Case No. VSO-0015, 25 DOE ¶ 82,760 (H. O. Hochstadt June 5, 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: January 17, 1995

Case Number: VSO-0015

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to retain a level "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 individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the individual's access authorization should be restored.

I. BACKGROUND <2>

The individual has been employed at the Department of Energy's XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXX since 1983. At that time, the individual also received a "Q" clearance

enabling him to work at the facility. In August 1992, the DOE began what appears from the record to be a routine security reinvestigation of the individual, see DOE Order 5631.2C (9-15-92) Ch. VIII (Reinvestigation Program), when it required him to complete an updated Questionnaire for Sensitive Position. Since DOE Security identified certain security concerns as a result of the limited background investigation (LBI) of the individual, a personnel security interview (PSI) of the individual was conducted on March 22, 1994 (hereinafter referred to as "the 3/22/94 PSI") (DOE Exhibit 12).<3>This interview did not resolve Security's concerns and Security referred the individual for a psychiatric evaluation by Dr. XXXXX, a board-certified psychiatrist. On the basis of that evaluation, Dr. XXXXX concluded that the individual: (a) was a user of alcohol habitually to excess without adequate evidence of rehabilitation or reformation, (b) did not have any other illness or mental condition which might cause a significant defect in judgment or reliability, and (c) had shown adequate rehabilitation or reformation from prior use of illegal drugs. See April 27, 1994 Letter from XXXXX, M.D., to XXXXX, DOE (Psychiatric Evaluation ) (DOE Exhibit 8).

On June 10, 1994, the individual reported to his DOE-contractor employer an arrest for Driving Under the Influence (DUI) that had occurred on April 10, 1994. See Notification of Reportable Information (DOE Exhibit 7). This information was forwarded to DOE/XXXXX's Internal Security Division. After two further PSIs of the individual, which were conducted on July 6, 1994 and August 22, 1994, the Manager of DOE/XXXXX determined that information uncovered during the reinvestigation was substantially derogatory and created questions regarding the individual's continued eligibility for access authorization. Accordingly, on September 20, 1994, he suspended the individual's access authorization and subsequently obtained authorization from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a December 9, 1994 letter which notified the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (Notification Letter). The Notification Letter was accompanied by an enclosure (Enclosure 1) that detailed the derogatory information possessed by the DOE.<4> DOE/XXXXX found this information to meet the provisions of 10 C.F.R. § 710.8(j). That subsection pertains to 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 being alcohol dependent or as suffering from alcohol abuse." DOE/XXXXX further noted that, according to Dr. XXXXX, there was not adequate evidence in this case of rehabilitation or reformation. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

On January 5, 1995, the individual requested a hearing without filing a separate written response to the information that raised the doubt concerning his access authorization eligibility. Under the regulations, such a request for a hearing is deemed a general denial of all of the reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). The individual's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals on January 17, 1995, together with a copy of the Notification Letter in which the statement of derogatory information was annotated with references to, inter alia, the relevant pages in the various PSIs of the individual and the Psychiatric Evaluation. I was appointed the Hearing Officer in this matter on January 18, 1995. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference was held on April 5, 1995, and on April 7, 1995, the DOE Counsel filed 25 numbered exhibits with the Office of Hearings and Appeals.<5> The hearing was convened at XXXXX on XXXXX, and a copy of the transcript of the hearing (hereinafter cited as "Tr.") was received by the Office of Hearings and Appeals on May 5, 1995.

II. DEROGATORY INFORMATION CONTAINED IN THE NOTIFICATION LETTER

The Notification Letter includes (a) a history of the individual's alcohol consumption based on his statements in various PSIs and at the psychiatric evaluation, (b) a summary of the Psychiatric Evaluation, and (c) information concerning the April 10, 1994 DUI arrest.

The history of the individual's alcohol consumption in the Notification Letter can be summarized as follows: The individual first consumed alcohol in the late 1950's when he drank a half of a bottle of wine at the age of 13. One year later, he began drinking beer and would become intoxicated approximately every three months. At age 17, he began drinking to intoxication almost every Friday and Saturday night, consuming a six pack of beer at each sitting. This pattern of consumption continued for approximately four years until the individual's divorce from his first wife. The individual then began drinking to intoxication almost every day. In 1969, he met the woman who was to become his second wife and, at her request, totally abstained from alcohol for a little more than a year. In 1971, the individual married this woman, resumed drinking, and on at least one occasion was charged with DUI. During the 1970's, he drank to intoxication from two to four times a month. In an August 2, 1983 PSI he stated that his drinking adversely affected his second marriage. From 1979 to about September 1981, the individual became intoxicated an average of three to four nights a week. During this period, he had two alcohol-related arrests, a DUI in 1980 and an arrest for criminal trespass in September 1981. In lieu of a court appearance on the criminal trespass charge, the individual entered an alcohol treatment program. At the end of the six month program, he was advised to continue attending Alcoholics Anonymous (AA) meetings; however, he did not do so. For a period of time after the arrest, the individual abstained from alcohol. However, he resumed drinking in 1983, and until 1990 drank once a month, becoming intoxicated every four months. At the psychiatric evaluation, the individual stated that in 1990 he joined a fraternal organization where he usually consumed two drinks at weekly meetings, and had four drinks at a sitting approximately once every three months. However, when informed by Dr. XXXXX that this information was not consistent with allegations concerning his level of drinking made by his third wife, the individual acknowledged that he had three to four beers approximately once a month, and had to be driven home on these occasions. At the psychiatric evaluation, he further stated that since 1992 he had limited his intake to two to three beers in six hours on each Friday and Saturday night. He said that he drank to the point of intoxication at least three or four times during this period. One of those incidents occurred during a three day trip to New Orleans in December 1993 in which the individual drank to intoxication on each day. The most recent alcohol incident referred to in the Notification Letter was the April 10, 1994 DUI arrest. The blood test given to the individual by the police showed a blood alcohol content (BAC) of 0.151. The Notification Letter indicated that the individual did not inform Dr. XXXXX about this incident at the psychiatric evaluation that took place two weeks later.

III. THE HEARING

At the hearing, the individual, who represented himself, and the DOE Counsel each called two witnesses to testify. The individual testified on his own behalf and called as a witness XXXXX, who leases a portion of the individual's house and is employed as a bartender at a bar patronized by the individual. The two witnesses who testified on behalf of the DOE were XXXXXXXXXXXXXXXXXXXX, a DOE contractor Personnel Security Analyst, and Dr. XXXXX.

Ms. XXXXX testified concerning the nexus between alcohol abuse (and alcohol dependence) by security clearance holders and the national security interests of the DOE and the U.S. Government. Tr. at 16-26. She stated that when clearance holders are under the influence of alcohol, their inhibitions are lowered and they are therefore more likely to release classified or sensitive information. She testified that alcoholics present an unacceptable security risk because they experience these effects more frequently than does the general population. She added, however, that her knowledge of the individual's case was obtained solely from her review of his personnel file, and that to her knowledge, the individual had never released classified information. But she stated that even if there is no record that an alcoholic has released classified information previously, the DOE fears that in the future he may be unable to exercise the proper judgment needed to obey DOE security regulations with respect to the protection of classified information. Therefore, she stated, the DOE denies security clearances to those determined to be alcoholics who have not demonstrated rehabilitation.

The individual's lodger testified that he met the individual while working at his current bartending job three years ago, and since that time he has never seen the individual drink more than one or two beers at a sitting. He further stated that he currently sees the individual at his bar "once or twice a week," and he characterized the individual as "a light to moderate drinker, if that." Tr. at 28-29. He stated that he has shared space in the individual's house for eight or nine months, and that there is no alcohol in the individual's home. He further testified that he had never seen the individual drink any alcoholic beverage other than beer, and that he had never seen the individual drunk. Tr. at 34. He also stated that because he and the individual worked at different times of the day, they were usually not home at the same time, and that he was in the individual's presence only ten to fifteen hours per week. Tr. at 35-37.

In his testimony, the individual admitted that he is an alcoholic, but stated that, since the start of divorce proceedings with his third wife in 1992, he has been controlling this problem by curtailing his intake of alcohol. Tr. at 39, 51, 119. The individual testified that he patronizes several bars on a regular basis, but that he usually drinks only about two beers per week. <6>Tr. at 46. The only exceptions to this pattern of alcohol consumption, the individual testified, occurred during a three day visit to New Orleans in December 1993, and during the hours prior to his April 1994 DUI arrest. The individual testified that during his three days in New Orleans, he consumed an unrecalled number of "Hurricanes," a mixed drink containing alcohol, over the course of each day. Tr. at 39, 116. He also stated that he did not attempt to adhere to his two drink limit since he was not going to be operating a motor vehicle. Tr. at 39.

Regarding his April 10, 1994 DUI arrest, the individual testified that he drank four beers over the course of four hours preceding his arrest. Tr. at 40, 48. When informed that this level of consumption was inconsistent with his BAC level of 0.151, the individual insisted that he had consumed only four beers, and suggested that the high BAC reading might have been caused by his use of Ventolin, an inhalant used by asthmatics, by his lack of food intake during the period in question, or by an unspecified error in administering the blood alcohol test or interpreting the results. The individual further stated that after his psychiatric evaluation in April 1994, he regularly attended Employee Assistance Program (EAP) meetings at which alcohol related issues were discussed, and also acted as a "facilitator" at those meetings after the regular facilitator was no longer available. Tr. at 52-53.

The individual also submitted a number of documents at the hearing in support of his position. These documents are: Individual's Exhibit 1-- a "Plan of Studies" submitted by the individual to his employer, which indicates that he is currently enrolled at the Denver Institute of Technology, and a "Manager's Justification Form," in which the individual's managers recommend that he be reimbursed for his tuition costs because the courses for which he has enrolled will aid his job performance; Individual's Exhibit 2--a memorandum setting forth work restrictions necessitated by the individual's asthma; and Individual's Exhibit 3--a series of signed, unsworn statements by five of the individual's acquaintances to the effect that they have never seen the individual drink more than one or two beers, and a letter of appreciation addressed to the individual and a number of other employees thanking them for their work in performing a repair task at the XXXXX facility.

Dr. XXXXX testified about the manner in which the individual's evaluation was conducted and the factors that led him to conclude that the individual suffers from alcohol abuse. Specifically, Dr. XXXXX stated that his diagnosis was based on information obtained from four case evaluations provided by the DOE and on the statements provided by the individual concerning his history of alcohol usage. Tr. at 76. Based on these sources, Dr. XXXXX testified as to the items which he had listed in his Psychiatric Evaluation as the evidence from which he concluded that the individual is an alcoholic. According to Dr. XXXXX, the individual: (i) has drunk to the point of intoxication (as he himself defines that word) on three occasions during the two year period preceding his psychiatric evaluation, (ii) has in the past shown emotional reliance upon the use of alcohol, (iii) has had multiple alcohol-related legal problems, (iv) shows possible minimization of alcohol related problems, (v) has lost control over his drinking many times since the 1960's, most recently two months prior to the evaluation, (vi) experienced affective or emotional changes in the 1970's as a result of alcohol consumption, (vii) experienced guilt over his use of alcohol during the 1960's and 1970's, (viii) went to work with hangovers on numerous occasions during the 1960's and 1970's, and (ix) has a significant family history of alcoholism.

When specifically asked about the individual's testimony regarding his current level of alcohol consumption, Dr. XXXXX characterized the individual's self-described two-beer limit as "high risk behavior." See Tr. at 108-112. He stated that he views alcoholism as a lifetime disease, and that once a person has had significant problems related to alcohol intake, as exemplified by the individual's patterns of alcohol usage in the 1960's and 1970's, "the chances that he will have problems in the future are quite great." Tr. at 91. He further noted that there are genetically based factors that make some people particularly susceptible to alcoholism, and that these factors are applicable to the individual. Tr. at 92-93. He opined that studies purporting to show that alcoholics can be trained to drink socially have been discredited and that other studies show that a mere three percent of alcoholics can safely become social drinkers. Tr. at 109-111. In general, he concluded that because the individual has continued to consume alcohol since his psychiatric evaluation, there had been no rehabilitation or reformation.<7> Tr. at 108-112.

IV. FINDINGS OF FACT AND ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). 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 his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the 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. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these criteria to the information presented by the DOE/XXXXX in this case and to the testimony and exhibits presented by the individual. As discussed below, after carefully considering the entire record in view of the standards set forth in 10 C.F.R. Part 710, I find that the individual has been a user of alcohol habitually to excess and has been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse. I further find that he has failed to present sufficient evidence of rehabilitation, reformation, or other mitigating factors. I therefore recommend that the DOE should not restore the individual's access authorization.

As an initial matter, the individual has acknowledged that he is an alcoholic, and, for the most part, he has not attempted to rebut the derogatory information as it pertains to his past levels of alcohol consumption. The evidence of excessive alcohol use and concomitant legal and social problems set forth in the Notification Letter is therefore essentially uncontroverted, and is sufficient to establish that the individual has been a user of alcohol habitually to excess. In addition, the individual has been diagnosed as suffering from alcohol abuse by a board-certified psychiatrist. Dr. XXXXX's diagnosis of alcohol abuse was based on facts concerning the individual's history of alcohol usage that are, for the most part, undisputed and support that diagnosis.

Moreover, the individual has failed to persuade me that he has been rehabilitated or reformed to a degree sufficient to allay the agency's security concerns. There is uncontested expert testimony in the record that any alcohol usage by the individual creates a high risk that he will be unable to control his alcohol intake in the future. Tr. at 92-94. Dr. XXXXX's position is consistent with the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV):

Alcohol abuse and dependence have a variable course that is frequently characterized by periods of remission and relapse. A decision to stop drinking, often in response to a crisis, is likely to be followed by weeks or more of abstinence, which is often followed by limited periods of controlled or non-problematic drinking. However, once alcohol intake resumes, it is highly likely that consumption will rapidly escalate and that severe problems will once again develop.

DSM-IV at 202. <8> Even though Dr. XXXXX testified that a person who has been an alcoholic can, in some instances, safely resume the consumption of alcohol, I cannot find that the individual has maintained a pattern of non-abusive drinking for a sufficient time to demonstrate rehabilitation or reformation.

Dr. XXXXX's concerns that the individual is at a high risk of being unable to control his alcohol intake have been confirmed by the fact that during the approximately two and one half years that the individual states he has limited his intake, he has admitted to exceeding his limit on at least two occasions.<9> On the first of the two undisputed occasions, the three day trip to New Orleans, the individual consumed an excessive number of "Hurricanes" over the course of each day.<10> On the second occasion, he consumed at least four beers over the course of four hours preceding his April 1994 DUI arrest.

Moreover, there is credible evidence in the record that the individual consumed considerably more beers on the latter occasion. Using a table prepared by the XXXXX Division of Highway Safety, Dr. XXXXX estimated that, on the basis of the individual's weight on that night as testified to by the individual at the hearing and a BAC level of 0.151, the individual would have consumed a little over ten twelve-ounce beers over the four hours he claimed to have been drinking that evening. Tr. at 113. In contrast, according to Dr. XXXXX, if the individual had consumed only four beers during that time period, he would have had a BAC of only 0.02. Id. Although the individual strenuously insisted that he had only four beers and the blood alcohol test must have been flawed, I am convinced that on this occasion, as in New Orleans, he exceeded his self-imposed limit of one to two beers per week and lost control of his alcohol intake.<11>Although the individual has consistently argued that his BAC level may have been increased by his use of the asthma medication Ventolin and the fact that he had not eaten, I am persuaded by Dr. XXXXX's testimony that neither of those factors would have significantly, if at all, affected the individual's BAC. See Tr. at 114, 122. Further, the fact that the individual's BAC was considerably in excess of 0.1 grams of ethyl alcohol per 100 milliliters of blood, i.e., a BAC of 0.1, is confirmed by the individual's roadside breathalyzer test result of 0.134. <12>See April 10, 1994 XXXXX Police Department Report (DOE Exhibit 9) at 3. The individual has presented no countervailing, competent evidence to challenge either the blood alcohol and breathalyzer tests or Dr. XXXXX's explanation of the test results. In rejecting the individual's claim that he has successfully controlled his alcohol intake, I therefore find that this incident is more serious than a simple case of his drinking a few beers over his self-imposed limit. The individual exhibited indefensibly poor judgment by operating a motor vehicle under the influence of the large number of beers he consumed that night, as indicated by his BAC.

In considering the individual's claim that his drinking is under control, I have accorded little weight to the testimony of his lodger and the unsworn written statements from five of his co-workers and acquaintances to the effect that they had never seen him drink more than a couple of beers or otherwise abuse alcohol. The lodger, who does not drink alcohol or socialize with the individual, could not testify as to how much the individual imbibes when he is drinking in any establishment other than the bar where the lodger works. Four of the persons who signed statements indicated that they had known the individual more than eight years, a period of time that includes the early 1990's, when the individual has acknowledged frequently drinking more than two beers at a sitting when attending meetings of his fraternal organization. Clearly, these persons did not socialize much with the individual or understated what they knew about his drinking. The fifth statement was from the person with whom the individual went to New Orleans and drank heavily for three days. Tr. at 57. It disingenuously refers only to the individual's supposedly limited consumption of beer and not to other alcoholic beverages such as the "Hurricanes" that the individual admittedly consumed in large quantities in New Orleans.

Even if the individual's current alcohol consumption level has generally decreased, he has not persuaded me that it will remain at a moderate level in the future. This would not be the first time that the individual has decreased his drinking. Before his marriage to his second wife, he abstained from drinking for one year at her request, but later began drinking again. See 8/2/83 PSI (DOE Exhibit 20) at 18. After his alcohol treatment in 1981 following his criminal trespass conviction, he abstained for a year, but then resumed drinking again. Although his drinking at that point had decreased compared to his previous level of intake, he admitted that "it [the treatment] didn't really help anything" and that he drank more than he felt he should have. Tr. at 50-51. During the process of initially applying for a clearance in 1983, the individual asserted that he had stopped drinking with the exception of an occasional beer. 8/2/83 PSI at 21. However, he later admitted to becoming intoxicated once every four months in the 1980's and to being unable to control his intake at the meetings of his fraternal organization in the early 1990's. Psychiatric Evaluation at 2-3.

Furthermore, the individual spends many leisure hours in places where alcohol is readily available. At the hearing, he mentioned the names of three bars that he patronizes on a regular basis, Tr. at 43-44, and he patronized several others as recently as the April 10, 1994 DUI incident. See 7/6/94 PSI at 5-6. He has also continued to socialize at his fraternal organization, although he has admitted that he is pressured to drink there. 3/22/94 PSI at 32-33; Tr. at 61. While I accept the individual's statement that he goes to these establishments to be with people or to hear music, he nonetheless consumes alcohol at these locations. He has abused alcohol in the past and I have no basis for finding that he will not abuse alcohol in the future.<13>

In addition, the individual has not shown that he has laid the groundwork for continued sobriety by creating the support structure necessary to avoid alcohol abuse. For example, he has not followed Dr. XXXXX's recommendation that he attend AA a minimum of three times a week and ultimately get a sponsor with whom he can "work the 12 steps" (see Psychiatric Evaluation at 7). At the hearing, the individual stated that he does not have the time to participate in an alcohol rehabilitation program such as AA because he now attends school four nights a week. Tr. at 40, 64. However, according to Dr. XXXXX, there are approximately 500 AA meetings held daily in locations throughout the metropolitan XXXXX region. Tr. at 142. Thus, it appears to me that rather than being unable to attend AA meetings or another suitable treatment program, it is much more likely that the individual either believes such effort to be useless or, despite describing himself as an alcoholic, does not feel that he needs continuing treatment.

I also do not find the individual's past participation at the now defunct EAP Program at the XXXXX site to be an adequate substitute for a program such as AA.<14>It appears that this group focused more on general life issues than on maintaining sobriety or alcohol education. See Tr. at 53-54. Moreover, although the individual asserted that the EAP program was based on the 12 step program of AA, he was not able to correctly state the first step.<15>While the individual is to be commended for attempting to facilitate the XXXXX EAP program after the professional facilitator departed, that program simply did not provide either rehabilitation or sufficient alcohol education for an alcohol abuser such as the individual.

Finally, the individual's failure to report the April 10, 1994 DUI arrest to his employer in a timely manner, his concealment of the incident from Dr. XXXXX, and his explanation for these non-disclosures confirm Dr. XXXXX's finding that the individual has tended to minimize his alcohol intake, one of the factors upon which his diagnosis of alcohol abuse was based. The individual's explanation that he believed that he did not have to report the arrest to his employer, see 7/6/94 PSI at 10, is belied by the fact that he eventually did so, albeit two months late. Moreover, I find it significant that when DOE Security had previously informed the individual of a failure to report an arrest on his personnel security questionnaire, his explanation was that he "didn't think it was required." 8/2/83 PSI at 59. At that time, he was explicitly instructed that he had the responsibility to immediately report any arrest, except for minor traffic violations, to his employer. Id.

The individual's explanations for his failure to mention the April 1994 DUI arrest to Dr. XXXXX also contribute to my resolving the issues in this case in a manner that is adverse to the individual. The individual stated that he did not feel it was important to mention the arrest because he thought that (i) Dr. XXXXX had his mind made up that he was an alcoholic, Tr. at 46, and (ii) the charge would be dismissed. Tr. at 48, 123, 124. I cannot accept either explanation as justification for the concealment. Even if the individual honestly believed that Dr. XXXXX had prejudged him, I cannot find that concealing a DUI arrest two weeks before to be an acceptable response.<16>Further, it is clear that Dr. XXXXX asked about alcohol related problems, not merely convictions. See Psychiatric Evaluation at 6; Tr. at 108. Merely because the individual thought he would be able to avoid legal consequences arising from the arrest is no excuse for not disclosing this information during the evaluation. This failure to disclose detracts from the individual's credibility regarding the level of his alcohol consumption over the last three years and his assertions concerning his ability to control his drinking in the future. The individual's concealment of material information is also relevant to the security concerns about which Ms. XXXXX testified; namely, the DOE must be able to depend on those holding clearances to obey security regulations, or at least be trustworthy enough to inform Security immediately when breaches occur. See Tr. at 24.

IV. CONCLUSION

For the reasons set forth above, I conclude that the individual has been a user of alcohol habitually to excess and has been diagnosed by a board-certified psychiatrist as suffering from alcohol abuse. I also find insufficient evidence of rehabilitation or reformation or any other mitigating factor. In view of the security concerns testified to by Ms. XXXXX with respect to alcohol abusers, I conclude that the individual has failed to demonstrate that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of 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 with 20 days of receipt of the statement.

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

<1>/ An "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 access authorization, security clearance, or "Q" clearance.

<2>Because the individual has raised questions as to why DOE/XXXXX decided to reinvestigate him, and suspend his security clearance after more than 10 years of employment at the XXXXX facility, this background section is more detailed than might otherwise be necessary to understand the issues in this case.

<3>3/ According to an August 23, 1993 Case Evaluation for Security Clearance (DOE Exhibit 15) that was prepared after the conclusion of the LBI, these concerns pertained to derogatory information under 10 C.F.R. § 710.11(h), (j), (k) and (l) (1994) (revised 1994; now § 708(h)(illness or mental condition that may cause a significant defect in judgment or reliability), § 708(j)(alcohol), § 708(k)(illegal drugs), § 708(l)(unusual conduct which tends to show the individual is not honest, reliable or trustworthy, or may be subject to pressure, coercion, exploitation, or duress)).

<4>All subsequent references to the Notification Letter also include Enclosure 1.

<5>Copies of these documents were also provided to the individual, including the annotated copy of the Notification Letter.

<6>He described going to one bar once or twice a week and two other bars once or twice a month. Tr. at 43-44. He noted however that there are months in which he patronizes these bars less frequently. Tr. at 44. He further indicated that he always drank at least one beer at these establishments, but never more than two.

<7>Dr. XXXXX stated that he would be willing to find rehabilitation after a one year period of abstinence because studies show that persons who have successfully completed one year of abstinence usually maintain their sobriety. Tr. at 100.

<8>Although the DSM-IV was not cited in the Psychiatric Evaluation, at the hearing Dr. XXXXX stated that in his opinion the individual fell within the DSM-IV definition of a substance abuser. Tr. at 98, 135.

<9>The individual has not provided a consistent account of what that limit is and how often he has exceeded it. At the psychiatric evaluation, he informed Dr. XXXXX that during the two years since his third divorce he had limited his drinking to two to three beers each Friday and Saturday night. Psychiatric Evaluation at 1. At the hearing, he gave various accounts of his drinking during this period, but generally stated that he doesn't drink more than one or two beers a week. Tr. at 41, 46.

<10>The individual's drinking must have been both heavy and prolonged, as the individual experienced alcohol-induced tremors upon returning home from New Orleans. See Handwritten Notes of Psychiatric Evaluation (DOE Exhibit 27).

<11>The individual's accounts of this incident have been characterized by minimization and inconsistencies. When he was arrested, he told the police that he had drunk two beers. April 10, 1994 XXXXX Police Department Report (DOE Exhibit 9) at 2. In discussing the incident with DOE Security, after describing his drinking one beer at each of four bars, 7/6/94 PSI (DOE Exhibit 4) at 5-7, he then implied that he had drunk only three beers. Id. at 8. At the hearing, he admitted to four beers, but stated that he had two beers at one of three bars that he patronized that night. Tr. at 149.

<12>Under XXXXX law, a motorist is presumed to be driving while under the influence if a blood test shows an alcohol level of 0.1g alcohol/100ml of blood or a breathalyzer shows an alcohol level of 0.1g alcohol/210 ml of breath. XXXXX Rev. Stat. § XXXXX (1993).

<13>The individual's new intention, apparently arrived at mid-hearing, that he will drink only soft drinks in bars in the future, see Tr. at 55, while commendable, is not something upon which I can base a finding of rehabilitation or reformation, particularly in view of the individual's past and recent history of alcohol consumption.

<14>Dr. XXXXX also recommended that the individual attend EAP, but in addition to AA. Psychiatric Evaluation at 7.

<15>The individual stated that the first step is, "admitting that there is a higher power." Tr. at 54. In fact, the first step is to admit that "we were powerless over alcohol--that our lives had become unmanageable." Alcoholics Anonymous World Services, Inc., The Twelve Steps and Twelve Traditions 5 (18th ed. 1994). It is the second step which describes the belief in a "power greater than ourselves." Id. at 9. Subsequently, the individual erroneously described AA as a 10 step program. Tr. at 61.

<16>Given the record before me, I am convinced that Dr. XXXXX did not prejudge the individual. Dr. XXXXX appears eminently qualified to diagnose substance abuse given his extensive, 20-year experience diagnosing and treating substance abuse at a number of different programs and hospitals. See Curriculum Vitae (DOE Exhibit 26). Moreover, he took great pains in his detailed evaluation to base his conclusions on the individual's specific case history. Although he acknowledged diagnosing substance abuse or dependence in a high percentage of the individuals that the DOE refers to him, he noted that he sees a skewed population since only those who are found by DOE Security to have the most genuinely troubling facts in their background are referred to him. Tr. at 73. Dr. XXXXX also denied that DOE/XXXXX had ever pressured him to diagnose alcohol abuse or dependence. Tr. at 127. Finally, as indicated in the Background section, supra, Dr. XXXXX's diagnosis was favorable to the individual with respect to two of the three concerns referred to him for evaluation. Therefore, I reject the individual's claim that Dr. XXXXX had prejudged him.