Case No. VSO-0068, 25 DOE ¶ 82,804 (H.O. MacPherson May 2, 1996)

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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:November 3, 1995

Case Number:VSO-0068

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the respondent") to hold an access authorization 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."<1> The respondent's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) under the provisions of Part 710. As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent's access authorization should not be restored.

I. Background

The respondent is an engineering technologist who works in XXXXX for XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, a contractor that provides services to the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. This administrative review proceeding was commenced by the issuance on October 3, 1995, of a Notification Letter to the respondent.<2> Exh. 3. In that letter, the respondent was

informed that information in the possession of the DOE/XXXXX created a substantial doubt concerning his continued eligibility for an access authorization. See 10 C.F.R. § 710.21. In particular, it detailed the respondent's consumption of alcohol and the diagnosis of Dr. XXXXX, a board-certified psychiatrist who evaluated the respondent, to the effect that the respondent is alcohol dependent. 10 C.F.R. § 710.8(j).<3>

The respondent requested a hearing to resolve the issue of his eligibility for access authorization, and the request was forwarded by DOE/XXXXX to the Office of Hearings and Appeals on November 3, 1995. The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXXXXXXX. At the hearing, the DOE presented the testimony of Dr. XXXXX and the respondent presented his own testimony and the testimony of his wife.

II. The Relevant Evidence

Most of the relevant facts are uncontested. The respondent is a 35-year old XXXXXXXXXX. He has two children, both from his first marriage. Respondent has been married three times. He married his first wife when he was nineteen years old. They divorced in March of 1992. Respondent married a second time in November of 1993. Exh. 7. That marriage lasted only a few months. He has since reconciled with and remarried his first wife. Transcript of Personnel Security Interview at 5 (July 12, 1995) (hereinafter 2nd PSI).

The respondent began drinking alcohol at age sixteen or seventeen. Transcript of Personnel Security Interview at 5 (July 21, 1994) (hereinafter 1st PSI). At that time, he had a six-pack of beer once or twice a week and became intoxicated once a week. Id. at 6. His drinking became more regular when he moved out of his parents' house and married his first wife in June of 1980. At that time his consumption increased to its current level, an average of one six-pack of beer per weekday (consumed over the course of the evening) and twice that amount about once a month on a weekend day. Id. at 7-11. The respondent states that it takes him between nine and twelve beers to become intoxicated and that he becomes intoxicated once a month or less. Id. at 9-10. He states that he does virtually all of his drinking at home while laboring on various projects such as working on cars, on his house, or on the property around his home.

Respondent does not believe that he has an alcohol problem. 2nd PSI at 6, 13. He notes that his father drank considerable amounts of alcohol and had a successful career as a chemist at XXXX. He also points to his fine work and attendance record. Transcript of Hearing at 19, 23 (February 15, 1996) (hereinafter Tr.). In addition, he informs us that he is clearing five acres of land behind his house using power equipment and a lumber mill. He asserts that if he was truly influenced by alcohol, he would be dead or maimed by now because of his extensive use of these items. The respondent's wife also testified that she does not believe her husband had a drinking problem or that his drinking had deleteriously affected his or their life. Tr. at 41, 43, 50.

The respondent has been arrested three times. The first was a week before his eighteenth birthday when he was picked up for public drunkenness. The respondent informed the DOE that these charges were dropped. Exh. 7 at 9. The second was a Driving Under the Influence (DUI) charge during the summer of his twenty-second year and the third arrest was for assault on his wife when he was thirty years old. The respondent informed the DOE that both these charges were nolle prosequi. Exh. 7 at 7. In addition, the respondent has had a history of marital difficulties. As noted above, the respondent was divorced from his first wife, was married to another woman for less than a year, and then remarried his first wife.

After the first PSI in July 1994, the DOE referred the respondent to Dr. XXXXX, a board-certified psychologist, for evaluation. Dr. XXXXX interviewed the respondent and administered the Minnesota Multiphasic Personality Inventory—2 (MMPI-2) test on December 8, 1994. The scores on the MMPI-2 were all within the normal range. Exh. 9 at 5; Tr. at 33. Nevertheless, Dr. XXXXX concluded that the respondent was alcohol dependent.<4> Dr. XXXXX listed several factors that underlie his diagnosis. The most important of these was the sheer quantity of the respondent's alcoholic intake. Tr. at 17. He considers a six-pack a day unhealthy although he did not order liver function tests on the respondent and conceded that what information was available concerning the respondent's liver function was within normal ranges.<5> Tr. at 13, 17, 28-29, 36. In fact, at the hearing, Dr. XXXXX stated that there was probably no physiological dependence. Tr. at 23. Dr. XXXXX also believes that alcohol consumption played a role in the respondent's marital problems and the three arrests. Exh. 9 at 5; Tr. at 13, 17, 26-27. In addition, Dr. XXXXX found that the respondent was well-informed about alcohol problems but was in denial about his drinking problem largely because of what he believed his father's example demonstrated. Dr. XXXXX also believed that the respondent's alcohol dependence was sufficient to adversely affect his judgment and that he would be concerned about him in a security setting. Exh. 9 at 5.

III. Analysis

DOE regulations provide that my opinion is to be based on a comprehensive, common-sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a).<6> As detailed below, while I am not totally convinced that the respondent is alcohol dependent as diagnosed by Dr. XXXXX, it is my opinion that he is clearly a user of alcohol habitually to excess, and for that reason his access authorization should not be restored.

The respondent has vigorously contested the facts underlying Dr. XXXXX's diagnosis of alcohol dependence. In making my determination, I must recognize that Dr. XXXXX had to make his diagnosis based upon limited information — a single interview with the respondent and records of the DOE investigation that were provided to him. His diagnosis can be only as accurate as the information upon which it was based. I have had the opportunity to question the respondent's wife, who was unavailable to Dr. XXXXX, and to examine in greater detail the respondent's use of alcohol. I am cognizant, however, that while I have experience in resolving factual issues, I lack formal medical training in substance abuse that would allow me to make a medical diagnosis. As hearing officers have done in prior cases where a diagnosis has been challenged, I have examined the facts to determine whether there is an adequate factual basis for the diagnosis. See, e.g., Personnel Security Hearing, VSO-0016, 25 DOE ¶ 82,757 at 85,548 (1995).

The most important factor in Dr. XXXXX's diagnosis was the volume of the respondent's alcohol consumption. It is undisputed that the respondent consumes an average of a six-pack of beer every evening, and that he occasionally consumes more on weekends. I agree with Dr. XXXXX that the quantity of respondent's alcohol intake represents a serious concern.

Dr. XXXXX also bases his diagnosis in part upon the respondent's marital difficulties. In his report, Dr. XXXXX stated "I suspect that drinking has played a significant part in the marital difficulties." Exh. 9 at 5. Dr. XXXXX bases his suspicion primarily on a dispute during the respondent's first marriage to his current wife led to an arrest. On the night before Thanksgiving 1991, a friend came over after the respondent had consumed two or three beers. Together they went to respondent's backyard to work on a car. The respondent's wife, who according to the respondent had developed a rather foul mouth on some occasions, confronted the respondent and belittled him in front of his friend. After his wife then returned to the house, the respondent followed her and pushed her down. His wife then went to her mother's house from which she filed the assault charge which she later dropped. 1st PSI at 15-16; Tr. at 44. Another incident occurred while the respondent was picking up their son after their divorce. The respondent's car sprayed his wife with gravel as he pulled out of a driveway. His wife then obtained a restraining order.<7> 1st PSI at 27-28; Tr. at 48-49.

Respondent strongly denies that alcohol has played a role in his marital problems. He has consistently maintained that they resulted from money problems and from his spending too much time alone working on projects and not enough time with his family. Tr. at 54. Testimony of his wife supports this view. She testified that neglect of her was the cause of her dissatisfaction during their first marriage to him and that the respondent has since modified his behavior. Tr. at 41, 45. She testified at the hearing that she considers the event that led to the assault charge to be a minor incident. According to the respondent's wife, it stemmed from the tense state of their marriage at the time and had nothing to do with the respondent's alcohol consumption.<8> Tr. at 44, 50.

Unlike Dr. XXXXX, I had the benefit of the testimony of the respondent and his wife, who have denied that alcohol has played any role in their marital problems. Tr. at 27-28. While I find their testimony believable and do not doubt their veracity, I note that they may not be in the best position to recognize the potential influence that alcohol may have played in their relationship. For example, while the respondent's wife testified that the problems in the marriage derived from him neglecting her. She may not recognize that this neglect may stem in part from alcohol use. On the other hand, I find nothing in the record to support Dr. XXXXX's "suspicion" that alcohol was a prime factor in the break-up of his first marriage. Consequently, the degree, if any, to which alcohol exacerbated the respondent's marital difficulties is uncertain.

I reaching his conclusion of alcohol dependence, Dr. XXXXX also relied on the respondent's other two arrests, one for DUI in 1983 and the other for "public drunkenness" in 1979. Both of these incidents involved the use of alcohol. The DUI arrest occurred when the respondent was driving home from a fishing trip. Although the charge was apparently dropped, the respondent does not deny that he had been drinking. Tr. at 10-11. Although this DUI occurred thirteen years ago and there have been no subsequent DUI arrests, it is a serious offense, and the potential significance of this incident to diagnosing the respondent's condition cannot be ignored. The public drunkenness arrest occurred while the respondent was a minor and may have resulted more from his underage drinking than from misconduct resulting from that drinking. I place little weight on a youthful indiscretion that happened nearly two decades ago.

It is my view that the term "alcohol dependence" as used in DOE regulations was intended to mean alcohol dependence as it is commonly understood in the mental health community. The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) is a standard reference work for diagnosing mental disorders. The DSM-IV criteria for substance dependence (which includes alcohol dependence) are, in short, a maladaptive pattern of substance use manifested by three or more of the following factors within a 12-month period: (1) tolerance, (2) withdrawal, (3) taken in larger amounts than intended, (4) a desire to cut down use, (5) excessive time spent to obtain, use, or recover from use of the substance, (6) important social, occupational, or recreational activities given up because of substance use, and (7) use continued despite knowledge that it exacerbates a physical or psychological problem. DSM-IV at 181. DSM-IV is not intended to be the sole arbiter for diagnosing mental conditions and individual practitioners might exercise clinical judgment and deviate somewhat from the DSM-IV criteria. DSM-IV at xxvii. However, it is clear that a diagnosis of alcohol dependence must rest not only upon excessive alcohol consumption, but upon several significant adverse effects deriving from that consumption.

Although Dr. XXXXX in his report referred to diagnostic code 303.90 of DSM-IV dealing with alcohol dependence, he did not correlate his diagnosis with the DSM-IV criteria for substance dependence. This presents a problem. As respondent's cross-examination of Dr. XXXXX adequately revealed, respondent may not have any of the "factors" of substance dependence enumerated in DSM-IV. The only adverse effects that have been demonstrated to be related to the respondent's alcohol consumption are the arrests that occurred many years ago for DUI and public drunkenness. There is also the possibility that alcohol use may have had some role in the respondent's marital problems. These isolated events occurring mostly well in the past do not appear to constitute the "maladaptive pattern" of adverse effects that is contemplated by DSM-IV. Consequently, I have doubts whether the facts support a diagnosis of alcohol dependence as that term is commonly understood in the mental health community and as it is used in 10 C.F.R. § 710.8(j).

Nonetheless, it is not necessary for me to resolve these doubts. While it is possible that Dr. XXXXX may not have used the term "alcohol dependence" as it is generally understood, it is clear that he believes that the respondent has an alcohol problem. I agree. I find, based upon the record before me, that respondent consumes alcohol habitually to excess within the meaning of 10 C.F.R. § 710.8(j).<9> The term "user of alcohol habitually to excess" is a somewhat imprecise term and excessive alcohol use varies among individuals and cultures. Personnel Security Hearing, VSO-0042, 25 DOE ¶ 82,771 at 85,641 (1995). Nevertheless, consuming a six-pack of beer per workday along with a twelve-pack on one weekend day per month, getting intoxicated once per month, and drinking to intoxication during camping/fishing trips strongly demonstrate excessive alcohol consumption. The DUI that occurred while returning from a fishing trip and Dr. XXXXX's concerns as expressed in his report and testimony support this view. Further, this finding is in line with prior hearing officer determinations. For example, in the case just cited, the hearing officer found in his opinion that clearance should be denied an individual with a long pattern of drinking who had two DUIs (in 1981 and 1994) and elevated liver enzymes, although he drank only about one case of beer per month. Similarly in Personnel Security Hearing, VSO-0063, 25 DOE ¶ 82,789 (1996), a hearing officer found use of alcohol to excess where an individual currently drinking one case of beer per week had a long history of alcohol use resulting in some liver damage, even though the individual's fiancee testified she did not believe he had a drinking problem. In addition, respondent makes much of the fact that he operates heavy machinery, including work at a saw mill, after having a few beers as proof that he is unaffected by alcohol. However, I find just the opposite: it may indicate that alcohol tolerance has developed<10> and the regular operation of dangerous equipment, such as cars, after considerable alcohol intake demonstrates poor judgment that calls into question an individual's reliability. Personnel Security Hearing, VSO-0054, 25 DOE ¶ 82,783 at 85,726 (1995); Personnel Security Hearing, VSO-0031, 25 DOE ¶ 82,770 at 85,635 (1995).

Because the respondent does not believe that he has an alcohol problem, he offered no evidence of reformation or rehabilitation. However, in an attempt to show mitigation of his alcohol use, or at least that the alcohol use has not negatively affected him, the respondent has entered into evidence his performance and attendance records. I do not question that respondent has excellent attendance and does superior work. However, Dr. XXXXX testified that someone with alcohol difficulties that would call into question his judgment and reliability could nevertheless have a fine work record. Tr. at 16. Further, an outstanding job record is not, in itself, sufficient to mitigate security concerns resulting from habitual use of alcohol to excess. Personnel Security Hearing, VSO-0063, 25 DOE ¶ 82,789 at 85,766 (1996); Personnel Security Hearing, VSO-0042, 25 DOE ¶ 82,771 at 85,664 (1995). Accordingly, I cannot find that the respondent's admirable record mitigates the security concern that his excessive use of alcohol off the job raises the possibility that he might say or do something under the influence of alcohol that would compromise national security. Personnel Security Hearing, VSO-0054, 25 DOE ¶ 82,783 at 85,730 (1995) (citing Cole v. Young, 351 U.S. 536, 550 n.13 (1956)).<11>

IV. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(j), the respondent has been a user of alcohol habitually to excess. I find that the respondent has failed to demonstrate that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent's access authorization should not be restored.

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

<1>Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

<2>DOE regulations provide an opportunity for hearing and review in cases where an individual's eligibility for access authorization cannot be favorably resolved by interview or other action. When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a Notification Letter is sent to the respondent. This letter sets forth the information which creates a substantial doubt regarding the eligibility of the respondent for access authorization, and states that the respondent may file a request for a hearing in writing. 10 C.F.R. § 710.21(a), (b)(2), (b)(4).

<3>Part 710 lists twelve broad categories of derogatory information which might create questions as to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review determinations regarding access authorization. Only Criterion (j) is at issue in this case. Criterion (j) applies to an individual who 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.

<4>The MMPI-2 screens for possible mental and personality disorders. Dr. XXXXX explained that normal scores on the MMPI-2 do not foreclose the possibility that an individual has an alcohol problem. Tr. at 33.

<5>Dr. XXXXX specifically stated that while such tests as he was shown at the hearing dealing with livers function were normal, the liver function test he considers most important and decisive in determining deleterious physiological effects of alcohol use, the GGT, was not utilized. Tr. at 28-29.

<6>The text of section 710.7(c) states that:

In resolving a question concerning an individual's eligibility for access authorization, all DOE officials involved in the decision-making process shall consider: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

<7>The respondent and his second wife also had some domestic problems during their short marriage, including an incident when he held her down during a domestic dispute. The respondent testified that his second marriage was a mistake from the beginning and alcohol was not a factor in its breakup. 2nd PSI at 7-10.

<8>Dr. XXXXX apparently put a fair amount of weight on the fact that respondent's wife had called him a drunk during their first marriage. Exh. 9 at 5. What respondent reported was that his wife called him was "everything from a drunk to a queer." 1st PSI at 14, 28. The respondent's wife testified that the words were said to hurt the respondent, not because she believes that he has an alcohol problem or homosexual tendencies. Tr. at 47; see also 2nd PSI at 5. It thus appears to me that this statement was simply some of the unfortunate invective that can accompany a deteriorating marriage.

<9>Unlike findings of alcohol dependence or alcohol abuse which must be made by a psychologist, psychiatrist, or other physician, a finding of habitual use to excess is a lay opinion based upon a common sense evaluation of the relevant facts.

<10>While I suspect that the individual may have developed alcohol tolerance, Dr. XXXXX testified that the respondent is probably not physiologically dependent. Tr. at 23. This would mean that he does not meet the DSM-IV criteria for tolerance or withdrawal.

<11>Dr. XXXXX recommended that the respondent be considered for participation in the Substance Abuse Referral Program Option (SARPO). SARPO procedures permit participants with substance abuse problems to retain their security clearances while completing their effort at rehabilitation. However, if they fail the program, i.e., use the substance even once, they lose their clearance without any right to appeal. Generally, SARPO is designed for cases that have not been referred for administrative review under 10 C.F.R. Part 710. See Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758 at 85,554, aff'd, 25 DOE ¶ 83,006 (1995); Personnel Security Hearing, VSO-0005, 24 DOE ¶ 82,753 at 85,527 (1995). That option was "offered" to the respondent in his second PSI. 2nd PSI 13-17. The respondent apparently chose a hearing because of reluctance to give up his appeal rights and his mistaken belief that all he would have to show to retain his clearance was that people who know him think highly of him and that he has a good work record. Id. at 17. If SARPO is to be a realistic option, potential participants must have an adequate understanding of their choices. While I doubt that the respondent would have accepted SARPO in any event, the PSI interviewer should have informed the respondent that evidence of good character and superior work alone would likely be insufficient to counter Dr. XXXXX's finding of an alcohol problem.