Case No. VSO-0018, 25 DOE ¶ 82,758 (H. O. Mann May 22, 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 31, 1995

Case Number: VSO-0018

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." Several 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. As indicated below, I recommend against restoring the individual's access authorization at this time.

I. Background

The individual has been employed for approximately eight years by XXXXX the DOE contractor that provides XXXXX. During this time, the individual received a "Q" clearance from the DOE enabling him to work at the facility. In 1993, the individual reported his recent arrest for driving while intoxicated (DWI) to the DOE/XXXXX. This prompted the DOE to conduct a personnel security interview (PSI) with the individual, which took place on May 12, 1994. The information obtained during the interview led the DOE/XXXXX to request a mental evaluation of the individual by a board-certified psychiatrist. On June 18, 1994--37 days after the PSI, and approximately one month before he was to see the DOE psychiatrist--the individual was again arrested for DWI. The DOE psychiatrist examined the individual on July 22, 1994. Based on this examination, and upon other information already in the individual's Personnel Security file, the psychiatrist submitted a report dated August 1, 1994, in which he concluded that the individual has been or is a user of alcohol habitually to excess, that he suffers from "alcohol abuse," that this constitutes an illness or mental condition which causes or may cause a significant defect in judgment and reliability, and that the individual does not show adequate evidence of rehabilitation or reformation. The Manager for Safeguards and Security of the DOE/XXXXX determined that the individual's two most recent arrests for DWI, the other information contained in the individual's Personnel Security file, and the evaluation made in the DOE psychiatrist's August 1, 1994 report, were 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 December 22, 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, Acting Assistant Manager for Safeguards and Security, DOE/XXXXX, to the individual (December 22, 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 two criteria set forth in 10 C.F.R. § 710.8, i.e. (h) and (j). 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 January 4, 1995, 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 Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on January 27, 1995. The OHA Director appointed me as Hearing Officer in this case on February 6, 1995. I convened a hearing in this matter in XXXXX, on XXXXXXXXXXXXXX.

At the XXXXXXXXXXXXXX hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following two witnesses to testify on his behalf: Mr. XXXXX, a counselor with the XXXXX Employee Assistance Program (EAP), and Mr. XXXXX, the individual's father. The DOE/XXXXX also presented two witnesses at the hearing, Ms. XXXXX, a DOE Personnel Security Specialist, and Dr. XXXXX, a board-certified psychiatrist.

II. Regulatory Criteria At Issue

As noted above, the Notification Letter issued to the individual on December 22, 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 two regulatory criteria, subsections (h) and (j) 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). The specific security concerns raised by the two criteria set forth above and the factual bases supporting DOE's invocation of each are inextricably intertwined, and they will be discussed together in this Opinion.

III. Findings of Fact

The relevant facts in this case are largely uncontested. The principal dispute is over the ultimate question, whether the individual is rehabilitated or reformed to a sufficient extent that restoration of his access authorization would be warranted under 10 C.F.R. § 710.7(a). 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 the DOE/XXXXX submitted to OHA in connection with that hearing, and all other papers the parties have filed with me, I make the following findings of fact:

Beginning when he was a teenager, the individual, a XXXXX-year-old male, has been arrested and charged with DWI or similar alcohol-related offenses six times. His first arrest for DWI occurred when he was 17 years old in April 1978. See Transcript of Personnel Security Interview dated May 12, 1994, at 11, 20 (hereinafter cited as "PSI Tr."). This was followed in November 1980 by a charge of possession of alcohol under the legal age. PSI Tr. at 14. In 1985 and again in 1987, the individual was charged with DWI. PSI Tr. at 38. After a six-year hiatus, the individual was charged with DWI on December 17, 1993. Id. Finally, shortly after his 1994 PSI, the individual was arrested and charged for the fifth time with DWI, on June 18, 1994. Psychiatric Evaluation of Individual by XXXXX, M.D., August 1, 1994, at 33 (hereinafter cited as "Evaluation"). These two most recent arrests resulted in convictions.

The individual has stated on numerous occasions that he would no longer drink and drive. For example, during his 1985 PSI, which was conducted after his second DWI arrest, he stated his intention to avoid receiving another DWI citation. Evaluation at 17 (quoting Transcript of Personnel Security Interview dated December 17, 1985, at 35). During his 1994 PSI, which was conducted after his fourth DWI arrest, in response to being asked what his future intentions were about drinking and driving, the individual was very clear that he intended not to drive after drinking. PSI Tr. at 50-51. He further stated that he had already "slowed down" on his drinking and that he no longer drank and drove. PSI Tr. at 50. In addition, he understood that his access authorization was jeopardized by his DWI arrests. He stated, "I don't want to lose my clearance. . . . I've got a family, I've got kids. My clearance is very important to me." Id.

At the request of the DOE/XXXXX, Dr. XXXXX conducted a psychiatric examination of the individual on July 22, 1994, and prepared a written evaluation for the DOE. Hearing Tr. at 36. Dr. XXXXX also reviewed a copy of the individual's DOE Personnel Security file. Hearing Tr. at 37-38. Based on his evaluation, Dr. XXXXX determined that the individual suffers from "substance abuse, alcohol" according to the criteria for that condition set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association. Hearing Tr. at 43; Evaluation at 38, 40. He also concluded that the individual met the criteria for "substance dependence, alcohol," though only "weakly." Hearing Tr. at 44; Evaluation at 40.<2> Both conditions are considered to be mental illnesses or mental conditions because they appear in the DSM. Hearing Tr. at 45-46. Furthermore, in Dr. XXXXX's opinion, these conditions have a negative impact on the individual's judgment and reliability, while sober as well as while intoxicated. Dr. XXXXX testified that the individual's judgment and reliability are jeopardized while he is intoxicated because the individual's inhibitions are loosened and he is more likely to talk and "do foolish things." Hearing Tr. at 46-47. As evidence of the individual's poor judgment while sober, Dr. XXXXX pointed out he was arrested for DWI between his 1994 PSI and his psychiatric evaluation, while the individual was fully aware that his clearance was already under scrutiny. Hearing Tr. at 46. Dr. XXXXX expressed his opinion that drinking and driving during that interim period demonstrates an error in judgment that only someone with a drinking problem would commit. Id. Dr. XXXXX considered this behavior "maladaptive," a term used in the DSM, because it was contrary to what the individual "need[ed] to do to survive. His survival, his income depends on his Q clearance." Hearing Tr. at 83. Dr. XXXXX noted, however, that the individual's defect in judgment is "circumscribed" rather than global, in that "it all surrounds his substance abuse disorder" and does not affect other aspects of his life. Hearing Tr. at 79-80.

Dr. XXXXX also maintained that the individual drinks habitually to excess. Hearing Tr. at 36-37, 63-65. Based on his knowledge, Dr. XXXXX stated that the individual has in all likelihood driven while intoxicated many times without getting caught, because it is statistically improbable that the five times he was arrested were the only times he drove while intoxicated. Hearing Tr. at 63-64, 66.

Dr. XXXXX also testified about the status of the individual's efforts to achieve rehabilitation from his alcohol abuse problem. He testified that most of the current treatment programs take between 50 and 100 hours. Hearing Tr. at 47-48. The American Society of Addiction Medicine, according to Dr. XXXXX, recommends four components to every substance abuse treatment program: an individual counseling component, a group therapy component involving sessions with other people with alcohol- and drug-related problems, a family component in which the abuser and his family discuss the problem in a protected setting, and an educational component that provides information about the deleterious effects of alcohol on the human body. Hearing Tr. at 49-50. Dr. XXXXX expressed his opinion that all four components, particularly structured group therapy, were essential to a successful rehabilitation program. Hearing Tr. at 52-53. Completion of a full rehabilitation program with all four components increases the likelihood of staying sober for one year from 25 percent to 40 percent. Hearing Tr. at 59.

According to Dr. XXXXX, if the individual abstains from alcohol and completes a rehabilitation program, he can demonstrate reformation by completing one year without alcohol-related problems. Dr. XXXXX also believes that if an individual chooses not to participate in a rehabilitation program, reformation may be demonstrated by the passing of two years without alcohol-related problems. Id.

At the time of the evaluation, the individual was still drinking alcohol. Evaluation at 41. In addition, the individual did not believe that he had any alcohol-related problems. Id. As a result, Dr. XXXXX determined that the individual was not eligible for the DOE/XXXXX's Employee Assistance Program Referral Option (EAPRO). EAPRO allows a clearance holder who admits to having a substance abuse problem to keep his access authorization, provided that the individual abstains from the substance and enters a rehabilitation program. Id. At the hearing, Dr. XXXXX admitted that he did not know whether the individual was still drinking, or abstaining. But he stated his opinion that the individual could not show rehabilitation or reformation at the time of the hearing because his last DWI arrest was too recent, and the individual had not yet completed a treatment program. Hearing Tr. at 86.

XXXXX, an EAP counselor at XXXXX, testified as a witness for the individual at the XXXXX hearing. He has been counseling the individual since August 1994 for marital and alcohol problems. Hearing Tr. at 98-99.<3> Based on psychological tests he administered to the individual, the EAP counselor believes that the individual "self-medicates" by using alcohol as a means of coping with interpersonal problems. Hearing Tr. at 99. He stated that his approach to counseling the individual is centered around the individual's goal of behaving maturely and responsibly, which "entails learning how to deal with alcohol or not deal with it, in terms of maintaining sobriety." Hearing Tr. at 100. According to the EAP counselor, the individual has responded well to this approach, though he acknowledged that their work together is in its early stages. Id. The EAP counselor disputes Dr. XXXXX's belief that group therapy is an essential component of alcohol abuse rehabilitation, and indicated instead that the success of any treatment depends on the individual involved. Hearing Tr. at 107. The EAP counselor stated his opinion that there are two reasons why group therapy would not be beneficial for this individual: he has not drunk in "quite a few months," which indicates that alcohol is not currently a "central theme in his life," and his reluctance to reveal his alcohol-related problems to strangers in a group therapy setting would likely be regarded as denial of those problems, when instead it should be viewed in light of his Hispanic heritage, which traditionally requires discretion in matters of a personal nature. Hearing Tr. at 107-108. Moreover, given the individual's willful, stubborn determination that the counselor has observed, he believes that the individual will be successful in a program of individual counseling. Hearing Tr. at 109. The EAP counselor went on to cite authority from the literature on alcoholism that countered Dr. XXXXX's proposition that rehabilitation requires a group therapy component to be successful. Hearing Tr. at 110-115; Individual's Exhibits 3 and 4. He did, however, concur with Dr. XXXXX that it is highly likely that the individual has driven while intoxicated more often than the five times he was arrested for that behavior. Hearing Tr. at 120. The EAP counselor's standard of rehabilitation, though somewhat less rigid than Dr. XXXXX's, nevertheless demanded a year of abstinence. Hearing Tr. at 130. Again in agreement with Dr. XXXXX, the EAP counselor concluded that the individual has not undergone sufficient therapy, even as defined by his own terms, to be considered rehabilitated at this time. Hearing Tr. at 124.

The individual testified at the hearing and provided the following information relevant to the disposition of his case. He admitted that before he began seeing the EAP counselor, he would drink too much when he got upset in order to avoid his problems. Hearing Tr. at 145. He admitted that he drove while intoxicated more often than the number of times he was arrested for DWI. Hearing Tr. at 143. He attributed his behavior to two distinct causes: immaturity, for those DWIs that occurred before 1985, and marital problems, for those beginning in 1985. Id. Concerning his marital problems, he stated that he used to drink instead of facing them, but he now recognizes that drinking only leads to more problems. Hearing Tr. at 143-144. He supported his current intention to abstain from alcohol by pointing out how his life has changed since his earlier stated intentions to abstain: his second conviction for DWI, his lack of access authorization, his impending divorce, his realization of his error in relying on alcohol, and the support of his girlfriend and family. Id. The individual's father attested to his son's good character and work habits. The father also testified that he has never seen the individual drink alcohol. Hearing Tr. at 94.

IV. Analysis

As the individual's counsel emphasized at the hearing held in this case, 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 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 underlying those two criteria. Therefore, it is my opinion that the individual's access authorization should not be restored.

The DOE/XXXXX relies on 10 C.F.R. § 710.8(h) and (j) as the bases for suspending the individual's "Q" access authorization. My analysis will consider these two criteria together, as they raise the same question concerning the individual's drinking problem. Since the DOE psychiatrist's diagnosis of a mental condition which causes or may cause a significant defect in judgment or reliability is based on a finding that the individual is suffering from alcohol abuse, I will begin by examining the evidence about the nature and extent of his alcohol use. To support its contention that the individual uses alcohol habitually to excess and is suffering from alcohol abuse, the agency relies on the following sources of information: (i) the 1994 PSI Transcript; (ii) the report dated August 1, 1994 by Dr. XXXXX, memorializing Dr. XXXXX's opinion based on material in the individual's Personnel Security file and his psychiatric evaluation of the individual nine days earlier, and Dr. XXXXX's testimony at the XXXXX hearing; and (iii) the testimony of Ms. XXXXX, a DOE Personnel Security Specialist, at the XXXXX hearing.

According to the DOE/XXXXX, the information obtained as the result of the May 1994 PSI reveals that the individual has a lengthy history of habitually using alcohol to excess, as shown by his five arrests for DWI in the past 17 years. 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 July 1994 and who opined in writing and at the hearing that the individual is suffering from alcohol abuse. Finally, the DOE/XXXXX offers the Personnel Security Specialist's opinion that the individual's alcohol abuse will adversely affect the individual's judgment and reliability in a security context.

1. Derogatory Information

The Individual Has A History of Arrests for DWI and Has Been Diagnosed by a

Board-Certified Psychiatrist as Suffering from "Alcohol Abuse."

It is clear from the evidence in the record that the individual's long-time pattern of arrests for alcohol-related traffic offenses falls within the criterion set forth in 10 C.F.R. § 710.8(j). The individual has been charged with DWI on five separate occasions over the past 17 years. Evaluation at 2-3, 18. In addition, he has finally admitted that he has a drinking problem and has sought alcohol abuse counseling through the XXXXX Employee Assistance Program. The last DWI arrest came in the two month interim between the May 12, 1994 PSI and the July 22, 1994 evaluation by the DOE psychiatrist. This latter incident demonstrates that the individual's judgment is poor when it comes to his use of alcohol. As the DOE psychiatrist noted, the individual's employment depended on having a Q clearance, and yet he was unable to refrain from driving while intoxicated even when he worried about whether DOE would permit him to retain his access authorization. This incident also illustrates that the individual is prone to self-destructive behavior while intoxicated, and that this behavior poses a danger to other people and to property. In my opinion, the individual's lengthy history of alcohol abuse creates a legitimate security concern that the individual's judgment might be faulty and his reliability questionable when he is under the influence of alcohol.

The same security concern arises not only when the individual is drinking but when he is sober as well. The individual shows poor judgment in deciding to drink, and that decision is done while sober. Dr. XXXXX illustrated this point by noting that the individual was not drinking "prior to getting drunk and intoxicated and driving." Hearing Tr. at 46. Deciding whether or not to drink is the one area of the individual's life in which he has clearly shown a significant defect in judgment and reliability when sober. Since it leads to intoxication, this behavior has serious consequences from a security standpoint.

Finally, it is the opinion of a board-certified psychiatrist, Dr. XXXXX, that the individual clearly suffers from "Substance Abuse, Alcohol" under the diagnostic criteria contained in DSM-III-R and DSM-IV.<4> Evaluation at 38. According to Dr. XXXXX, the individual's alcohol abuse is a mental condition which causes or may cause a significant defect in the individual's judgment and reliability, although in "a very circumscribed and limited area of [his] life." Evaluation at 40. It is for this reason, asserts the DOE Personnel Security Specialist, that the agency has concerns about the individual in a security setting. Hearing Tr. at 17-25. As noted above, I agree that the individual's drinking problem raises serious security concerns.

The individual's long history of arrests and convictions for alcohol-related traffic offenses and the psychiatric finding that he suffers from "alcohol abuse" 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 also reasonable on the basis of the psychiatric findings about the individual's history of alcohol abuse for the DOE/XXXXX to rely on 10 C.F.R. § 710.8(h) to conclude 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

Dr. XXXXX opined that the individual would require at least one year of sobriety while enrolled in an ongoing alcohol treatment program before he might be considered rehabilitated or reformed, or at least two years of abstinence if he chose not to seek treatment. The reasons given by Dr. XXXXX for those periods of abstinence is that there is a significant rate of recidivism during the first year for persons recovering from alcohol abuse, which is even higher for those who try to control their drinking without seeking any treatment. Dr. XXXXX also stated that the current medical consensus was that an alcohol rehabilitation program should include at least 50 hours of treatment encompassing education, family therapy, individual therapy, and group therapy, and that structured group therapy was viewed by the medical community as the most critical component. Id. at 52-53. The psychiatrist also noted that the individual did not meet the criteria for acceptance into the DOE/XXXXX EAPRO program at the time of his evaluation in July 1994, because he had not yet abstained from using alcohol, or admitted that he had a drinking problem and entered a formal treatment program. Evaluation at 41.

The individual testified that he is a loyal American who would never do anything to jeopardize the national security. Hearing Tr. at 141 . He points out that despite his drinking problem, his behavior on the job has always been impeccable. Hearing Tr. at 138-139. His counsel maintains that he is already far enough along the road to rehabilitation to warrant the restoration of his access authorization. In support of this contention, the individual asserts that he has changed his life substantially since the psychiatric evaluation by Dr. XXXXX ten months ago. At the hearing, he testified that he now acknowledges his alcohol abuse problem, and that he has not consumed any alcohol for approximately five months. Hearing Tr. at 148. He further testified that he is attending individual counseling sessions with the EAP counselor, and he is learning new techniques for coping with stress that do not involve the consumption of alcohol. Id. In particular, the individual attributes his last two DWI arrests to stress he was suffering during that time from the breakup of his marriage. He claims that he now has a very positive relationship with his girlfriend, and that the period of marital stress which drove him to drink has ended. Hearing Tr. at 143-144.

The EAP counselor who testified on the individual's behalf disputed Dr. XXXXX's claim that the most important component of a treatment program was structured group therapy. Hearing Tr. at 114-115. He maintained that this individual was better suited, because of his personality and cultural background, for a one-on-one counseling approach. He further noted that the individual had faithfully attended counseling sessions, often traveling significant distances to do so, and that he is making good progress. Hearing Tr. at 133. The EAP counselor also cited the individual's recent 60-pound weight loss as evidence of his self-discipline and his abstention from alcohol. Hearing Tr. at 108. In addition, the EAP counselor stated that he is also treating some XXXXX employees who are in the DOE/XXXXX's EAPRO program, and that the individual compares favorably to some of those persons in his progress toward recovery from his substance abuse problem. Hearing Tr. at 134. However, the EAP counselor ultimately conceded that in view of the individual's long history of alcohol abuse, and his relatively short period of abstinence, it was still too early to state positively that the individual was rehabilitated. Hearing Tr. at 124.

Based on the testimony of the DOE psychiatrist and the EAP counselor, both of whom are experts in the treatment of substance abuse, I find that the individual has failed to demonstrate that he is rehabilitated from his alcohol abuse. Even though there is a difference of opinion between the two experts about the appropriate method of treatment for this person, they generally agree on the length of time the individual must abstain from alcohol to be considered rehabilitated. They both agree that the individual has not yet abstained from drinking alcohol or avoided alcohol-related problems long enough to prove that he is rehabilitated. In making this finding, I carefully considered the testimony of the individual and his father who both asserted that the individual no longer drinks alcohol and has committed himself to reforming his lifestyle. However, their optimistic view of the individual's progress in overcoming his alcohol problem does not outweigh the contrary opinions of the two experts. Both of the experts have years of experience treating persons with alcohol abuse problems, and I am persuaded that they can more accurately judge the time required for rehabilitation. In view of the foregoing considerations, the weight of the evidence indicates that the individual has not yet achieved rehabilitation from his pattern of alcohol abuse. Therefore, I find that the individual's rehabilitation efforts to date are not sufficient to mitigate the security concern raised by his long term pattern of alcohol abuse.

b. Other Factors

In evaluating the extent and seriousness of the individual's alcohol abuse problem, I note that although some of his earlier DWI arrests occurred many years ago, and there was a six year period during which he had no encounters with the law, his two most recent DWI arrests took place within the last 18 months. Thus, while the individual's counsel correctly points out that many years passed without his having any alcohol-related encounters with the law, the evidence shows that his drinking again became a problem in 1993. The knowing and voluntary nature of the individual's participation in this dangerous conduct, his age and maturity at the time of his two latest arrests, and the recency of these arrests are significant factors, which in my opinion, weigh heavily against the individual. 10 C.F.R. § 710.7(c).

I am especially concerned about the circumstances surrounding the individual's last DWI arrest, which came at a time (June 1994) when he already knew that his Q clearance was at risk as a result of his alcohol abuse. When he was evaluated by Dr. XXXXX shortly thereafter (in July 1994), he still had not faced the seriousness of his drinking problem. It was not until an additional period of time had elapsed that the individual acknowledged the gravity of his problem and finally sought professional help in the fall of 1994. The individual admits to using alcohol to deal with stress. Even though the specific stress factor which led the individual to abuse alcohol during the last 18 months may be have been removed, other stress factors may arise that could cause the same behavior. At this point in time, the individual has not yet undergone sufficient therapy or shown a sufficient period of abstinence to convince me that he could handle stress without resorting to alcohol abuse.

At the hearing, the individual and his counsel maintained that he is now far enough along the road to rehabilitation that his clearance should be restored, and he should be allowed to participate in the DOE/XXXXX EAPRO program. Unfortunately for this individual, the EAPRO program is only open to clearance holders who acknowledge the existence of a substance abuse problem at an earlier stage in the process. The fact that he continued to drink to excess and drive while intoxicated, even after he knew his access authorization was in jeopardy, is irrefutable evidence of bad judgment and leads me to agree with the DOE/XXXXX in questioning the individual's reliability. Since the individual has a serious alcohol abuse problem, there is an unacceptable risk that breaches of security may occur even away from the workplace and outside of working hours.

V. Conclusion

As explained in this Opinion, I find that the DOE/XXXXX properly invoked 10 C.F.R.§ 710.8(j) and(h) 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

Thomas O. Mann

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.

<2>/ Due to the timing of this case, Dr. XXXXX evaluated the individual under two different versions of the DSM: DSM-III-R, published in 1987, and DSM-IV, published in 1994 and effective January 1, 1995. Although the criteria for substance abuse and substance dependence differ from one version to the other, Dr. XXXXX found that the individual met the criteria for both conditions under either version. As indicated in note 4, infra, this opinion focuses on the diagnosis of "alcohol abuse" under the DSM-IV.

<3>/ Although he is receiving treatment from the EAP counselor, it should be understood that the individual is not in the DOE/XXXXX EAPRO Program.

<4>/ According to Dr. XXXXX, the individual also "weakly" meets the diagnostic criteria for "Substance Dependence Disorder, Alcohol." Evaluation at 40. Since the alcohol abuse diagnosis is much more strongly supported by the psychiatrist, it is the focus of my analysis in this opinion.