Case No. VSO-0014, 25 DOE ¶ 82,755 (H. O. Augustyn May 8, 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: December 7, 1994

Case Number: VSO-0014

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "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." Seven months ago, the individual's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) pursuant to the provisions of Part 710. In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.

I. Background

The individual has been employed by XXXXX (XXXXX), the DOE contractor that operates the XXXXX Plant, in XXXXX, Tennessee, for the last XXXXX years. During this time, the individual received a "Q" clearance from the DOE enabling him to work at the facility. In early 1994, the individual reported his recent arrest for aggravated assault to the DOE/XXXXX. This revelation prompted the DOE to conduct a personnel security interview with the individual. Information gleaned during the interview caused the DOE/XXXXX to request a mental evaluation of the individual by a board-certified psychiatrist. Following the issuance of the psychiatrist's evaluation, the Director of the Personnel Security Division of the DOE/XXXXX determined that information uncovered as the result of its inquiry into the circumstances surrounding the individual's arrest, coupled with other information already contained in the individual's Personnel Security file, was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On November 3, 1994, the DOE/XXXXX commenced the administrative review proceeding by issuing a letter to the individual notifying him that the DOE possessed information which created a substantial doubt concerning his continued eligibility for a "Q" access authorization. See Letter from XXXXX, Deputy Manager, DOE/XXXXX, to the individual (November 3, 1994) (hereinafter this letter will be referred to as the "Notification Letter"). The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of three criteria set forth in 10 C.F.R. '' 710.8, i.e. (h), (j), and (l). In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

On November 8, 1994, the individual filed with the Manager of the DOE/XXXXX a request for a hearing concerning this matter, together with a response to the allegations set forth in the Notification Letter. The DOE/XXXXX transmitted the individual's hearing request to the OHA Director pursuant to the provisions of 10 C.F.R. ' 710.25(a) on December 7, 1994. The OHA Director appointed me as Hearing Officer in this case on December 13, 1994. I convened a hearing in this matter in XXXXXXXXXXXXXXXXXXXX, on XXXXX. See 10 C.F.R. '' 710.25(e), and (g).

At the XXXXX hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following four witnesses to testify on his behalf: Dr. XXXXX, a clinical psychologist; Ms. XXXXX, the individual's girlfriend; XXXXX, the individual's supervisor; and Ms. XXXXX, a union steward and a co-worker of the individual. The DOE/XXXXX presented only one witness at the hearing, Dr. XXXXX, a board-certified psychiatrist.

Two procedural matters of significance occurred at the hearing which merit mentioning. The first concerns a request advanced by the individual's attorney at the beginning of the hearing to strike certain material from the record of the administrative file in this case. The material at issue is contained in a Transcript of Personnel Security Interview which the DOE conducted with the individual in 1986 (hereinafter referred to as "1986 PSI Transcript" and cited as "PSI Tr. (1986)"). The DOE Counsel did not object to the proposed Motion to Strike. 1/ After considering the request, I ruled at the hearing that the Motion to Strike should be granted, finding that the material in question, i.e. pages 1-10 and the first 15 lines of page 11 of the 1986 PSI Transcript, has no bearing on the issues before me and that its inclusion in the record could prejudice the individual.

The second matter of note is my ruling at the conclusion of the hearing that the taking of a post-hearing deposition of Dr. XXXXX, a psychiatrist who had treated the individual on a number of occasions prior to the hearing, would be appropriate. It was my opinion that the best evidence concerning the individual's rehabilitation prospects might reside with Dr. XXXXX, and the parties agreed to attempt to secure that deposition no later than April 7, 1995. One month after the hearing, however, the individual's attorney advised that it would be impossible to depose Dr. XXXXX as he was retiring from his medical practice and relocating to Alaska. See Letter from XXXXXXXXXXXXXXXX, Counsel for the individual, to Ann Augustyn, Hearing Officer (March 24, 1995). The individual's counsel then requested permission for the individual to be seen by another psychiatrist, arguing that the new psychiatric examination would provide a complete record upon which I could render my opinion concerning the individual's access authorization. I denied the request, opining that only Dr. XXXXX might have prior first hand knowledge about the individual's medical condition which might be of value in assessing the individual's current medical state and prospects for rehabilitation. See Letter from Ann Augustyn, Hearing Officer, to XXXXXXXXXXXXXXXX, Counsel for the individual, and Donald Thress, Counsel for DOE/XXXXX (April 4, 1995). For this reason, I concluded that no other psychiatrist could stand in Dr. XXXXX=s stead. In making this ruling, I also found merit to the position advanced by DOE Counsel that in the absence of Dr. XXXXX's post-hearing statements, the parties should be required to rest on the evidence presented at the hearing. 1/

II. Regulatory Criteria At Issue

As noted above, the Notification Letter issued to the individual on November 3, 1994, included a specific description of information in the possession of the DOE that the agency regards as derogatory and which, in the opinion of the DOE, creates a substantial doubt as to the individual's eligibility to hold a "Q" clearance. According to the Notification Letter, the information can be categorized as falling within the ambit of three regulatory criteria, subsections (h), (j), and (l) of 10 C.F.R. ' 710. 8. Criterion (h) concerns information which reveals that a person has:

[a]n 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). Criterion (j) describes information that a person 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). Criterion (l) pertains to information evidencing that a person has:

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. ' 710.8(l). The specific security concerns attendant each criterion set forth above and the factual bases supporting DOE's invocation of each will be discussed at appropriate junctures in this Opinion.

III. Findings of Fact

Most of the relevant facts in this case are uncontested. With respect those facts that are in dispute, I will note them as appropriate in this Opinion and explain the significance, if any, I attach to them. Based on my consideration of all the evidence in the record in this proceeding, which includes the transcript of the XXXXX Personnel Security Hearing (hereinafter cited as "Hearing Tr."), the documents submitted to OHA by DOE/XXXXX in connection with that hearing, and all other papers filed with me by the parties, I make the following findings of fact.

For more than a decade, the individual, a XXXXX-year-old male, has habitually consumed alcohol to excess. PSI Tr. (1986) at 11-20. In 1983, the individual entered an inpatient alcohol treatment facility for the first time. Id. at 12-13. At that time, the individual was consuming slightly more than one-fifth of vodka per day. Id. at 13. The individual spent two months at the treatment facility, and was advised by the medical personnel there never to drink again. Hearing Tr. at 88. For approximately one and one-half years after his discharge from the inpatient treatment facility, the individual participated in Alcoholics Anonymous (AA). PSI Tr. (1986) at 21. For the three year period 1983-86 the individual either abstained totally from drinking alcohol or consumed it in modest amounts. See Transcript of Personnel Security Interview dated March 14, 1994 at 16 (hereinafter this transcript will be referred to as "1994 PSI Transcript" and cited as "PSI Tr. (1994)"). In June 1986, the DOE/XXXXX conducted a personnel security interview with the individual at which time he discussed his prior use of and involvement with alcoholic beverages. PSI Tr. (1986) at 11-22. During the interview, the DOE/XXXXX queried whether the individual could foresee himself in the future "falling back to old habits or the same pattern" he had engaged in before undergoing treatment for his alcohol problem. Id. at 22. The individual responded, "sure, can't," explaining later in the interview that he has gained "control" of himself. Id. at 22-23. The individual also revealed at that time that he drank because he was depressed. Id. at 14-15. The DOE/XXXXX asked the individual what triggered his depression. PSI Tr. (1986) at 15. The individual responded that his depression stemmed from "family problems." Id.

Sometime in 1986, the individual resumed drinking alcohol. PSI Tr. (1994) at 16-17. For the next year, the individual consumed one or two shots of vodka each week night evening and one-fifth of vodka each weekend. Id. Then, in 1987, the individual met a woman who persuaded him to stop drinking alcohol once again. Id., Hearing Tr. at 59, 89. The individual abstained from alcohol for a five-year period until 1992 when he and the woman parted ways. Hearing Tr. at 89.

During the period, 1992-93, the individual's excessive drinking caused him to experience periods of confusion, memory loss and blackouts. PSI Tr. (1994) at 20-21. Sometime during this time frame, the individual sought medical treatment for some form of depression. Id. at 28-29. The individual's physician prescribed anti-depressant drugs to control the individual's mental illness, but the individual stopped taking the drugs without the knowledge of the treating physician. Id. The individual explains that he discontinued his medication from time to time because of side effects. Id., Hearing Tr. at 119. In November 1993, the individual exhausted his supply of medication and stopped taking it. PSI Tr. (1994) at 30. The individual reports that the prescribing physician was unaware in November 1993 or thereafter that the individual had ceased taking the anti-depressant medication.

On December 31, 1993, the individual consumed one-fifth of vodka during a 13-hour period. Id. at 12. While intoxicated, the individual quarreled with his brother who was also in an inebriated state. Id. at 4-6. The altercation ended when the individual shot his brother with a 12-gauge shotgun. Id. at 6. The individual's recollection of the details leading up to the shooting incident is vague as he claims he experienced alcohol induced memory loss or "blackout" during and immediately after the incident. Hearing Tr. at 103, 113-115. The individual was arrested that night by the police and charged with aggravated assault. DOE Exhibit 10. On January 3, 1994, the individual notified the DOE of his arrest on these charges. PSI Tr. (1994) at 4.

On February 8, 1994, the individual appeared in court on the assault charge stemming from the December 31, 1993 shooting incident. PSI Tr. (1994) at 10-11. The day before his court appearance, the individual consumed one-fifth of vodka over a 12-to 13-hour period with the express purpose of getting drunk. PSI Tr. (1994) at 19, 21. At trial, the individual pled guilty to simple assault. DOE Exhibit 11. The court suspended the individual's sentence of 11 months and 29 days in jail, and ordered the individual to "enter and complete treatment for his substance abuse problems and for his depression problems." Id.

The individual entered XXXXXXXXX Hospital (XXXXXXXXX) on February 11, 1994, where he was admitted to the hospital's Adult Chemical Dependency Unit for treatment of his alcoholism and depression. DOE Exhibit 9 at 1. Upon entering the hospital, the individual was diagnosed with depressive disorder and alcohol dependence. Id. at 2. The hospital discharged the individual on February 28, 1994, with a guarded prognosis. Id. The discharge summary from the hospital explained that the individual's prognosis depended on his attending 90 AA meetings in 90 days, obtaining a sponsor, and attending Aftercare at XXXXXXXXX whenever possible. Id. While the exact number of AA meetings the individual attended during the time immediately after his release from XXXXXXXXX is unclear, it appears he attended no more than three meetings per week. PSI Tr. (1994) at 24. The individual explained that his schedule did not permit him to attend the meetings on a daily basis, as suggested by the hospital. Id. at 24-25.

Sometime prior to the DOE/XXXXX's personnel security interview with the individual in March 1994, the individual met with a doctor at the XXXXX plant who opined that the individual's depression was returning and that he would require medication to control the problem. Id. at 28. On June 27, 1994, the individual met with Dr. XXXXX, a board-certified psychiatrist, who evaluated the individual at the request of the DOE. DOE Exhibit 8 at 1. Based on his clinical interview of the individual and the results of the MMPI-II, a psychological screening test, Dr. XXXXX diagnosed the individual as suffering from "Major Depression Recurrent," and "Alcohol Dependence." Id. at 2. Dr. XXXXX's opinion is that the individual would require two years of sobriety before he might attain rehabilitation or reformation. Id. at 3. With respect to the individual's depression, the psychiatrist indicated that the individual may do well with medication, but at the time of the evaluation, he was still exhibiting significant depressive symptoms. Id.

At the hearing, Dr. XXXXX, a clinical psychologist employed by XXXXX, provided his opinion that the individual requires 18 months of sobriety before he can be considered rehabilitated. Hearing Tr. at 48-49. In addition, Dr. XXXXX stated that in his opinion the shooting incident was not totally alcohol-related. Id. at 47. Rather, he opined that at the time of the incident the individual was experiencing a major depression. Id. Dr. XXXXX concluded, however, that the prognosis for the individual's depression is "very good." Id. at 40.

IV. Analysis

The applicable DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. ' 710.7(a). Among the factors I will consider in rendering a determination concerning the individual's access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. '' 710.7(c), 710.27(a). It is the totality of these facts and circumstances that will guide me in evaluating whether the individual's access authorization should be restored. As will be discussed below, after careful consideration of the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the DOE/XXXXX properly invoked the three criteria cited in the Notification Letter in suspending the individual's "Q" clearance. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying those three criteria. Therefore, it is my opinion that the individual's access authorization should not be restored.

A. The Individual's Alcohol Use

The DOE/XXXXX relies on 10 C.F.R. ' 710.8(j) as one of the bases for suspending the individual's "Q" access authorization. To support its contention that the individual uses alcohol habitually to excess and is alcohol dependent, the agency highlights the following four sources of its information: the 1994 PSI Transcript, the 1986 PSI Transcript, a Report dated July 7, 1994, signed by Dr. XXXXX, memorializing Dr. XXXXX's professional opinion based on his psychiatric evaluation of the individual 10 days earlier, and medical treatment records and discharge summary obtained from XXXXXXXXX, the inpatient facility that most recently treated the individual for this alcoholism and depression.

According to the DOE/XXXXX, the information obtained as the result of the March 1994 PSI with the individual reveals that the individual has a lengthy history of habitually using alcohol to excess to the point of intoxication or impairment. As additional support for its position, DOE/XXXXX points to the sworn statements made by the individual during the 1986 PSI in which he discussed his use of and involvement with alcoholic beverages. Moreover, the DOE/XXXXX submits that the individual's medical records and his discharge summary from XXXXXXXXX confirm that the individual was diagnosed by that facility as being "Alcohol Dependent." In addition, the DOE/XXXXX relies on the opinion of the board-certified psychiatrist who examined the individual at the request of the DOE in June 1994 and who opined in writing and at the hearing that the individual is suffering from, among other things, Alcohol Dependence. Finally, the DOE/XXXXX focuses on the psychiatrist's opinion that the individual's alcohol dependence will adversely affect the individual's judgment and reliability in a security context.

1. The Individual Has Abused Alcohol Extensively and Has Been Diagnosed by a

Board-Certified Psychiatrist as "Alcohol Dependent."

It is quite clear from the evidence in the record that the individual's alcohol affliction can accurately be characterized as falling within the criterion set forth in 10 C.F.R. ' 710.8(j). First, the individual readily admits that he is an alcoholic. Response to Notification Letter; Hearing Tr. at 79. In addition, it is undisputed that the individual's excessive alcohol consumption over a period of many years has impaired his mental abilities to the point where he has experienced memory loss, confusion, and blackouts. The most noteworthy example of the devastating consequences flowing from the individual's excessive drinking and attendant memory loss is the incident in which the individual shot his brother. This incident demonstrates that the individual's judgment becomes clouded when under the influence of alcohol and that he may be prone to unusual behavior. It also illustrates the difficulty the individual may encounter in controlling his impulses when he is in an impaired mental state due to intoxication. On the whole, the individual's lengthy history of alcohol abuse creates, in my opinion, a legitimate security concern that the individual's judgment might be faulty and his reliability questionable when under the influence of alcohol. The concern arises not merely when the individual is drinking but when he is sober as well. For example, the individual has demonstrated poor judgment when he elected scores of times since 1983 to consume alcohol against the advice of medical personnel of the inpatient alcohol treatment facility from which he was discharged in 1983. Even assuming, for the sake of argument, that the individual was unable to exercise control over his urge to drink alcohol, I am still troubled that the individual failed to seek professional assistance beginning in 1986 to curb his alcoholic tendencies when they surfaced after a period of abstinence.

Finally, it is the opinion of a board-certified psychiatrist, Dr. XXXXX, that the individual suffers from "Alcohol Dependence." DOE Exhibit 8; Hearing Tr. at 19. This diagnosis corroborates that made four months earlier by XXXXXXXXX, the facility that treated the individual for his alcohol problems in 1994. DOE Exhibit 9 at 2. In his hearing testimony, Dr. XXXXX defined Alcohol Dependence as "the regular excessive use of alcohol to the point of interference with one's health, social, and occupational activities." Hearing Tr. at 19-20. According to Dr. XXXXX, both the individual's alcohol dependence and his depression are mental conditions which could adversely affect the individual's judgment and reliability. It is for this reason, asserts Dr. XXXXX, that he has concerns about the individual in a security setting. DOE Exhibit 8 at 3.

The individual's admissions concerning his long term alcohol abuse and the psychiatric finding that the individual is "alcohol dependent" unequivocally demonstrate that the DOE/XXXXX properly relied on 10 C.F.R. ' 710.8(j) as a basis for suspending the individual's "Q" clearance. It was reasonable for the DOE/XXXXX to conclude from the individual's protracted history of alcohol abuse that alcohol might impair the individual's judgment and reliability to a point where he might fail to safeguard classified matter or special nuclear material.

2. Mitigating Factors

a. Rehabilitation or Reformation

In his reported findings of the psychiatric evaluation of the individual and his hearing testimony, Dr. XXXXX opined that the individual would require two years of sobriety before he might reach rehabilitation and reformation. The reason advanced by Dr. XXXXX for the two year course of abstinence is that the individual has a history of drinking to excess, abstaining for a period of time, and resuming his excessive alcohol consumption pattern. Dr. XXXXX also stated that during the two year period of abstinence, the individual must be involved in an ongoing program such as AA and demonstrate that he has made a commitment to changing his lifestyle and attitude before Dr. XXXXX would be convinced that the individual had achieved rehabilitation. Hearing Tr. at 22. Dr. XXXXX opined that the individual's prognosis for rehabilitation from alcohol dependence was poor. By way of explanation, Dr. XXXXX stated that his clinical interview of the individual and the MMPI-II, a screening psychological test, revealed that the individual appeared resistant to change.

In defense of his rehabilitation claim, the individual asserts that his life has changed tremendously through professional health care combined with self-improvement activities. See Response to Notification Letter. He further advises that he is attending "After Care" meetings and other AA meetings, is now participating in church services and in his community, and has made efforts to improve his work skills and education. Id. Ms. XXXXX, the individual's girlfriend and life long friend, testified at the hearing that she believes that the individual is serious about abstaining from drinking this time because he now realizes he has a sickness and desires to make something of his life. Hearing Tr. at 54, 61. In addition, Ms. XXXXX, a co-worker who manages a Skills Enhancement Program at XXXXX, testified that the individual has made great academic progress through the program. Hearing Tr. at 70-71. She further intimated in her testimony that the individual's self-esteem has improved through his efforts in this program.

Dr. XXXXX, the clinical psychologist who testified on behalf of the individual, stated several times during his hearing testimony that he would not consider the individual rehabilitated unless the individual completely abstained from alcohol for a period of 18 months through August 1995. Hearing Tr. at 48-49.

Based on the testimony of the two experts at the hearing, I find that the individual has failed to demonstrate that he is rehabilitated from his alcohol dependence. Even though there is a difference of opinion between the two experts as to the appropriate length of time the individual must abstain from alcohol to be considered rehabilitated, the individual is unable to meet even the less stringent of the two time frames suggested for rehabilitation. In making this finding, I carefully considered the testimony of Ms. XXXXX who, by her account, has known the individual for 39 or 40 years. Hearing Tr. at 54. In her hearing testimony, Ms. XXXXX reports that the individual no longer likes being around others who drink alcohol, has committed himself to changing his life, and has become active in his church. I am convinced by Ms. XXXXX's testimony that she genuinely believes the individual is already rehabilitated because she can attest to behavioral changes she has witnessed in the individual which support his attempts at sobriety. Moreover, I am mindful that Ms. XXXXX may be more familiar with the personal habits of the individual than either of the two experts who evaluated the individual for short periods of time. However, a lay person's perspective of the individual's alcohol problem and her opinion concerning the individual's rehabilitation efforts simply cannot overcome the opinions of experts to the contrary. 1/ Therefore, I must give more weight to the testimony of the two experts. Both of the experts not only have cumulatively treated thousands of persons with alcohol related problems and can gauge more accurately the time required for rehabilitation, but both may be more objective about the progress of a person with whom they have only a doctor-patient relationship .

In view of the foregoing considerations, I find that the weight of the evidence indicates that the individual has not achieved rehabilitation from his alcohol dependence. Therefore, I find that his rehabilitation efforts to date are not yet sufficient to mitigate the security concern his long term alcohol abuse raises to the DOE.

b. Other Factors

In evaluating the extent and seriousness of the individual's alcohol abuse problem, I am especially cognizant that the individual's problem is one that has plagued him for quite some time and one that cannot be explained as a youthful indiscretion. More than a decade ago, the individual first sought professional assistance for his alcohol related problem. By his own admission, the individual's first attempt to abstain from excessive alcohol consumption was derailed three years after he left an alcohol abuse rehabilitation program. He then resumed his old pattern of excessive drinking for approximately one year before abstaining again for a five year period. The record reflects that the individual's relapse after the five year period was prompted, at least in part, by his separation from his girlfriend. For one to two years thereafter, the individual continued to abuse alcohol. This pattern of alcohol abuse, abstention, and relapse is disturbing and indicates the gravity of the individual's alcohol abuse problem.

I am also concerned that on at least one occasion the individual's relapse occurred when he separated from his girlfriend. This suggests to me that the individual may seek comfort in alcohol when stressful events occur. While the individual tried to assure me at the hearing that he would not use alcohol as a crutch again if similar circumstances were to arise, I am not convinced by his testimony. Hearing Tr. at 121. The evidence in the record contradicts this assertion. Because of my skepticism on this matter, I am not able to gauge the likelihood of the individual's resorting to alcohol use and possible abuse during times of stress.

Moreover, the shooting incident which culminated 13 hours of drinking by the individual raises concerns in my mind whether the individual can control his behavior while in an alcohol impaired state. In addition, since this incident only occurred 15 months ago, I can not excuse this incident as so remote in time as to carry little weight.

Another factor I considered as I evaluated the individual's alcohol dependence is that he continued to consume alcohol until the day before his trial on the assault charges stemming from the shooting incident. This fact is very distressing and denigrates the individual's claim that he will reform his drinking habits because the incident jolted him into realizing the deleterious effect alcohol was having on him. Id. at 79.

Lastly, I considered whether it is appropriate to excuse the individual's alcohol dependence as merely an outgrowth of the individual's depression. Dr. XXXXX testified that the individual may have been consuming alcohol to self-medicate his depression. Id. at 47, 52. On the other hand, Dr. XXXXX indicated that it is unclear in these situations whether people become depressed because they are drinking excessively, or whether people who are depressed begin to drink. Id. at 28. In this case, Dr. XXXXX ultimately concluded that the individual's problem is a dual one of alcohol dependence and depression. Based on Dr. XXXXX's diagnoses, I must conclude that while the individual's alcohol abuse and depression may be interrelated, each condition should be evaluated independently. In this vein, I find that the DOE/XXXXX's concern that the individual's judgment and reliability may be impaired due to his alcohol abuse is a concern that cannot be negated by ascribing a cause to that abuse.

c. Conclusion

Based on all the foregoing considerations, I find that the DOE/XXXXX was correct in advancing 10 C.F.R. ' 710.8(j) as a basis for suspending the individual's access authorization. In light of this criterion, 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.

B. The Individual's Depression

Another criterion upon which the DOE/XXXXX relied in suspending the individual's access authorization is 10 C.F.R. ' 710.8(h), the criterion concerning emotional, mental and personality disorders. That criterion specifically requires the medical diagnosis of a board-certified psychiatrist, other licensed physician or licensed clinical psychologist, before the DOE can invoke it. In this instance, it is the psychiatric evaluation of Dr. XXXXX, a board-certified psychiatrist, which provides the basis for the DOE/XXXXX's action under criterion (h).

In the report memorializing his psychiatric evaluation of the individual, Dr. XXXXX asserts that the individual suffers from Major Depression Recurrent. DOE Exhibit 8 at 2. Dr. XXXXX bases his opinion on a one hour clinical evaluation of the individual and the results of an MMPI-II, a psychological screening test, which he administered to the individual. According to Dr. XXXXX, the individual was first diagnosed as depressed in 1992, at which time he was placed on anti-depressant medication. Dr. XXXXX notes in his report the individual's feelings of hopelessness and worthlessness, and indicates that the individual has some long standing personality problems with resistance to treatment. While Dr. XXXXX advises that the individual's depressive symptoms may do well with medication, he rates the individual's prognosis as poor based on the individual's resistance to change. Dr. XXXXX concludes that the individual's mental condition could adversely affect the individual's judgment and reliability in the security context. DOE Exhibit 8 at 3.

The DOE supplements Dr. XXXXX's opinion on this issue with excerpts from the individual's medical records generated by XXXXXXXXX. Those records indicate that the individual was diagnosed with depressive disorder. DOE Exhibit 9. In addition, the individual acknowledged in the 1986 PSI that he has experienced depression as the result of some family problems. More recently, the 1994 PSI Transcript contains several statements by the individual that he experienced depression over the years yet failed to take his antidepressant medication from time to time because of its side effects. PSI Tr. (1994) at 28-30.

In his defense, the individual presented the testimony of Dr. XXXXX, a clinical psychologist at the XXXXX plant, who treated the individual on several occasions. Dr. XXXXX testified that he believed the individual consumed alcohol to medicate his depression. Hearing Tr. at 47, 52. Also, Dr. XXXXX testified that at the time the individual shot his brother the individual was experiencing a major depression. Id. It is Dr. XXXXX's opinion, however, that the individual has made good progress in controlling his depression through the use of medication. Id. at 40. In addition to this expert testimony, the individual submits that the factors contributing to his depression have changed significantly. Response to Notification Letter. Specifically, the individual advises that he no longer has "family problems" which previously caused stress in his life. Id. Moreover, the individual's girlfriend testified that certain unspecified financial pressures in the individual's life have been alleviated and, as a consequence, his outlook on life has improved. Id. at 60. Furthermore, the individual maintained at the hearing that his depression is under control now that he is taking his anti-depressant medication. Id. at 81. With respect to the issue of whether the individual would continue to take his medication on a regular basis, he asserted that he will take the medication because he does not want to revert to the condition he was in when he failed to take it. Id. at 120.

There is no dispute that the individual suffers from depression. In considering whether the individual has mitigated the concerns raised by Dr. XXXXX relating to the individual's mental illness, I noted first that the individual's mental condition is one that is not temporary in nature. The individual admits to having experienced depression many years before he sought treatment for the condition sometime in 1992. I also considered testimony at the hearing that family and financial problems, two circumstances which might have exacerbated the individual's mental condition, have allegedly been alleviated. While these stressful circumstances may have contributed to the individual's depressed state, I am still concerned that other stressful events might negatively impact the individual's mental state in the future. Testimony in the record, however, persuaded me that the individual's self-esteem has probably improved through the educational opportunities of which he is availing himself. The individual's enhanced self-esteem might obviate concerns voiced by Dr. XXXXX that the individual at the time of his evaluation was experiencing feelings of hopelessness and worthlessness. In the absence of an expert opinion confirming this fact, however, I am unwilling to conclude that the individual's mental health problems are in remission. I cannot ignore the fact that there is no expert opinion specifically affirming that the individual's depression is controlled by medication to the extent that a probability of recurrence is small. It is true that Dr. XXXXX believes the individual has made very good progress. However, an opinion that the individual is making good progress does not equate to an affirmative representation that the individual's mental illness is in remission or controlled by medication to the extent that the likelihood of its recurring is small. Moreover, I was not convinced by the individual's hearing testimony that he would continue to take his medication on a regular basis. In view of the individual's history of not faithfully taking his anti-depressant medication, I am not prepared to find, without the benefit of a specific medical opinion, that the likelihood of the individual's depression returning is small. In addition, Dr. XXXXX's concern that the individual's depression may cause his judgment to be impaired is one I share in view of Dr. XXXXX's testimony that the individual was experiencing a major depression at the time he shot his brother. There is no more chilling testament to the individual's lapse in judgment than when the individual used a 12-gauge shotgun to injure his brother. Should the individual experience a major depression again, I am concerned that the individual's judgment concerning matters relating to rules and regulations affecting security might be impaired.

Based on the foregoing considerations, I find that the allegations advanced by the DOE/XXXXX with respect to 10 C.F.R. ' 710.8(h) are meritorious. I also find that there are no factors present in this case which would mitigate the security concerns the DOE/XXXXX has expressed in connection with the derogatory information about the individual ascribed to criterion (h). Therefore, based on the derogatory information connected with criterion (h), I cannot find that it would not endanger the common defense and security and would be clearly consistent with the national interest to continue access authorization to the individual.

C. The Individual's Criminal Conduct

The last criterion which the DOE/XXXXX advances in support of its adverse action against the individual is 10 C.F.R. ' 710.8(l). As noted in Section II above, criterion (l) pertains to information which demonstrates that a person has engaged in unusual conduct such as criminal behavior, which tends to indicate that a person is not honest, reliable, or trustworthy (emphasis added).

As justification for invoking criterion (l), the DOE/XXXXX points to the incident on December 31, 1993 in which the individual shot his brother with a 12-gauge shotgun. While some of the details surrounding his incident are subject to dispute by the individual, 1/ it is undisputed that it was the individual who shot his brother. DOE Exhibit 10. It is also undisputed that the individual and his brother had consumed alcohol to excess before the shooting and that the individual was driving his vehicle while in an intoxicated state. PSI Tr. (1994) at 8; Hearing Tr. at 91, 92, 112.

In his defense, the individual paints the shooting incident as an isolated one. Id. at 102. In fact, the record indicates that with the exception of a speeding violation, the individual had not been arrested prior to the shooting incident.

While I am cognizant the shooting incident is the only time the individual committed a crime, I am not willing to dismiss the intentional discharge of firearms at another person as an insignificant matter. The shooting was an act of violence committed by a mature man against a close family member.

Since there is extensive testimony in the record that the shooting incident was triggered by excessive drinking and/or the individual's depression, I view the individual's drinking, depression, and his commission of a violent crime as interrelated. In explaining his mental state prior to the shooting, the individual states, "I lost everything. My mind just said, 'Clicker' . . . . " PSI Tr. (1994) at 8. The individual's explanation reveals not only that his judgment was obscured at the time of the incident, but that he believed he could not control his actions. Also, it is noteworthy that just prior to the shooting the individual was driving his truck while intoxicated. Again, I must question the judgment and reliability of a man who drinks one-fifth of vodka over a 13 hour period and then voluntarily drives a vehicle. I am of the opinion that until the individual is rehabilitated from his alcohol abuse and in remission from his depression, there is a possibility that an incident such as the one at issue here could occur again. It is not inconceivable that the next incident might involve a security breach. Therefore, I find that the DOE/XXXXX properly invoked 10 C.F.R.' 710.8(l) as a basis for suspending the individual's security clearance. Accordingly, in light of criterion (l), I do not 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.

V. Conclusion

As explained in this Opinion, I find that the DOE/XXXXX properly invoked 10 C.F.R. '' 710.8(j), (h) 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'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, 1000 Independence Ave., S.W., Washington, D.C. 20585, and served on the 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. 10 C.F.R. ' 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

1/ Access authorization is defined as 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). Such authorization will be referred to variously in this Opinion as access authorization, security clearance, or "Q" clearance. 1/ The OHA assigned the Motion to Strike a case number, Case No. VSX-0002, for purposes of tracking the interlocutory motion relating to the seminal case, Case No. VSO-0014. 1/ Pursuant to 10 C.F.R. ' 710.27(e), I closed the record in this case on April 7, 1995, when I received the transcript of the XXXXX hearing. On May 4, 1995, the individual's Counsel submitted an Affidavit executed by the individual in which the individual attests to his sobriety for the last 15 months. I reviewed the Affidavit and made the determination that it provides no additional probative information which warrants my reopening the record in this case. 1/ Under cross-examination at the hearing, the individual testified that he did not disagree with the opinion of the psychiatrist and psychologist that he is not yet rehabilitated. Hearing Tr. at 98. While I could construe the individual's statements as admissions against interest and use them as a basis for finding against the individual on his rehabilitation defense, I will not. Throughout the hearing, I observed the individual's apparent difficulty in understanding questions posed to him not only on cross-examination but on direct examination as well. At several points during the hearing, I stopped the questioning and asked the individual if he understood the use of certain words in the context of a given question. In each instance, the individual admitted that he did not understand some of the vocabulary used by the counsel doing the questioning. Nevertheless, he appeared willing to respond to the question without revealing his confusion, or asking for clarification. For this reason, I am not convinced that the individual understood the question, posed in the form of a double negative, which alluded to the experts' opinion as to his rehabilitation efforts. I have chosen, therefore, to accord no weight to the individual's response which, if read literally, indicates the individual concurs in the experts' assessment that he is not yet rehabilitated. 1/ I find that the disputed details associated with the criminal incident are not relevant to my administrative examination of the security concerns stemming from the incident. For example, for purposes of this Opinion, it is irrelevant whether the individual loaded the gun before he used the weapon or whether the gun was loaded at the time the individual located the weapon. Hearing Tr. at 92, 115. Similarly, I need not concern myself whether the individual kicked his brother off the porch after he shot him, or whether the brother fell from the porch after the shooting. Id. at 92, 93, 110, 112, 115.