Case No. VSO-0113, 26 DOE ¶ 82,768 (H.O. Cronin 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:September 5, 1996
Case Number: VSO-0113
This opinion concerns the eligibility of XXXXXXXXXXXX ("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 office of the Department of Energy (the DOE office). In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.
I. Procedural Background
After the DOE office was notified that the individual had been arrested on October 6, 1995 on various charges, that office began a reinvestigation of the individual's eligibility to hold a clearance. The DOE office conducted a recorded Personnel Security Interview (PSI) with the individual on December 19, 1995 (1995 PSI), pursuant to 10 C.F.R. § 710.9(a). On the basis of the information obtained about the individual, the DOE office 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. 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 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 sent a request for a hearing to the DOE office. The DOE office forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On September 9, 1996, I was appointed the Hearing Officer in this matter.
In accordance with 10 C.F.R. § 710.25(e) & (g), a hearing was convened. <2> At the hearing, the individual, his current supervisor, his former supervisor and an acquaintance testified on his behalf. A state trooper testified for the DOE. DOE Counsel submitted twelve exhibits, and the individual submitted one exhibit.
II. Notification Letter
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 access authorization. That information is summarized below.
In the Notification Letter, the DOE office first stated that information in its possession indicated that the individual has been or is a user of alcohol habitually to excess. Enclosure 1 to Notification Letter at 1; see 10 C.F.R. § 710.8(j). Specifically, the DOE office stated that the individual was arrested for Driving Under the Influence of Alcohol/Drugs (DUI) (Second Offense) on October 6, 1995. <3> He subsequently pled no contest to this charge. <4> In his 1995 PSI, the individual indicated that on the night of that arrest he had consumed one beer and three shots of tequila. According to the DOE office, the individual stated that he typically drank four to six beers on three or four occasions per month and on two occasions per month would drink two to four shots of whiskey. The DOE office also noted the individual's belief he might have a drinking problem. In addition, the Notification Letter referred to a report from the individual's group counselor stating that the individual had symptoms indicating alcohol dependence. <5>
Second, the DOE office stated that it was in possession of information indicating that the individual trafficked in, sold, transferred, possessed, used or experimented with a drug listed in the schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970. Enclosure 1 to Notification Letter at 3; see 10 C.F.R. § 710.8(k). Specifically, the DOE office stated that during the individual's October 6, 1995 DUI arrest, he was also charged with possession of marijuana and drug paraphernalia. These charges were eventually dismissed.
Third, the DOE office stated that it was in possession of various information which it asserted demonstrates that the individual has engaged in unusual conduct or is subject to circumstances that tend to show he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress that may cause him to act contrary to the best interests of the national security. Enclosure 1 to Notification Letter at 4; see 10 C.F.R. § 710.8(l). First, marijuana and rolling papers were discovered on the individual's person when he was arrested for the October 6, 1995 DUI. The DOE office noted that the individual's arrest for marijuana possession occurred even though the individual had signed a Drug Certification in 1992, stating that he agreed not to use or be involved with illegal drugs at any time while holding an access authorization. Second, the individual was also charged on October 6, 1995 with making an improper turn, failure to wear a seat belt, menacing, assault, obstructing official business and felony vandalism. The individual pled no contest to assault and criminal damaging (a lesser charge than felony vandalism), as well as the DUI charge described earlier, with all the other charges being dropped. Third, the DOE office stated that during 1990, the individual was charged twice with domestic violence, twice with telephone harassment and once with criminal trespassing. Of those charges, the individual pled no contest to one charge each of criminal trespassing and domestic violence, which occurred the same night, as well as telephone harassment of his ex-wife. The other two charges were dismissed.
III. Findings of Fact and Analysis
The DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a).
A. Criterion (j)
The first question to be addressed is whether the individual is or has been a "user of alcohol habitually to excess." 10 C.F.R. § 710.8(j). The DOE office made this allegation based on the two DUI charges and the individual's statements regarding the amount of his alcohol consumption and his belief that he might have a drinking problem. The DOE office also relied on a report from a counselor at a counseling center that states the individual's symptoms indicated alcohol dependency. See Enclosure 1 to Notification Letter at 2-3.
During his thirteen-year marriage, the individual drank only one to three beers once every two or three months. 1995 PSI Tr. at 23-24. But during the period surrounding his 1990 divorce, the individual increased his drinking to three times per week to the point of getting "a little bit" intoxicated, because he did not know what to do with his life and to put himself to sleep. May 12, 1992 PSI (1992 PSI) Tr. at 24; see also Hearing Tr. at 124. He also stated that during the day of his first domestic violence arrest, January 14, 1990, he had two or three beers. 1992 PSI at 14. On the night of his second arrest for domestic violence and criminal trespassing, he had also been drinking and was probably "a little bit" intoxicated. 1992 PSI Tr. at 17. During his 1992 PSI, he said that he intended to limit himself in the future to a "couple" of drinks, approximately once per month. 1992 PSI Tr. at 30. On December 14, 1992, about six months after that PSI, he was arrested on his first DUI charge. The individual had consumed three or four beers that night, fell asleep while driving, and crashed his car into a parked car, putting his head through the windshield. Hearing Tr. at 120-21. He admitted at the hearing that he was in fact guilty of driving under the influence that night. Hearing Tr. at 123. In conjunction with this arrest, he was also charged with assaulting a hospital security guard.
On the night of his October 1995 DUI, the individual had drunk one beer and three drinks of whiskey in approximately two hours and forty-five minutes. Hearing Tr. at 95-96; 1995 PSI Tr. at 13. As indicated above, that night, he was also charged with menacing, assault, obstructing official business and felony vandalism. The individual denies that he was in fact intoxicated at the time of his October 6, 1995 DUI arrest, and states that he only pled no contest to that DUI charge on the advice of counsel in order to avoid a more severe penalty. Hearing Tr. at 96, 118.
As of his December 1995 PSI, the individual was drinking approximately three or four times per month, sometimes having four or five beers, and twice a month, having two beers plus two to four shots of whiskey, although there would be periods where he would not drink. Hearing Tr. at 175; 1995 PSI Tr. at 19-21. The individual has admitted that at times he drinks larger amounts and drinks to get intoxicated when he has problems in his life. Hearing Tr. at 140; 1995 PSI Tr. at 24-25. In the 1995 PSI, the individual stated that he thought that he had a drinking problem but did not believe he was an alcoholic. 1995 PSI Tr. at 24. The individual also stated at that time that he believed he might abuse alcohol "a little bit" and therefore wished to quit drinking. 1995 PSI Tr. at 26-29. However, the individual now disavows his former statement in the 1995 PSI that he has a drinking problem; the individual asserts that he only meant to say that he drinks more when he has personal problems. Hearing Tr. at 154, 170. The individual does not believe that he is or has been a user of alcohol to excess and denies that he is an alcoholic or alcohol dependent.
Based on the entire record, it is clear to me that the individual has been a user of alcohol habitually to excess, as demonstrated by his history of alcohol consumption as recorded in the 1992 and 1995 PSIs and the two DUI arrests within a period of three years. My finding is also supported by the individual's own admission that at the time of the 1995 PSI he believed that he may have a problem with alcohol. The record I believe is sufficient to conclude that the individual has been a user of alcohol habitually to excess.
In making this finding, I believe that the individual, despite his claims, was in fact intoxicated on the occasion of his October 6, 1995 DUI arrest. During his testimony, the state trooper presented supporting evidence that the individual had failed several divided attention tests and a portable breathalyser test. Hearing Tr. 17-19, 45-46; DOE Ex. 12. Given the trooper's testimony and report, the individual's admission that he consumed four drinks in approximately three hours time and his behavior during the arrest, described infra, I find that the individual's claim that he was not intoxicated at the time of the October 6, 1995 DUI arrest to be without merit.
The question remaining before me is whether the individual is rehabilitated or reformed to a sufficient extent that restoration of his access authorization would be warranted under 10 C.F.R. § 710.7(a). For the reasons discussed below, I find that he is not.
At the hearing, the individual stated that as a result of the second DUI charge, he entered a counseling program. Hearing Tr. at 114. This program included Alcoholics Anonymous (AA) twelve-step meetings and group therapy. Hearing Tr. at 141-42. He participated for three months, ending in early 1996. He believes that this program has shown him how to avoid using alcohol as a means of solving personal problems. Hearing Tr. at 142-43. However, he strenuously denies that he was in counseling for an alcohol problem. Hearing Tr. at 154-55; Individual's Response to Notification Letter at 2. He has continued to drink, sometimes once a week or once every two weeks, but sometimes he does not drink for two months. Hearing Tr. at 157-58. When he goes out, he usually has four drinks, either some beer or two beers and two shots of whiskey. He also said that when he drinks any amount of alcohol, he obtains a ride home. Id. at 158. <6>
After considering the entire record before me, I do not believe that the individual has mitigated the security concerns raised by his history of habitually drinking alcohol to excess. Based on the individual's testimony, I believe that he sincerely wishes to remain a moderate drinker and I am not aware of any further alcohol-related incidents since October 6, 1995. But, for the following reasons, I am not sufficiently assured that the individual's attempts to control his alcohol intake will succeed.
First, the individual cannot claim that the twelve-step program he attended for three months has rehabilitated him when he has failed to follow two major tenets of that program: to admit that he has a drinking problem, and to abstain from alcohol. Alcoholics Anonymous World Services, Inc., The Twelve Steps of Alcoholics Anonymous <http://www.alcoholics-anonymous.org/factfile/doc13.html> (visited January 30, 1997); Hearing Tr. at 170-71. Second, I am simply unwilling to believe the individual's assurances that no more unfortunate consequences will result from his drinking. The individual made such assurances to the DOE previously, during the 1992 PSI, 1992 PSI Tr. at 30. Even so, six months later, the individual wrecked his car and was charged with assault and DUI. Similarly, the individual testified that he learned a lesson from his 1992 arrest not to drink and drive. See Hearing Tr. at 177. Yet he did precisely that on October 6, 1995. Finally, in the 1995 PSI, the individual stated that he wished to quit drinking, and apparently has been unable to do so. Without further evidence of rehabilitation, I am unwilling to rely on the individual's assurances regarding excessive alcohol consumption. I therefore find that the individual has failed to mitigate the security concern presented here.
B. Criterion (k)
As mentioned above, the DOE office asserts that it possesses derogatory information regarding the individual as described under 10 C.F.R. § 710.8(k). Consequently, the next issue I will address is the individual's possession of marijuana during the October 6, 1995 DUI arrest. The individual's basic response to this issue is that the marijuana did not belong to him and that he discovered the marijuana while traveling in his car shortly before he was stopped by the state trooper. In support of that response, he presented the testimony of an acquaintance, which is summarized below. The acquaintance testified that he and the individual were classmates in middle school and high school, approximately twenty years ago. He has socialized with the individual whenever they happened to meet, but did not consider the individual to be one of his close friends, but rather as an "acquaintance." Hearing Tr. at 70; see also Hearing Tr. at 78, 86. On the night of October 6, 1995, the individual and the acquaintance were separately drinking at a bar. Hearing Tr. at 71. Around closing time, between 2:00 and 2:10 A.M., the acquaintance realized that he had had too much to drink, and asked the individual for a ride home. Hearing Tr. at 71; see Hearing Tr. at 95-96. At this time, the acquaintance testified that he had marijuana in a plastic bag in his left front pants pocket. Hearing Tr. at 72. The individual agreed to drive the acquaintance to his house. Id. When they arrived at the acquaintance's house, the acquaintance reached into his left front pants pocket to retrieve his keys and left the vehicle. Id. at 73. Subsequently, the acquaintance testified that he read in a newspaper the individual had been arrested for possession of marijuana. Id. at 74. The acquaintance then searched for his bag of marijuana but could not find it. Id. The acquaintance asserts that the marijuana found with the individual was in fact the acquaintance's marijuana.
The individual testified that while driving home after the acquaintance left the car, he found what he believed to be marijuana and rolling papers on the front seat. The individual was unsure of what to do with them, but decided to put the items in his pocket, and either flush them down the toilet when he arrived home, or possibly call the acquaintance to find out what he wanted done with them. Hearing Tr. at 98, 165. Approximately five minutes later, the individual was stopped for a traffic violation, tested for intoxication, and arrested for DUI. Hearing Tr. at 99. Upon arrest, he was searched, and the marijuana and papers were discovered.
The individual therefore admits that he had possession of the marijuana between the time the acquaintance left it in his car and the time of his arrest by the state trooper. Clearly, the individual was in possession of an illegal drug, and thus the DOE office correctly found a security concern under Criterion (k). The next question that arises is whether any circumstances exist which mitigate that security concern.
The individual denies that he received the marijuana voluntarily and brought forth a corroborating witness to support that assertion. After hearing the acquaintance's testimony and considering his demeanor, I find him to be a credible witness. I also find no reason to believe that the individual should have known that the acquaintance was carrying illegal drugs. They are not close friends and the individual had never seen the acquaintance smoke marijuana. Hearing Tr. at 149. Significantly, the individual discovered the marijuana only a short time before being stopped by the state trooper, thus giving him only limited options as to how to dispose of it.<7> Given the record before me, I cannot find that the individual sought the marijuana for his own use or attempted to transfer the marijuana to others. Consequently, I believe that the circumstances surrounding the individual's brief and essentially involuntary possession of marijuana mitigate the security concerns that marijuana possession normally raises.
C. Criterion (l)
The DOE office also alleges that the individual "has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security." See 10 C.F.R. § 710.8(l). This charge is based on a number of incidents, analyzed below.
First, the DOE office has noted the individual's October 1995 arrest for possession of marijuana occurred despite the fact that he signed a Drug Certification in 1992. This Drug Certification stated that the individual agreed not to use or be involved with illegal drugs at any time while holding an access authorization, or else risk losing his access authorization. While the individual did violate the DOE Drug Certification, I consider the facts surrounding the individual's possession of marijuana, which was essentially involuntary and short in duration, to be sufficient to mitigate the security concerns raised by this violation.
The Criterion (l) charge is also based on the numerous other charges brought against the individual on October 6, 1995, including menacing, assault, obstructing official business and felony vandalism. At the hearing, the trooper and the individual both testified that once the trooper found marijuana on the individual's person, the individual became very angry. Hearing Tr. at 20, 110-11. After the individual was placed in the police car, he began to kick the windows and door of the police car. At some point during the arrest, the individual kicked the state trooper. <8> The individual admitted that he uttered a stream of threats and obscenities towards the two state troopers who arrested him. After the individual was driven to a local jail and placed in a cell, the threats and obscenities continued. Hearing Tr. at 35-36. According to the state trooper who testified, the individual threatened the troopers' families as well, id. at 36, although the individual denied this. Hearing Tr. at 178-79. As a result of these events, the individual was charged as described above. He eventually pled no contest to assault, criminal damaging, and DUI, and paid $592.50 in restitution for the damage he had done to the police car.
In mitigation, the individual asserted that he lost control of his temper when the marijuana was found because he was convinced he had lost his job. During the arrest, the individual was clearly belligerent, foul-mouthed and threatening. In my opinion, the circumstances surrounding the October 6, 1995 arrest do not mitigate the individual's conduct, i.e., completely losing his temper and engaging in reckless conduct which demonstrated extremely poor judgment. I further find the notion that the individual's violent behavior was an isolated phenomenon triggered by the discovery of marijuana is belied by the facts surrounding the individual's first DUI arrest in 1992. After the individual fell asleep while driving, he crashed into a parked car and put his head through the windshield. The individual then went to a nearby hospital, but only to call his father, not to be examined for injuries. The individual claims that while he was leaving the hospital grounds, a security guard tackled him to prevent him from leaving, although the individual did not know why the guard would act in this manner. See Hearing Tr. at 122, 162-63. However, the individual admitted that during his struggle with the guard he struck the guard with his forearm. Hearing Tr. at 163, 169. While I find the individual's account of the 1992 assault charge to be somewhat implausible, the individual admitted that he struck another during that incident. Consequently, I do not find the individual's violent behavior on October 6, 1995 to be merely an isolated incident. Thus, I do not find any justification or mitigation with respect to his behavior that night.
The charge under Criterion (l) is also based on his two arrests for domestic violence, one arrest for criminal trespassing, and two arrests for telephone harassment (of his ex-wife and her boyfriend), all occurring in 1990. The individual pled no contest to criminal trespassing and domestic violence, which were part of the same incident, as well as telephone harassment of his ex-wife. The two other charges were dismissed.
The individual argues in mitigation that the domestic violence and telephone harassment charges occurred almost seven years ago, and further notes that his recent five-year relationship with a woman came to end with no such incidents occurring. He also asserts that while he was verbally abusive towards his wife, he never touched her in a violent manner. See Hearing Tr. at 127, 131, 163-64; 1992 PSI Tr. at 13-14, 16. He also claims that he only pled no contest on advice of counsel in order to avoid a more severe penalty. Hearing Tr. at 129.
I find these 1990 incidents to have current relevance, as they are part of a pattern of drinking and admitted threatening behavior over the last seven years, continuing with the most recent October 1995 DUI arrest. I also find the individual to have little credibility on these issues. The individual's two past assault charges render it more likely than not that some type of violence or threat of violence occurred between the individual and his wife. The individual has acknowledged drinking much heavier amounts during his divorce. Hearing Tr. at 124; 1992 PSI Tr. at 24. While the individual did not believe that his drinking prior to the domestic violence arrests contributed to those arrests, he acknowledged that drinking makes him "verbally abusive," "meaner" and makes his problems worse. Hearing Tr. at 142, 167; 1992 PSI Tr. at 14, 16-17. Moreover, when questioned about the telephone harassment charges, the individual admitted that he told his ex-wife's boyfriend he would "kick his butt" and that he had harassed his ex-wife. Hearing Tr. at 135; 1992 PSI Tr. at 19-20. Even assuming that the individual only behaved in a threatening manner and never behaved in a physically violent way towards his ex-wife, this is still the type of behavior which gives rise to serious concern under Criterion (l).
In general mitigation of the incidents discussed above, the individual asserted that the events surrounding his divorce have taught him not to lose control of his emotions as he has done in the past. Hearing Tr. at 138, 140. The individual further believes that his counseling program has taught him how to deal with personal problems in a non-threatening way. Id. at 142-43. He also stated that his suspension without pay for several months of the last year and the suspension of his driver's license as a result of the second DUI charge have also encouraged him to straighten out his life. Id. at 145- 46.
I do not believe that the events surrounding the individual's divorce taught him any lasting lesson, as evidenced by the assault charges in 1992 and 1995 and especially the individual's admitted loss of control on October 6, 1995. The individual has been clearly unable to control his behavior and therefore shown himself unreliable and untrustworthy. Moreover, for the reasons stated in the discussion regarding Criterion (j), I do not believe that the individual's short-term counseling program is sufficient to demonstrate rehabilitation when he has refused to follow the tenets of the alcohol use component of the program, admitting his alcohol problem, and abstaining from alcohol. I therefore find that the individual has failed to demonstrate circumstances that would satisfactorily mitigate the charges under Criterion (l).
IV. Conclusion
In the above analysis, I have found that there is significant derogatory information in the possession of the DOE office to provide a sufficient basis for invoking the Criteria in 10 C.F.R. § 710.8(j) and (l) and that the individual has failed to mitigate the serious security concerns raised by the derogatory information regarding those Criteria. With regard to the derogatory information pertaining to the Criterion described in 10 C.F.R. § 710.8(k), I find that the individual has mitigated the security concerns raised by that derogatory information. In view of the Criteria set forth in 10 C.F.R. Part 710 and the record before me, I am unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.
Either the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. 10 C.F.R. § 710.28(a). Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues on which he or she wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files the request for review. The party seeking review must serve a copy of the statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: February 3, 1997
APPENDIX
DATE
CHARGE
RESOLUTION
January 14, 1990
Domestic Violence
Dismissed
February 3, 1990
Domestic Violence
Pled no contest
Criminal Trespass-allegation of entering ex-spouse's house by breaking garage window and screen
Pled no contest
October 9, 1990
Telephone Harassment- allegation of five harassing phone calls to ex-wife's boyfriend on August 22, 1990
Dismissed
Telephone Harassment- allegation of harassing phone calls to ex-wife on October 3, 1990
Pled no contest
December 14, 1992
DUI
Pled no contest
Assault
Dismissed
Failure to Control Vehicle
Pled no contest
Failure to Wear Seatbelt
Pled no contest
October 6, 1995
DUI (Second Offense)
Pled no contest
Assault
Pled no contest
Menacing
Dismissed
Felony Vandalism
Pled no contest to lesser included offense of Criminal Damaging
Obstructing Official Business
Dismissed
Possession of Drug Paraphernalia
Dismissed
Improper Turn
Dismissed
Failure to Wear Seatbelt
Dismissed
Drug Abuse (possessing marijuana)
Dismissed
<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. Such authorization will be referred to variously in this Opinion as access authorization or clearance.
<2>On November 7, 1996, I held a pre-hearing telephone conference with the DOE Counsel and the attorney for the individual as required by 10 C.F.R § 710.25(f).
<3>The DOE office stated in its Notification Letter that it had no record of a first DUI offense. A report regarding a prior December 1992 arrest was later submitted by the individual.
<4>All of the individual's criminal charges and their resolutions are listed in the Appendix to this Decision.
<5>The DOE office does not contend that this report, DOE Ex. 9, meets the criterion of § 710.8(j) that requires a diagnosis by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist.
<6>At the hearing, a current supervisor and a former supervisor testified that the individual has a very good employment record, and that they had never observed any kind of ill effects on the individual from drinking, nor any drinking on the job. Hearing Tr. at 53-55, 63-64. However, they admitted that they do not socialize with the individual outside of work, and thus cannot speak to the risks associated with the individual's drinking, e.g., revealing too much at a bar after imbibing too much alcohol. Thus, their testimony does not provide a sufficient basis for mitigating the security concern regarding his use of alcohol off the job. See Personnel Security Hearing, 26 DOE ¶ 82,759 at 85,562 (1996).
<7>The state trooper's arrest report, DOE Ex. 12, indicates that the arrest was made at 2:48 A.M.
<8>At the hearing, the individual and the trooper disagreed on the circumstances surrounding the individual's charge of assault. The individual states that his foot only accidentally came into contact with the officer's leg when he was being placed in the police car, see Hearing Tr. at 107-08, 160-61, 173-74, and the officer says the individual kicked him in the shoulder, perhaps accidentally, while the officer was trying to prevent him from kicking the windows and doors from the back seat of the car. Hearing Tr. at 27, 34. I find the state trooper's account more credible, considering the amount of alcohol that the individual admittedly consumed. In any case, the individual should have been aware of the likelihood of injury to others from his angry kicking of the car windows and doors.