Case No. VSO-0029, 25 DOE ¶ 82,766 (H. O. Gray Sept. 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:April 7, 1995

Case Number: VSO-0029

Respondent XXXXX works for a contractor at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. After a security review showed that the Respondent habitually used alcohol to excess and was alcohol dependent, the manager of XXXX suspended his access authorization. The Respondent then filed a request for a hearing on the continuation of his access authorization.

The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXX. After considering the evidence in light of the relevant regulations, it is my opinion that the Respondent's access authorization should not be continued.

BACKGROUND

The Respondent's eligibility for access authorization is governed by regulations found at 10 C.F.R. Part 710. The regulations set forth specific types of derogatory information that create a question as to an individual's eligibility for access authorization. In the Respondent's case, the derogatory information falls within the provisions of 10 C.F.R. § 710.8(j). This regulation refers to an individual who has:

been, 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.

At the hearing, the Department of Energy (DOE) presented the testimony of a consulting psychiatrist (the "DOE psychiatrist") who had diagnosed the Respondent as alcohol dependent. The Respondent presented the testimony of his wife, two coworkers, two supervisors, and an independent psychiatrist.

There is no material dispute concerning the facts in this case. The Respondent has admitted to the allegation that he was alcohol- dependent. The sole issue is whether the Respondent's rehabilitation program has restored him to eligibility for access authorization.

FINDINGS OF FACT

The Respondent's Involvement with Alcohol

The Respondent is a XXXXX-year old XXXXXXXXX worker. He has worked at XXXX and held access authorization since 1974. His coworkers and supervisor testified that he gets along well with other workers and is respected for his occupational abilities. He has never been observed under the influence of alcohol while at work, nor has his use of alcohol affected his job performance.

The Respondent's drinking resulted in only one encounter with the police. In October 1992, the Respondent was stopped by a policeman after his vehicle was observed weaving from one side of the road to the other. The result of a blood alcohol test showed the Respondent's level to be .19%, well above the minimum level to impair driving. <1> The Respondent was arrested and charged with driving while intoxicated. <2>

It was the Respondent's arrest that first brought his drinking to the attention of the DOE security staff. As a holder of an access authorization, he was required to report his arrest to the security office. After he reported the incident, the security staff conducted a personal security interview with him in June and September 1994, and arranged an interview with the DOE psychiatrist in July 1994.

From these interviews and the testimony at the hearing, a picture of the Respondent's involvement with alcohol emerged. The Respondent first drank alcohol at the age of fourteen or fifteen. In 1975, he began drinking on a daily basis. He apparently continued this pace until March 1995. His usual beverage was beer, though he occasionally drank whisky.

For most of the period from 1975 to 1995, the Respondent drank, on average, six beers an evening and became intoxicated several times a week. There are some uncertainties as to the quantity of alcohol the Respondent customarily consumed at any given time. It is undisputed, however, that he drank regularly and heavily. Although he was only arrested once for drunk driving, he has acknowledged that at some periods in his life he drove while intoxicated about once a month. <3> As late as July 1994, during the psychiatric examination, he reported drinking on a daily basis and becoming drunk at least once a week. He did most of his drinking at home, only rarely going to bars or drinking with friends.

In July 1994, the DOE psychiatrist examined the Respondent. The psychiatrist noted the Respondent's history of excessive drinking, his report of blackouts, his continued drinking in the face of opposition of his wife and daughters, his drinking while driving to avoid conflict at home, his arrest for driving while intoxicated, and his denial of problems with alcohol. Taking these factors under consideration, the psychiatrist diagnosed the Respondent's condition as alcohol dependence. <4> The Respondent's psychiatrist concurred with this diagnosis. <5>

The Respondent's behavior, such as habitually drinking while driving, or hunting with a loaded rifle while intoxicated, suggests that alcohol dependence impaired his judgment and reliability. <6> Both psychiatrists agreed that excessive drinking, such as the Respondent engaged in, degrades a person's judgment and reliability. The DOE psychiatrist referred to studies showing that a person may experience difficulty in concentrating and avoiding mistakes as much as a day after excessive drinking, even if he has become sober in the meantime. <7>

The Respondent's efforts at rehabilitation

On March 26, 1995, the Respondent entered an outpatient treatment program for alcohol dependency. The program, conducted by a local hospital, lasted for six weeks. Since the program ended, the Respondent has attended meetings of Alcoholics Anonymous an average of three times a week.

Both psychiatrists agreed that the Respondent's rehabilitation program was appropriate, but still incomplete. <8> In the opinion of the DOE psychiatrist, the Respondent would have to remain abstinent for two years to establish credibility that he had achieved some measure of rehabilitation. <9> He referred to several studies showing that, of recovering drinkers who return to drinking, 70% will do so within a year and another 20% will do so within two years. <10>

The Respondent's psychiatrist cited recent medical research suggesting that long-term consumption of alcohol causes a depletion of certain neurotransmitters in the brain. The individual experiences the depletion as a strong craving for alcohol. According to the study, it can take up to a year for the body to restore the quantity of neurotransmitters to normal values. <11> The study thus supports the view that persons attempting to recover from alcohol-related disorders are most likely to relapse in the early stages of rehabilitation. Considering the short time the Respondent has been in a rehabilitation program, both psychiatrists agreed that he was still at risk of relapse. <12>

ANALYSIS

The regulations provide that my opinion is to be based on a comprehensive, common-sense judgment as to whether continuing the Respondent's 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).

The Respondent has admitted to alcohol dependence, but contends that his drinking never impaired his ability to perform his assigned duties or his handling of classified materials. I need not find, however, that the Respondent actually failed to properly handle and safeguard classified material before recommending that his access authorization be revoked or denied. Adams v. Laird, 420 F.2d 230 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970); cf. Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758 at 85,558 (1995). On the contrary, I must consider that even alcohol abuse that occurs after working hours presents a risk that classified material could be mishandled. Cole v. Young, 351 U.S. 536, 550 n. 13 (1956). Furthermore, the Respondent's superior work record, by itself, is not sufficient to mitigate the security concerns raised by his alcohol dependence. Personnel Security Hearing, VSO- 0005, 24 DOE ¶ 82,753 at 85,530 (1995).

The Respondent argued that, according to the guidelines of the standard psychiatric diagnostic manual, alcohol dependence is considered "in remission" after six months of sobriety. <13> This argument is without merit. Both psychiatrists gave the opinion that the idea of remission has little meaning in the context of alcohol dependence, which calls for lifelong rehabilitation. <14> I find therefore that deciding whether the Respondent fits the criteria for remission does not help me assess if he is suitable for entrustment with classified material.

The Respondent also urged at the hearing that I consider his patriotism and loyalty to the United States. In recommending the revocation of the Respondent's access authorization, I am in no way implying that he was, or may be, disloyal to the United States. The Respondent's loyalty to the United States is unquestioned. A finding of disloyalty, however, is not necessary to deny access authorization to the Respondent. Molerio v. FBI, 749 F.2d 815, 824 (D.C. Cir. 1984); cf. VSO-0018 at 85,558.

The Respondent contended at the hearing that he was rehabilitated and therefore eligible for access authorization. I do not agree. Since late March of this year, the Respondent followed a commendable recovery plan, and his long-term prognosis for sobriety is good. My concern, however, is the Respondent's condition in the short-term as well as the long-term. I cannot ignore the evidence that relapse can be expected for someone at the Respondent's early stage of recovery, or that alcohol use produces impaired judgment and reliability in the Respondent. Such impairments can easily lead to unintentional or negligent compromises of classified material.

At the time of the hearing, the Respondent had completed fewer than four months of treatment. Before he began treatment, he had been alcohol dependent for about twenty years. At this early stage of recovery, while there is still a high risk of relapse, I believe that the Respondent presents an unacceptable risk if granted access to classified material. See VSO-0018 at 85,558-59; Personnel Security Hearing, VSO-0016, 25 DOE ¶ 82,757 at 85,550-51 (1995); Personnel Security Hearing, VSO-0014, 25 DOE ¶ 82,755 at 85,537-38 (1995); VSO-0005 at 85,529.

CONCLUSION

In view of the criteria set forth in 10 C.F.R. Part 710, I find that continuing the Respondent's access authorization would endanger the common defense and security and would not be clearly consistent with the national interest. It is therefore my opinion that the Respondent's access authorization should not be continued.

Warren Gray

Hearing Officer

Office of Hearings and Appeals

<1>In XXXXX, the minimum blood alcohol level to establish a presumption of impaired driving is .10%. Tennessee Annotated Code, § 55-10-408(b).

<2>The Respondent is unsure of the ultimate outcome of the charge; it appears that it was dropped. Tr. at 27-30.

<3>Tr. at 39.

<4>Tr. at 48-49.

<5>Tr. at 73.

<6>Tr. at 35-37.

<7>Tr. at 89-91.

<8>Tr. at 50; 63-64; 70; 72; 75.

<9>Tr. at 50.

<10>Tr. at 88-89.

<11>Tr. at 76.

<12>Tr. at 50; 92-93.

<13>See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), 179-81.

<14>Tr. at 81-82; 88.