Case No. VSO-0106 (H.O. Schwartz Feb. 3, 1997)

Case No. VSO-0106, 26 DOE ¶ 82,767 (H.O. Schwartz Feb. 3, 1997)

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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.

February 3, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: July 26, 1996

Case Number: VSO-0106

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (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 an Operations Office of the Department of Energy (DOE). 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 by a DOE contractor since 1990. In March 1995, the Individual reported to the DOE that he had been arrested for Driving Under the Influence of Alcohol (DUI). Pursuant to 10 C.F.R. § 710.9(a), the DOE conducted a recorded Personnel Security Interview (PSI) with the Individual on August 31, 1995. Since information creating doubt as to the Individual's eligibility for a security clearance remained unresolved after that interview, the DOE requested that the Individual be interviewed by a licensed physician specializing in psychiatry who is a contracted consultant to the DOE (the DOE psychiatrist). Following his evaluative interview with the Individual,

the DOE psychiatrist prepared a report for the DOE, which was dated October 18, 1995. On the basis of that report and other information obtained about the Individual, the DOE 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, which informed the Individual that "[r]eliable information in the possession of the DOE has created a substantial doubt concerning [his] eligibility for continued 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. The Individual requested a hearing by filing a written response to each of the allegations in the Notification Letter. The DOE forwarded the Individual's request for a hearing to the DOE's Office of Hearings and Appeals and I was appointed the Hearing Officer in this matter.

Following a prehearing conference as required by 10 C.F.R. § 710.25(f), I held a hearing on this matter. At the hearing, the DOE Counsel called the DOE psychiatrist and a DOE Personnel Security Specialist as witnesses. The Individual called the following witnesses: the Individual's probation officer, a board-certified neuropsychologist and forensic psychologist (the neuropsychologist), one of the Individual's shift supervisors, and the Individual himself. During the course of this proceeding, the DOE Counsel and the Individual each submitted four exhibits.

II. Statement of Derogatory Information

In the Statement of Charges attached to the Notification Letter, the DOE alleged that the Individual has "an illness or mental condition which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability." Notification Letter, Enclosure 1 (citing 10 C.F.R. § 710.8 (h) [Criterion H]). The DOE also alleged that the Individual has "been, 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," which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J). Finally, the DOE alleged that the Individual has "engaged in . . . unusual conduct or is subject to . . . circumstances which tend to show that the individual is not honest, reliable, or trustworthy. . . . Such conduct or circumstances include, but are not limited to, criminal behavior. . . ." See 10 C.F.R. § 710.8(l) (Criterion L).

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

A. According to the October 18, 1995 evaluation report, it was the opinion of the DOE psychiatrist that the Individual (1) suffers from a number of illnesses or mental conditions, i.e., alcohol abuse, alcohol dependence, dysthymia disorder (depression), generalized anxiety disorder, and a mixed personality disorder with avoidant and antisocial features, which cause, or may cause, a significant defect in judgment or reliability; and (2) is a user of alcohol habitually to excess, and has not shown adequate evidence of rehabilitation.

B. In statements provided to the DOE, the Individual admitted that he had been arrested for and pleaded guilty to DUI in November 1987 and March 1995; that he had been in bars and consumed alcohol in violation of the terms of his probation after his March 1995 DUI arrest; and that he has continued to consume alcohol, despite the negative consequences it has produced in his life.

Although three discrete criteria under Section 710.8 are cited in the Notification Letter, all of the derogatory information in this case arises from 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, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in his judgment or reliability" (Criterion H), and has engaged in conduct or is subject to circumstances that tend to show that he is not "honest, reliable, or trustworthy" (Criterion L). In addition, other mental disorders that the DOE psychiatrist identified in his diagnosis must also be addressed, to the extent that they are not directly linked to the Individual's consumption of alcohol.

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. Transcript of Hearing (Tr.) at 234. The Individual also does not dispute that he was arrested on the two occasions cited in the Notification Letter and that he was drinking and driving on those occasions. Nor does he dispute the DOE psychiatrist's opinion that he suffers from two mental conditions, alcohol abuse and alcohol dependence, which cause or may cause a significant defect in judgment and reliability. One of the Individual's own witnesses, a mental health professional, concurs in the diagnosis of alcohol disorders. Accordingly, with respect to alcohol- related charges contained in the Notification Letter, I will summarize the material in the record that supports a finding regarding the derogatory information and address more fully the mitigating factors under Criteria H, J and L. However, the Individual has challenged the DOE psychiatrist's diagnosis with respect to the other mental conditions described in his evaluative report, and I will express my opinion regarding them in a separate section.

A. Alcohol-Related Charges

1. Derogatory Information

According to the DOE psychiatrist, the Individual suffers from alcohol abuse and alcohol dependence. The DOE psychiatrist arrived at this diagnosis as the result of his psychiatric assessment of the Individual. In performing that assessment, the DOE psychiatrist spent three hours evaluating the Individual in a personal interview, and then had him complete four diagnostic tests, including the Minnesota Multiphasic Personality Inventory, 2d Edition (MMPI-2) and the Millon Clinical Multiaxial Inventory, 3d Edition (MCMI-III). Report of the DOE Psychiatrist, October 18, 1995 (Report) at 1. On the basis of his evaluation, the DOE psychiatrist stated at the hearing that the Individual suffered from "not only alcohol abuse but a form of dependency. I felt that the dependency may be more of a psychological dependency than a physical or physiological dependency, because he wasn't drinking on a regular basis." Tr. at 113. At the time of the evaluation, the Individual told the DOE psychiatrist that he had not consumed alcohol since July 31, 1995. Report at 2. The DOE psychiatrist reported that the Individual had started consuming alcohol in high school and had continued since that time, with "periodic bouts of excessive consumption to the extent of intoxication at nearly every episode." Id. The DOE psychiatrist also noted that these bouts of abuse occurred only on days off from work and never interfered with the individual's work performance. Report at 2. The DOE psychiatrist surmised that the Individual was in a state of denial regarding his use of alcohol, especially in light of his admission of blackouts after drinking. Report at 2. See also Tr. at 124 (citing Transcript of Personnel Security Interview, August 31, 1995 (PSI Tr.) at 26). His diagnosis of denial was confirmed by test results, in particular the MMPI-2's MAC-R scale, which measures a person's propensity to develop addiction problems. According to the DOE psychiatrist, the Individual's score on this scale indicated denial or minimization of this propensity. Report at 8. In addition, he believed that the Individual was also alcohol dependent, because the Individual resorted to consuming alcohol when he was psychologically distressed, "to solve [his] psychological or emotional stress." Tr. at 114. He further stated that the results of the MCMI-III test indicated alcohol dependence. Id. at 139.

Shortly before the hearing, the Individual submitted to a second mental health evaluation, this time by the neuropsychologist. At the time of this second evaluation, the Individual stated that he had last consumed alcohol on June 4, 1996. Report of the Neuropsychologist, October 11, 1996 (Neuro Report) at 2. The evaluation consisted of a clinical interview and the administration of three diagnostic tests: the MMPI-2, the MCMI (2d Edition), and the Substance Abuse Subtle Screening Inventory. The neuropsychologist stated, both in his report and in his testimony at the hearing, that he agreed with the DOE psychiatrist's diagnosis of the Individual's alcohol disorder. Neuro Report at 3; Tr. at 189. His diagnosis of the Individual with respect to alcohol use varied significantly from that of the DOE psychiatrist's in one aspect: he found that the Individual was no longer denying his dependency on alcohol. Neuro Report at 3; Tr. at 186.

It is clear from the above discussion that at the time of both mental health assessments the Individual suffered from "an illness or mental condition" in the opinion of licensed professionals. 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 the DOE psychiatrist's opinion that the Individual's alcohol dependence has caused a defect in his judgment, as demonstrated by the following: (i) the Individual had two alcohol-related arrests, Tr. at 125; (ii) the Individual would not acknowledge that drinking had contributed to the breakup of their marriage, Report at 12 (contrasting Individual's position to that of former spouse's, as cited in the Office of Personnel Management Report of Investigation regarding the Individual, Former Spouse's Testimony (OPM Testimony) at 3); (iii) the Individual felt he was competent to control his alcohol consumption, id.; and (iv) the Individual "used alcohol for the wrong reasons: to enhance comfort in social relationships, to improve mental functioning, and to help manage (or soften) moods." Id. In view of this opinion by a practicing psychiatrist of the Individual's mental health at the time of his first evaluation, the explanation provided in support of that opinion, and the later corroboration by the neuropsychologist, who was the Individual's own witness, I find that the DOE properly relied on Criterion H in suspending the Individual's security clearance.

I also find that the DOE had a sufficient basis for invoking Criterion J. In his report, the DOE psychiatrist concluded that the Individual was a user of alcohol habitually to excess without adequate or sufficient alcohol reformation or rehabilitation. Report at 13. In the DOE psychiatrist's opinion, the Individual's drinking pattern met Criterion J because he has used alcohol episodically to the point of intoxication since his high school years, when he was once suspended form school for drinking and required to attend counseling. Report at 11-12, 13; see also PSI Tr. at 14 (explanation by Individual). Furthermore, both mental health professionals diagnosed the Individual as suffering from alcohol abuse and alcohol dependence. Id. at 11; Neuro Report at 3, 4, 5.

As stated above, the Statement of Charges also indicates security concerns under Criterion L of the regulations. These concerns are not based on the opinions of mental health professionals but rather on the DOE's analysis of facts and statements it acquired during this proceeding. The evidence is set forth here. The Individual was arrested twice for DUI, and pleaded guilty to the charge both times; this constitutes criminal behavior. PSI Tr. at 7, 12; Statement of Charges at 2. During his Personnel Security Interview the Individual made inconsistent statements about his compliance with the terms of his probation following his second DUI conviction, first stating that he was complying and later admitting that he had not. PSI Tr. at 9, 18, 23. I agree with the DOE that such conduct raises questions of honesty, reliability, and trustworthiness. The fact that he did violate the terms of his probation, id. at 18; Tr. at 239, 276-277, 289-290, similarly raise questions of reliability and trustworthiness. Finally, the Individual's continued use of alcohol in spite of its negative impact on his life, including his suspension from school (PSI Tr. at 13-14), the DUIs, marital difficulties (id. at 34, 35, 37), and possible enforcement of penalties for violation of probationary terms (id. at 37) also brings into question the Individual's judgment, because, as of the time of the issuance of the Notification Letter, he failed to acknowledge the negative impact. In light of this evidence, I find that the DOE properly relied on Criterion L in suspending the Individual's security clearance.

In view of the above, I find that the DOE's allegations of derogatory information under Criteria H, J and L relating to the Individual's consumption of alcohol 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 her testimony, a person who habitually drinks alcohol to excess or suffers from the mental condition of alcohol abuse or alcohol dependence does not exhibit complete good judgment and reliability, qualities that are essential for individuals with access to classified information and special nuclear material. Tr. at 64. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse, alcohol dependence and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); 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). In addition, each of the Individual's actions related to his use of alcohol that the DOE discussed in its Statement of Charges under Criterion L also raises important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0099), 26 DOE ¶ 82,760 (1996).

2. 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 alcohol rehabilitation in the form of Alcoholics Anonymous (AA).

At the hearing, there was considerable testimony that the Individual has been a reliable and conscientious employee. The Individual's supervisor described him as an exemplary employee: knowledgeable, conscientious, timely, and dependable. Tr. at 218. The supervisor testified that he had no recollection that the Individual had been arrested for DUI and had never seen the Individual intoxicated. Id. at 224. The DOE Personnel Security Specialist stated that her review of the records in this case gave no indication that the Individual's use of alcohol affected his job performance. Tr. at 92-93. Testimony that the Office of Personnel Management obtained from the Individual's former spouse also reflects that his alcohol consumption never interfered with his work. OPM Testimony at 4.

The testimony about the Individual's job performance is evidence in the Individual's favor. The DOE considers such information as positive, mitigating factors when assessing security concerns, according to the DOE Personnel Security Specialist. Tr. at 84-85. 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-0079), 25 DOE ¶ 82,803 (1996); 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)). The fact that this has apparently not occurred in the past is no guarantee that it will not occur in the future.

These security concerns would be mitigated, however, if there were sufficient evidence of rehabilitation or reformation, so that I could conclude that it was highly unlikely that the Individual would abuse alcohol in the future. The Individual stated at his Personnel Security Interview that he attended two short-term counseling programs, one for two Saturdays and another for one hour a week for eight weeks, besides AA meetings. PSI Tr. at 10. In his report, the DOE psychiatrist recommended continued and fuller participation in AA, and in the event that AA proved not to be successful, an inpatient alcohol treatment program. Report at 14. During his evaluation by the DOE psychiatrist, the Individual stated that he had had his last alcoholic drink about ten weeks earlier. Id. According to his testimony, the Individual continued to use alcohol occasionally during the following year. Tr. at 239-240. The Individual's probation officer testified that such relapses are not uncommon or unexpected. Id. at 32. Although the Individual stated in his Personnel Security Interview in August 1995 that he was not actively involved in AA and had no sponsor, he did state that he attended AA meetings. PSI Tr. at 11. The probation officer, however, testified that having a sponsor is an extremely important part of the AA program, and without one, the participant is "in trouble with his program." Tr. at 35.

At the hearing the Individual testified that he had his last alcoholic drink on June 4, 1996, that he was now actively involved in AA, and that he now had a sponsor. Id. at 252, 248, 247. The Individual further testified that he does not intend to drink in the future. Id. at 254. He also acknowledged at the hearing that he is an alcoholic. Id. at 231. The neuropsychologist, whom the Individual saw more than three months after his last drink, diagnosed him as alcohol dependent in "early full remission." Neuro Report at 5. At the hearing, the neuropsychologist testified that the most significant change in the Individual in the year between the DOE psychiatrist's examination and his examination was that the Individual had stopped denying his alcohol problem. Tr. at 186; Neuro Report at 4. He based his conclusion not only on his observation of the Individual's activities, Tr. at 186, but also on the results of the standardized evaluative tests that he administered to the Individual. Neuro Report at 2. He also stated that the Individual's increased involvement in social activities had also improved the Individual's mental health by decreasing his isolation. Neuro Report at 4; Tr. at 187. The neuropsychologist further testified that in his opinion, the Individual fits the statistical model of a person more likely to have a "better outcome." Tr. at 193.

In the administrative review process, it is the Hearing Officer who has the responsibility for assessing whether an individual with alcohol problems has presented sufficient evidence of 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). I am persuaded from the testimony that the Individual had abstained from alcohol for five months at the time of the hearing. In addition, I am convinced that he has been attending AA meetings regularly and has had an AA sponsor for approximately the same length of time. Nevertheless, the two mental health professionals who have evaluated the Individual agree that he is alcohol dependent. The neuropsychologist, who performed his evaluation more recently, determined that the condition is in early full remission on the basis of the Individual's reported abstention. When questioned about whether such remission constitutes evidence of rehabilitation or reformation, he responded that although all alcoholics are at risk of drinking again, "if you have full remission of one year, the probability is very good that you're going to be able to retain your sobriety for a long period of time." Tr. at 212 (emphasis added). Similarly, at the hearing the DOE psychiatrist expressed his opinion that "until a person has gone [without alcohol for] probably a year or maybe a little longer [relapses] are very possible." Tr. at 164.

While I am persuaded that the Individual sincerely intends to abstain from alcohol and has been actively participating in AA, 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 for which the Individual has been abstinent and the expert testimony of two mental health professionals. These same considerations have led Hearing Officers in other recent DOE security clearance cases to find that there was insufficient evidence of rehabilitation or reformation. See Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996) (five months); 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 in my determination regarding rehabilitation and reformation is that the Individual has only recently overcome his denial of an alcohol problem that has affected him for roughly half his life. His actions that raised security concerns under Criterion L-- the DUIs, the inconsistent statements made in the Personnel Security Interview, the continued consumption of alcohol during probation in spite of the probationary terms, and the long-time pattern of continued alcohol use in spite of the problems it caused in his life-- illustrate that, at least until very recently, the Individual was unwilling or unable to own up to the fact that he has a serious alcohol problem. Since his last alcoholic drink in June 1996, the Individual appears to have accepted his problem and has taken commendable steps toward addressing it. However, at this time, he is not far enough along in his efforts at rehabilitation for me to find that the agency's security concerns regarding his alcohol problems have been mitigated. Until the Individual has progressed further along his course of rehabilitation, I believe that the security concerns that the DOE has raised under Criteria H, J and L will continue to be substantial.

B. Other Mental Disorders

1. Derogatory Information

In his evaluative report the DOE psychiatrist diagnosed the Individual as suffering from a number of non-alcohol-related mental disorders. He specified these conditions as dysthymia (serious, prolonged depression), generalized anxiety disorder related to the dysthymia, and non-specific personality disorders. Report at 7-9, 11, 13. His concern was that the Individual's alcohol problems and depressive disorder were intertwined. Id. at 13; Tr. at 152. He recommended that

the subject should be treated for both the alcohol abuse syndrome and the depressive disorder, since each of these disorders directly aggravates the other. The subject has used alcohol to relieve the depression, but this actually makes the depression worse. In the absence of alcohol use, the symptoms of depression and anxiety would be reduced.

Report at 13. The DOE psychiatrist recognized that "the subject has had several recent significant losses (divorce, separation from children, sale of house, and financial strains)." Id. He identified the depression as chronic, id., and as possibly hereditary. Id. at 3; Tr. at 119. He also maintained that the Individual denied the degree of his depression and offered that such denial is not unusual, particularly where the person has lived with his depression for a long time and it is not so severe as to prevent the person from functioning . Tr. at 117-118, 145. He described the personality disorder as being "composed of avoidant type personality features and antisocial personality traits which might be best characterized as being what we call characterological. They're really not antisocial but more of acting out behavior that's less than probably criminal behavior." Tr. at 114. According to the DOE psychiatrist, the MMPI-2 reinforced his initial diagnosis: it indicated that the Individual can be tense, anxious and depressed. Tr. at 137. In addition, he stated that the MCMI-III indicated that the Individual displayed an avoidant personality. Tr. at 139. The DOE psychiatrist also testified that depression can impair a person's judgment and, when left untreated, can lead to physical abuse and, in severe cases, suicide. Id. at 128-129. Although the DOE psychiatrist was clear that in his opinion the Individual's degree of depression had not progressed to such levels, his concern was that the Individual self-medicated his symptoms of depression with alcohol, which served only to intensify those symptoms and further impair his judgment. Id. at 119, 125. In addition, through the DOE Personnel Security Specialist, the DOE has established that any mental illness, including depression, that could affect a worker's judgment and reliability is a security concern because those qualities are important in an employee who handles classified information or special nuclear material. See Tr. at 106. In view of the above, I find that, at the time it suspended the Individual's access authorization, the DOE properly relied on derogatory information with respect to the Individual's depression and other associated mental disorders in suspending the Individual's access authorization.

2. Mitigating Factors

Although the neuropsychologist who evaluated the Individual nearly a year after the DOE psychiatrist fundamentally agreed with the DOE psychiatrist's diagnosis of the Individual's alcohol problems, he clearly disagreed with his diagnosis of depression and other associated mental disorders. The form of each evaluation was the same: each professional interviewed the Individual and administered a battery of diagnostic tests. The two tests relevant to this area of assessment were the MMPI and the MCMI. I note that at the hearing it was acknowledged that the DOE psychiatrist and the neuropsychologist had administered different editions of the tests. See, e.g., Tr. at 159. The neuropsychologist reported that all results from the MMPI he administered were within normal limits; that is, there were no indications that the Individual suffered from any of the mental disorders with which the DOE psychiatrist diagnosed the Individual. Neuro Report at 2. The results of the second MCMI, however, indicated, in addition to alcohol dependence, "clear evidence of marked self-doubts and a deflated sense of self-esteem." Id. Together with other traits, the MCMI portrayed a person, according to the neuropsychologist, whose "major characteristic is one of dependent conformity." Id.; Tr. at 181. Nevertheless, the neuropsychologist contended that the test results indicate a "personality style" rather than a personality disorder. Report at 3.

The neuropsychologist's assessment of the Individual differed from that of the DOE psychiatrist in two significant respects. First, he contended that the Individual has a "more avoidant schizoid personality style" that is "fueled by feelings of inadequacy and attendant anxieties, particularly under social situations." Id. Nevertheless, he reported that "[w]hile these characteristics are obvious in both clinical interview and psychological testing, they do not reach a severity that warrants a diagnosis of a personality disorder." Id. at 4; see Tr. at 185. Second, the neuropsychologist expressed his opinion that the DOE psychiatrist did not adequately consider his observations and the test results "within the context of the losses [the Individual] had realized immediately prior to that evaluation," that is, his divorce and effective loss of his children. Report at 3. In contrast, he reported,

At the time of this evaluation, [the Individual] does not demonstrate evidence of significant depression. In fact, the indices for mood disorder are well within normal limits on all tests administered. Additionally, he does not present with symptoms consistent with depression. It is likely that he was depressed at the time of [the DOE psychiatrist's] evaluation. However, it is my opinion that this was largely reflective of situational factors.

Id. at 4; see Tr. at 183.

In sum, the evidence presented in this proceeding is that of two mental health professionals with divergent diagnoses. Although the DOE psychiatrist's diagnosis of depression and associated mental disorders clearly meets Criterion H, the neuropsychologist's diagnosis on the basis of an evaluation nearly one year later clearly does not. It is inappropriate to accept without question a more recent diagnosis as controlling, particularly where, as here, the earlier diagnostician reviewed the later evaluation and continues to maintain the correctness of his own diagnosis. See Tr. at 152. In this case, however, we have standardized evaluative tests on which to rely. Quantitative results of the tests administered earlier supported the DOE psychiatrist's diagnosis of depression and associated disorders; quantitative results of the tests administered later did not. I find it difficult to ascribe the wide discrepancy in results to distinctions between different editions of the same tests. Given the totality of the evidence and testimony presented in this case, I find it far more likely that the discrepancy can be accounted for as a matter of a temporary mental condition, that is, situational depression, which dissipated over time to the extent that psychological testing indicated its presence, and that of other related disorders, at one time and their absence one year later. It is therefore my opinion that the DOE's security concerns regarding the Individual's depression and associated mental disorders under Criterion H have been mitigated by the passage of time, which has demonstrated that the Individual's depression was situational in nature, as supported by the more current diagnosis.<2>

IV. Conclusion

For the reasons set forth above, I find that the DOE's security concerns regarding the Individual's diagnosed depression, anxiety disorder, and personality disorders have been mitigated by a more current diagnosis. Nevertheless, I do find that the Individual has been a user of alcohol habitually to excess and has illnesses or mental conditions, specifically alcohol abuse and alcohol dependence, which, in the opinion of both a licensed physician and a board-certified psychologist, cause or may cause a significant defect in judgment or reliability. In addition, I find that the Individual's alcohol- related conduct tends to show that the Individual is not honest, reliable or trustworthy. 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.

William Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: February 3, 1997

<1>"An access authorization (also referred to as a "security clearance") is an administrative determination that an individual is eligible for access to classified information or special nuclear material. 10 C.F.R. § 710.5.

<2>I note that the DOE psychiatrist expressed an opinion at the hearing regarding the potential benefits of the Employee Assistance Program Referral Option (EAPRO) for this Individual. At the hearing he maintained that the Individual continued to present personality disorders, Tr. at 158, and stated that EAPRO is not available for persons "if the mental condition or mental disorder is the primary issue." Id. at 164. However, he was willing to speculate that if the Individual was abstaining from alcohol, his mental disorders would likely be less prevalent, and he might benefit from EAPRO. Id. at 165. 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. 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 is not subject to review by a Hearing Officer. See Personnel Security Hearing (Case No. VSO-0005), 25 DOE ¶ 82,753 (1995). Nevertheless, in view of the DOE psychiatrist's testimony and the commendable efforts the Individual has made to deal with his alcohol problem through abstention and full participation in AA, I believe that this would be an appropriate case for EAPRO if it were available at this late stage in the process. See Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); Personnel Security Hearing (Case No. VSO- 0038), 25 DOE ¶ 82,769 (1995).