Case No. VSO-0099, 26 DOE ¶ 82,759 (H.O. Dugan, Oct. 9, 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: June 10, 1996

Case Number: VSO-0099

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. Background

The individual is an employee of a contractor at a DOE facility. He has been employed at that facility and has had a "Q" access authorization since April 1980. In a Questionnaire for Sensitive Positions he completed in May 1995, the individual reported to the DOE that he had been arrested twice in 1994 for Driving While Intoxicated (DWI). Pursuant to 10 C.F.R. § 710.9(a), DOE/XXXXX conducted a recorded Personnel Security Interview (PSI) with the individual on December 19, 1995. Since information creating doubt as to the individual's eligibility for continued access authorization remained unresolved after that PSI, DOE/XXXXX requested that the individual be interviewed by a DOE-consultant psychiatrist. That interview occurred on March 1, 1996 and the psychiatrist issued his evaluation report on March 16, 1996. Because the matters of concern were still unresolved, DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated May 31, 1996. 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 continued "Q" access authorization. The Notification Letter included a statement of that derogatory information and informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On June 4, 1996, the individual requested a hearing. DOE/XXXXX forwarded the individual's request for a hearing to the Office of Hearings and Appeals, and on June 21, 1996, I was appointed the Hearing Officer in this matter.

At the hearing convened pursuant to 10 C.F.R. § 710.25(e) & (g) , the following witnesses testified: (i) the individual, (ii) a DOE Personnel Security Specialist, (iii) Dr. XXXXX, the DOE-consultant psychiatrist, (iv) the Employee Relations Manager for the individual's employer, (v) the individual's wife, (vi) the business manager of the local union, and (vii) the individual's immediate supervisor. DOE Counsel submitted fourteen exhibits, and the individual submitted no exhibits.<2>

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the individual's eligibility for continued "Q" access authorization. In the Notification Letter, as amended, the DOE/XXXXX specified the following concerns:

A. The individual deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire (PSQ) he completed in 1984. See 10 C.F.R. § 710.8(f). The basis for this statement is the individual's admission in the psychiatric interview that, contrary to what he stated in the 1984 PSQ, he had previously smoked marijuana.

B. The individual is a user of alcohol habitually to excess without adequate evidence of rehabilitation, and has been diagnosed by a board-certified psychiatrist, as suffering from alcohol abuse. See 10 C.F.R. § 710.8(j). Further, his alcoholism is an illness or mental condition which causes, or may cause, a significant defect in his judgment or reliability. See 10 C.F.R. § 710.8(h). The bases for these statements are the March 16, 1996 report of Dr. XXXXX and the individual's two alcohol-related arrests which occurred in August and December 1994.

C. 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). The bases for this statement are (i) the individual's failure to report his DWI arrests to his employer because he was afraid of losing his job; (ii) his failure to report the 1994 DWI arrests to the DOE until he completed a QSP on May 17, 1995; (iii) his admission that he had driven government vehicles while his driver's license was revoked; and (iv) information which indicates that he committed an act of domestic violence against his spouse on February 15, 1996.

III. Findings of Fact and Analysis

The principal facts in this case are not disputed. The individual admits that in a QSP he completed in 1984, he answered "no" to the question "Are you now, or have you been a user of any narcotic, hallucinogen, stimulant, depressant, or cannabis (to include marijuana and/or hashish)...?" In a psychiatric interview on March 1, 1996 and again during the hearing, he admitted that he had smoked marijuana as a teenager prior to 1978. Ex. 7 at 27, Hearing Tr. at 14.<3> The individual also acknowledges that he has been arrested twice on alcohol-related charges. The first arrest, which occurred on August 27, 1994, was for DWI and possession of an open container. The second arrest on December 25, 1994 was for DWI, Assault and Battery on his girl friend, and Unlawful Use of a Revoked License. In both instances, he was found guilty on the DWI charges; the December 1994 charges of assault and battery and driving with a revoked license were dismissed. These arrests were not reported to his employer or the DOE until May 17, 1995 when he completed a new QSP. The individual also acknowledges that between August 1994 and December 1995, a period during which his driver's license was revoked, he drove a government vehicle on almost a daily basis. Furthermore, there is no dispute that in February 1996, after drinking excessively at a wedding reception, he and his wife had an altercation which resulted in her petitioning the District Court for an Order Prohibiting Domestic Violence. I will discuss each of these matters in the appropriate section below.

A. Falsification

As the DOE Personnel Security Specialist explained in her testimony, the DOE's security program is based on trust, and when an individual breaches that trust by misrepresenting, falsifying, or omitting information during the access authorization review process, it is difficult for the DOE to trust that individual. Hearing Tr. at 46-47. The DOE must rely on individuals who are granted access authorization to be honest and truthful; this important principle underlies the criterion set forth in 10 C.F.R. § 710.8(f). See Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,752 (1995). It must be noted, however, that the criterion set forth in § 710.8(f) applies only to misstatements and omissions that are deliberate and involve significant information.

Although the falsification in this case occurred twelve years ago, I consider it to be a serious matter. The individual's failure to mention his prior drug use on the PSQ he completed in 1984 was certainly an omission of significant information. I also believe that the omission was deliberate. When he completed the PSQ form, he had worked at the DOE facility for four years and was aware of the importance of truthfully answering questions on the security form. The individual does not claim that he misunderstood the question regarding drug usage and it is clear to me that he knew that any prior drug use was to be reported. The individual's only explanation for the omission is that he "didn't take it that serious [sic] because ... I never thought it would be an issue ..." Hearing Tr. at 15. This explanation does not mitigate the concern over his lack of truthfulness and I believe that he deliberately elected not to mention his prior marijuana use in order not to jeopardize his employment. When viewed along with his later failure to readily inform his employer and DOE of his DWI arrests in 1994, the individual's falsification reflects a pattern of willingness to conceal information in order to avoid adverse consequences. Such a propensity to conceal unfavorable information is not acceptable among security clearance holders. See Personnel Security Hearing, VSO-0013, 25 DOE ¶ 82,752 (1995). I therefore find that DOE/XXXXX correctly cited 10 C.F.R. § 710.8(f) as a basis for revoking the individual's access authorization and the individual has not mitigated this concern.

B. Excessive Use of Alcohol and Substance Abuse

As indicated above, DOE/XXXXX claims that the individual is a user of alcohol habitually to excess without adequate evidence of rehabilitation and that he has a mental illness or condition, i.e., substance abuse, that causes a significant defect in his judgment and reliability.

As the Personnel Security Specialist stated, an employee who uses alcohol habitually to excess or suffers from alcohol abuse is a security risk because his use of alcohol renders him less capable of protecting classified information and diminishes his ability to be reliable and make responsible judgments. Hearing Tr. at 47-48. Although the employee may have a good work record and be sober on the job, he may still pose an unacceptable risk. Excessive consumption of alcohol off the job creates security concerns because of the possibility that the employee will say or do something under the influence of alcohol that violates security regulations. Personnel Security Hearing, VSO-0079, 25 DOE ¶ 82,803 at 85,842 (1996).

The individual in this case was first arrested for DWI on August 27, 1994, when he was driving his automobile after drinking at least 4 beers. Ex. 3 at 18. His blood alcohol concentration was determined by breathalyser test to be .16. Ex. 12 at 13. His second DWI arrest occurred on Christmas day 1994, when the individual had admittedly drunk 5 or 6 beers and 3 shots of Schnapps. Ex 3 at 36. This time his blood alcohol concentration was determined by the police to be .17. Ex. 12 at 4.

Because of these DWI arrests, on March 1, 1996, the individual was examined by Dr. XXXXX, a DOE-consultant psychiatrist. Dr. XXXXX's report (Ex. 7), issued on March 16, 1996, was based on information in the individual's personnel security file, his interview of the individual, and certain medical laboratory tests which he performed on the individual. In view of this information and the individual's history of alcohol consumption, including the 2 DWI arrests and the February 1996 incident of alcohol-related domestic violence discussed in Section C below, Dr. XXXXX concluded that the individual is a user of alcohol habitually to excess and suffers from a mental illness which causes a significant defect in his judgment and reliability. Specifically, he found that the individual meets two of the criteria for alcohol abuse, as defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV): "recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile...)" and "recurrent substance-related legal problems...", within a twelve month period. DSM-IV at 182-183. This diagnosis was also supported by the results of laboratory tests which showed that the individual had above-normal elevations of two of the liver enzymes most affected by alcohol consumption, GGT and ALT. Dr. XXXXX concluded that, given the individual's history of drinking, it falls within the realm of medical probability (i.e., >95% certainty) that his elevated liver enzymes are caused by habitual and excessive use of alcohol. He also stated that since the individual had not undertaken any type of rehabilitation program and had admittedly consumed alcohol excessively at a wedding reception two weeks before the interview, there was no evidence of rehabilitation or reformation in this case.

At the hearing, the individual acknowledged that he had drunk alcohol excessively the two times he was arrested for DWI and also after the wedding he attended on February 14-15, 1996. Hearing Tr. at 33-34, 37. Nevertheless, he testified that he has not consumed any alcohol since February 15, and that his intention is to continue abstaining from the use of alcohol. Hearing Tr. at 28, 30-31. He stated that he decided to stop drinking because alcohol is not good for him and he thought that his wife would stop drinking if he stopped. Hearing Tr. at 29. He does not believe, however, that his use of alcohol has been a cause of the altercations he has had with his wife. Hearing Tr. at 39. Instead, he attributes his marital problems to family conflicts, especially his wife's antagonistic relationship with his family. Hearing Tr. at 38-39, 41. Although he has not attended Alcoholics Anonymous (AA) sessions or participated in any other formal alcohol treatment or counselling program, he stated his intention to seek assistance from the employee assistance programs offered by the facility and his labor union.

The individual's wife testified on his behalf and corroborated that he has abstained from drinking alcohol since the February incident. She stated that she does not believe he has an alcohol abuse problem and that he generally drinks less than she does. Hearing Tr. at 72 and 69. She also stated that she is often the one who starts drinking and when he tells her not to drink any more, she gets mad and continues drinking. Hearing Tr. at 69. As discussed in Section C below, she believes that the altercations they have had have not been his fault and have been caused primarily by her actions and bad temper after she has drunk too much. Hearing Tr. at 63-65, 69, 72.

At the hearing, Dr. XXXXX, who was present during the testimony of both the individual and his wife, stated that his diagnosis was not changed by their statements. Hearing Tr. at 75, 82. He testified that, although the individual does not meet the criteria for alcohol dependence, he clearly meets the DSM-IV criteria for alcohol abuse and is a user of alcohol habitually to excess. He also reiterated his opinion that the individual should abstain from drinking alcohol because he has elevated liver enzymes. Hearing Tr. at 77. He stated that, in his opinion, both the individual and his wife minimize the individual's alcohol problem. He further stated that, while the individual's wife has not been a good influence on the individual to stop or moderate his drinking, the individual must accept responsibility for his own drinking problem. Hearing Tr. at 76. He also testified that, in his opinion, to be considered rehabilitated, the individual would have to participate in a minimum of 50 hours of out-patient alcohol treatment over a period of 6 months or attend AA sessions for a minimum of 100 hours, at the rate of at least once per week, over a one year period. If he abstained from the use of alcohol for one year, he could then be considered reformed. Without participation in a treatment program, abstinence for a 2 year period is considered by Dr. XXXXX to be necessary for reformation. Hearing Tr. at 78-79.

After considering all of the testimony and exhibits presented in this case, I agree with Dr. XXXXX that the individual is a user of alcohol habitually to excess and suffers from alcohol abuse. Over an eight year period through February 15, 1996, the individual maintained a pattern of excessive alcohol consumption. According to the individual, after his divorce from his first wife in 1988, he began drinking about 4 beers once or twice per month, and would also have an occasional drink of whiskey. Ex. 3 at 91, 94. His drinking increased and from 1990 until his first DWI arrest in August 1994, the individual drank up to 6 beers two or three times per month. Ex. 7 at 24; Ex. 3 at 95-99. He states that following his DWI arrests he reduced his alcohol consumption, and even stopped drinking for a period of 4 months in early 1995. Ex. 3 at 102, 106. However, in October 1995, he characterized his normal alcohol consumption as 4 beers twice per month, except on special occasions 2 or 3 times per year, when he would drink 6 or 7 beers at parties. Ex. 7 at 24. He told the psychiatrist that, when he drinks, he usually tells himself that he is not going to drink more than 2 or 3 beers, but that occasionally he exceeds that amount. Ex. 7 at 27. When he was arrested on Christmas day 1994, he had drunk 5 or 6 beers and 3 shots of Schnapps. Ex. 3 at 36. In February 1996, when he and his wife had the altercation after a wedding, he had drunk an unspecified number of wine coolers, 6 or 7 beers, and possibly a shot of whiskey or other hard liquor. Ex. 7 at 26 and Hearing Tr. at 37.

This pattern of heavy drinking on special occasions is confirmed by the laboratory test results which show the individual has elevated liver enzymes. As Dr. XXXXX testified, higher than normal levels of the GGT and ALT enzymes reflect a pattern of episodic heavy drinking. Hearing Tr. at 82-83; see also Personnel Security Hearing, VSO-0042, 25 DOE ¶ 82,771 at 85,641 (1995). Furthermore, the individual has exhibited "recurrent substance [alcohol] use in situations in which it is physically hazardous (e.g. driving an automobile...)" and "recurrent substance-related legal problems", two of the DSM-IV criteria for alcohol abuse. Thus, there is a sound basis for Dr. XXXXX's diagnosis that the individual is a user of alcohol habitually to excess and suffers from alcohol abuse.

In this case there is also evidence that the individual's excessive use of alcohol has caused a significant defect in his judgment. The occasions when he has chosen to drive after drinking demonstrate that defect. Those occasions are not limited to the two times he has been arrested for DWI; after his drunken altercation with his wife in the early morning of February 15, 1996, he chose to drive home, approximately 75 miles away. Hearing Tr. at 37. Given his history of alcohol use, I suspect that this was not the only occasion when he has driven while intoxicated and not been arrested. Moreover, his violent behavior after drinking excessively (described in Section C below) also demonstrates a serious defect in judgment. I agree with Dr. XXXXX that he cannot escape responsibility by blaming his wife. While she may not have been a good influence on him to abstain from, or curtail, his drinking, he must be held responsible for his own decision to drink excessively and for his ??actions while under the influence of alcohol.

The individual's supervisor and the business manager of the local union both testified that they have seen no evidence that alcohol use has affected the individual's job performance. Hearing Tr. at 99 and 108. The supervisor also stated that the individual is an "average" employee who generally performs his duties well, and that he has not abused his leave. Hearing Tr. at 97-98. Nevertheless, the individual's good work record does not provide a sufficient basis for mitigating the security concern regarding his use of alcohol off the job.

While it is commendable that the individual has not consumed any alcohol for the past six months and intends to continue abstaining, I agree with Dr. XXXXX that he cannot be considered rehabilitated at this time. Because of the high likelihood of relapse among alcohol abusers, I believe this relatively short period of abstinence is insufficient to demonstrate rehabilitation in this case. See Personnel Security Hearing, VSO-0079, 25 DOE ¶ 82,803 (1996); Personnel Security Hearing, VSO-0054, 25 DOE ¶ 82,783 (1995); Personnel Security Hearing, VSO-0038, 25 DOE ¶ 82,769 (1995); Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995). In arriving at this opinion, I am influenced by the fact that the individual previously expressed a desire to stop drinking excessively but failed to do so. In the December 1995 PSI, he stated that he wanted to stop or significantly cut back on his drinking, Ex. 3 at 118, but less than two months later he drank excessively at the wedding reception. Although he has indicated a willingness to participate in an alcohol abuse treatment and counseling program, he has not yet done so. Unless he successfully completes such a program, I believe there is a substantial likelihood that he will return to a pattern of drinking excessively, at least on special occasions. Accordingly, I find that DOE/XXXXX had sufficient grounds under § 710.8(h) and (j) for suspending the individual's security clearance, and further find that the individual has not shown rehabilitation or otherwise mitigated the derogatory information presented.

C. Reliability

The final area of derogatory information specified in the Notification Letter involves questions regarding the individual's honesty and reliability and whether his conduct makes him susceptible to pressure or coercion. See 10 C.F.R. § 710.8 (l).

As stated earlier in Section III. A, a propensity to conceal derogatory information which is required to be reported to one's employer and the DOE is not acceptable among clearance holders. It is clear in this case that the individual intentionally failed to report his DWI arrests to his employer and the DOE in a timely manner; his August and December 1994 arrests were not reported until May 1995. The individual admits that he knew he was required to report the DWIs and the resulting revocation of his driver's license to the DOE as soon as possible after they occurred, but did not do so for fear of losing his clearance and his job. Ex. 3 at 61-66, Ex. 7 at 24, Hearing Tr. at 20-21. This was particularly serious because the individual was assigned a government vehicle which he used on a daily basis in his job. Although he knew it was illegal to drive on a revoked license, he chose not to report the arrests or the revocation of his license to his employer and continued to drive the government vehicle almost daily for the next 16 months. Ex. 3 at 72-80. This concealment of arrests and conscious decision to continue driving with a revoked license demonstrate a disregard for rules and laws and raise serious questions about the individual's reliability and trustworthiness. Personnel Security Hearing, VSO-0054, 25 DOE ¶ 82,783 (1995). In his testimony, the individual offered nothing to mitigate these concerns.

In addition, serious doubts regarding the individual's reliability are raised by two incidents of domestic violence. As mentioned earlier, when he was arrested for DWI on December 25, 1994, he was also charged with assault and battery. This charge related to the individual's attempts to restrain his girl friend (now his wife) who was, according to her own account and that of the individual, also intoxicated. PSI at 31, Hearing Tr. at 65. According to the individual, he and his girl friend argued over whether she should drive to a store. When she grabbed the car keys and started to leave, he attempted to restrain her and they scuffled. She drove away and he followed her in another vehicle. The girl friend's daughter called the police to report that the individual had been beating her mother. Ex. 3 at 50-59. While the individual and his wife maintain that he only grabbed and pushed her in an attempt to take away the car keys and keep her from driving, Hearing Tr. at 35, 63-64, Ex. 7 at 24, Ex. 3 at 50-59, the police report indicates that the individual had struck her on the face several times causing bruising. Ex. 12 at 4. The individual's wife claims that this description of the incident is not true and that she told the police officer she had not been struck. Hearing Tr. at 66. She testified that the policeman threatened to arrest her if she did not press charges and then inaccurately reported the incident because she refused to do so. Id. The assault and battery charge was dismissed when the individual's wife testified in court that she had not been beaten. Ex. 12 at 11, Ex. 7 at 25, Hearing Tr. at 66. Nevertheless, in her testimony at the hearing, she admitted that she and the individual had a physical fight and that during that fight he pushed her against the house. Hearing Tr. at 63-65. While it is not clear from the record to what extent the individual struck or physically injured his girl friend on this occasion, it is beyond question that there was a physical altercation and the violent behavior demonstated by the individual was sufficient to provoke an emergency call to the police and cause his arrest for assault and battery. Furthermore, in light of the second incident discussed below, and the tendency among victims of and participants in domestic violence to deny or minimize the violence, I am inclined to believe that it is likely the individual used more force than either he or his wife now admit. Rhonda L. Kohler, The Battered Women and Tort Law: A New Approach to Fighting Domestic Violence, 25 Loy. L.A. L. Rev. 1025 (1992).

The second incident occurred after a wedding reception on the night of February 14 and early morning of February 15, 1996. The individual and his wife had been drinking prior to the wedding and drank heavily at the reception and after the reception at his sister-in-law's house. Ex. 7 at 26, Hearing Tr. at 37, 57-59. The individual and his wife got into an argument which led to a physical altercation and ended with him pushing and hitting her, causing her to fall on the pavement. Both he and his wife state that she started hitting him first and was scratching his face with car keys. Ex. 7 at 26, Hearing Tr. at 22, 57, 59. The individual's wife testified that she was so drunk that she did not know for certain at the time who hit her, but that her sister told her later it was the individual. She also stated that she did not wish to press charges but her mother insisted that she go to court to get a restraining order the next morning. Hearing Tr. at 58, 60. In the Petition for Order Prohibiting Domestic Violence which she filed the next morning, the individual's wife stated:

All evening he harrassed me about my brother-in-law. At my sister's house he started to argue with me so I walked outside. He followed me and started pushing me and ended up punching me on my eye, nose, and side of my head.

Ex. 13 at 4. The court granted an Ex Parte Temporary Order of Protection on February 15, 1996, and at a hearing convened on February 27, 1996, the court entered a Mutual Order Prohibiting Domestic Violence (Mutual Order) which required a complete separation with no contact whatsoever between the individual and his wife for one year. Ex. 13 at 17-25. However, less than two weeks later, on March 11, 1996, the individual and his wife requested dismissal of the Mutual Order, stating that they wished to reunite on a trial basis and that they believed, with appropriate counseling, their problems could be resolved. Ex. 13 at 26.<4>

At the hearing, the individual attempted to mitigate the seriousness of the February 15 incident by pointing out that his wife was drunk and had started hitting him before he pushed her. Hearing Tr. at 22. He did admit, however, that he "might have hit her on the face" when he pushed her away. Id. In her testimony, the individual's wife confirmed that she started the fight which led to her being hit. While she acknowledged that the passage quoted above was the description she had given the morning after the incident, she testified that the incident was not as bad as she had described it, that her mother had "made" her file the petition, and that she was to blame for provoking the individual's violent behavior. Hearing Tr. at 58, 67-68. She stated that her husband is generally not a violent person and that the only times he has been violent with her, she has attacked him first or "given him a reason to flare up." Hearing Tr. at 64. She also testified that she generally drinks more than he does and has a much worse temper, and that under the influence of alcohol, she usually instigates the quarrels they have, provoking him to become angry. Hearing Tr. at 64, 69.

While it appears that his wife's drinking and bad temper may have been precipitating factors in their fights, this does not absolve the individual of responsibility for his own behavior. It is clear that during their fight on February 15, he did not just defend himself and used more force than was necessary. <5> Furthermore, the fact that his wife was drunk does not in any way justify his behavior which was in part caused by his own excessive alcohol consumption. If he had not been drinking, he might have exercised better judgment and not resorted to the use of physical force. The type of violent behavior exhibited by the individual in both of these incidents demonstrates a lack of good judgment and raises serious doubts as to his reliability. Personnel Security Hearing, VSO-0066, 25 DOE ¶ 82,797 at 85,811 (1996). It also raises a concern that there may have been other similar incidents which have not been reported and which might make the individual susceptible to pressure or coercion. Although their current separation may diminish somewhat the likelihood of the individual having further altercations with his wife, I cannot be confident that there will not be a recurrence of violent behavior by the individual if he is provoked while under the influence of alcohol. I therefore find that DOE/XXXXX had a sufficient basis for suspending the individual's security clearance under § 710.8(l) and that the individual has not adequately mitigated the DOE's concerns.

IV. Conclusion

The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). 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).

In the above analysis, I have found that there is significant derogatory information in the possession of DOE/XXXXX which raises serious concerns under 10 C.F.R. § 710.8(f), (h), (j) and (l) regarding the individual's eligibility for continued access authorization. I have also found that the individual has failed to mitigate these security concerns. I am therefore 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 this 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

Date:

<1>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>2/ The exhibits, where not cited by name, are cited herein as Ex., and the transcript of the hearing is cited as Hearing Tr.

<3>/ The Notification Letter does not mention the individual's use of marijuana during his teenage years as a basis for suspending his access authorization. See 10 C.F.R. § 710.8(k). In addition, no evidence has been presented that the individual has used marijuana since that time and he testified that he has not used any illegal drugs since 1978. Hearing Tr. at 16.

<4>/ The Mutual Order had required that the individual and his wife participate in a family counseling program. However, the individual participated in only one session of the court-ordered counseling and his wife participated in only two, before the order was dismissed and they stopped attending. Hearing Tr. at 41, 70. After dismissal of the Mutual Order, they began attending another family counseling program together, but stopped after three or four sessions. Id. They have been living separately since July 4, 1996 and do not intend to reunite. Hearing Tr. at 13, 71.

<5>/ The wife's testimony indicates that she must have been struck quite hard. She testified that, as a result of this fight, her eye was completely closed and her face was bruised and "looked pretty bad." Hearing Tr. at 58, 60. The next day, the judge required her to go to the hospital where she was examined for eye damage and to see if her cheekbone had been broken. Hearing Tr. at 60.