Case No. VSO-0042, 25 DOE ¶ 82,771 (H.O. Dugan Oct. 10, 1995)

For full history of this case, and links to other cases, click here.

* 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 19, 1995

Case Number:VSO-0042

This opinion concerns the eligibility of XXXXX ("the individual") for continued "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> The individual's access authorization was suspended by the XXXXX Operations Office of the Department of Energy (DOE/XXXXX). In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.

I. Procedural Background

The individual is an employee of XXXXX, a DOE subcontractor at XXXXX. He has been employed at that facility since June 1990. In the fall of 1994, the individual reported to the DOE that he had been arrested for driving while intoxicated (DWI). Pursuant to 10 C.F.R. § 710.9(a), DOE/XXXXX conducted a recorded Personnel Security Interview (PSI) with the individual on October 20, 1994. Since information creating doubt as to the individual's eligibility for a clearance remained unresolved after that interview, DOE/XXXXX requested that the individual be interviewed by a DOE-consultant psychiatrist. That interview occurred on January 9, 1995 and the psychiatrist issued his report on February 18, 1995. Since the

matter remained unresolved, DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated May 16, 1995. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of that derogatory information. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On June 5, 1995, the individual requested a hearing without filing a separate written response to the allegations specified in the Notification Letter. Under the regulations, such a request is deemed a general denial of all the derogatory information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On June 28, 1995, I was appointed the Hearing Officer in this matter.

In accordance with 10 C.F.R. § 710.25(e) & (g), the hearing was convened in XXXXX, on XXXXXXXXXXXXXXXXX. At the hearing, the following witnesses were called to testify: (i) the individual, (ii) Dr. XXXXX, a DOE-consultant psychiatrist, (iii) XXXXX, therapist/counselor, formerly employed by the XXXXX (hereafter referred to as the alcohol treatment center), (iv) Ms. XXXXXXXXXXXXXXXXXXX, a DOE Security Specialist, (v) XXXXX, Employment Supervisor for the individual's employer, (vi) XXXXX, Roads and Grounds Supervisor for the individual's employer, (vii) XXXXX, Union Steward, Operating Engineers, and (viii) XXXXX, the individual's current supervisor. DOE Counsel submitted 20 exhibits (designated by numbers), and the individual submitted one exhibit (designated by the letter A).<2>

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on May 16, 1995, included a statement of the derogatory information in possession of the DOE that created a substantial doubt regarding the individual's eligibility for continued "Q" access authorization. On the basis of that derogatory information, DOE/XXXXX found that:

A. The individual is, in the opinion of a DOE-consultant psychiatrist, a user of alcohol habitually to excess without adequate evidence of rehabilitation. See 10 C.F.R. § 710.8(j).

B. The individual has been arrested twice on DWI charges, first on March 25, 1981 and most recently on August 25, 1994.

On July 14, 1995, DOE/XXXXX amended the Notification Letter to add the following area of concern:

C. As a result of the August 1994 DWI conviction, the individual underwent an educational and counselling program at an alcohol treatment center; however, he chose not to receive more intensive treatment and the alcohol treatment center's discharge summary states that he is in denial about his drinking.

III. Factual Background

The individual is a XXXXX-year-old man who has been employed by the DOE subcontractor, as a mechanic/heavy equipment operator since June 1990. It is undisputed that the individual was first arrested for DWI in March 1981 and was sentenced to DWI school. On August 25, 1994, at 9:16 PM, he was arrested a second time for DWI. The circumstances of the incident are not disputed. The individual left work early, about 3:00 or 4:00 PM, because it was raining. He and some of his co-workers met at the Veterans of Foreign Wars (VFW) Hall where they drank beer and played pool for several hours. At approximately 9:00 PM, the individual left to go home and was stopped by the police for driving 35 miles per hour in a 25 miles per hour zone. He was found to be intoxicated with a blood alcohol content of .18 to .19. He was sentenced to 90 days in jail with 88 days suspended, $249 court costs and fines, attendance at DWI school, six months probation, and an alcohol screening by the alcohol treatment center. In addition, his driver's license was suspended for three months. The individual acknowledges that he drank several beers on the evening of August 25, 1994. The number of beers he has admitted to drinking, however, has varied from 4 or 5 when being interviewed by the alcohol treatment center (Ex. 17, at 3), to 8 or 9 in the October 20, 1994 PSI (Ex. 5, at 14), and most recently 12 to 15 in his testimony at the hearing (Tr. at 21).

In September 1994, the alcohol treatment center performed an alcohol and drug assessment of the individual. That assessment included the diagnostic administration and interpretation of a battery of tests and a clinical interview. Based on that assessment, the evaluator found the individual was alcohol dependent. She also found that because his denial of alcohol dependence was so high it would be inappropriate for him to begin an intensive treatment program at that time (See Exs. 16 and 17). He was sentenced by the court to participate in the alcohol treatment center's Intensive Outpatient Treatment Program (IOTP). Because of the initial evaluator's finding that the IOTP was not appropriate, the individual underwent a second assessment by a different evaluator on November 1, 1994. The conclusion of this assessment was the same as that of the first. It was therefore recommended to the court that the individual undergo an alternative treatment program consisting of eight individual counseling and education sessions and mandatory attendance at four meetings of Alcoholics Anonymous (AA). The individual completed this program between November 7 and November 28, 1994, but he did not choose to enter a more intensive treatment program. The Discharge Summary states that the individual was unresponsive and disinterested in the treatment program and concluded that the individual remains in denial of his alcohol dependence problem (Ex. 20 at 60).

On January 9, 1995, the individual was examined by a DOE-consultant psychiatrist, Dr. XXXXX. Dr. XXXXX issued his report (Ex. 18) on February 18, 1995. That report was based on his review of the Personnel Security File, his interview of the individual, and certain laboratory tests performed on the individual. In his report, Dr. XXXXX concluded that he did not have sufficient evidence to diagnose the individual as meeting the criteria in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for either substance dependence or substance abuse. Nevertheless, he concluded that the individual was a user of alcohol habitually to excess. That determination was based on "the fact that the subject has liver damage that, within the realm of medical probability, given the subject's history, is alcohol related." (Ex. 18 at 10). This finding was derived from medical laboratory tests of the individual's blood which found that he had an elevation in GGT, the main liver enzyme affected by alcohol. After performing tests to determine that the individual had never been exposed to any hepatitis virus which can cause liver damage similar to that caused by excessive alcohol use, Dr. XXXXX concluded that "Given the quantities of alcohol to which the subject admits, and given the negative hepatitis screen, it falls within the realm of medical probability (i.e., >95% certainty) that the subject's liver damage is alcohol induced." (Ex. 18 at 7). He further stated that, given the individual's denial of an alcohol use problem and his unwillingness to discontinue his alcohol consumption, it was his opinion that there is not adequate evidence of rehabilitation. When Dr. XXXXX issued his report, he also wrote a letter to the individual informing him of the results of the liver enzyme test and advising him to abstain from all alcohol and to take the letter to his personal physician so his liver functions could be tested periodically.

IV. Findings of Fact and Analysis

The first question to be addressed is whether the individual is a "user of alcohol habitually to excess." 10 C.F.R. § 710.8(j). As discussed below, after carefully considering the documents and testimony presented in this case, I find that he is a user of alcohol habitually to excess and has failed to present adequate evidence of rehabilitation.

Although the individual's statements regarding the amount of beer he drinks have not been entirely consistent, his testimony at the hearing confirmed his prior statements that he currently drinks about one case of beer per month, or a twelve-pack every two weeks.<3> Ex. 17 at 3; Ex. 18 at 6; Tr. at 34, 61-62. He claims that some weeks he drinks and some weeks he does not drink and that he does not know for certain how much beer he drinks because he never attempts to keep track of the amount. Ex. 17 at 3; Tr. at 34-5, 62-3. Although sometimes he drinks one or two beers when at home, he drinks more heavily on special occasions, such as the evening of August 25, 1994 at the VFW Hall, weddings, parties, and fishing trips. Tr. at 30. He acknowledges this pattern of drinking in the following testimony:

Q. So you do drink at home, but generally it's not in large amounts like you would drink at special occasions?

A. Yes, sir.

Q. Is that correct?

A. Right.

Tr. at 31.

Q. I understand that you don't make lists, but are there some weeks when you do not drink any beer?

A. Yes, there is.

Q.Do you feel like mainly it's waiting for special occasions and then drinking quite a bit?

A.Most of the time, yes.

Tr. at 35.

On these special occasions, the individual drinks significantly more than one or two beers. On the evening of August 25, 1994, when he was arrested for DWI, he had drunk 12 to 15 beers and had a very high BAC of .18 or .19. Tr. at 21; Ex. 17 at 5. He testified that at a wedding, during the weekend prior to the hearing, he drank 6 to 8 beers and "got drunk." Tr. at 19, 32. He will drink a six-pack when on a camping or fishing trip. Ex. 20 at 26. He was unable to state how often these special occasions occur, Tr. at 31, but they appear to be the continuation of a pattern of drinking that began during his high school years. He began drinking beer in the 10th or 11th grade and has stated that he would drink a six-pack 2 or 3 times per week, Ex. 5 at 18; elsewhere he has said that while in high school he drank approximately 3 times per month, mostly at parties, and that this pattern continued after high school, when he would drink on weekends and at social events. Ex. 20 at 49. It was during this latter period that he was arrested for his first DWI. In his testimony he stated that there have been other times when he has drunk beer and driven but has not been arrested. Tr. at 31-32. In the October 20, 1994 PSI, he stated that he currently gets intoxicated about once per month, Ex. 5 at 20.

The individual admits that his drinking can be called habitual, but does not believe that it is excessive. Tr. at 51-52. He claims that his drinking has not affected his work performance and the three co-workers who testified on his behalf all state that, in their opinion, he is an excellent employee and they have seen no adverse effects of alcohol use on the individual's job performance. Tr. at 114-5, 121-2, 131-2. The individual has not stopped drinking but states that he no longer drinks and drives. Tr. at 18-19.

The term "user of alcohol habitually to excess" is a less precise term than "substance dependence" or "substance abuse," and is not defined in the DSM-IV. Moreover, as Dr. XXXXX testified, what is considered excessive use of alcohol may vary among individuals and cultures. Tr. at 51.<4> Nevertheless, based on the individual's elevated GGT liver enzyme as well as his history and pattern of drinking, Dr. XXXXX is firmly of the opinion that the individual is a user of alcohol habitually to excess. Since the individual has never been exposed to a hepatitis virus, Dr. XXXXX concluded that there is a greater than 95% medical probability that the liver damage reflected by the elevated GGT is caused by the individual's drinking. Ex. 18 at 7; Tr. at 57-58. In his report, he explains that the pattern of drinking (i.e., periodic occasions of heavy drinking) is a more significant cause of an elevation in GGT than the total amount of alcohol consumed over a prolonged time. Ex. 18 at 6. He testified on this matter as follows:

Q. How much is it [GGT] affected by the amount of beer he may have drunk in the prior two weeks or the prior month?

A. It could be affected by very heavy drinking over the month prior to the test. It isn't so much the quantity of beer, say, over a month, but it's the quantity that you drink at any one time.

For example, it's probably possible to get an elevated enzyme if you drink a six-pack one night a week and just drink it very quickly so that your blood alcohol gets very high. On the other hand, if you drank 24 beers one a day over the course of a month, it probably would have -- certainly would have no effect on raising your liver enzymes.

So, for example, if he says that he drinks a case a month, but there are some weeks that he doesn't drink at all, that would mean that on the weeks that he does drink, he has to drink 12 beers rather than six beers. Certainly, if you drank a 12-pack twice a month, that would be enough in some people to raise their liver enzymes, if you drank it quickly.

Q. So possibly someone who drank two beers a day might not have a GGT of 70?

A.Probably not. They probably wouldn't -- almost certainly wouldn't cause any elevated liver enzyme.

Tr. at 53-54.

Thus, an elevation in GGT reflects episodes of heavy drinking, and I am convinced by Dr. XXXXX's testimony that the individual's elevated liver enzyme is caused by his pattern of drinking excessively on "special occasions."

With the consent of the individual, Dr. XXXXX was permitted to be present during the individual's testimony. After hearing that testimony, Dr. XXXXX indicated that he was even more certain of his opinion that the individual was a user of alcohol habitually to excess. Tr. at 41. Moreover, he stated that he was now of the opinion that the individual probably met the criteria for substance dependence. Tr. at 43-44. As mentioned above, the clinical social worker who evaluated the individual at the alcohol treatment center concluded that the individual is alcohol dependent. Ex. 17 at 5. In addition, the therapist/counselor from the alcohol treatment center who met with the individual in eight one to one sessions testified that she agreed that the individual is alcohol dependent. Tr. at 76. Dr. XXXXX testified that he does not disagree with the conclusions of the alcohol treatment center, but that he is a little more cautious in his diagnosis and believes the individual "probably meets the criteria for alcohol dependence." Tr. at 50 (emphasis added).

Both Dr. XXXXX and the therapist/counselor testified that the individual has a very high level of denial and a tendency to minimize his alcohol use. Asked about her basis for finding that the individual is in denial, the therapist/counselor testified that:

A.I can only speak from my own experience, that [the individual] seemed to minimize the amount and the impact of his drinking, and for me, in my sessions with him, I got very little to go on. He really did not appear to want to discuss alcoholism or addiction in general or his own drinking in particular. I find, for me, that was an unusual occurrence that someone did not want to at least examine minimally this information, have some discussion about it and -- so for me that kind of stonewalling pointed to not even wanting to begin to take in any information or begin to apply that information to one's own life.

Tr. at 79.

Dr. XXXXX, in his testimony, also addressed the individual's denial:

A. ... One of the definitions of alcoholism is to continue to drink in spite of having adverse consequences of your drinking. Sort of the mechanism that allows you to do that is what's called denial, where you just don't want to let facts interfere with your drinking.

The counselor that saw you felt that was an issue, that you came into the program with a lot of denial and left the program with a lot of denial. I feel the same thing.

I mean, I basically sent you a letter as a doctor saying that you're injuring your liver. I mean, there is lots of times you can have a disease internally where you don't feel anything on the outside. So I think the mechanism that allows you to keep drinking, in spite of being told that, is denial.

It's fairly classic with people with alcohol or drug problems that they have that.

Tr. at 46-47. See also Tr. at 42, 48.

It is clear to me that the individual demonstrates denial and minimizes his alcohol consumption. The most obvious example of this is the individual's statements cited above regarding how many beers he drank at the VFW Hall on the evening of August 25, 1994. Given his BAC that evening and his testimony that he drank 12 to 15 beers, his statement to the counselor at the alcohol treatment center that he drank 4 or 5 beers and his response when asked during the PSI (8 or 9 beers) were clearly minimizations. Another example of minimization occurred during the hearing. The individual testified that he had quit drinking for a period of two months, November and December 1994, and that he had no problem quitting. Tr. at 18, 26. However, it is apparent from his own admissions elsewhere in the record that he was drinking throughout the period he was attending the alcohol treatment center, from November 1 through November 28, 1994, and that he was drinking during the holiday period in December and January and had not stopped drinking when he met with Dr. XXXXX on January 9, 1995. Tr. at 43 and 33; Ex. 16 at 2; Ex. 18 at 5 and 6. Therefore, his claim that he quit for the months of November and December 1994 is not believable and appears to be an effort to minimize the amount he drinks. In view of this self-serving tendency to minimize his drinking, I believe it is likely that his testimony and prior statements understate the amount he drinks on special occasions and that such special occasions occur more often than the once per month that he has admitted to becoming intoxicated. Therefore, it is my opinion that the individual is a user of alcohol habitually to excess.

Furthermore, in light of the individual's attitude during his sessions at the alcohol treatment center and in his testimony during the hearing, I conclude that there is no evidence of rehabilitation. During his court-mandated sessions at the alcohol treatment center, the individual was extremely unresponsive and refused to discuss any of the issues raised in terms of his own behavior. Tr. at 75-76; Ex. 16 at 2; Ex. 20 at 60. Also, on several occasions during the hearing he denied that he had a problem that would warrant any modification of his behavior. Tr. at 18, 22, 33, and 52.

The individual's denial is also shown in his refusal to heed Dr. XXXXX's advice that he consult his physician regarding the elevation in his liver enzyme. Although he stated several times that he believes Dr. XXXXX's opinion that he is damaging his liver by continuing to drink, Tr. at 29-30, 33, and 52, he nevertheless states that he does not believe his drinking is excessive. Tr. at 52. When asked why he had not followed Dr. XXXXX's advice, the individual stated: "I didn't feel I needed to, I guess. I feel good. I'm healthy. I come to work every day. I don't see no problem in me." Tr. at 33.

Since the individual denies he has a problem with alcohol usage, there has been no serious attempt at rehabilitation. The individual did submit a sheet of paper showing his attendance with a friend at seven meetings of Alcoholics Anonymous (AA) between July 21 and August 30, 1995. Ex. A; See also Tr. at 23. Nonetheless, he has continued drinking and is not convinced there is a problem. I therefore find that his attendance with a friend at the AA meetings is outweighed by the other evidence of his denial that he drinks excessively. Although he claims that he no longer drives when he has been drinking, I fear that the risk of a repeat occurrence is fairly high. Dr. XXXXX testified that the risk of a repeat occurrence is certainly higher than for the average drinker. Tr. at 47-48. Given the individual's attitude of denial, I must conclude that, even if he never again drives while intoxicated, the risk of repeat incidents of excessive drinking remains fairly high.

V. Conclusion

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).

In the above analysis, I have found that there is significant derogatory information in the possession of DOE/XXXXX which provided a sufficient basis for invoking the criterion in 10 C.F.R. § 710.8(j). In particular, I have found that the individual is a user of alcohol habitually to excess and there is no evidence of rehabilitation, nor even an acknowledgement from the individual that rehabilitation is necessary. The habitual use of alcohol to excess is a security concern because it can contribute to irresponsible behavior and alter a person's behavior to such an extent that the person may be incapable of adequately protecting classified information. An individual may reveal classified information to uncleared individuals while under the influence of alcohol and may not even be aware of committing a security violation. Although the individual in this case has an outstanding work record, his job performance, by itself, is not sufficient to mitigate the security concerns raised by his use of alcohol habitually to excess. Cf. Personnel Security Hearing, VSO-0005, 24 DOE ¶ 82,753 at 85,530 (1995). Even alcohol abuse that occurs after working hours presents an enhanced risk that classified material could be revealed or mishandled. See Cole v. Young, 351 U.S. 536, 550 n. 13 (1956). I must therefore conclude that the individual has failed to mitigate the security concerns in this case and that continuing his access authorization would pose an unacceptable risk. Personnel Security Hearing, VSO-18, 25 DOE ¶ 82,758 (1995); Personnel Security Hearing, VSO-16, 25 DOE ¶ 82,757 (1995).

In view of the criteria set forth in 10 C.F.R. Part 710 and the record before me, I am unable to 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, it is my opinion that the individual's access authorization should not be restored.

Either the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. 10 C.F.R. § 710.28(a). 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. The party seeking review of the Opinion 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).

Richard W. Dugan

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.

<2>/ The exhibits are cited herein as Ex., and the transcript of the hearing is cited as Tr.

<3>/ According to the individual, beer is the only alcoholic beverage he drinks. Tr. at 19.

<4>/ The Security Specialist testified that her office does not have its own definition of the term "habitually to excess," and relies entirely on the opinion of competent medical authority to make that diagnosis. Tr. at 103.