Case No. VSO-0040, 25 DOE ¶ 82,773 (H.O. Schwartz Oct. 17, 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:June 9, 1995

Case Number:VSO-0040

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to receive 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." Because reliable information in the possession of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) created a substantial doubt about the individual's eligibility for a security clearance, the Manager of the DOE/XXXXX has authorized the institution of the administrative review procedures set forth at 10 C.F.R. Part 710. Based on the record before me, I am of the opinion that the individual should not be granted an access authorization at this time.

I. Background

The individual has been employed for approximately two and one half years by XXXXX, a DOE/XXXXX contractor that performs construction, maintenance, utility and engineering work for XXXXX. The individual's employer has applied for a "Q" access authorization for the individual to enable him to perform his work in restricted locations. After receiving the request for a security clearance, DOE/XXXXX's Personnel Security Division conducted an investigation and review of the individual's suitability for a security clearance. As a result of its investigation and review, the DOE/XXXXX determined that derogatory information concerning the individual created a substantial doubt about the individual's eligibility for an access authorization. Specifically, the DOE/XXXXX determined that the information obtained regarding the individual's excessive alcohol use and unusual conduct was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On May 1, 1995, the DOE/XXXXX commenced the administrative review proceeding by issuing a letter to the individual notifying him that the DOE/XXXXX possessed information which created a substantial doubt concerning his eligibility for a "Q" access authorization. See Letter from XXXXX, Assistant Manager for Management and Administration, DOE/XXXXX, to the individual (May 1, 1995) [hereinafter 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, which are discussed in Section II below. 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 eligibility for access authorization.

On May 19, 1995, the individual filed with the Manager of the DOE/XXXXX a response to the derogatory information contained in the notification letter and a request for a hearing concerning this matter. The DOE/XXXXX transmitted the individual's hearing request, pursuant to the provisions of 10 C.F.R. § 710.25(a), to the Director of the Office of Hearings and Appeals (OHA), who received it on June 9, 1995. The OHA Director appointed me as Hearing Officer in this case on June 14, 1995. I convened a hearing in this matter in XXXXX, on XXXXXXXXXXXXXXX.

At the XXXXXXXXXXXXXXX hearing, the individual represented himself and testified on his own behalf. In addition, the individual called five witnesses to testify on his behalf: his supervisor, his girlfriend, his son, and two long-time friends. The DOE/XXXXX presented three witnesses at the hearing: Ms. XXXXXXXXXXXXXXXXXXX, a DOE/XXXXX personnel security specialist; XXXXX, an employment supervisor at XXXXX; and Dr. XXXXX, M.D., a psychiatrist who interviewed and tested the individual at the request of the DOE/XXXXX.

II. Substantive Regulatory Criteria At Issue

As noted above, the Notification Letter included a specific description of information in the possession of the DOE/XXXXX that the agency regards as derogatory and which, in the opinion of the DOE/XXXXX, creates a substantial doubt as to the individual's eligibility to hold a "Q" clearance. According to the Notification Letter, the information falls within the ambit of three regulatory criteria, paragraphs (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) describes information 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 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).

III. Findings of Fact

Based on my consideration of all the evidence in the record in this proceeding, which includes the documents the DOE/XXXXX and the individual submitted to OHA in connection with that hearing and all other papers the parties have filed with me, as well as the testimony presented at the August 29, 1995 Personnel Security Hearing, I make the following findings of fact:

With respect to the DOE/XXXXX's allegations of habitual excessive alcohol use, I find as follows. The individual admits that he began drinking alcohol during high school and drank heavily from age 21. During one ten-year period, he regularly consumed a quart of whiskey a day, had developed a tolerance for alcohol, and became violent while under the influence of alcohol on numerous occasions. In addition, the individual has compiled a record of at least four alcohol-related arrests. Report of December 30, 1994 psychiatric examination (Exhibit 8) at 3. On the basis of this and other information in the possession of the DOE/XXXXX, Dr. XXXXX, M.D., a board-certified psychiatrist, has diagnosed the individual as alcohol dependent. Id. at 23. Finally, a laboratory test taken on January 26, 1995 indicates that the individual's liver has been damaged in a manner most commonly associated with recent heavy drinking.

With respect to the DOE/XXXXX's allegation that the individual suffers from a mental illness or condition which causes or may cause a significant defect in judgment or reliability, I find as follows: While under the influence of alcohol, the individual has driven automobiles and been arrested twice for driving while intoxicated (DWI). In addition, he admits hitting four women on a number of occasions, many of which occurred while he was under the influence of alcohol. In the opinion of Dr. XXXXX, the individual suffers from two mental conditions, both of which have caused significant defects in his judgment or reliability: alcohol dependence and antisocial personality disorder, a condition which Dr. XXXXX believes is corroborated by an independent diagnostic test known as the Minnesota Multiphasic Inventory Test-Version 2 [hereinafter MMPI].

Finally, with respect to the DOE/XXXXX's allegation that the individual has engaged in unusual conduct that tend to show that he is not reliable, honest or trustworthy, the individual has admitted to the following: that he was charged with assault and battery and disorderly conduct in two separate incidents in 1980, that he was physically abusive to at least two of his wives, that he took jewelry from his third wife, and that he was not in compliance with a court order directing his treatment for alcohol abuse following his 1992 arrest for DWI.

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 the 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 or 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 granted. 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 set forth in the Notification Letter in questioning the individual's eligibility for a "Q" clearance. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns underlying these criteria. Therefore, it is my opinion that the individual's access authorization should not be granted.

The DOE/XXXXX relies on 10 C.F.R. § 710.8(h), (j) and (l) as the bases for questioning the individual's eligibility for access authorization. Since one basis for the mental condition charge depends on an analysis of the individual's alcohol usage, I will begin by examining the evidence about the nature and extent of his involvement with alcohol, a discrete charge based on section 710.8(j). After considering the evidence concerning both elements of the mental condition charge, based on section 710.8(h), I will then conclude with an analysis of the individual's honesty trustworthiness, and reliability, the standards for which are set forth in section 710.8(l).

A. Use of Alcohol Habitually to Excess

1. Derogatory Information

To support its contention that the individual has used alcohol habitually to excess, the DOE/XXXXX relies on the following sources of information: (i) the transcript of a personnel security interview held on November 3, 1994 (Exhibit 3) [hereinafter PSI Tr.], (ii) Dr. XXXXX's report of his December 30, 1994 psychiatric examination of the individual (Exhibit 8), and (iii) Dr. XXXXX's interpretation of a laboratory report for the individual's blood sample collected on January 26, 1995 (Exhibit 9). According to the DOE/XXXXX, the information obtained during the PSI reveals a pattern of heavy drinking for over 20 years. In addition, the DOE/XXXXX offers the personnel security specialist's opinion at the hearing that excessive alcohol consumption raises security concerns from the DOE's perspective.

It is clear from the evidence in the record that the individual has been consuming alcohol in varying degrees for all of his adult life. By his own admission he began drinking on the weekends as a teenager. PSI Tr. at 50. He began drinking whiskey to the point of intoxication on a daily basis when he was 21 years old and continued this pattern of consumption for ten years. Id. at 52-54. After that period, the individual maintains that he reduced his whiskey consumption but began drinking beer as well, both on a daily basis. Id. at 56-57. As the 1980s progressed and his children grew older, he gradually reduced his alcohol consumption, though still typically drank a six-pack of beer and shots of whiskey on the weekends. Id. at 59. During this period, the individual was jailed for detoxification at least one night, Transcript of August 29, 1995 Personnel Security Hearing [hereinafter Hearing Tr.] at 18, and on another occasion was arrested on a charge of DWI, which was resolved by his attending an eight-hour education program. Exhibit 14. In April 1990 the individual suffered an "anxiety attack," after which he states that stopped consuming alcohol altogether for about six months. PSI Tr. at 61. After those six months he began drinking again, moderately by his account, and, again by his account, has been intoxicated only once since the attack, when he was arrested for DWI on December 20, 1992, when he learned his daughter was pregnant. Id. at 62-64.

At the hearing, the personnel security specialist presented the DOE's security concern when an individual habitually uses alcohol to excess. Unless the individual has adequately been reformed or rehabilitated, his alcohol use may render him incapable of "adequately protecting classified information or performing work related to such." Hearing Tr. at 90. In addition, she stated that abuse of alcohol can reduce one's ability to make responsible judgments and decisions and "can also contribute to irresponsible behavior, such as criminal conduct." Id. Her testimony provides the appropriate nexus between excess habitual use of alcohol and the DOE's security concerns.

Dr. XXXXX performed a psychiatric examination of the individual on December 30, 1994, at which time he interviewed the individual for about one hour and had him take a computer-scored MMPI diagnostic test. On the basis of his review of the individual's DOE/XXXXX security file in conjunction with his own person observations, Dr. XXXXX determined that the individual's behavior manifested at least four of the seven diagnostic criteria for alcohol dependence set forth in the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The DSM-IV requires that an individual's behavior meet only three of the seven criteria to be properly diagnosed as alcohol dependent. Although Dr. XXXXX recognized that the individual had greatly reduced his alcohol consumption patterns since the early 1980s, he maintains that the individual continues to be substance dependent, "because of the accepted belief in the Substance Abuse field that if someone once meets the criteria for Substance Dependence, then they always meet the criteria, even if their disorder is in Sustained Full Remission." Exhibit 8 at 27. Since the manifestations of the diagnostic criteria are well documented in Dr. XXXXX's report and the individual has not presented any evidence to the contrary, I find that the individual has been properly diagnosed as alcohol dependent according to the DSM-IV.

I also find that he is a user of alcohol habitually to excess. After Dr. XXXXX issued his examination report, he obtained the results of a laboratory test the individual took on January 26, 1995. On the basis of these test results, Dr. XXXXX concluded that the laboratory tests show evidence of liver damage: "Given the subject's drinking history, and the negative test for hepatitis, it falls within the realm of medical probability (i.e., > 95% certainty) that the subject's elevated liver enzymes are as a result of the habitual and excessive consumption of alcohol." Exhibit 9 at 2. At the hearing, he explained that one of the liver enzyme levels tested, GGT, reflects the degree of a subject's alcohol consumption within the past year. Id. at 62. Dr. XXXXX stated that this individual's GGT level indicates that "[w]ithin a year of taking the blood test he was drinking excessively, the equivalent of, I'll say a minimum of ten-- what are called ten standard alcohol units, . . . say ten or more beers a day to do something like that within a year" and that this level of drinking would have to be sustained "at least several days a week," but then added that "[y]ou could drink heavily all weekend and produce this pattern." Id. at 66.<2> Dr. XXXXX was also questioned whether GGT levels could be elevated for reasons unrelated to excessive alcohol consumption. Other than hepatitis, for which test subjects are screened and the individual tested negative, Exhibit 9 at 1, Dr. XXXXX stated that certain industrial organic solvents, in particular carbon tetrachloride, are liver-toxic and presumably can affect GGT levels. Hearing Tr. at 66-67. Later in the hearing, the individual's supervisor testified that the only solvents the individual is exposed to on the job are lacquer thinners and mineral spirits and that neither contains carbon tetrachloride. Hearing Tr. at 104.

2. Mitigating Factors

The individual claims that he has reformed his behavior regarding alcohol to such a degree that it should not raise a security concern. He has claimed, in his personnel security interview, his psychiatric examination, and his testimony at the hearing, that he has greatly reduced his alcohol consumption to the point where he now drinks only in moderation. From his statements, one can observe not only an overall reduction in alcohol consumption over the years since his twenties, when he was by his own admission drinking a quart of whiskey a day, but also a sharp drop in consumption after his "anxiety attack" in early 1990. When questioned at the hearing about his most recent consumption of alcohol, he responded that he hardly drank at all. Hearing Tr. at 13.

Dr. XXXXX disagreed with the individual's assertion of reformation. He stated that the individual has not demonstrated adequate evidence of rehabilitation or reformation from his alcohol dependence. According to Dr. XXXXX, adequate evidence of rehabilitation would require 50 to 100 hours of treatment in four settings: individual counseling, group therapy, family counseling, and education. Exhibit 8 at 27. The individual has conceded that he has not attended formal rehabilitation, but instead stopped drinking heavily on his own, with the support of his family. PSI Tr. at 66-67. In the absence of adequate rehabilitation, it is Dr. XXXXX's opinion that adequate evidence of reformation, that is, an individual's change of behavior with respect to alcohol consumption, requires two years of total abstinence from alcohol as well as all non-prescribed psychoactive substances. Exhibit 8 at 27. Since the individual has admitted to drinking, although moderately, as recently as three weeks before the hearing, Hearing Tr. at 13, he clearly has not demonstrated evidence of reformation that meets Dr. XXXXX's requirements. Furthermore, although Dr. XXXXX conceded that it is medically possible for an alcohol dependent individual to drink in moderation, his opinion is that it is unlikely that such an individual "can maintain that level of controlled drinking." Hearing Tr. at 75.

The DOE regulations state that my decision as to access authorization is to be "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). Employing this common-sense approach, and considering the individual's testimony concerning his past and present patterns of alcohol consumption, his alcohol-related arrests, Dr. XXXXX's expert opinions, and the relevant laboratory data in the record, I reach my opinion that the individual uses alcohol habitually to excess and that he has not yet demonstrated adequate evidence of rehabilitation or reformation. Consequently, I find that the DOE/XXXXX properly relied on 10 C.F.R. § 710.8(j) as a basis for questioning the individual's eligibility for a Q clearance. See generally Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ _____ (October 10, 1995).

B. Illnesses or Mental Conditions

10 C.F.R. § 710.8(h) sets forth a category of derogatory information, based on illness or mental condition that causes or may cause a significant defect in judgment or reliability, that raises a question concerning an individual's eligibility for access authorization. The DOE/XXXXX's stated security concern is that significant defects in judgment or reliability may cause an individual to behave unpredictably and to fail adequately to protect classified information. Hearing Tr. at 90. To support its contention that the individual suffers from an illness or mental condition that causes or may cause such lapses in judgment or reliability, the agency relies on Dr. XXXXX's report of his December 30, 1994 psychiatric examination of the individual. As stated above, Dr. XXXXX reviewed the individual's security file, interviewed the individual for approximately one hour, and administered the MMPI test as a diagnostic aid. As a result of his examination, he determined that the individual has three psychiatric illnesses, only two of which have been raised by the DOE/XXXXX in its Notification Letter: alcohol dependence and antisocial personality disorder. I will address each illness separately.

1. Substance Dependence, Alcohol

Based on the record before me, I have opined that the individual is alcohol dependent, as defined in the DSM-IV and diagnosed by Dr. XXXXX. See Section IV A above. It follows, then that the individual has an illness. The critical question is whether that illness causes or may cause a significant defect in judgment or reliability. In his examination report, Dr. XXXXX considered this matter in light of the individual's DWI arrests and physical abuse of women. He concluded that "the defect in judgment in regards to the two DWIs was not significant," because no one was injured and there were only two DWI arrests. Exhibit 8 at 28. He also concluded, however, that "the subject's assault of at least 3 women demonstrated a significant defect in judgment and reliability that was caused by an illness or mental condition in the subject." Because the individual had "admitted that alcohol made this behavior more likely," id., a reasonable interpretation of Dr. XXXXX's conclusion is that it supports the DOE/XXXXX's charge regarding alcohol dependence as an illness that causes or may cause a significant defect in judgment or reliability. See also Hearing Tr. at 20 (individual's testimony that he was drinking at the time of both 1980 incidents); PSI Tr. at 81 (individual's statement that abuse of spouses was related to alcohol). Although I do not agree that the defect in judgment displayed in the individual's DWI episodes is insignificant, the record in any event contains sufficient evidence of significant defects in judgment for me to form my opinion that the DOE/XXXXX was properly justified in relying on 10 C.F.R. § 710.8(h) in questioning the individual's eligibility for access authorization.

2. Antisocial Personality Disorder

DOE's allegations that the individual manifests an Antisocial Personality Disorder are based upon the report and testimony of Dr. XXXXX. In his Report of Examination, Dr. XXXXX states that the individual "probably but not definitely meets DSM-IV criteria for Antisocial Personality Disorder." Exhibit 8 at 26. Dr. XXXXX confirmed this diagnosis at the hearing. Hearing Tr. at 51-52. At the hearing, Dr. XXXXX presented his medical opinion that the individual suffers from Antisocial Personality Disorder despite the fact that he does not meet all the DSM-IV criteria for that illness. Hearing Tr. at 51-52. In addition, Dr. XXXXX concludes that this diagnosis is supported by the results of the MMPI test administered to the individual.

However, Dr. XXXXX's conclusion that the individual probably meets the DSM-IV criteria for Antisocial Personality Disorder is not adequately supported in the record. The DSM-IV sets forth four criteria that must be met for a clinical diagnosis of Antisocial Personality Disorder:

A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:

(1) . . . repeatedly performing acts that are grounds for arrest

(2) deceitfulness . . . lying

(3) impulsivity and agressiveness . . .

(4) irritability and agressiveness, as indicated by repeated physical fights or assaults

(5) reckless disregard for safety of self or others

(6) consistent irresponsibility [regarding work or financial obligations]

(7) lack of remorse . . .

B. The individual is at least age 18 years.

C. There is evidence of Conduct Disorder . . . with onset before age 15 years.

D. The occurrence of antisocial behavior is not exclusively during the course of Schizophrenia or a Manic Episode.

DSM-IV at 649-650. Although the individual meets the first, second and fourth criteria, the record contains no evidence relating to the third criterion. The DSM-IV states that "[t]he diagnosis of Antisocial Personality Disorder . . . is given only if there is a history of some symptoms of Conduct Disorder before age 15 years." Id. at 648. Moreover, the DSM-IV stresses that the clinician consider whether behavior that meets the diagnostic criteria for personality disorders, including Antisocial Personality Disorder, may be attributable instead to another psychological illness. For example, "[w]hen a person has a Substance-Related Disorder, it is important not to make a Personality Disorder diagnosis based solely on behaviors that are consequences of Substance Intoxication or Withdrawal to that are associated with activities in the service of sustaining a dependency (e.g., antisocial behavior.)" Id. at 632.

As a board-certified psychiatrist, Dr. XXXXX is clearly qualified to state his opinion with respect to the psychological health of an individual he examines. However, in this setting, I must consider the record of evidence before me. The record lacks any significant information concerning the individual's behavior before age 15, which I interpret as a critical element in a diagnosis of Antisocial Personality Disorder that is, as here, based on the DSM-IV. In addition, there is substantial evidence, including admissions by the individual himself, that his alcohol use contributed to his violent behavior, see, e.g., Exhibit 8 at 28, and there is nothing in the record that differentiates this behavior as antisocial rather than as the consequence of substance dependence. It is my opinion therefore that there is not sufficient evidence to support a conclusion that the individual suffers from Antisocial Personality Disorder under the DSM-IV guidelines.

Dr. XXXXX also pointed out at the hearing that the computer-generated interpretation of the MMPI test the individual took on December 30, 1994, stated that the individual has a personality profile consistent with a personality disorder. Hearing Tr. at 52; MMPI Adult Clinical System Interpretative Report (Interpretative Report) at 2. However, the MMPI is not intended to produce an independent diagnosis: "The personality description, inferences and recommendations contained herein need to be verified by other sources of clinical information since individual clients may not fully match the prototype." Interpretative Report at 3. In this case, the diagnosis suggested by the MMPI has not been substantiated, because one critical DSM-IV criterion of antisocial personality disorder has not been clinically verified. Applying a common-sense approach to all the evidence in the record, including the MMPI test results, my opinion is that the DOE/XXXXX has not sufficiently established that the individual is suffering from an antisocial personality disorder.

C. Honesty and Reliability

10 C.F.R. § 710.8(l) sets forth a category of derogatory information, based in part on unusual conduct that tends to show that an individual is not honest, reliable, or trustworthy, that the DOE considers to create a question concerning an individual's eligibility for access authorization. To support its contention that the individual has engaged in such conduct, the agency relies on a number of instances of violent behavior that the individual has acknowledged he committed.<3> These acts, which occurred during the 1970s and 1980s, are evidence that "individual chooses to ignore rules of socially acceptable conduct," one of the DOE's security concerns according to the Personnel Security Specialist. Hearing Tr. at 92. I note, however, that although there appears to have been a pattern of unusual conduct in earlier years, there is no evidence in the record that the pattern is continuing. Rather, the record reflects that the individual's behavior has improved considerably during the past five years. See, e.g., Hearing Tr. at 113, 115; PSI Tr. at 93. On the other hand, I must consider the individual's testimony that his drinking contributed at least in part to most of his unusual conduct, Hearing Tr. at 43, and Dr. XXXXX's testimony that the individual's continuing to use alcohol greatly increases the likelihood that he will revert to heavy alcohol consumption, id. at 76, and presumably renewed violent behavior. Given the nature of the DOE's stated security concerns with respect to the individual's past violent behavior, I find that the individual's record of unusual conduct places his reliability at issue. See, e.g., Personnel Security Hearing, 25 DOE ¶ 82,755 (1995). In light of the relative remoteness in time of these incidents, however, I will give them relatively little weight when I consider the totality of the individual's circumstances relating to this criterion.

As an additional concern, I believe that the individual may be minimizing the amount of alcohol he is currently consuming. As discussed above in Section IV A, the individual's January 1995 laboratory test revealed elevated levels of a liver enzyme that generally indicates recent bouts of heavy drinking. After ruling out other explanations for the elevated measurement, I find that this objective indicator of alcohol consumption refutes the individual's contentions regarding his current drinking habits. I have no doubts that he has greatly reduced his alcohol consumption over the course of the past five years, but I do not believe that he has been forthright with me on this issue. This behavior brings into question not only his honesty and trustworthiness, but also his reliability to safeguard classified material in the future.

Finally, most critical to my opinion regarding the individual's reliability is his noncompliance with a court order for failure to complete an alcohol-related treatment program. At the hearing, the individual testified that at the court hearing for his December 1992 DWI arrest, he entered into a plea-bargained resolution of the charge. Hearing Tr. at 15-16. One of the terms of the plea bargain agreement was attendance at a specified number of sessions of a specified treatment program. The record reveals two explanations the individual has given for his failure to attend the requisite number of treatment sessions. The first is that he stopped attending sessions because he became reemployed. Hearing Tr. at 16. The second is that after he entered into the plea bargain agreement, he determined that the field sobriety test results on which the DWI charge was based fell below the legal limit for intoxication. As a result, he felt that he should not have been charged with DWI in the first place, and unilaterally decided to breach the terms of the agreement. Hearing Tr. at 15-16. I find his behavior to be extremely discomforting. First, the individual accepted a plea-bargained resolution because, presumably, at the time he judged it to be in his best interest. Then, apparently, the individual determined that it was not in his best interest, and willfully ignored his agreement with the court. The behavior of an individual who chooses to disregard a court order raises legitimate questions as to whether he will also choose to disregard statutes and regulations that govern the use and disclosure of classified information.

In light of the DOE/XXXXX's expressed concerns, my opinion is that the individual's willful disregard for the terms of a plea bargain agreement, even without considering his long history of violent behavior and his probable minimization of his current level of alcohol consumption, forms a sufficient basis for the DOE/XXXXX to conclude that the individual has engaged in unusual conduct that tends to show that the individual is not honest, reliable, or trustworthy. Therefore, I find that the DOE/XXXXX had ample justification to rely on 10 C.F.R. § 710.8(l) in questioning the individual's eligibility for access authorization.

V. Conclusion

For the reasons set forth above, I am of the opinion that the record in this case does not support a finding that the individual suffers from an antisocial personality disorder, one of two illnesses or mental conditions raised as bases under 10 C.F.R. § 710.8(h) for the DOE/XXXXX's questioning the individual's eligibility for access authorization. Nevertheless, I am also of the opinion that the individual's past and present behavior with respect to alcohol consumption raises legitimate concerns about his eligibility and that the DOE/XXXXX properly invoked 10 C.F.R. § 710.8(h) and (j) in that regard. I further find that the DOE/XXXXX properly invoked 10 C.F.R.§ 710.8(l) in questioning the individual's eligibility for access authorization. In view of these criteria and the record before me, I cannot find that granting the individual 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 granted.

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. 20585-0107, 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

William Schwartz

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>The record is not clear concerning elevations in other liver enzyme levels, SGOT and SGPT, which apparently reflect longer-term alcohol consumption. GGT is the most time-sensitive of the liver enzymes tested ("it goes up first and then goes down first," according to Dr. XXXXX, Hearing Tr. at 64). It is upon the GGT reading alone of all the test results that I base my opinion regarding the individual's recent alcohol consumption level.

<3>The itemized episodes of violent behavior discussed at the PSI can be summarizes as follows:

(a) The individual was charged with Assault and Battery for hitting his girlfriend on April 13, 1980. Exhibit 12.

(b) He was charged with Disorderly Conduct on May 18, 1980, Exhibit 13, for putting his fist through a screen, according to the individual. Hearing Tr. at 20.

(c) He slapped each of his three wives on a few occasions. Hearing Tr. at 21; PSI Tr. at 82, 86, 88.

(d) He took jewelry from his third wife. Hearing Tr. at 21-22; PSI Tr. at 96-97.