Case No. VSO-0054, 25 DOE ¶ 82,783 (H.O. Dugan Dec. 18, 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:August 22, 1995

Case Number: VSO-0054

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 a XXXXX-year-old employee of XXXXX (XXXXX), a DOE subcontractor at the XXXXX. He has been employed at that facility since October 1987. The individual was granted a "Q" security access clearance in April of 1992. In December of 1994, the individual reported to the DOE that he had been arrested for driving while intoxicated (DWI) in March of that year. Pursuant to 10 C.F.R. § 710.9(a), DOE/XXXXX conducted a recorded Personnel Security Interview (PSI) with the individual on March 8, 1995. 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 May 11, 1995 and the psychiatrist issued his report on May 25, 1995. On the basis of the information obtained about the individual, 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 July 19, 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 August 9, 1995, the individual requested a hearing and filed a separate

written response to the allegations specified in the Notification Letter (Response Letter). DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On August 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 XXXXXXXXXXXXXXXX. At the hearing, the following witnesses were called to testify: (i) the individual, (ii) XXXXXXXXXXXX, the individual's former counselor, (iii) Dr. XXXXX, a DOE-consultant psychiatrist, (iv) XXXXXXXXXX, DOE Personnel Security Specialist, (v) XXXXX, Employment Supervisor for the individual's employer, (vi) XXXXX (no relation), the individual's foreman, and (vii) XXXXX, the individual's father and current supervisor. DOE Counsel submitted 23 exhibits, and the individual did not submit any exhibits.<2>

II. Notification Letter

As indicated above, the Notification Letter issued to the individual on July 19, 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. That information is summarized below:

According to a DOE consultant psychiatrist, the individual meets the criteria for alcohol dependence listed in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Also, the individual has been arrested five times on charges of driving while intoxicated: in 1983, 1988, 1990, 1991 and most recently, on March 17, 1994. Additionally, the individual has admitted to having beer in his system at the time of a "hit and run" accident in which he was involved in 1987, and in May 1989 was required by his employer to enter an alcohol treatment program or be terminated. DOE/XXXXX alleges that despite this twenty-one-day inpatient treatment program and subsequent outpatient counseling program, the individual has continued to abuse alcohol, as shown by his three DWI arrests since leaving the treatment program. On the basis of that derogatory information, DOE/XXXXX found that:

A. The individual is, in the opinion of a board-certified psychiatrist, a user of alcohol habitually to excess or has been diagnosed by a board-certified psychiatrist as alcohol dependent or suffering from alcohol abuse. This alcoholism is an illness or mental condition which in the opinion of a board- certified psychiatrist, causes, or may cause, a significant defect in the judgment or reliability of the individual. Notification Letter at 3; see 10 C.F.R. § 710.8(h) and (j).

The DOE/XXXXX further alleged in the Notification Letter that despite the suspension of the individual's driver's license as a result of the March 1994 DWI, he has driven on several occasions, including on June 24, 1994, when he was arrested. According to DOE/XXXXX, the individual stated in the May 1995 PSI that although his license remains suspended, he still intends to drive in the future. Finally, the DOE noted three instances where the individual failed to report arrests promptly to the DOE, waiting nine months in two instances and a year and a half in the third. Previous to those three arrests, the individual had signed a form stating that all arrests are to be reported to the DOE "as soon as practicable" and had indicated during a PSI that he understood the DOE's reporting requirements. Based on those facts, DOE/XXXXX alleged that:

B. The individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. Notification Letter at 4; see 10 C.F.R. § 710.8(l).

III. Findings of Fact and Analysis

The regulations state that "[t]he decision as to access authorization is a comprehensive, common- sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a).

A. Criteria (h) and (j)

The first questions to be addressed are whether the individual is a "user of alcohol habitually to excess" and whether he has an "illness or mental condition which in the opinion of a board-certified psychiatrist, causes, or may cause, a significant defect in the judgment or reliability of the individual." 10 C.F.R. § 710.8(h) and (j). The individual does not dispute that he has had a serious alcohol problem which began when he was in high school in the early 1980s. As stated above, he has been arrested five times for DWI <3>and admits at least one other alcohol-related traffic violation. Hearing Tr. at 78, 130-31; 1/9/90 PSI Tr. at 26. It was because of this history of excessive alcohol use that DOE/XXXXX referred the individual to a psychiatrist in May 1995.

On the basis of his interview of the individual, his review of the individual's history, and the results of a medical laboratory test, Dr. XXXXX determined that the individual was a user of alcohol habitually to excess and substance dependent as defined in the DSM-IV. Psychiatric Report at 26. He also found that the individual's alcohol dependence was an illness which causes a significant defect in his judgment and reliability. Id. at 28. Furthermore, he determined that the individual has an alcohol-caused liver disease, and a seizure disorder which is either caused or exacerbated by alcohol. Id. at 19, 26. Also according to Dr. XXXXX, the individual has been told that alcohol intake may cause his seizures, but continues to consume alcohol. Id. at 17.

The individual began drinking in 1982 when he was 15 years old. 1/9/90 PSI Tr. at 66. His intake soon increased to the point that he was becoming intoxicated (described by him as drinking a fifth of liquor) three times per week. Id. at 67-68. During the 1980s, he at times drank to the point of having tremors, 1/9/90 PSI Tr. at 70, blackouts more than once a month, id. at 73, and double vision. Id. at 72. The individual's heavy drinking continued through the early 1990s; during the individual's 1988 and 1991 DWI arrests, his blood alcohol level measured 0.26. 1/30/92 PSI Tr. at 26; 1/9/90 PSI Tr. at 12. As recently as the day of his March 1994 arrest, he consumed approximately twelve or thirteen beers. 3/8/95 PSI at 35. He also drank to the point of blacking out between five and ten times in 1993. 3/8/95 PSI Tr. at 118. Moreover, the individual admitted at the hearing to drinking heavily despite his knowledge that this created an increased risk of seizure. Hearing Tr. at 83.

Since his most recent DWI in March 1994, the individual has reduced the amount he drinks. In March 1995, he stated that he was drinking on two weekends per month, usually having two or three drinks but, as the record shows, sometimes having four drinks, as he did the Friday before the PSI. 3/8/95 PSI Tr. at 103-05, 123-24. He would also sometimes drink two beers on the way home from work. 3/8/95 PSI Tr. at 102. At the hearing, the individual testified that since the March 1994 DWI arrest, he had been "moderately" intoxicated (which he defined as drinking more than two or three beers) "a few times." Hearing Tr. at 26-27.<4>However, the individual further testified that because of his fear of additional DWIs, the loss of his job and the other negative consequences which resulted from his alcohol consumption, he has been abstinent since July or August of 1995. Hearing Tr. at 20-21, 87. Although the individual admits that he has had a serious problem with alcohol in the past, he believes that he is not alcohol dependent at this time. Hearing Tr. at 21, 75-76, 81.

Based on the entire record, including the individual's history of alcohol use summarized above and the testimony of Dr. XXXXX and the individual at the hearing, it is clear to me that Dr. XXXXX had a substantial basis for his findings and that the individual is a user of alcohol habitually to excess and has an illness (alcohol dependence) which causes a significant defect in judgment and reliability.<5>Certainly, the individual's history of heavy alcohol

consumption and his proclivity to drink and drive, despite the obvious danger to himself and others, reflect a significant defect in judgment. The question remains 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). I find that he is not.

The individual's belief that he is rehabilitated is based on several factors: his participation over the past year in an alcohol treatment and counseling center, XXXXXXXXX; his commitment to a new lifestyle including his dedication to raising his four-year-old son; and his religious beliefs. Between August 22, 1994 and August 7, 1995, the individual attended 24 sessions at XXXXX, as required by the terms of his sentence for the March 1994 DWI conviction. Hearing Tr. at 56, 59. XXXXXXXXX utilizes group therapy sessions with both educational and therapeutic components, and is based on some of the principles of Alcoholics Anonymous (AA). Hearing Tr. at 50-51, 56-57. However, the primary goal of XXXXXXXXX is not absolute abstinence, but rather that clients not drink and drive and if they drink, that they do so with moderation. Hearing Tr. at 64-65. The individual testified that he is now entitled to 52 free sessions at XXXXXXXXX and would like to continue going there. Hearing Tr. at 28, 65. But, as of the time of the hearing, the individual had not attended a meeting at XXXXXXXXX since August 7, almost three months earlier. Hearing Tr. at 56. Further, he was unwilling to definitively commit to a regular, structured treatment program. See Hearing Tr. at 21, 24, 28-29, 118-19.<6>

The individual's counselor at XXXXXXXXX testified that he does not consider the individual to have an "active alcohol problem." Hearing Tr. at 53. Based on his belief that since March 1994 the individual has had only an occasional one or two drinks and has not "lost control" of his drinking, see Hearing Tr. at 52-53, 61, 65, 67, the counselor considers the individual's disease to be "in remission." Hearing Tr. at 53. The counselor also described the individual as one of the most interactive clients that he had worked with and stated that the individual was very supportive of other clients at XXXXXXXXX. Hearing Tr. at 58. He described the individual's strong commitment to his religion and young son, Hearing Tr. at 59, noting that the individual now characterizes himself as a "born-again Christian" and often writes religious poetry. Hearing Tr. at 58-59. He feels that the individual is "well balanced" and "in control of himself and his life." Hearing Tr. at 67. The counselor believes the individual could be a moderate social drinker in the future. Hearing Tr. at 68.

In addition, the individual has testified that he is dedicated to changing his life. Hearing Tr. at 209; 3/8/95 PSI Tr. at 70. He has spoken movingly of his commitment to raising his four-year-old son and his strong religious beliefs. Hearing Tr. at 21, 30-31; 3/8/95 PSI Tr. at 67-70; 1/30/92 PSI at 57. In fact, he and the counselor began a "Recovery Church" to help others with substance problems. 3/8/95 PSI Tr. at 67-70. Further, in the individual's effort to lead a more self-sufficient life, he has recently purchased a mobile home and plans to move out of his parents' house. Hearing Tr. at 14.

Two other witnesses testified for the individual. The individual's foreman, who sees the individual daily, testified that he has supervised him since June of 1990, that he has noticed no sign of the individual's drinking on the job or coming to work with a hangover, and that the individual is an excellent employee. Hearing Tr. at 174, 177. The individual's father, who also currently supervises his son's work, testified that he believes his son has made substantial progress in combating his alcohol dependence. He stated that his son has admitted having a substance abuse problem. Hearing Tr. at 186, 194-96. He also testified that he believes that the individual has consumed no alcohol since the March 1994 DWI. Hearing Tr. at 186; see also Hearing Tr. at 197.

After hearing the individual update his condition, as well as the counselor's testimony, Dr. XXXXX reaffirmed his diagnosis and stated his belief that the individual has not shown adequate evidence of rehabilitation. Hearing Tr. at 92-93. Dr. XXXXX noted that according to a leading study, only five to twenty percent of those attempting to recover from alcohol dependence are able to maintain sobriety if they either choose not to be part of a structured program such as AA or if they begin drinking again within two years. Hearing Tr. at 94, 111; Ex. 22 at 4-5.

Therefore, it is his opinion that alcoholics who have already been through one program unsuccessfully require at least two years of abstinence as well as some type of formal program for one year in order to be considered rehabilitated from a medical standpoint. Hearing Tr. at 100-01; Psychiatric Report at 27.<7>Not only did the individual participate in an inpatient treatment program in May and June of 1989, he was also required to attend alcohol abuse counseling at the facility where he works in both 1988, 1/9/90 PSI Tr. at 12, and 1991, 1/30/92 PSI at 27-30. In view of these previous unsuccessful attempts at rehabilitation and the individual's current unwillingness to commit to participation in a regular formal program at the time of the hearing, Dr. XXXXX did not find the individual to be rehabilitated. Hearing Tr. at 93.

The individual has previously stated his intention to stop drinking excessively, 1/30/92 PSI Tr. at 58, 67; 1/9/90 PSI Tr. at 90, and obviously he has not been able to do so, because in each case he was subsequently arrested for DWI. Furthermore, even if the individual continues attending sessions at XXXXXXXXX, there is insufficient evidence to convince me that his participation in that program will be any more successful than his other rehabilitation attempts. He has stated that the 1989 treatment did not help rehabilitate him because he was "forced" to attend by his employer and only went because he desired to keep his job. 3/8/95 PSI Tr. at 135. However, the counseling program at XXXXXXXXX was also mandatory (by court order). Similarly, the individual's new-found abstinence appears to result in large part from fear over the loss of his clearance. Hearing Tr. at 21, 87. It is clear that he resisted abstinence, despite the advice of his counselor, until he received the DOE Notification Letter, approximately a year after he began the XXXXXXXXX program. Also, the individual's repeated assertions that his DWI arrests and other substance abuse problems were caused by friends, see Hearing Tr. at 209; Psychiatric Report at 5, 16; 3/8/95 PSI Tr. at 70; 1/30/92 PSI Tr. at 48, 57-58; 1/9/90 PSI Tr. at 15, demonstrate a failure to take personal responsibility for his life and actions.

Although the testimony of the individual's counselor and father was very positive regarding the individual's reformation, I cannot ignore the fact that he has failed to be completely honest with them concerning the extent of his drinking between March 1994 and July of this year. The individual's father testified that it is his belief that the individual has not consumed alcohol since March 1994, Hearing Tr. at 186, and the counselor believed the individual only occasionally had one or two drinks. See Hearing Tr. at 52-53, 61, 65, 67. It is clear from the individual's March 1995 PSI that this is incorrect and that he was drinking fairly significant amounts of alcohol on a regular basis. 3/8/95 PSI at 102-05, 123-24. The counselor's contemporaneous notes, portions of which were read at the hearing, contain no mention of this kind of regular drinking. Hearing Tr. at 73. Yet, because the counselor believed the individual to have maintained sobriety for a lengthy period of time, he placed the individual in an "advanced" group. Hearing Tr. at 52, 57. The individual also did not tell the counselor of his 1983 and 1990 alcohol-related arrests, although the counselor believed the individual had been fully forthcoming on this matter. Hearing Tr. at 60. The counselor was also of the belief that the individual currently considers himself to be an alcoholic, Hearing Tr. at 74, although this is clearly not true. Hearing Tr. at 21, 76, 87. When confronted by the Hearing Officer, the individual admitted that the counselor was in fact unaware of the significant amount the individual drank during his time in the XXXXXXXXX program. Hearing Tr. at 122. In view of the individual's failure to openly and fully represent the amount of his drinking during the past year to his counselor and his father, I must accord less weight to their testimony regarding the individual's progress.

After considering the entire record before me, I do not believe that the individual is sufficiently rehabilitated. Based on the individual's testimony, I believe that he sincerely wishes to remain sober and that he has taken initial steps toward a more mature and responsible life. I also believe that his participation in the XXXXXXXXX program has probably helped him realize the need for making some life changes. Nevertheless, given the individual's history and Dr. XXXXX's uncontested testimony regarding the low probability of an individual maintaining sobriety in these early stages of recovery without a formal program, there is simply too much of a risk that the individual will relapse. He still maintains that he is not substance dependent, Hearing Tr. at 21, 76, 81, and is not willing to state an unequivocal intention to remain abstinent. Hearing Tr. at 27-28, 82; see also Personnel Security Hearing (Case No. VSO-0036), 25 DOE ¶ 82,772 at 85,647 (1995) and Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 at 85,629-630 (1995). Nor is he willing to commit to a formal on-going program, despite its availability to him. Hearing Tr. at 21, 24, 28- 29, 118-119. I therefore find that the individual is a user of alcohol habitually to excess, has an illness which may cause a significant defect in judgment or reliability, and has shown insufficient evidence of rehabilitation.

B. Criterion (l)

The DOE/XXXXX also alleges that the individual "has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security." See 10 C.F.R. § 710.8(l). This charge is based on the individual's failure to report three of his arrests, the 1990 DWI, the June 1994 arrest for driving with a revoked license, and the March 1994 DWI, in a timely manner to the DOE. The individual waited a year and a half in the first instance, and nine months in the latter two instances, to report these to the DOE.

The individual admits that he failed to report these three arrests promptly to the DOE. He has given various explanations for this. When asked why he did not report his June 1990 DWI arrest to the DOE, the individual stated the charge was dismissed (for failure to prosecute), and to him "it's like it never happened . . . I don't want to remember it," 3/8/95 PSI Tr. at 91; see also Hearing Tr. at 34, and that he tries to forget "bad stuff." 1/30/92 PSI at 105.<8>When asked why he did not report the March 1994 DWI, he said that although he was aware of his responsibility to report it, he had been "lazy" and "busy" and that he did not know who to report it to because the security person he had dealt with on a prior occasion no longer worked there. Hearing Tr. at 43; 3/8/95 PSI Tr. at 95. He finally said that he had only been reminded by a recent refresher security class of his responsibility to report these arrests and the "exact way" to do so. Hearing Tr. at 43; 3/8/95 PSI Tr. at 95.

I find none of the individual's explanations for these failures to report credible or mitigating. The individual's statement that he "never had the clear knowledge to report them formally on a piece of paper to DOE," Hearing Tr. at 160-61, is not believable. The individual had received explicit, repeated instructions that any arrest must be reported to the DOE immediately. 1/30/92 PSI Tr. at 81-87; 1/9/90 PSI Tr. at 40-41. Additionally, security briefings for all employees are required to be conducted annually. Hearing Tr. at 133, 141. Moreover, the individual has shown himself to be fully aware of his security responsibilities as shown by his reporting of the 1991 DWI arrest to DOE/XXXXX within a month of its occurrence, although, he admitted that he "didn't want to." 1/30/92 PSI Tr. at 19. The individual has elsewhere admitted what I believe was his true motivation for each of these three major omissions, when he admitted he was "scared" to report his arrests to the DOE. 3/8/95 PSI Tr. at 95; 1/9/90 PSI Tr. at 39. The record amply shows that when the individual has been confronted with derogatory information, his first instinct has been to omit and/or obfuscate that information.<9>

The DOE/XXXXX's charge under Criterion (l) is also based on the individual's having been arrested in June 1994 for driving on a revoked license and his stated intention to do so again if he believed it necessary. See 3/8/95 PSI Tr. at 59. With respect to that arrest, the individual has stated that while he knew his license had been revoked for a year, he still believed he was permitted to drive. 3/8/95 PSI Tr. at 43, 49-50. The arrest report shows the individual was well aware when stopped that he was not permitted to drive. Ex. 20 at 4. In the 1995 PSI, he further admitted that he was only driving that day because he was needed at work and had no other means of getting there, 3/8/95 PSI Tr. at 43, 47, clearly implying that he realized the illegality of his actions. When asked how many times he had driven despite his revoked license, he did not provide a clear answer. He first said he had done so three times. 3/8/95 PSI Tr. at 55. When questioned further, he admitted he had "lied there" and had actually driven twice a week but had only driven three times in the "big streets." Id. at 56-57. In that PSI, he further said that if necessary to get to work, he would drive in the future. Id. at 59. At the hearing, he admitted that until two months ago when his father began driving him, he had driven two miles to his van pool, Hearing Tr. at 40-41, but only "four or five times." Hearing Tr. at 80. However, the individual testified that he did not intend to drive again until his license was restored. Hearing Tr. at 80-81.<10>

The incidents cited by DOE/XXXXX reflect a lack of trustworthiness and honesty, as well as disrespect for the law, from which I do not believe the individual is reformed. From my reading of the PSIs and the testimony at the hearing, and considering especially the recency of the omissions of the March and June 1994 arrests,<11>I

find no basis upon which I could find the individual would in the future, voluntarily disclose all significant information in response to DOE queries. The individual's continual pattern of half-truths, omissions, and willingness to break the law when necessary, is simply unacceptable, especially for anyone holding a security clearance. As the personnel security specialist testified, the security program is based on trust. Hearing Tr. at 129. The individual's failure to comply with important safety laws, compounded by his failure to promptly report three arrests to the DOE, creates serious doubts as to his honesty and trustworthiness. See Hearing Tr. at 128-29; Personnel Security Hearing (Case No. VSO-0035), 25 DOE ¶ 82,767 at 85,615-16 (1995). I therefore conclude that the DOE properly relied upon Criterion (l) in suspending the individual's security clearance.

IV. Conclusion

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(h), (j) and (l). In particular, I have found that the individual is a user of alcohol habitually to excess and alcohol dependent without adequate evidence of rehabilitation, and that this is an illness which causes a defect in his judgment and reliability. Alcohol dependence 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. Even alcohol abuse that occurs after working hours presents an enhanced risk that classified material could be revealed or mishandled. Hearing Tr. at 126-27; see Cole v. Young, 351 U.S. 536, 550 n. 13 (1956).

I have also found that the individual has demonstrated behavior which indicates that he is not honest and trustworthy. The DOE security program must be able to implicitly trust employees to whom it grants clearances to be honest and reliable and respect the law. See Hearing Tr. at 128-29. 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.

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. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues on which he or she wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files the request for review. The party seeking review must serve a copy of the 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, where not cited by name, are cited herein as Ex., and the transcript of the hearing is cited as Hearing Tr. Each PSI is cited as PSI Tr., and preceded by its date.

<3>/ In his response to the Notification Letter, the individual challenged the DOE's statement that there were five DWIs, by stating that one of them had been dismissed. The fact that the 1990 DWI charge was dismissed for failure to prosecute does not mitigate the DOE's concern that the individual's use of alcohol has caused him to repeatedly violate laws meant to protect public health and safety. Moreover, the individual admitted during the hearing to driving while intoxicated in instances other than his many arrests. Hearing Tr. at 78.

<4>/ Later in the hearing, the individual denied having said he had ever been intoxicated since March 1994, but then said that he had been moderately intoxicated twice in that time. Hearing Tr. at 86-87.

<5>/ In agreeing that the individual in this case is alcohol dependent, I give little weight to Dr. XXXXX's finding in his report that the individual's elevated GGT liver enzyme was caused by his excessive drinking. Although Dr. XXXXX did perform tests to eliminate one potential cause of this elevation, exposure to the hepatitis virus, he did not consider the possible effect that an anti-convulsant medication which the individual takes for his seizures may have on the GGT level. At the hearing, Dr. XXXXX revised his evaluation to state that, although he still believed alcohol use was a significant cause of the elevation, he no longer considered it to be within medical probability (at

least 95 percent certainty), because the medication the individual takes can cause an elevation in GGT. Hearing Tr. at 95-96.

<6>/ He did state his intent to go to AA "once a week when time allows." Hearing Tr. at 29-30 (emphasis added). I find this to be an insufficient level of commitment.

<7>/ According to Dr. XXXXX, the formal program requirement could be met either by three meetings per week of Alcoholics Anonymous (AA) for one year or by the 52 additional free sessions at XXXXXXXXX to which the individual is entitled. Hearing Tr. at 119-20.

<8>/ The individual apparently reported his 1990 DWI arrest to XXXXX, but did not report it to DOE as required. Hearing Tr.

at 155. However, the individual told XXXXX at the time that he would report this arrest to DOE. Hearing Tr. at 155-56, 162.

<9>/ For instance, I find telling the individual's admission that he had withheld drug use from the DOE on a 1987 Personnel Security Questionnaire because of his fear that he would lose his job if he revealed this information. 1/9/90 PSI Tr. at 66. I also note a response the individual made during his 1990 PSI. After the individual admitted to trying cocaine several times in 1987 and 1988, 1/9/90 PSI Tr. at 54, the DOE security specialist asked the individual what he would do if someone tried to blackmail him by threatening to tell his supervisor about that cocaine use. The individual responded that he would tell his supervisor that the person was lying about him. 1/9/90 PSI Tr. at 57-58. These are other examples of the individual's history of dishonesty and lack of trustworthiness.

<10>/ The record contains at least two other significant incidents indicative of the individual's untrustworthiness. One particularly disturbing, albeit somewhat distant, incident occurred in 1985 when the individual was given money by his mother to buy a Christmas tree. He instead used that money to buy marijuana. He was then arrested while stealing a tree from a woman's yard to give to his mother. The individual pled guilty to larceny and to possession of marijuana. The individual had not finished paying court-ordered restitution to that woman as of his January 1992 PSI. 1/30/92 PSI Tr. at 96; Psychiatric Report at 6-7. Second, the individual has been arrested twice, in September 1986 and June 1987, for leaving the scene of an accident. 1/9/90 PSI Tr. at 22-26; Hearing Tr. at 130-31. Leaving the scene of an accident is a very serious crime indicating both untrustworthiness and dishonesty.

<11>/ Even when the individual finally reported the March 1994 arrest in December 1994, he still failed to report the June 1994 arrest. Ex. 19. The June 1994 arrest was not reported until the March 1995 PSI. 3/8/95 PSI at 43.