Case No. VSO-0079, 25 DOE ¶ 82,803 (H.O. Hochstadt May 1, 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: January 16, 1996

Case Number: VSO-0079

This Opinion concerns the eligibility of XXXXX ("the Individual") for continued 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). As explained below, it is my opinion that the Individual's access authorization should not be restored.

I. Procedural Background

The Individual has been employed since 1985 at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. He held a "Q" access authorization until January 1994, when his security clearance level was changed to an "L." In January 1995, the Individual reported to the DOE that in the previous month he had been arrested for Driving Under the Influence of alcohol (DUI) and Resisting Arrest. Pursuant to 10 C.F.R. § 710.9(a), DOE/XXXXX conducted a recorded Personnel Security Interview (PSI) with the Individual on March 10, 1995. Since information creating doubt as to the Individual's eligibility for a security clearance remained unresolved after that interview, DOE/XXXXX requested that the Individual be interviewed by Dr. XXXXX, a board-certified psychiatrist and contracted consultant to the DOE. That interview occurred on August 18, 1995, and Dr. XXXXX prepared a Psychiatric

Examination Report dated September 10, 1995. On the basis of that report and other information obtained about the Individual, DOE/XXXXX suspended his security clearance and requested from the Director of the DOE Office of Safeguards and Security the authority to conduct an administrative review proceeding under 10 C.F.R. Part 710, Subpart A.

The administrative review proceeding began with the issuance of a Notification Letter dated November 29, 1995. That letter informed the Individual that "[r]eliable information in the possession of the DOE has created a substantial doubt concerning [his] continued eligibility for an 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 January 3, 1996, the Individual requested a hearing without filing a separate written response to the allegations in the Notification Letter. Under the applicable regulations, such a request for a hearing is deemed a general denial of all of the reported 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 January 18, 1996, I was appointed the Hearing Officer in this matter.

On February 27, 1996, the prehearing conference required by 10 C.F.R. § 710.25(f) was conducted by telephone. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened in XXXXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXXX. At the hearing, the following witnesses were called to testify by the DOE Counsel: the Individual, Dr. XXXXX, the Individual's Group Leader at XXXX, and a DOE Personnel Security Specialist. The following witnesses were called to testify by the Individual: the Individual's wife, his XXXX Team Leader, two co-workers, a long time friend, and XXXXXXXXXX, a substance abuse counsellor with XXXX's Employee Assistance Program (EAP). In addition, the Individual's personal physician testified by telephone. During the course of this proceeding, DOE Counsel submitted 19 exhibits (Exs. 1-19) and the Individual submitted three exhibits (Exs. A-C). On April 2, 1996, I received the transcript of the hearing.<2>

II. Statement of Derogatory Information

In the Notification Letter, the DOE alleged that the Individual "is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent," which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J). The DOE also alleged that the Individual's "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 [Individual's] judgment or reliability." Notification Letter, Enclosure 2 (citing 10 C.F.R. § 710.8 (h) [Criterion H]).

The information presented in the Notification Letter in support of these allegations can be summarized as follows:

A. According to the September 10, 1995 Psychiatric Examination Report (Ex. 12), it was the opinion of Dr. XXXXX that the Individual (1) is a user of alcohol habitually to excess, has alcohol-induced liver damage, and has not shown adequate evidence of rehabilitation; (2) has an illness or mental condition, i.e., alcoholism, which causes or may cause, a significant defect in judgment or reliability; and (3) meets the criteria for Substance Dependence, Alcohol, listed in the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV).

B. At the time the Individual was arrested for DUI and Resisting Arrest on December 17, 1994, his blood alcohol level, according to breath alcohol tests, was .10.

C. On January 1, 1986, the Individual was arrested for Disturbing the Peace. He had consumed a pint of vodka and admitted to being drunk.

Although two criteria under Section 710.8 are cited in the Notification Letter, the derogatory information in this case concerns only one type of conduct: the individual's consumption of alcohol. Accordingly, the initial questions to be addressed are whether the individual is a "user of alcohol habitually to excess" (Criterion J) and whether, as a result of his consumption of alcohol, he has an "illness or mental condition which in the opinion of a board-certified psychiatrist, causes, or may cause, a significant defect in his judgment or reliability" (Criterion H).

III. Findings of Fact and Analysis

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a).The facts concerning the Individual's consumption of alcohol are basically not disputed by the Individual, who acknowledges that he is an alcoholic (Tr. at 36, 43). The Individual also does not dispute that he was arrested on the two occasions cited in the Notification Letter and that he was drinking on those occasions.<3> The Individual has also acknowledged that he became verbally abusive when he drank.<4>See, e.g., Ex. 12 at 16-17. It is also undisputed that Dr. XXXXX is a board-certified psychiatrist whose opinion is that the Individual has a mental condition, Substance Dependence, Alcohol, which causes or may cause a significant defect in judgment and reliability. Accordingly, I need only summarize the material in the record that supports a finding regarding the derogatory information under Criteria H and J.

A. Derogatory Information

According to the Individual, during the period from the mid 1980s until May 1995, he usually limited his drinking to weekends when he drank a six pack (or a little more) of beer. See 1/24/89 PSI Tr. at 16-18; 3/10/95 PSI Tr. at 20-21; Ex. 12 (Psychiatric Examination Report) at 17. However, in his report Dr. XXXXX indicated that the Individual was probably drinking greater quantities of alcohol than he stated. Ex. 12 at 17. He based this opinion on the extent of the Individual's liver damage, as reflected in his high level of GGT (Gamma-Glutamyltransferase, also known as Gamma GTP), the first liver enzyme to go up in persons who drink habitually to excess. However, as indicated below, Dr. XXXXX's conclusion that the Individual meets the DSM-IV definition of Substance Dependence, Alcohol, is based not on the amount of the Individual's normal consumption of alcohol, but on the circumstances surrounding his alcohol consumption.

The DSM-IV defines "Substance Dependence" as "[a] maladaptive pattern of substance use, leading to clinically significant impairment distress, as manifested by three (or more) [specified criteria], occurring at any time in the same 12-month period." DSM-IV at 181. According to Dr. XXXXX, the Individual manifested five of those criteria during the 12 months prior to the psychiatric examination and for a considerably longer period than that. The statements by the Individual and other evidence cited by Dr. XXXXX clearly support his opinion as to the presence of the relevant criteria, though not in all cases for the length of time that he specified. The five criteria, as numbered in the DSM-IV, and Dr. XXXXX's findings are as follows:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of the substance

In support of his finding with respect to this criterion, Dr. XXXXX noted in his report that in the psychiatric examination the Individual stated that it takes at least 8 to 10 beers for him to become intoxicated. Ex. 12 at 18.<5> Because of this high tolerance, Dr. XXXXX also concluded that the Individual's substance dependence was "With Physiological Dependence." Id. at 22.

(3) the substance is often taken in larger amounts or over a longer period than was intended

Dr. XXXXX concluded that the Individual met this criterion in view of (i) his statement that he tried to limit his drinking to weekends because he did not want to go to work with a hangover and (ii) his admission that nevertheless he sometimes drank during week days. Id. at 17, 18. Although Dr. XXXXX also concluded that this criterion had been positive since 1985, the only statement by the Individual referred to in the report relevant to this criterion that mentions a date refers to the period "since around 1990 or 1991." Id. at 18.

(4) there is a persistent desire or unsuccessful efforts to cut down or control substance use

Dr. XXXXX cited statements by the Individual that he had a persistent desire to reduce or stop his use of alcohol. See id. at 8 (citing 3/10/95 PSI Tr. at 29) (only three beers the previous weekend and intention to stop drinking after Lent), 9 (citing 3/10/95 PSI Tr. at 39) ("I've been pouring a lot [of beer] down the sink"), 10 (citing 3/10/95 PSI Tr. at 47 ("I'm gonna try and stay away from it [alcohol]"). The Individual also indicated that he had made several unsuccessful attempts to stop drinking, the longest of which was an 11-month period in 1993. Id. at 18; see also 3/10/95 PSI Tr. at 19. Thus there is ample evidence to support Dr. XXXXX's finding with respect to this criterion. However, none of the statements of the Individual relied on by Dr. XXXXX supports his conclusion that this criterion has been positive since 1984 (Ex. 12 at 22).

(6) important social, occupational, or recreational activities are given up or reduced because of substance use

The only evidence relied on in support of this finding was the Individual's statement that about three times during the past ten years he missed work because he was sick from a previous night's drinking. See Ex. 12 at 8 (citing 3/10/95 PSI Tr. at 29); see also id. at 12 (citing 1/24/89 PSI Tr. at 20). Missing work only three times in ten years because of hangovers does not appear to be a significant reduction in an important occupational activity, and at the hearing this seemed to be acknowledged by Dr. XXXXX. See infra n. 7.

(7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance

In support of this finding, Dr. XXXXX primarily relied upon the fact that the Individual continued to drink even though he had blackouts and liver damage as a result of his excess alcohol consumption.<6> See Ex. 12 at 6, 8. Although during the psychiatric examination the Individual denied being aware of the liver damage, Ex. 12 at 18, he had previously told a DOE Personnel Security Specialist that his liver was damaged. See 3/10/95 PSI Tr. at 19-20. Moreover, at the hearing, he stated that he had known about his liver damage since approximately 1985. Tr. at 48.

It is clear from the above discussion that at the time of the psychiatric examination the Individual met at least three of the DSM-IV criteria for "Substance Dependence." In order to meet the regulatory standard of Criterion H, however, a person must not only have "an illness or mental condition," but that illness or mental condition must cause a "significant defect in judgment or reliability." See 10 C.F.R. § 710.8(h). It was Dr. XXXXX's opinion that the Individual's alcohol dependence caused a defect in his judgment, as demonstrated by the following: (i) the Individual becomes violent when he drinks, (ii) the Individual's alcohol-related arrests, and (iii) the fact that the Individual continued to drink despite knowing that (a) he has alcohol-induced liver damage and (b) the drinking caused DOE to conduct a security interview with him and to refer him to a psychiatrist.<7> Ex. 12 at 25; see also Tr. at 72-73. In view of this opinion by a board-certified psychiatrist, and the explanation provided in support of that opinion, I find that the DOE/XXXXX properly relied on Criterion H in suspending the Individual's security clearance.

I also find that DOE/XXXXX had a sufficient basis for invoking Criterion J. In his report, Dr. XXXXX concluded that the Individual was a user of alcohol habitually to excess. Ex. 12 at 23. He reached this conclusion on the basis of both his findings with respect to the DSM-IV criteria for Substance Dependence, Alcohol, and the discussion of alcohol abuse in the DOE Adjudicative Guidelines for Determining Eligibility for Access to Classified Matter and/or Special Nuclear Material (Guidelines). In Dr. XXXXX's opinion, the Individual's drinking pattern met the Guidelines' definition of "habitual" in that it was "a behavior or a pattern that's formed by continual use." Tr. at 71 (paraphrasing Guidelines at 19). Dr. XXXXX also found that the Individual's drinking met the Guidelines' definition of "excess" because it resulted in "maladaptive behavior changes," most clearly evidenced by the Individual's alcohol-related arrests. Id.

Mr. XXXXXX, the Individual's EAP Counsellor, agreed with Dr. XXXXX's diagnostic assessment of the Individual's alcoholism. Tr. at 126. Although not a psychiatrist or psychologist, Mr. XXXXXX is a licensed clinical mental health counsellor who has had considerable experience working with alcoholics and other substance abusers during his six years as an EAP Counsellor at XXXX. He is familiar with the Individual's case as a result of counselling him on a weekly basis during the two and a half months immediately preceding the hearing.

In view of the above, I find that the DOE's allegations of derogatory information under Criteria H and J have been established. Moreover, I find that the Individual's consumption of alcohol raises legitimate security concerns on the part of the agency. As the DOE Personnel Security Specialist stated in his testimony, a person who habitually drinks alcohol to excess or has the mental condition of alcoholism does not exhibit complete reliability, stability and good judgment, and, accordingly, may unwittingly divulge classified material while under the influence of alcohol. Tr. at 95. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol dependence and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995); Personnel Security Hearing (Case No. VSO-0042), 25 DOE ¶ 82,771 (1995).

B. Mitigating Factors

A finding of derogatory information does not end the evaluation of the evidence concerning the Individual's eligibility for access authorization. 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 present case, the Individual contends that there are mitigating factors that alleviate the agency's security concerns and justify the restoration of his security clearance. In evaluating whether the derogatory information has been mitigated, I have considered the factors set forth in Section 710.7(c): 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.

In support of his position, the Individual first states that he has never consumed alcohol while working, and that his drinking off the job has not adversely affected his reliability and trustworthiness while on the job. Secondly, he states that he has totally abstained from alcohol for a number of months, has no intention to resume drinking, and is participating in substance abuse counselling. I will consider each of these contentions seriatim.

At the hearing, there was considerable testimony that the Individual has been a reliable and conscientious employee. The Individual's Group Leader referred to him as "an asset" to the work group. Tr. at 86. In discussing the Individual's attendance, she not only stated that there was no trend of him calling in sick on Mondays and Fridays or otherwise, but also noted that, during one period, he had returned to work after sustaining a knee injury while he was still limping and could have taken advantage of sick leave. Id. The Individual's Team Leader stated that she has never had any reason to question his judgment. Tr. at 116. Both of these supervisors testified that they were surprised to learn that the Individual had an alcohol problem since there had never been any indication of it on the job. Tr. at 85-86, 113-14. There is also no indication in the record of this proceeding, or in the Individual's personnel file, that he has ever committed any security infractions. See, e.g., Tr. at 116 (testimony of Team Leader).

The testimony about the Individual's job performance is evidence in the Individual's favor. However, the Individual's sobriety and reliability on the job do not overcome the security concerns presented in this case. Excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that violates security regulations. See Personnel Security Hearing (Case No. VSO-0054), 25 DOE ¶ 82,783 at 85,730 (1995) (citing Cole v. Young, 351 U.S. 536, 550 n. 13 (1956)). And the fact that this has not occurred in the past is no guarantee that it will not occur in the future. Moreover, because the Individual has had blackouts from his drinking, there is the danger that he might do something to compromise national security and not even remember that he did it, thus precluding immediate corrective measures. See Tr. at 95 (testimony of Personnel Security Specialist).

These security concerns would be mitigated, however, if there were sufficient rehabilitation or reformation, such that it was highly unlikely that the Individual would abuse alcohol in the future. In his report, Dr. XXXXX stated that he would consider as adequate evidence of rehabilitation the successful completion of 50 hours of active treatment in a recognized outpatient alcohol treatment program that contained the following four components: (1) individual counselling, (2) group therapy, (3) a family component, and (4) an educational component. Ex. 12 at 23. At the hearing, he stated that an acceptable alternative would be 100 hours of attendance at Alcoholics Anonymous (AA) meetings at least once a week for 12 months. Tr. at 62. As adequate evidence of reformation, Dr. XXXXX stated that the Individual should abstain from alcohol for a minimum of one year following the satisfactory completion of the alcohol treatment program or, if he did not enter an active alcohol treatment program or AA, maintain two years of complete sobriety. Ex. 12 at 23-24 (as amended by Tr. at 64).

The Individual states that he stopped drinking alcohol in October 1995, Tr. at 28, and does not intend to drink in the future. Tr. at 36-37. This is confirmed by the testimony of his wife. Tr. at 17, 19. Both the Individual's Team Leader and Mr. XXXXXX testified as to physical and personality changes that are consistent with abstention from alcohol. See Tr. at 115 (Team Leader), 131 and 144 (Mr. XXXXXX). For example, in response to the question, "Have you seen any change in [the Individual's] behavior or attitude since he started participating in this [EAP] program?" the Team Leader stated: "Again, I had no problems with him prior, so from an attitude standpoint, from any of that stuff, I've seen nothing different. The only thing I've seen different with [the Individual] is a physical appearance, that he looks better, his color is back." Tr. at 115. The testimony at the hearing thus supported the Individual's claim that he had abstained from the use of alcohol for a period of five months. However, before making a finding on this important issue, I must first discuss the recent laboratory report regarding the Individual's liver enzymes in view of Dr. XXXXX's statement that:

Because the [Individual] has had elevated liver enzymes for the past 10 years, a competent medical authority should evaluate the [Individual's] liver functions and determine that they have improved, or completely recovered, as adequate evidence of reformation.

Ex. 12 at 24. At the time of the psychiatric examination in August 1995, Dr. XXXXX had various tests performed by XXXXX in XXXXX. For GGT, the Individual's reading was 117 International Units per Liter (IU/L). Id. at 20. While this was considerably above the testing laboratory's normal range of 0-53 IU/L, it was substantially less than the 199 IU/L GGT value a year earlier, see Ex. 17, thus confirming the Individual's statement that he had begun reducing his alcohol intake after attending DWI school in May 1995.<8> See Tr. at 34-35. However, in a blood test taken a few days before the March 19 hearing, the Individual's GGT value was 110 IU/L, or virtually the same as it was the previous August. While this might indicate that, contrary to his testimony, the Individual had not abstained from alcohol since October 1995 as alleged, I am persuaded that there are other, more likely explanations for that reading. According to Dr. XXXXX, the continued high GGT level is compatible with cirrhosis of the liver or other types of permanent liver damage, including cancer of the liver. Tr. at 68-70, 73-74. The Individual's physician pointed out that the GGT of 110 IU/L was consistent with the Individual's high cholesterol levels and that the other two liver enzymes (ALT and AST) were completely normal. Tr. at 139-43.

I am therefore persuaded that at the time of the hearing the Individual had abstained from alcohol for approximately five months (mid-October 1995 to mid-March 1996). In addition, since January 1996, the Individual has been regularly attending substance abuse counselling sessions, which include sobriety maintenance and educational components. According to Mr. XXXXXX, the Individual has been conscientiously attending and participating in these sessions, Tr. at 128, 130- 31, and was sincere in his determination to abstain from alcohol. Tr. at 144-45. While he did not indicate whether he believed the Individual to be rehabilitated or reformed, he was of the opinion that it was very likely that the Individual would maintain his sobriety.<9>Tr. at 132-33. The primary reason for that opinion was the Individual's awareness that, because of severe liver damage, further drinking would kill him. Tr. at 133. Mr. XXXXXX also noted that the Individual had a good support system to help him with rehabilitation -- primarily his wife, but also his Team Leader and Mr. XXXXXX himself. Tr. at 145. It was also Mr. XXXXXX's opinion that, in view of the Individual's current abstinence, there were no problems with his judgment and reliability. Tr. at 145-46.

Dr. XXXXX, who was present while the Individual testified, stated that, while the Individual was "doing the right thing, I just don't think he's done enough of it for a long enough time" to constitute rehabilitation or reformation. Tr. at 61. In part his opinion was based on the relatively short period of abstinence and in part on his view that the EAP counselling sessions alone did not constitute an adequate rehabilitation program. Tr. at 61-64.

The Personnel Security Specialist testified that the DOE does not have any set policies on what constitutes rehabilitation and reformation, but instead relies on the opinion of a psychiatrist or other medical authority. Tr. at 96-97. In the administrative review process, it is the Hearing Officer who has the responsibility for making the initial decision as to whether an individual with alcohol problems has exhibited rehabilitation or reformation. See 10 C.F.R. § 710.27. Hearing Officers properly give a great deal of deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (finding of rehabilitation); Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (finding of no rehabilitation). It is very rare for a psychiatrist to find reformation or rehabilitation where an individual has been abstinent for less than one year. But see Personnel Security Hearing (Case No. VSO-0049), 25 DOE ¶ 82,785 (1996) (Requests for Review pending) (psychiatrist found rehabilitation based on 28-day inpatient treatment program and three months' abstinence). This is because, as Dr. XXXXX stated at the hearing, "The highest risk for relapse is in the first six months, and then the next highest period is the next six months." Tr. at 64.

While I am persuaded that the Individual sincerely intends to abstain from alcohol and has been conscientiously attending counselling sessions, I am unable to find that there has been sufficient rehabilitation or reformation to mitigate the DOE's security concerns. My position is based primarily on the relatively short period of time in which the Individual has been abstinent and the expert testimony by a board-certified psychiatrist (Dr. XXXXX). These same considerations have led Hearing Officers in other recent DOE security clearance cases to find that there was insufficient rehabilitation or reformation. See Personnel Security Hearing (Case No. VSO- 0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995) (five months); Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (1995) (nine months); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (eight months); Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,609, aff'd, 25 DOE ¶ 83,003 (1995) (four months).

An important factor that is present in this case and not in the cases cited above is the Individual's severe liver damage. It is largely because of this condition, and the Individual's awareness of it, that Mr. XXXXXX felt that the Individual was likely to continue to abstain. However, as indicated above, the Individual has known of this condition for many years, but his prior attempts to abstain have been unsuccessful. As recently as March 1995, the Individual stated that he intended to "totally stay away" from alcohol. 3/10/95 PSI Tr. at 48. Yet it was not until his security clearance was suspended in October 1995 that he began his current period of abstention. Further, it was only after he received the November 29, 1995 Notification Letter that the Individual began counselling sessions with Mr. XXXXXX.<10>For these reasons I believe that there is a substantial risk that the Individual would not maintain his abstention from alcohol if this proceeding were resolved in his favor.<11>

Another factor that has persuaded me to resolve this matter against the Individual is the apparent reluctance of the Individual to own up to the fact that he has a serious alcohol problem. In the March 1995 PSI he denied that he had an alcohol problem, 3/10/95 PSI Tr. at 43, and in the psychiatric examination, he denied that he was or had been drinking too much. Ex. 12 at 17. As a result of his counselling with Mr. XXXXXX, by the time of the hearing the Individual was willing to acknowledge on the record that he had a serious alcohol problem. However, at the same time, he indicated a reluctance to attend AA, not because he doubted its efficacy, but because he did not want people who knew him to find out about his alcohol problem.<12>Tr. at 38-39.

In my view, the Individual's reluctance to reveal his alcohol problem indicates that, despite the progress he has made in his counselling sessions, he may still be in a state of denial, thus reducing the likelihood of his being able to remain abstinent.<13>As the Individual stated: "Mr. XXXXXX told me that I was in a state of denial, and we're trying to come out of the state of denial . . . ." Tr. at 41. I believe that the Individual is trying to deal with that issue, as indicated by his statement that he has not completely ruled out going to AA. Tr. at 38. However, at this point in time, he is not far enough along in his efforts at rehabilitation for me to find that the agency's security concerns have been mitigated.

In reaching this finding, I have taken into consideration Mr. XXXXXX's opinion that the Individual would be a good candidate for DOE/XXXXX's Employee Assistance Program Referral Option (EAPRO).<14> Tr. at 132. EAPRO allows a clearance holder who admits to having a substance abuse problem to maintain his access authorization, provided that the individual abstains from the substance and enters a rehabilitation program. Mr. XXXXXX's statement indicates to me that he recognizes that the Individual has not completed his rehabilitation program. Indeed, this is recognized by the Individual as well, since he stated that he intends to continue counselling with Mr. XXXXXX as long as XXXX permits him to do so, and that he would seek out another counsellor privately after that. Tr. at 41. EAPRO, however, is designed for cases that have not been referred for administrative review under 10 C.F.R. Part 710, and the determination by DOE Security on whether to offer EAPRO to an employee is not subject to review by a Hearing Officer. See Personnel Security Hearing (VSO-0005), 25 DOE ¶ 82,753 (1995). Nevertheless, in view of Mr. XXXXXX's testimony and the commendable efforts made by the Individual to deal with his alcohol problem through abstention and counselling, I believe that this would be an appropriate case for EAPRO if it were possible at this late date in the process.

IV. Conclusion

For the reasons set forth above, I find that the Individual has been a user of alcohol habitually to excess and has an illness or mental condition, Substance Dependence, Alcohol, which, in the opinion of a board-certified psychiatrist, causes or may cause a significant defect in judgment or reliability. Moreover, in resolving the issue concerning the Individual's eligibility for access authorization, I find that the derogatory information has not been mitigated by sufficient evidence of rehabilitation, reformation or other pertinent behavioral changes. After considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, it is my opinion that the Individual has not demonstrated 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 Individual's access authorization should not be restored.

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 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., SW, Washington, DC 20585-0107, and served on the other 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 with 20 days of receipt of the statement.

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

<1>"/ An access authorization (also referred to as a "security clearance") 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 hearing transcript is cited in this Opinion as "Tr. " and the transcripts of each of the two PSIs in the record are cited as "PSI Tr.," preceded by the date of the PSI.

<3>/ However, the Individual asserts that, on the night of the 1994 DUI arrest, the number of beers that he had consumed (four or five) was not sufficient to make him intoxicated or adversely affect his driving. 3/10/95 PSI Tr. at 12-13; Tr. at 32. However, he does not dispute that his blood alcohol level was above the legal limit of .08. The Individual pleaded no contest to the DUI charge and paid a fine. Tr. at 34. However, according to the Individual, the Resisting Arrest charge has been held in abeyance as a result of his complaint to the court about the police behavior at the time of the arrest. Id.

<4>/ On at least one occasion documented in the record, the Individual destroyed household items in addition to being verbally abusive when intoxicated. See Ex. 15 (Records relating to Disorderly Conduct Arrest on January 1, 1986).

<5>/ Dr. XXXXX also concluded that this criterion was present ("positive") since 1990. Ex. 12 at 18, 22. However, the statement of the Individual that Dr. XXXXX relied on for that conclusion, as paraphrased in his report, concerned not the amount of the Individual's consumption on any one occasion, but the frequency of his drinking "since around 1990 or 1991." Ex. 12 at 18. Nor do the statements that Dr. XXXXX relied on from the March 1995 PSI support his conclusion that this criterion has been positive since 1990. See Ex. 12 at 5 (citing 3/10/95 PSI Tr. at 13), 7 (citing 3/10/95 PSI Tr. at 21-22).

<6>/ Dr. XXXXX's report also noted that the Individual met this criterion because he continued to drink even though he became overly aggressive when drinking. See, e.g., Ex. 12 at 16-17.

<7>/ Dr. XXXXX also felt that the Individual had demonstrated a lack of reliability, but stated that this was not as strong a factor in his diagnosis since it was based solely on the Individual's missing work several times because of hangovers. Tr. at 73.

<8>/ The other tests given by XXXXX in August 1995 were also consistent with a reduction in the Individual's alcohol consumption. For example, the Individual's values for the next two liver enzymes that increase with alcohol consumption, AST (SGOT) and ALT (SGPT), had decreased since August 1994 to 27 IU/L and 39 IU/L, respectively, and were within the normal range for those enzymes (13-35 IU/L and 0-42 IU/L, respectively). See Ex. 12 at 20 and 13 (table).

<9>/ He expressed the likelihood as a rating of 8 on a scale of 1 to 10, with 10 being most likely. Tr. at 133.

<10>/ In fact, it was not until January 3, 1996, when Mr. XXXXXX informed the Individual that he did not have the option of being employed at XXXX without a security clearance, that he agreed to counselling. See Tr. at 124-25.

<11>/ It was Dr. XXXXX's opinion that there was a greater likelihood that Individual would resume drinking in the event that his security clearance were restored if he did not participate in a more active alcohol treatment program than the EAP counselling. Tr. at 63. On the other hand, Dr. XXXXX felt that, in view of the Individual's age (52), it was probably easier for him to stop drinking now than it would have been 10 or 20 years ago. Tr. at 67.

<12>/ My concern here is not whether or not the Individual attends AA as opposed to some other method of alcoholism treatment, but that he demonstrates his willingness to confront his alcohol problem outside of the administrative review and employment environment where there is every incentive for him merely to say the "right words." While the Individual disclosed information about the DUI arrest that precipitated this proceeding to his Team Leader and the friend and two co-workers who testified on his behalf, it is apparent from their testimony that he did not reveal to them the extent of his alcohol problem.

<13>/ I agree with the Personnel Security Specialist that the Individual's reluctance to have people know about his alcohol problem also raises a security concern about his possible susceptibility to coercion and blackmail. See Tr. at 96; see also 10 C.F.R. § 710.7(c) ("In resolving a question concerning an individual's eligibility for access authorization, all DOE officials involved in the decision-making process shall consider: . . . the potential for pressure, coercion, exploitation, or duress . . .").

<14>/ In his report Dr. XXXXX stated that the Individual did not meet the requirements for EAPRO because at the time of the PSI in March 1995 he was still drinking, had not entered an alcohol treatment program and did not express an intent to do so. Ex. 12 at 25. At the hearing, he reiterated that statement, but declined to express an opinion as to whether the Individual would now qualify for EAPRO because the EAPRO criteria are meant to be applied as of the date of the PSI. Tr. at 65-66.