Case No. VSO-0008, 25 DOE ¶ 82,753 (H. O. MacPherson Mar. 27, 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's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: November 1, 1994

Case Number: VSO-0008

This Opinion concerns the eligibility of XXXXX ("the respondent") for continued "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." 1/ The Department of Energy's XXXXX Field Office (DOE/XXXXX) suspended the respondent's access authorization under the provisions of Part 710. This opinion considers whether, based on the record of testimony and other evidence presented in this proceeding, the respondent's access authorization should be restored. As discussed below, after carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I am of the opinion that the individual in this case does not represent an unacceptable security risk, and consequently, his "Q" security clearance should be restored.

I. Background

Under Part 710, "[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). Before a Hearing Officer can recommend granting an individual an access authorization or restoring an individual's suspended access authorization, he must determine that "it would not endanger the common defense and would be clearly consistent with the national interest." See 10 C.F.R. § 710.27(a) (emphasis added).

The respondent is a XXXXX DOE contractor at the XXXXX located XXXXX. On September 23, 1994, DOE/XXXXX issued a Notification Letter to the respondent informing him that information in the possession of DOE created a substantial doubt concerning his eligibility for a "Q" access authorization. See 10 C.F.R. § 710.21. The letter specified two areas of derogatory information: abuse of alcohol and a mental condition that interfered with the respondent's ability to control his temper. 10 C.F.R. § 710.8(h), (j). On October 11, 1994, the respondent exercised his right under Part 710 to request a hearing in order to resolve the issue of his eligibility for access authorization. The respondent's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals on November 1, 1994, and I was appointed the Hearing Officer in this matter on November 3, 1994.

A. Alleged Derogatory Information

As indicated above, DOE/XXXXX found two reasons for questioning the respondent's eligibility to retain his security clearance¾a mental condition that made him unable to control his temper and abuse of alcohol.

With respect to control of his temper, the respondent had been diagnosed as suffering from Intermittent Explosive Disorder¾worsened by alcohol (IED). This diagnosis was made by Dr. XXXXX, a board-certified psychiatrist, pursuant to an examination of the respondent that he conducted on December 14, 1993. See Exh. 14. Dr. XXXXX was of the opinion that so long as he continues to consume alcohol, this condition is of a nature which may cause a significant defect in judgment or reliability. 1/ He based his diagnosis upon several factors: (1) a verbal argument with a co-worker which led to receipt of a reprimand, (2) an altercation in which he assaulted a neighbor and which led to his pleading guilty to Second Degree Criminal Trespass, a misdemeanor, (3) several incidents of violence directed toward his wife and children, and (4) several admissions by the respondent that his inability to control his temper has caused problems for him.

Dr. XXXXX also diagnosed the respondent as an abuser of alcohol. 1/ In making this diagnosis, Dr. XXXXX relied upon a number of factors, including (1) the respondent's history of alcohol consumption, (2) his current alcohol consumption, (3) the effect of alcohol upon the respondent's conduct, and (4) his family history of alcoholism and expressions of concern by family members over the respondent's alcohol intake.

Dr. XXXXX based his diagnoses upon the criteria set forth in the third revised edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-III-R). Subsequent to Dr. XXXXX's evaluation, a fourth edition was issued (DSM-IV). With respect to the issues at issue in this case, there are no significant differences between the two editions, and my analysis will be based upon the criteria set forth in DSM-IV.

B. The Hearing

The hearing in this matter was convened in XXXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXXXXX. The record consists of 26 exhibits. The most significant of these exhibits are: Personal Security Interview (January 6, 1994) (Exh. 11), Psychiatric Evaluation by Dr. XXXXX (December 14, 1993) (Exh. 14), Personal Security Interview (June 22, 1993) (Exh. 15), Treatment Records for Anger Control Therapy, XXXXXXX County Mental Health Dep't (August 5, 1989) and Arrest & Conviction Records (January 14, 1989) (Exh. 23), and Letter of Reprimand (December 23, 1986) (Exh. 26).

Four witnesses testified at the hearing:

1. The respondent. While he was often excited and animated, I find his testimony to be reliable. He appeared candid in his statements, and he readily admitted unfavorable facts.

2. The respondent's wife. She appeared nervous, and there is a tendency for family members to testify favorably. However, nothing in her demeanor or in the evidence she presented indicate that her testimony was not reliable.

3. XXXXX. He has known the respondent since 1987. He was formerly the respondent's supervisor and may be his supervisor in the future, but he is not currently his supervisor. He knows the respondent fairly well and is qualified to give an opinion concerning the respondent's character and conduct at work.

4. XXXXX, M.D. Dr. XXXXX is a board certified psychiatrist who specializes in substance abuse. He has extensive experience in diagnosing and treating substance abuse, and he has published in this area. He is qualified to render an opinion on the respondent's use of alcohol. He seemed somewhat defensive when it was indicated that he had based his diagnosis upon some incorrect information.

During the course of the hearing, the respondent challenged the validity of Dr. XXXXX's diagnoses. He argued that the factual assumptions upon which the psychiatrist based his opinion were incorrect, exaggerated, or misinterpreted. He contended that Dr. XXXXX failed to consider mitigating circumstances. In addition, he testified that he has significantly curtailed his alcohol intake since his interview with Dr. XXXXX in December 1993.

II. Factual Analysis

A. Intermittent Explosive Disorder

Dr. XXXXX's diagnosis that the respondent suffers from IED was based upon several incidents. The first incident occurred at the respondent's place of work on December 16, 1986. A co-worker changed the respondent's calculations and then forged the respondent's signature to them. The respondent's calculations were correct and the co-worker's actions could have been an expensive mistake. The respondent was initially thought to have been responsible for the error and was taunted by another co-worker for having made a careless mistake. 1/ The respondent explained in the hearing that "it turned into a shouting match in a hurry. And I was loud, and I was abusive, and people, I suppose, for 50 to 100 feet heard every detail of it." Tr. at 57. The respondent contended that it is inappropriate to categorize his behavior as explosive. "No one was ever touched. The limit of my explosive behavior [was] saying rude and loud things." Tr. at 22. The respondent's supervisor subsequently placed a letter of reprimand in the respondent's file stating "[The respondent] and I have had another discussion today, on the dangers to his career of losing his temper, and the need for greater self-control. He understands the gravity of this incident and regrets his words." See Exh. 26 at 2. At the hearing, the respondent described that incident as having "extreme mitigating circumstances that fell within, I believe, acceptable norms of vocational acceptability considering the circumstances." Tr. at 15.

The second incident that formed the basis of the IED diagnosis was an altercation in 1989 between the respondent and a neighbor. The respondent's son, then age 11, and a neighbor's son got into a verbal argument, and the neighbor came out of the house and pushed the respondent's son to the ground a number of times. Upon returning home, the respondent saw that his son was upset, and went to confront the neighbor. When the neighbor opened the door, the respondent pulled him from the house and beat him for several minutes. "Just as fast as I could hit him. . . . I . . . was just whaling on him until I got tired." Tr. at 55. The neighbor did not suffer any serious injury. As a result of that altercation, the respondent was charged with First Degree Criminal Trespass (felony), Harassment (misdemeanor), and Third Degree Assault (misdemeanor). The respondent pled guilty to Second Degree Criminal Trespass, a misdemeanor. 1/ He said repeatedly he regretted beating his neighbor and has admitted that he instead should have reported the incident to the police. The respondent further feels that this incident resulted from extreme provocation and does not lend itself to a diagnosis of IED. Tr. at 54.

Dr. XXXXX also based his conclusion upon acts of violence that the respondent directed toward his wife and children. There were two principal incidents involving his wife. In one incident, both the respondent and his wife were seated. The respondent swung around in his chair and struck her leg with his foot while she was talking on the phone. "It left a terrible bruise. I didn't mean to hit her, because I was swinging around." Tr. at 60. "And . . . by my own definition, I had been drinking too much." Tr. at 61. His wife testified that "I was on the phone, and I was sitting at the table . . . . [the respondent] was trying to get my attention. And I think he thought I was ignoring him. And I was not ignoring him, I was trying to pay attention to the phone. And he was just going crazy. I mean, it must have been something important. . . . He kicked me in the leg." Tr. at 80.

In a second incident, the respondent's wife explains "I was sitting on the bed, and we were fighting and arguing. And he got mad, and, I believe, he was going to slap me, and I turned by head, and he hit me in the ear." Tr. at 81. In addition, the respondent concedes that there were approximately six incidents in their 23-year relationship in which he might have had minor unwanted physical contact with his wife. For example, this occurred when he took her by the shoulders and pushed her into a chair. He testified that there have been no such incidents for about six years. 1/ The last time the respondent struck one of his children was also about six years ago. The record indicates that he did not strike his children frequently, and only for disciplinary purposes.

The respondent's wife does not feel these incidents reflect anything abnormal in their relationship. She states that a report of an interview with her "made it sound like I was in an abusive situation, and I'm not. I'm not at all." Tr. at 87. The respondent felt that it was preposterous to describe his relationship with his wife as abusive. In the hearing, the respondent stated "as factual and regrettable as it is, and as unfortunate as what I'm about to say sounds, I believe . . . that it falls within the norm of a 23-year-old relationship." Tr. at 28.

While I do not agree that any marital violence is either acceptable or normal, all of the incidents cited in the Notification Letter took place more than six years ago. The record indicates that the respondent has been much less aggressive in recent years. I do not believe that events occurring that long ago are significant in evaluating the respondent's eligibility for a clearance.

Moreover, it is unclear whether the respondent has ever had IED. According to DSM-IV, the diagnostic criteria for IED that are relevant in this case are (i) several discrete episodes of loss of control of aggressive impulses resulting in serious assaultive acts or destruction of property, and (ii) the degree of aggressiveness expressed during the episodes is grossly out of proportion to any precipitating psychosocial stressors. The difficulty with these criteria is in determining whether an individual's reaction is disproportionate to the precipitating cause. Dr. XXXXX noted that this is a judgment call about which people might differ. He stated that he would not view the respondent's loss of temper to be a problem if he did not drink alcohol. 1/ Tr. at 205; Exh. 14 at 8.

These criteria require that there be serious assaultive acts or destruction of property. The respondent's fight with his neighbor meets these criteria. While there was some provocation, the respondent's reaction was unjustified and clearly out of proportion to that provocation. With respect to the incidents involving his wife, there is no evidence that the respondent ever intended to inflict any significant injury or that any serious injury resulted. Nevertheless, yelling at the co-worker (even though there was some provocation) and striking his wife constitute unacceptable conduct. These incidents, however, do not appear to satisfy the DSM-IV requirement that they be "serious assaultive acts." There is no evidence that the respondent's discipline of his children was not unduly harsh and falls within the scope of what many believe is reasonable. I conclude that the respondent does not meet the definition of IED as set forth in the DSM-IV. Nonetheless, I note the criteria in DSM-IV are only guidelines to whether an individual has a particular mental condition and are not determinative on whether an individual should receive a security clearance. 1/ In the present case, given the length of time since the respondent had a serious loss of his temper, I find no reason to believe that he is currently a security risk based upon lack of ability to control his temper.

B. Alcohol Abuse

Dr. XXXXX's primary concern is with the respondent's alcohol consumption. In common with all types of substance abuse, alcohol abuse is characterized by "a maladaptive pattern of substance use" which by repetition leads to significant and repeated "adverse consequences." DSM-IV at 182. In particular, if in any given twelve month period repeated alcohol use has, either:

(1) led to a failure to "fulfill major role obligations at work, school or home," or

(2) occurred in physically hazardous situations such as driving a car, or

(3) produced legal problems, or

(4) continued even though it has repeatedly caused or worsened "social or interpersonal problems."

In making his diagnosis of alcohol abuse, Dr. XXXXX relied on the last of these criteria. Tr. at 199. 1/ He based his diagnosis primarily upon eight factors:

1) the respondent's consumption of approximately 15 ounces of wine per evening (three 5 ounce glasses) and double that amount two or three times a month, in addition to occasional larger amounts;

2) the respondent's statement that during the last 15 years he has drunk to the level of intoxication "lots and lots and lots;"

3) That the respondent drank heavily while a Marine stationed in Vietnam between 1965 and 1969;

4) That the respondent has on many occasions lost control over his drinking and has lost track of his intake;

5) That the respondent "has had multiple affective changes under the influence of alcohol." Dr. XXXXX supported this with the respondent's statement that he would not have "struck out" at his family ninety-five percent of the time but for the drinking;

6) That the respondent once tested himself by suspending his drinking. After not suffering withdrawal symptoms, he continued with his usual pattern of alcohol intake.

7) Worries expressed by the respondent's wife and mother over his alcohol intake;

8) A family history of alcohol problems in that the respondent's father is an alcoholic.

Exh. 14 at 7-8; Tr. at 136-47. Dr. XXXXX testified that these factors had to be viewed as an interrelated whole. Tr. at 181. No one factor would lead to his diagnosis. Tr. at 147. He also noted that the respondent had shown inadequate evidence of rehabilitation. Exh. 14 at 8. He therefore recommended that the respondent abstain totally from alcohol use for at least one year and attend Alcoholics Anonymous and the DOE Employee Assistance Program. Id.

At the hearing, the respondent sought to rebut the factual bases of Dr. XXXXX's findings. In addition, he testified that since his December 1993 meeting with Dr. XXXXX, he has substantially curtailed his drinking. Tr. at 38, 72. He now consumes about one glass of wine per evening on a "terribly, horrible parceled out little basis," five nights a week for a total of approximately one bottle per week. Tr. at 72, 194; Exh. 11 at 18. The respondent admitted that he did this primarily in response to concerns over his security clearance being suspended. Tr. at 38, 216-17. The respondent states that he has not sought any help for his drinking as Dr. XXXXX recommended, since he believes he does not have a drinking problem. In considering these matters, I will examine each of the factors that Dr. XXXXX relied upon in reaching his opinion.

Factor 1 The first factor cited by Dr. XXXXX concerns the respondent's alcohol consumption and was not disputed. From 1978 through late 1993, the respondent consumed an average of 15 ounces of wine each evening. 1/ He would commence drinking with dinner and would consume the wine over a period of several hours. Exh. 15 at 44-45; Tr. at 66. Once or twice a month on the weekend he would drink a full bottle of wine. He would commence drinking at a mid-day dinner and would consume the wine over about six hours. Tr. at 70-71; Exh. 14 at 4. The respondent's wife routinely joined him in sharing the wine. The respondent occasionally drinks as many as two bottles in a sitting. The last time this occurred was at wine tasting on Bastille Day, 1990. As noted above, the respondent has sharply curtailed his alcohol intake since his interview with Dr. XXXXX in December 1993. He now consumes about one bottle (five glasses) per week. 1/ The respondent generally does not drink wine or other alcohol during his extended vacations to the Far East because he believes the wine is of inferior quality. Tr. at 36-37, 66-67.

Factor 2 The respondent strongly disagreed with Dr. XXXXX's statement that he admitted to drinking to intoxication "lots and lots and lots." He claims that this statement resulted from a misunderstanding between him and Dr. XXXXX. Dr. XXXXX testified that his normal practice is to go to great lengths to establish the patient's definition of intoxication and use that definition throughout the interview. Tr. at 137, 211-12. The respondent agrees that Dr. XXXXX made an inquiry of his view of intoxication, which he defined as "'[w]hen your judgement is impaired¾where your motor skills are diminished.'" Exh. 14 at 5; Tr. at 173. However, the respondent contends that Dr. XXXXX then noted that a person's judgment could become impaired after as little as one or two drinks. Tr. at 173. The respondent testified that he inferred that Dr. XXXXX wished to define intoxication as having one or two drinks. When asked how often he became intoxicated, he responded with the number of times that he had had one or two drinks. Since he had a glass or more of wine nearly every evening, his response was "lots and lots and lots." He testified that he does not and did not drink to intoxication "lots and lots and lots" under his impairment/diminishment definition. Indeed, both the respondent and his wife testified that he has only been intoxicated a handful of times since his discharge from the Marine Corps, most recently at a wine tasting on Bastille Day, 1990. Tr. at 39, 75.

While no verbatim record of the interview exists, I do not doubt that Dr. XXXXX attempted to ensure that he and the respondent were using the same definition of intoxication during the interview. However, I also find the respondent's testimony in this regard to be credible and that there was a misunderstanding on what was meant by intoxication. Accordingly, I find that the respondent did not admit to drinking to intoxication numerous times as set forth in Dr. XXXXX's report.

Factor 3 This factor relates to the respondent's service in the Marines from 1965 through 1969. Two of those years were spent in Vietnam. While there, the respondent "drank every ounce of alcohol I could get my hands on." Tr. at 176; see also Exh. 15 at 47. He drank to intoxication during this period twice a month. Exh. 14 at 4. After his discharge from the Marines, the respondent drank virtually nothing until 1973. Id. At that point, he began drinking wine regularly. The amount of his intake slowly increased until he reached a fairly consistent level of consumption in 1978. Id. This drinking was a quarter-century ago under extreme conditions not applicable to his present station. Tr. at 176. I agree with Dr. XXXXX, however, that it may be important for understanding the pattern of the respondent's history with alcohol.

Factor 4 The fourth factor concerns the loss of control over and count of alcohol intake. The respondent contests Dr. XXXXX's statement that he has on several occasions lost control over and count of his alcohol intake. Dr. XXXXX based this on the respondent's response to his question during the psychiatric evaluation, "have there been times when you planned to have just one or two, and you drank significantly more than you planned to, so that you were surprised by the loss of control over your intake." Tr. at 141. Dr. XXXXX recorded the respondent's reply as "Yeah, as a matter of fact, when I pour the fourth glass of wine and [his wife] says 'I haven't had one yet.' I don't feel impaired or anything like that¾I don't recall having snorted down two." Exh. 14 at 5. Dr. XXXXX explained that this shows both a loss of count and control of alcohol consumption. Tr. at 142. The respondent puts a much more innocent spin on this statement. He contends that he is always in control of his drinking, and it merely means that it is the last glass of wine in the bottle and his wife would like to have it. Tr. at 35-36.

I agree with Dr. XXXXX that this statement implies that the respondent may occasionally be unaware of how much he has consumed. It is unclear whether this is because he has lost track of his consumption or whether he was making no effort to keep track of how many glasses he has consumed. There is also no evidence of how frequently this has occurred. I find no reason to believe that it implies that he has lost control over his drinking.

Factor 5 The conclusion that multiple social and interpersonal problems resulted from alcohol was based in part on a misunderstanding between Dr. XXXXX and the respondent. Dr. XXXXX relied upon the respondent's statement in the psychiatric exam that ninety-five percent of the incidents of his striking his wife or family would not have occurred had he not been drinking. Exh. 14 at 8. The respondent contends that Dr. XXXXX misunderstood what he told him. He testified that he meant merely that most of the family altercations occurred in the evening and that he drank wine nearly every evening. He contends that he did not intend to imply that there was a causation between his alcohol consumption and his acts of aggression. Tr. at 192, 193. 1/ I accept the respondent's explanation of this statement.

Nevertheless, the respondent has admitted that alcohol occasionally takes away his good judgment and inhibitions. Tr. at 62, 180; Exh. 14 at 5. In addition Dr. XXXXX has testified that excessive consumption of alcohol can result in increased aggressiveness that could manifest itself even when an individual has not been drinking. He explained, that even though the respondent had not been drinking when he had the altercations with his neighbor and co-worker, his pattern of high alcohol consumption could have contributed to these incidents. He stated that this is why his diagnosis of IED is tied to the respondent's drinking habits.

On the other hand, the respondent's former supervisor testified to his good record as an employee and that he has never thought alcohol interfered with the respondent's work. Tr. at 110. Furthermore, the respondent's wife testified that with the exception of the kicking incident, she feels alcohol played no significant role in their family life or arguments. Tr. at 95, 96.

I find scant evidence to support Dr. XXXXX's conclusion that the respondent's alcohol consumption has caused multiple affective changes that have interfered with his life. Neither the respondent nor his wife believe that alcohol has interfered with their lives, and there is no evidence that alcohol has adversely affected his conduct at work. While Dr. XXXXX's has asserted that excessive alcohol intake can contribute to general aggressiveness, whether it has done so in the case of the respondent is highly speculative. As the respondent has admitted, alcohol has upon some occasions taken away his inhibitions. However, there is no evidence that this has occurred frequently and, most importantly, there is no evidence of seriously aggressive behavior during the last six years.

Factor 6 The respondent experimentally went off alcohol for two and one-half weeks and, when he experienced no cravings, resumed his normal pattern of consumption. The respondent vigorously disputes the use of this "test" withdrawal of alcohol use as evidence of alcohol abuse. Tr. at 67. Dr. XXXXX explains that setting up a test that can be passed, in this case a test of alcohol dependence, is symptomatic of alcohol abuse, because it supports the alcohol abuser's denial of his problem. Exh. 14 at 8; Tr. at 206-07. The respondent states that he only partook of this experiment out of intellectual curiosity. Tr. at 209. Dr. XXXXX notes that the curiosity must have had a stimulus, such as the worry that one is indeed alcoholic. Tr. at 143, 145.

I do not find the respondent's explanation that the test was done solely out of intellectual curiosity to be convincing. Tr. at 209. He has admitted that he tried abstaining because he wanted to see if he had a craving for alcohol. 1/ While I agree with Dr. XXXXX that abusers of alcohol might experiment with abstinence, it is possible that someone who does not abuse alcohol might also try abstinence. The fact that the respondent has been able to stop drinking for periods of time does not necessarily mean he does not abuse alcohol.

Factor 7 Dr. XXXXX noted the respondent's wife and mother were concerned about his drinking. This is relevant since family members are most likely to notice if one has a drinking problem. The respondent asserts that Dr. XXXXX misunderstood the statements of his wife and his mother as to their concern over his alcohol consumption. His mother, he explains, is essentially a "teetotaler" because her husband is an alcoholic. He states that she would object to anything over a de minimis consumption of alcohol. Tr. at 33; Exh. 11 at 17. I credit the testimony that the respondent's mother would express her concern about any but the smallest intake of alcohol because of her alcoholic husband. Under these circumstances, I will give no weight to the fact that his mother complains about his alcohol intake.

As to his wife, there have been some instances where she has pointed out that he has consumed too much wine. Tr. at 34. I find credible, however, the testimony of the respondent's wife that she is not concerned about her husband's overall alcohol use. Tr. at 87.

Factor 8 The last factor cited by Dr. XXXXX was the fact that the respondent's father is an alcoholic. This is thought to increase the risk of the respondent being alcoholic. However, a recent study challenges the genetic component of alcoholism and indicates that a family history of alcoholism may not be predictive of whether an individual will have an alcohol problem. See Washington Post, Health Section, at 5 (March 7, 1995) (citing article by S. Kashubeck, L. Mintz & L. Tracy in J. of Counseling Psychology (January 1995)). While there is no consensus on whether there is a genetic component to alcoholism, the majority view remains that a family history of alcohol problems increases the likelihood that an individual will also have problems with alcohol.

III. Evaluation of the Evidence

With respect to control of his temper, the respondent concedes that it may have caused him problems in the past. Nevertheless, he states, and his wife concurs, that he has mellowed with age and has not had problems recently. Tr. at 92, 101, 104. This is supported by the record which indicates that there were only a small number of isolated incidents of excessively aggressive behavior and the last was six years ago. Dr. XXXXX based his diagnosis upon the assumption that the last incident of violence with the respondent's wife was in 1991. The diagnosis was closely related to his alcohol consumption, and he has significantly reduced his consumption since that time. Moreover, Dr. XXXXX does not appear confident of his diagnosis in this regard. He views the respondent's ability to control his temper to be related to his alcohol consumption. He testified that "it is possible that [the respondent] do[es] not have that diagnosis" Tr. at 188. In view of the evidence presented in this case, I find an insufficient basis to conclude that the respondent currently suffers from IED. To the extent that the respondent may have had a problem with his temper in the past, I find that it is not currently a problem. Such a behavioral change must be considered in evaluating his fitness for a clearance. 10 C.F.R. § 710.7(c). I therefore find that the alleged inability of the respondent to control his temper does not constitute a significant defect in his judgment or reliability.

With respect to alcohol abuse, I find that Dr. XXXXX based his conclusion of alcohol abuse, upon a number of incorrect factual predicates that resulted from misunderstandings and miscommunications. The incorrect factual assumptions upon which Dr. XXXXX based his diagnosis call serious question whether that diagnosis was accurate when made.

Factor 1 of Dr. XXXXX's report is the most important and the statement of the respondent's average consumption as stated in that factor was accurate. However, the respondent does not describe himself as drinking to intoxication "lots and lots and lots," as Dr. XXXXX assumed in Factor 2. The record indicates that the last time he drank to what he believes was intoxication was in 1990. Dr. XXXXX's characterization of the respondent's drinking when he was a Marine is not contested. However, this was two and one-half decades ago under the extraordinary situation presented by being a soldier under the stress of wartime conditions. Accordingly, Factor 3 is of little value in assessing the respondent's condition. While the respondent may have occasionally lost count of how many drinks he has consumed, there is insufficient evidence to assume that he has lost control over his drinking as set forth in Factor 4. The respondent has not, as stated in Factor 5, acknowledged that he would not have struck out at family members had he not been drinking. The respondent, however, has stated that alcohol sometimes loosens his inhibitions and may have resulted in some problems. Nevertheless, there is no evidence that his alcohol consumption has caused serious difficulties in recent years. I agree with Dr. XXXXX that the respondent's testing himself to see if he could stop drinking implies that he thought he might have an alcohol problem. Factor 6, therefore, should be given moderate weight. Contrary to the assertions in Factor 7, his wife has no concerns about his overall alcohol consumption, and his mother's concerns are of little relevance, since she would be concerned about any alcohol consumption. The alcoholism of the respondent's father is entitled to moderate weight. Finally, the DSM-IV standard for alcohol abuse, which I set out above, calls for an application of its four criteria to facts occurring within a twelve month period. However, the record discloses that nearly all of the social or interpersonal problems that the respondent may have experienced occurred at least six years ago.

It is not necessary for me to determine whether Dr. XXXXX's diagnosis of alcohol abuse was correct when he rendered it. Subsequent to his interview by Dr. XXXXX, the respondent drastically reduced his alcohol intake. Current consumption was highly relevant to his diagnosis. I asked Dr. XXXXX what his diagnosis would be given the generally changed factual predicates described above. He stated that "certainly his current pattern is not an abusive one." 1/ Tr. at 202. I agree with that assessment.

IV. Summary & Conclusion

I am to resolve the question of the respondent's eligibility for an access authorization by a "comprehensive, common-sense judgment, made after consideration of all the relevant evidence," 10 C.F.R. § 710.7(a), employing the factors enumerated in 10 C.F.R. § 710.7(c). 1/ The security concern involved in cases where an individual may be unable to control his impulses is that it may indicate poor judgment or may make the individual unreliable. For example, a person might become angry and leave his office to confront someone without properly securing classified information. Alcohol abuse presents concerns that an individual may, under the influence of alcohol, say or do something that would compromise national security. In addition, the fact that an individual abuses any substance calls into question that individual's judgment.

I find that the evidence in the present record does not add up to alcohol abuse endangering the common defense and security. As discussed above, much of the derogatory information upon which the Notification Letter and Dr. XXXXX's diagnosis were based was incorrect. By far the most important fact in reaching my conclusion is the respondent's drinking pattern over the last 15 months. This is a substantial reduction in alcohol consumption. 1/ Dr. XXXXX states that this level of intake is not abusive. Even assuming that his prior pattern were abusive, the respondent has maintained a non-abusive pattern of alcohol consumption for 15 months. Thus, the nature and seriousness of the condition is significantly diminished. 1/ This qualifies as reformation and is certainly a pertinent behavioral change within the meaning of section 710.7(c). I also do not find support for the allegation that control of his temper is a problem. The aggressive acts upon which that diagnosis is based all occurred more than six years ago and there is evidence that the respondent has "mellowed" over the years. The age and relative lack of severity of most of these incidents lead me to conclude that they do not indicate that he is now a security risk.

After carefully considering all of the relevant information in the record, including the facts enumerated above and the section 710.7(c) factors, I have come to the opinion that restoring the respondent's clearance would not "endanger the common defense and security" and that it "would be clearly consistent with the national security." 10 C.F.R. § 710.7(a). Therefore, I am of the opinion that the respondent's access authorization should be restored.

Bryan MacPherson

Hearing Officer

Office of Hearings and Appeals

/ A "Q" access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this opinion as an access authorization, security clearance, or "Q" clearance. / DOE regulations classify as derogatory information any information that indicates that an individual has "an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability. 10 C.F.R. § 710.8(h). / DOE regulations classify as derogatory information that an individual has "[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse." 10 C.F.R. § 710.8(j). / The Notification Letter incorrectly states that the verbal argument was with the employee who forged the respondent's signature. The argument was with another co-worker who taunted him about the incident. / He was sentenced to probation and referred to anger control therapy at the XXXXXXX County Mental Health Department. It is unclear whether his sentence required him to attend therapy, but he discontinued attendance after four sessions. He informed the prosecutor that while he agreed that some form of therapy could be helpful to him, he did not believe the therapy he was receiving was useful. Exh. 15 at 10-12. / Dr. XXXXX based his findings upon the belief that the last time the respondent had struck or otherwise touched his wife in an unwanted fashion was around Christmas 1991. This was based upon a report provided to Dr. XXXXX of an interview of the respondent's wife conducted by a security investigator. The respondent's wife explained that the interviewer appeared without an appointment and demanded that the interview be conducted immediately, even though she was busy on a work project. She stated that "I'm very bad at dates. I just felt like I was being pumped, and words were being put in my mouth. All I could think of was, my God, there are people [at work] waiting for me to hurry and get back." Tr. at 85. I therefore accept the respondent's testimony that the last such incident was six years ago. / Dr. XXXXX stated that alcohol can contribute to aggressive behavior even if a person is not under the influence when he commits an act, since excessive alcohol consumption could result in a heightened sense of irritability. He emphasized that "[T]he important thing is to stay off the alcohol, because that is the aggravating situation." Tr. at 154-55. / The fact that an individual might not meet the criteria for a particular diagnosis does not mean that he does not have a mental condition that calls into question his eligibility for an access authorization. Similarly, the fact that an individual might fall within the definition of a particular condition does not necessarily imply that he should not receive a clearance. The ultimate test is whether in view of all of the relevant factors, the individual represents an acceptable security risk. For example, there are degrees of alcohol abuse. Assuming that the respondent were consuming the same level of alcohol that he was when interviewed by Dr. XXXXX and that he was properly diagnosed as an abuser of alcohol, this would not necessarily require the conclusion that restoration of his clearance would endanger the national security. Given the degree to which he was abusing alcohol, it might still be appropriate to determine that his clearance should be restored. / There are two types of alcohol-related disorders: alcohol dependence and alcohol abuse. Dr. XXXXX explained that alcohol abuse "is that form of alcoholism which involves a pattern of use that may interfere with significant life areas without there being physical dependence on the substance." Tr. at 197. Only alcohol abuse is at issue in this case. Alcohol dependence, which involves physical dependence where ceasing use of alcohol may lead to withdrawal symptoms, is a much more serious condition. DSM-IV at 182-83, 196. / A standard bottle of wine contains 750 ml. (25.36 ounces) or approximately five 5 ounce glasses. The respondent consumes wine, almost exclusively. He has a little beer, mainly during the summer, totaling perhaps six to twelve bottles of beer per year. He drinks almost no hard liquor. Tr. at 37, 75; Exh. 15 at 45. / The effect of a given amount of alcohol on the body depends upon a number of factors including the amount consumed, the time period over which it was consumed, whether it was consumed with food, and the body weight of the individual. The respondent weighs about 200 pounds. As this is a somewhat above average body weight, alcohol would tend to have a lesser impact on him than a person of average weight. / The respondent states there is only one occurrence of striking his wife one time after drinking¾when he kicked her to get her attention while she was on the telephone. Tr. at 60-61. This is the only act that he admits to committing while being intoxicated. Tr. at 193. / The respondent has previously stated: "I tried to quit, you know, about three years ago because I was afraid that . . . it was affecting my life." Exh. 11 at 17. See also Exh. 14 at 6 (Individual states abstinence was to determine if he had a craving for alcohol after two and one-half weeks). I accept the respondent's contention that his abstaining from alcohol while on trips abroad was because of the low quality of wine that he encountered on his trips, and that it was not part of any "test." / It is unclear, whether in view of the incorrect factual predicates upon which he based his initial diagnosis, Dr. XXXXX believes that his diagnosis was correct at the time he made it. He stated, however, that he could not take his current consumption in a vacuum, and he believes that the respondent's continued use of alcohol is high risk behavior. Tr. at 201-08. / The text of section 710.7(c) states that: In resolving a question concerning an individual's eligibility for access authorization, all DOE officials involved in the decision-making process shall consider: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of 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. / The respondent has indicated that he will increase his alcohol intake if his clearance is restored, although not to his previous levels. While some increase may be allowable, returning to previous levels of consumption would be somewhat disturbing. I need not decide in the present case whether the respondent would be entitled to retain his security clearance if he had returned to his prior level of consumption. / DOE's Adjudicative Guidelines (April 1994) indicate that a mitigating factor for alcohol abuse is abstinence for a period of 12 months. These are only guidelines, not binding rules to be followed blindly. While in most cases of alcohol abuse, total abstinence will be necessary, since the individual may be unable to maintain any moderate level of consumption. However, I believe it is a sufficient showing that the respondent has been able to maintain a reasonable level of consumption for 12 months. - 18 -