Hearing Transcript at 77-79, 84, 98-99, 104-5.

Her therapists also confirmed Dr. XXXXX's conclusion that her substance dependence disorder remains an active problem. They both reported that she has made progress in dealing honestly with her addiction. Hearing Transcript at 81, 92. However, they both see usefulness in continued professional treatment, in addition to the use of a support group such as AA. Accordingly, there is a consensus among the mental health professionals that the professional portion of the individual's rehabilitation program has not yet been concluded.

Clearly, at this time it is premature for the individual to invoke her partially completed rehabilitation program as a mitigating factor to the security concerns raised by her substance dependence disorder. In addition, by her own admission, she has remained free from any psychoactive substances only since her most recent alcohol relapse on November 5, 1994. Assuming this to be true, this is a period of about three months. Under these circumstances, I find that the individual has failed to present sufficient evidence of rehabilitation or reformation to mitigate the DOE/XXXXX's derogatory information under 10 C.F.R. §§ 710.8(h) and (j) regarding her alcohol and drug abuse.

C. The Individual's Honesty and Reliability

As described above, the DOE/XXXXX has brought forth derogatory information with regard to the individual's illegal drug use and her misrepresentations to the DOE concerning her drug use. This information raises serious concerns regarding the individual's honesty, reliability, trustworthiness, and her vulnerability to coercion or exploitation. 10 C.F.R. §§ 710.8(f), (k) and (l). In her Response, the individual argues that her repeated false statements concerning her use of illegal drugs were based in part on denial, one of the characteristics of chemical dependency, and on a legitimate fear of reprisal. She asserts that her false statements to the DOE have been limited solely to the area of her drug abuse, and that she is otherwise an honest, reliable, and trustworthy employee. At the Hearing, her counsel presented two of her supervisors and two of her co-workers who testified that she has always been a hard working and high achieving DOE employee who has never let her personal problems interfere with her performance on the job. Under these circumstances, she contends that her rehabilitation efforts mitigate the DOE's concerns in these areas.

I generally agree that false statements to the DOE limited to the area of drug use can be mitigated by proof of rehabilitation or reformation. In this instance, however, the individual lied concerning her drug use on four separate occasions, i.e., her 1991 QSP, her 1994 PSQ, her June 1994 interview with Dr. XXXXX, and her June 1994 PSI. Even after she tested positive for marijuana in June 1994, she continued to lie concerning her past use of amphetamines and cocaine. She finally revealed this information to the DOE in September 1994. This pattern of repeated prevarication places a much higher burden on the individual to provide proof of effective rehabilitation or reformation. With regard to her reliability and trustworthiness, she has admitted that she made regular purchases of marijuana and associated with friends who used marijuana. June 1994 PSI at 40-46. These past activities and associations, sustained over a period of twenty years, place a similar burden on the individual to prove that she has successfully rehabilitated and has ceased her associations with persons involved in criminal activity.

As discussed above, the individual has failed to provide convincing evidence that she has achieved rehabilitation from her substance dependence disorder. Until such a time as her rehabilitation or reformation is complete, I find that a substantial doubt exists with regard to the individual's ability to respond truthfully to the DOE concerning her drug and alcohol use, and with regard to her honesty, judgment, reliability, and trustworthiness for purposes of being entrusted with access authorization.<4>

The individual's unquestioned record of superior performance as a DOE employee does not allay my concerns in these areas. Eligibility for access authorization involves a determination concerning national security concerns which are different from standards of employee performance evaluation. The former must be concerned with an individual's judgment, reliability and trustworthiness twenty-four hours a day, seven days a week, while the latter focuses on behavior and performance in the workplace. The fact that the employee has not allowed her problems with alcohol and drugs to affect her on-the-job performance cannot in itself mitigate the concerns arising from her actions outside the workplace and her pattern of denial concerning these actions.

Accordingly, I conclude that the individual has failed to mitigate the DOE/XXXXX's concerns regarding her eligibility for access authorization.

D. The Individual's Request for Alternative Relief

At the Hearing, the individual's counsel asserted that her current efforts at rehabilitation demonstrate her willingness to meet the DOE's requirements, and that she should be permitted the opportunity to do so. He suggested that the DOE could take one of the following actions to accomplish this:

(1) stay any action against her "Q" clearance until she has the opportunity to complete her rehabilitation program and to show abstinence for the required period of time, either for two years from November 1994 or whenever the DOE finds appropriate;

(2) order the DOE/XXXXX to give her the opportunity to participate in the EAPRO program, where she would be subject to random drug tests that would verify rehabilitation efforts; or

(3) reinstate her "Q" clearance, so that she can take part in a rehabilitation program through applicable DOE personnel procedures.

Hearing Transcript at 157-8.

While I sympathize with the individual's situation, and support rehabilitation, I will not delay a resolution of this matter for the one plus years that in my view would be necessary in order to provide her with an opportunity to demonstrate rehabilitation or reformation. The Part 710 regulations governing this proceeding indicate that the Hearing Officer should render an opinion, favorable or unfavorable, on whether an individual's access authorization should be granted or continued. They further provide that this opinion shall be issued within 30 calendar days of the receipt of the hearing transcript by the Hearing Officer, or the closing of the record, whichever is later. 10 C.F.R. §§ 710.27(d), (e). The regulations clearly contemplate a prompt opinion by the Hearing Officer regarding eligibility for access authorization. While there are circumstances in which the record of a Part 710 proceeding may be held open following the hearing, it is clearly inappropriate to extend this proceeding for a year or more in order to document a finding of rehabilitation or reformation. Accordingly, I must deny this request.

Nor do the regulations authorize Hearing Officers to make decisions with regard to the EAPRO program. The EAPRO was established in July 1993 as an alternative to the hearing process for selected personnel security cases involving substance abuse. It is a program designed to permit employees to complete their effort at rehabilitation or reformation instead of having their case referred for processing under 10 C.F.R. Part 710 procedures. The determination whether to offer the EAPRO to an employee is made by the Office of Security Affairs on the basis of its own guidelines, and under current DOE procedures its decision in the matter is not subject to my review. Employees who accept the EAPRO as an alternative to the hearing process agree to subject themselves to a closely monitored program of total abstinence from all psychoactive substances. They also agree to the revocation of their security clearances should they violate the terms of the program, and to forfeit their right to a hearing under Part 710. The individual's request that I direct that she be placed in the EAPRO program clearly is beyond my authority and must be denied.

Finally, there is no merit in the individual's assertion that the DOE should reinstate her "Q" clearance, so that she can take part in a rehabilitation program through applicable DOE personnel procedures. The DOE's Employee Assistance Program (EAP) offers professional counseling and referral services to deal with a variety of employee needs and problems, including alcohol and drug related problems. Unlike the EAPRO, it is not focused on the issue of personnel security, and it is not designed to monitor the rehabilitation efforts of employees who place their access authorizations at risk by substance abuse problems. It would be inappropriate for me to risk compromising the DOE's legitimate national security concerns by reinstating the individual's access authorization so that she may resume her former position at the DOE and continue her rehabilitative efforts through the EAP.

At the Hearing, the individual's counsel argued that this EAP request was supported by Presidential Executive Order 12564, 51 Fed. Reg. 32889 (September 15, 1986). That order provides that a federal agency engaged in a personnel action against an employee who is found to be using illegal drugs must also refer that individual to an employee assistance program for assessment, counseling or appropriate treatment or rehabilitation. The individual, as a federal employee, may well have a right to participate in the EAP. However, Executive Order 12564 does not require the DOE and other agencies to continue access authorizations to any employee who is willing to participate in an EAP rehabilitation program. See Section 5(c). Executive Order 12564 clearly recognizes that the issue of employee rights with respect to eligibility for access authorization is an issue separate and apart from employee rights in general. Accordingly, I reject the individual's argument.

V. Conclusion

As explained in this Opinion, I find that the DOE/XXXXX properly invoked 10 C.F.R. §§ 710.8(f), (h), (j), (k) and (l) in suspending the individual's access authorization. In view of these criteria and the record before me, I cannot find 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 "Q" 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 this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585, 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 within 20 days of receipt of the statement.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/ Access authorization means an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).

<2>/ The final revised rule was published in the Federal Register on July 8, 1994. 59 Fed. Reg. 35178 (July 8, 1994). The amended regulations, codified as Part 710, Subpart A of Title 10 of the Code of Federal Regulations, became effective on August 8, 1994.

<3>/ At the conclusion of the hearing, both the individual and the DOE/XXXXX declined the opportunity to submit a post-hearing brief. Accordingly, at that time I closed the record in this case.

<4>/ The individual's counsel cites Dr. XXXXX's medical conclusion that the individual's Psychoactive Substance Dependence Disorder affects the individual's judgment, but not her reliability. In this regard, Dr. XXXXX writes "I do not know of any evidence that the subject is not reliable." XXXXX Report at 16. I believe that this is a false distinction. For instance, I find that the individual's failure to report her past drug use made her unreliable with respect to her statements to the DOE on that subject. Absent a showing of rehabilitation, the individual may continue to be unreliable in reporting her drug use to the DOE.