Case No. VSO-0120, 26 DOE ¶ 82,772 (H.O. Hochstadt)

Case No. VSO-0120, 26 DOE ¶ 82,772 (H.O. Hochstadt)

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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 XXXXXXX's.

March 21, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 11, 1996

Case Number: VSO-0120

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

I. Procedural Background

The Individual was employed by a DOE contractor at a DOE facility in a position that requires an access authorization. In December 1995, the Individual reported to the DOE that in July 1995 he was arrested for Driving Under the Influence of Alcohol (DUI). Pursuant to 10 C.F.R. § 710.9(a), a DOE Personnel Security Specialist (Security Specialist) conducted a recorded Personnel Security Interview (PSI) with the Individual in January 1996. Since information creating doubt as to the Individual's eligibility for a security clearance remained unresolved after that interview, the DOE office requested that the Individual be interviewed by a psychiatrist on contract to the DOE (the Psychiatrist). That interview occurred in May 1996, and the Psychiatrist subsequently reported his findings and diagnoses to the DOE. On the basis of that report and other information obtained about the Individual, the DOE office 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.(2)

The administrative review proceeding began with the issuance of a Notification Letter in July 1996. In that letter the DOE office informed the Individual that "[r]eliable information in the possession of the DOE has created a substantial doubt concerning [his] continued eligibility for an access authorization. . . ." In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of that derogatory information. On August 2, 1996, the Individual's representative requested a hearing on his behalf without filing a separate written response to the allegations in the Notification Letter. Under the applicable regulations, such a request for a hearing is deemed a general denial of all of the reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). On October 8, 1996, the DOE office forwarded the Individual's request for a hearing to the DOE's Office of Hearings and Appeals (OHA). The Director of OHA appointed me the Hearing Officer in this matter.

A prehearing telephone conference and the hearing were subsequently held within the time periods specified in 10 C.F.R. § 710.25(f) and (g). At the hearing, the following witnesses were called to testify by the DOE Counsel: the Individual, the Psychiatrist, the Security Specialist who had conducted the January 1996 PSI, and the office manager of an alcohol and drug treatment center (the treatment center). Five witnesses testified for the individual: a personnel manager for the Individual's former employer, a production superintendent, and three co-workers, including one who has also been the Individual's foreman. During the course of this proceeding, DOE Counsel submitted 8 exhibits (DOE Exs.) and the Individual submitted 21 exhibits (Ind. Exs.). On February 27, 1997, I received the transcript of the hearing.(3)

II. Statement of Derogatory Information

In the Notification Letter, the DOE office alleged that the Individual "is a user of alcohol habitually to excess and ha[s] been diagnosed by a licensed physician as having alcohol abuse," which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J). The information presented in the Notification Letter in support of this allegation can be summarized as follows:

In the opinion of the Psychiatrist, the Individual suffers from alcohol abuse, uses or has used alcohol habitually to excess, and has not shown adequate evidence of rehabilitation or reformation.

The Individual was arrested for DUI in July 1995 for which he was fined $750.

In October 1989, the Individual was arrested for DUI. He was ordered to serve 45 days (on weekends) in the county jail, fined $1,500, and had his driver's license suspended for one year.

The Individual was arrested for DUI in January 1988.

In August 1987, the Individual was arrested for DUI. He was fined $350, had his driver's license suspended for six months, and was ordered to undergo alcohol counselling at the treatment center.

Notification Letter at 1-2. During the hearing, I granted the DOE Counsel's request to amend the Notification Letter by adding a fifth DUI arrest, in April 1985. Tr. at 108-09. I concluded that this amendment was not prejudicial to the Individual since he had previously reported the arrest in a Questionnaire for Sensitive Positions that he completed in June 1992 (the June 1992 QSP) (DOE Ex. 6) and had discussed it at length in a PSI that was conducted in October 1992 (10/92 PSI Tr. at 9-16) (DOE Ex. 8).

The DOE office also alleged in the Notification Letter that the Individual has "an illness or mental condition of a nature which in the opinion of a board-certified psychiatrist, causes or may cause a significant defect in judgment or reliability . . . ." Notification Letter at 2 (citing 10 C.F.R. § 710.8 (h) (Criterion H)). In support of this allegation, the DOE office indicated that the Psychiatrist had diagnosed the Individual as having a mixed type personality disorder comprised of narcissistic, obsessive compulsive and histrionic personality traits, and that when these traits mix with excessive alcohol use, the Individual's judgment and reliability are very likely to be significantly impaired. (4)

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 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 are the nature, extent, and seriousness of the Individual's 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). The discussion below reflects my application of these factors to the information presented by DOE and the Individual in this case.

Although the Individual acknowledges that there have been times when he consumed alcohol to excess, he contends that his drinking has never presented a security concern to the United States government. He further contends that as a result of his current abstention from alcohol and participation in Alcoholics Anonymous (AA), his behavior is not currently a security concern and would not be in the future.

It must be emphasized that a DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing (Case No. VSO-0078), 25 DOE ¶ 82,802 at 85,834, aff'd, 25 DOE ¶ 83,016 (1996). In this type of case, we are dealing with a different standard, one that is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting him access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." Personnel Security Hearing (Case No. VSO-0078), 25 DOE at 85,834 (quoting 10 C.F.R. § 710.27(d)). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Personnel Security Review (Case No. VSA-0057), 25 DOE ¶ 83,009 at 86,539 (1996) (citing Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988), and Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995). As discussed below, after carefully considering the entire record, I find that the Individual has not met that burden.

A. Derogatory Information Under Criteria J and H

Although two criteria under Section 710.8 are cited in the Notification Letter, the derogatory information in this case concerns only one type of conduct: the Individual's consumption of alcohol. Accordingly, the initial questions to be addressed are whether the individual is or has been a "user of alcohol habitually to excess" or has been diagnosed by a licensed physician as suffering from alcohol abuse. On the basis of the record in this proceeding, I find that the answers to these initial questions are affirmative.

There is considerable evidence that the Individual has been a user of alcohol habitually to excess.The Individual has a long history of alcohol use, going back to his senior year in high school when he states that he drank three or four beers (to the point of intoxication) on occasional weekends. 1/96 PSI Tr. at 16. During his twenties, the Individual states that he often spent Friday and/or Saturday evenings at bars drinking four to six beers or the equivalent amount of hard liquor. Id. at 17-18. The first period in which he acknowledges "heavy use" is the period after his divorce, when he has stated that he drank heavily three or four nights a week.(5) After this period, the Individual returned to his former weekend drinking pattern, drinking to the point of intoxication (about 10 beers) about once a month.1/96 PSI Tr. at 20.

In addition to frequent and substantial alcohol consumption during certain periods of his life, the Individual's habitual and excessive use of alcohol is established by his arrests for driving while intoxicated, sometimes with alcohol concentration levels considerably above the applicable state legal limit of .10. From his testimony at the hearing and in the PSIs, it appears that the Individual has no independent recollection of the dates of those arrests, although he does not dispute that he was over the legal limit on each occasion.(6) For the most part, information about the Individual's arrests and their disposition is contained in the report of an Office of Personnel Management (OPM) investigation of the Individual in October 1994 (DOE Ex. 3). This information was copied by an OPM Investigator from police department, sheriff's office and court records. The information in these records, either originally or as transcribed in the OPM report, is cryptic and confusing. While there is some evidence in the OPM report indicating that the Individual may have been arrested for DUI five or more times, the Individual insists that there were no more than four DUI arrests. Tr. at 119-21; 1/96 PSI Tr. at 15. His position is supported by the testimony of the Security Specialist, who previously worked for OPM on the investigation report in this very matter, and who stated that the Individual was arrested four times for DUI. Tr. at 246.

From my evaluation of the record, I conclude that there is insufficient evidence for finding more than four arrests, which is still more than ample evidence of excess alcohol consumption. Specifically, I find that the Individual was arrested for DUI on the following occasions:

April 1985. The Individual was arrested for DUI with blood alcohol test (BAT) levels of .20/.19. DOE Ex. 3 at 15 (police department record). The Individual has stated that he was drinking vodka and 7·UP® over a four hour period, and has acknowledged that he was driving while over the legal limit. 10/92 PSI at 11-12.

August 1987. The Individual was arrested for DUI with a BAT of .19/.19. DOE Ex. 3 at 15 (police department record). In December 1987, the Individual was convicted of this misdemeanor DUI and sentenced to 180 days, with 170 suspended, and ordered to pay a $350 fine. Id. at 14 (court record).The Individual did not list this arrest in the June 1992 QSP, was not asked about it in either PSI, and did not otherwise mention it. However, in the June 1992 QSP he listed a January 1988 arrest for DUI that he copied from the records of the sheriff's office. See DOE Ex. 6 at 9 (item 23 continuation). In the October 1992 PSI, the Individual described the circumstances of this arrest. He stated that he was arrested by the police after drinking vodka and 7·UP® over a three or four hour period, and acknowledged that he was driving while over the legal limit. 10/92 PSI at 18-20. While I believe that the Individual correctly described the circumstances of that incident, it appears to me that he erroneously relied on the ambiguous notation in the sheriff's office record for the date of his second DUI arrest. From my reading of the records summarized in the OPM report, it appears that the sheriff's office arrested the Individual in January 1988 to implement the 10-day sentence imposed by the court in December 1987. In finding that there was no DUI incident in January 1988, I am relying on the following information in the record: (i) the sheriff's office record indicates that the Individual was released 10 days after the "arrest" (DOE Ex. 3 at 13); i.e., after serving the 10- day sentence; (ii) the police department records do not reveal an arrest in January 1988, but do show that the Individual's second DUI arrest was in August 1987 (id. at 15); and (iii) the court records pertaining to the Individual's October 1989 felony DUI arrest refer to only two previous DUI charges, id. at 14 (presumably the April 1985 and August 1987 arrests).

October 1989. The Individual was arrested on a felony DUI charge. See id. at 14, 15. The Individual has stated that on the night of the arrest, he had "a couple of beers" at home and two beers at a bar. 10/92 PSI Tr. at 21-22. He acknowledges that the breathalyser reading was over the legal limit. Id. at 22. In December 1989, he was sentenced to 45 days in jail (on weekends and holidays), was ordered to pay a $1,500 fine and had his license suspended for one year.(7) DOE Ex. 3 at 13.

July 1995. The Individual was arrested for DUI with a BAT of .14. DOE Ex. 4 (DOE Report of Arrest or Charge completed by the Individual 12/7/95). He has acknowledged drinking about seven nine-ounce glasses of beer in a bar during the hour and a half prior to the arrest. 1/96 PSI Tr. at 7-8.

In view of the Individual's history of alcohol consumption, including the DUI arrests, the Psychiatrist concluded that not only was the Individual an habitual user of alcohol to excess, but that he was suffering from alcohol abuse under the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). DOE Ex. 1 at 10; Tr. at 18-20, 29-31, 60-66. The Psychiatrist also diagnosed the Individual as having a mental condition that was "very likely" to significantly impair the Individual's judgment and reliability. DOE Ex. 1 at 10. According to the Psychiatrist, the Individual has a Mixed Type Personality Disorder, based upon Narcissistic and Obsessive Compulsive Personality features and Histrionic Personality Traits. Id. (citing the DSM-IV). While the Psychiatrist acknowledged that these personality traits are not always dysfunctional and are sometimes even beneficial, he opined that they are detrimental to the Individual when he uses alcohol to excess. Tr. at 34-35, 66-71.

It is thus undisputed that a licensed physician who is a practicing psychiatrist has diagnosed the Individual as suffering from alcohol abuse and as having a mental condition that causes or may cause a significant defect in judgment or reliability.(8) However, this does not conclude my evaluation of DOE's allegations under Criteria J and H. It is my responsibility as Hearing Officer to ascertain whether the factual bases underlying a psychiatric diagnosis are accurate, and whether the diagnosis provides sufficient grounds, given all the other information in the record, for the denial of a security clearance. See, e.g., Personnel Security Hearing (Case No. VSO-0068), 25 DOE ¶ 82,804 (1996). Accordingly, I have evaluated the information upon which the Psychiatrist's diagnoses are based. On the basis of that evaluation, I find that the diagnoses have a factual foundation. They are based on the Individual's history of alcohol consumption summarized above, the DUI arrests, and a two and a half hour interview. They are also based on the results of three psychological tests that the Individual completed at the time of the psychiatric interview.(9) The Psychiatrist convincingly explained how the test results confirmed his diagnoses. DOE Ex. 1 at 5-9; Tr. at 71-77.

In order to dispute the Psychiatrist's diagnoses, the Individual submitted a letter from his personal physician that stated: "I see no significant physical or mental problems with this patient. He appears to be psychological[ly] intact. I see absolutely no indication of narcissism, any hint of substance abuse, depression or any psychological problems whatsoever." Ind. Ex. 16. The physician also stated that the Individual was "extremely stable and unusually healthy," with "very few detrimental habits or hobbies." Id.

I find that the report and testimony of the Psychiatrist is entitled to considerably more weight than the letter from the Individual's physician (who is not a psychiatrist).(10) The Individual testified at the hearing that he had not informed his physician about his history of alcohol consumption and, in particular, his multiple DUI arrests. Tr. at 161. Nor had his physician been shown the report of the Psychiatrist or the results of the psychological tests taken by the Individual. Moreover, the Psychiatrist's opinion that the Individual experiences a significant defect in judgment when he drinks alcohol to excess has been acknowledged by the Individual himself. For example, in discussing his driving after drinking seven beers in July 1995, the Individual stated, "Bad judgment call. Alcohol does that to you... impairs your judgment." 1/96 PSI Tr. at 24.

In view of the above considerations, I find that the DOE's allegations of derogatory information under Criteria H and J have been established. Moreover, I find that the Individual's consumption of alcohol, which, according to the Psychiatrist, is exacerbated by the Individual's mental condition, raises legitimate security concerns on the part of the agency. As the Security Specialist stated in her testimony, a person who habitually drinks alcohol to excess often exhibits poor judgment, and, accordingly, may not appropriately safeguard national security information and materials while under the influence of alcohol. Tr. at 247-48. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO- 0042), 25 DOE ¶ 82,771 (1995); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995).

B. Evaluation of Mitigating Factors

The Individual contends that there are mitigating factors that alleviate the agency's security concerns and justify the restoration of his security clearance. He 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 or caused him to compromise national security at any time. He further states that he has totally abstained from alcohol for a number of months, has no intention to resume drinking, and is participating in AA.(11) I will consider these contentions below.(12)

The record contains considerable support for the Individual's claim that he has been a reliable, conscientious and extremely knowledgeable employee. The Individual's witnesses testified extensively about his superior job performance, excellent character and sobriety on the job. Tr. passim. The Individual's job performance and character were also praised in 15 letters signed by 20 co-workers and supervisors, most of whom have known him for more than 15 years. Ind. Exs. 1-15. The Individual has also submitted certificates indicating that he has successfully completed numerous work-related training courses. Ind. Ex. 20. There is also no indication in the record of this proceeding that he has ever committed any security infractions.

The testimony and documents relating to the Individual's job performance are evidence in the Individual's favor. However, the Individual's sobriety and reliability on the job do not overcome the security concerns presented in this case. Excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that violates security regulations. See Personnel Security Hearing (Case No. VSO-0054), 25 DOE ¶ 82,783 at 85,730 (1995) (citing Cole v. Young, 351 U.S. 536, 550 n. 13 (1956)). And the fact that this has not occurred in the past is no guarantee that it will not occur in the future despite the Individual's adamant insistence that he would never do anything to endanger national security. As the Psychiatrist noted, the Individual has done things against his better judgment in the past while under the influence of alcohol, and there is a risk that this may occur again in the future. Tr. at 52-55.

Moreover, despite the Individual's assertions to the contrary, there is evidence in the record that a future DUI arrest might put the Individual in a situation in which he would be subject to pressure, coercion or exploitation. See 10 C.F.R. § 710.7(c) ("In resolving a question concerning an individual's eligibility for access authorization, all DOE officials involved in the decision-making process shall consider: . . . the potential for pressure, coercion, exploitation, or duress . . ."). For example, the Individual's four and a half month delay in reporting the July 1995 DUI arrest appears to belie his vigorous assertions that he would have no reason to fear publicity about a DUI arrest (Tr. at 267-68).(13) In addition, the Individual testified that members of his family did not know about his DUI arrests and would be upset to find out. Tr. at 152-53. Moreover, none of the Individual's witnesses, including those with whom he had a social relationship outside of work, was aware that he had been arrested four times for DUI. I therefore agree with the Security Specialist that the Individual's reluctance to have these relatives, co-workers and friends know about the extent of his alcohol problem raises a security concern about his possible susceptibility to coercion and blackmail. See Tr. at 248-50.

These security concerns would be mitigated, however, if there were sufficient rehabilitation or reformation, such that it was highly unlikely that the Individual would abuse alcohol in the future. At the hearing the Individual indicated that the last time he consumed an alcoholic beverage was during the summer of 1996. Tr. at 103. He also testified extensively about his active participation in AA, Tr. at 129-33, 141-52, and submitted documentation to confirm that he has been attending AA from January 1996 up to the present time. Ind. Ex. 22.(14) In addition, two of the Individual's witnesses stated that they had seen him at AA social events, thus providing corroboration to the Individual's claim that he has changed his life style from one in which alcohol played an important role to one without alcohol.

The Psychiatrist, who was present while the Individual testified, recognized that the Individual's AA experience was a positive development. Tr. at 173. Nevertheless, the Psychiatrist concluded that the Individual's testimony did not provide a basis for finding rehabilitation or reformation. Tr. at 164. In part the Psychiatrist's opinion was based on the relatively short period of abstinence and in part on his view that AA alone did not constitute an adequate rehabilitation program, particularly since the individual did not have a sponsor. Tr. at 165-66, 171-73.

After considering the entire record, I find that there has not been sufficient rehabilitation or reformation to mitigate the DOE's security concerns. My finding is based primarily on the relatively short period in which the Individual asserts that he has been abstinent (approximately 4 to 6 months) and the expert testimony by the Psychiatrist about the unlikelihood of rehabilitation occurring within that short period. These same considerations have led Hearing Officers in other DOE security clearance cases to find that there was insufficient rehabilitation or reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995); Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,609, aff'd, 25 DOE ¶ 83,003 (1995); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995).

My finding that the Individual has not met his burden of showing that he has been rehabilitated or reformed is supported by a number of factors that lead me to believe that the Individual may resume drinking alcohol. I find very significant the difference between the testimony of the Individual and that of two of his witnesses, who had attended AA activities with the Individual. For example, both of those witnesses simply and directly volunteered the information that they were "recovering alcoholics." Tr. at 215, 237. In contrast, the following excerpts from the DOE Counsel's examination of the Individual confirm the Psychiatrist's opinion that, while the Individual is aware of the AA definition of an alcoholic, he has not fully accepted that he is one:

Q. Are you an alcoholic?

A. Well, I'll have to say yes.

Q. And when did you realize you were an alcoholic?

A. Going to AA meetings.

* * *

Q. Do you believe that you're an alcoholic?

A. In the sense that I have tolerance, yes.

Q. You have a tolerance for alcohol?

A. Yes.

Q. And how long have you had that?

A. Some years, I guess.

Q. Is that your definition of an alcoholic?

A. No, it is not my definition of an alcoholic. I do not know how to define an alcoholic. I'm discovering what alcoholism is through the program.

Q. What is alcoholism?

A. As of now, okay, I could not give you a definite answer. I'm beginning to realize certain aspects of alcoholism. One of them is, I would say, driving a vehicle under the influence is a sign of alcoholism, poor judgment, so forth, being over the legal limit.

Tr. at 96, 116.

A second question in which the Individual's testimony differed markedly from that of the two recovering alcoholics involved the date in which they took their last drink of alcohol. The two witnesses each gave the exact date, one in 1985 and one in 1992, when they had their last drink. Tr. at 215, 232. In contrast, the Individual was unable or unwilling to state the date of his last drink. After some prodding by the DOE Counsel, he indicated that it was during the summer of 1996. Tr. at 103. He then asserted that he knew the date, but did not wish to reveal it until he could celebrate not drinking for a full year. Tr. at 104; see also Tr. at 286 ("my sobriety date is personal"). The Individual's refusal to be forthcoming about the date of his last drink makes it impossible for me to make a finding as to the length of time of his asserted abstinence, and raises a question in my mind as to whether he has in fact been completely abstinent.

Third, the Individual's unwillingness to have an AA sponsor contrasts unfavorably with the testimony of the two recovered alcoholics. Both stated that they had a sponsor and one of the witnesses stressed the importance of having a sponsor.(15) Tr. at 216, 237. The latter, who is a friend as well as a co- worker of the Individual, also stated that he would be willing to be a sponsor of the Individual, but that the Individual never asked him. Tr. at 216, 219. The Individual stated that he did not need a sponsor because he had the requisite desire to stop drinking and did not feel a need to discuss his problems with anyone. Tr. at 133-34.

The Individual's responses to these questions indicate to me that, despite the length of time that he has been participating in AA, he has not yet fully accepted the AA program. This is confirmed by the fact that he does not follow the Twelve Steps, which AA describes as "the heart" of the program. The Twelve Steps of Alcoholics Anonymous, (visited January 22, 1997) (The Twelve Steps).(16) And while the Individual recognizes that AA is a program of total abstinence because of the serious potential danger posed by just one drink ("sooner or later you're going to get burned"), Tr. at 102-03, he does not seem to believe that danger applies to him:

Q. Do you believe that if you have a beer you are powerless to control your behavior?

A. A beer?

Q. Yes.

A. No. I -- see, that's something I'm -- no, that doesn't affect me, one beer.

* * *

Q. And as of today as we sit here do you think that if you had one beer you would be able to stop?

A. Yes I do. It's not that one beer factor that has gotten me anywhere in trouble. It's the -- like I say, the point where there is more offered and . . . having the sense just to say no. I didn't, and in that sense I am powerless.

Tr. at 101-02.

In his closing statement, the Individual complained that the hearing focused too much on his past history and not enough on his future prospects now that he is actively involved with AA. Tr. at 282-87. However, I cannot ignore that history, particularly since on more than one prior occasion the Individual asserted that his drinking no longer posed a problem. For example, in the spring of 1988, the Individual's substance abuse counsellor at the treatment center reported that the Individual stated that "he still drinks, but with strict limits and does not drink and drive." (17) DOE Ex. 3 at 23. As we have seen above, the Individual in fact continued to drink and drive, as indicated by his DUI arrest in October 1989.(18)

Another example is the October 1992 PSI, in which the Individual stated that his drinking had decreased to the extent that he could leave a bar "in good enough condition not to get a DUI." 10/92 PSI Tr. at 31-33. But in July 1995 he was again arrested for DUI after drinking too many beers in a bar. In the January 1996 PSI, the Individual claimed at one point that the large number of beers that he consumed prior to his July 1995 arrest was unusual because he had cut down on his drinking after the October 1989 arrest.1/96 PSI Tr. at 21-23. But on further questioning, he indicated that while he was usually not going to bars or driving after drinking, he continued to drink to intoxication about once a month at parties and other social occasions. Id. at 25. The Individual also stated that he had ceased drinking a "couple of weeks" before that interview and intended to continue to "stay away from it . . . [until] I die." Id. 12-15. Four months later, in May 1996, the Individual indicated to the Psychiatrist that he had been abstinent for the previous month or two, but at the same time acknowledged drinking two or three beers on one occasion during that period.(19) DOE Ex. 1 at 2.

The Individual's minimization of the amount of his alcohol consumption and denial of his alcohol problem are also evident in his answers to the AUI, a self-reporting assessment of alcohol use that the Individual completed at the time of his psychiatric interview in May 1996, four months after he started attending AA on a regular basis. For example, in response to the question, "What is the most of the following beverages that you have consumed in any one day," the Individual responded "1-3 cans" for beer and "none" for liquor. AUI Question 5. However, as indicated above, the record is replete with statements by the Individual indicating that he drank four and more beers on many occasions as well as at least one type of liquor, namely, vodka. At the hearing, the Individual acknowledged that those answers to the AUI question were inaccurate, and that the most he had consumed in one day was a 12-pack of beer and three-fourths of a bottle of vodka. Tr. at 162-63. He similarly acknowledged the inaccuracy of his response to Question 6 in which he had indicated that during the period in which he was using alcohol the most, he only drank two days a month, stating that he consumed alcohol 20-25 days per month during the period of his heaviest drinking.(20) Tr. at 163.

Finally, the testimony and written materials presented by the Individual do not persuade me that he has been rehabilitated or reformed. The co-workers who wrote the letters (Ind. Exs. 1-15) do not appear to have been aware of the extent of the Individual's alcohol consumption outside of work. One of those letter writers was also a witness at the hearing where he testified that the Individual was "doing well" in his adherence to the AA program. Tr. at 216. However, I am not inclined to give this testimony much weight since this person, who is a friend as well as a co-worker of the Individual, told an OPM investigator in October 1994 that he had no reason to believe that the Individual used alcohol to excess or ever had any problems, including arrests, as a result of alcohol use. DOE Ex. 3 at 12.

The letter from the Individual's physician (Ind. Ex. 16) does not express an opinion as to whether the Individual has been rehabilitated and, as indicated above, is entitled to little weight since the physician was not fully informed of the Individual's history of excessive alcohol consumption. The November 18, 1996 letter from the Individual's current probation officer (Ind. Ex. 17) states that "[t]o the best of my knowledge, you have remained abstinent from alcohol and other mood altering substances" since the Individual's sentencing in November 1995. However, as previously mentioned, the Individual has acknowledged that he consumed alcohol until some time during the summer of 1996. Similarly, the Individual's documentation of his AA attendance since January 1996 does not establish that he has been abstinent since that month or that he has fully accepted the AA program. Nor is abstinence established by the drug and alcohol test certification that the Individual submitted (Ind. Ex. 18). This document shows only that the Individual had no alcohol in his system on the day he was tested in June 1996.

IV. Conclusion

For the reasons set forth above, I find that the Individual has been a user of alcohol habitually to excess, suffers from alcohol abuse, and has an illness or mental condition that, in the opinion of a licensed physician who is a practicing, board-eligible psychiatrist, causes or may cause a significant defect in judgment or reliability when combined with alcohol consumption. 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 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 the party wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files a 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.

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

Date: March 21, 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 matter or special nuclear material. 10 C.F.R. § 710.5.

(2)The Individual's employer terminated his employment on the same day that his security clearance was suspended.

(3)The hearing transcript is cited in this Opinion as "Tr. " and the transcripts of each of the two PSIs in the record are cited as "PSI Tr.," preceded by the month and year of the PSI.

(4)During the hearing, the Psychiatrist stated that, while he is a "board-eligible" psychiatrist, he is not "board-certified." Tr. at 16-17. Since the Psychiatrist is a licensed physician specializing in psychiatry and Criterion H may be invoked based on the opinion of a licensed physician other than a board-certified psychiatrist, I permitted the DOE Counsel to amend this portion of the Notification Letter to refer to the opinion of a "licensed physician." Tr. at 36-37.

(5)In the October 1992 PSI the Individual stated that this period of heavy drinking occurred in "?79, ?80" for "a couple of months. Maybe three or four." 10/92 PSI Tr. at 27-28. However, according to the June 1992 QSP his divorce was in 1982. See DOE Ex. 6 item 18. In the January 1996 PSI, the Individual indicated that the period of heavy drinking after the divorce lasted anywhere from six months to a year and a half. 1/96 PSI Tr. at 19. As the Psychiatrist pointed out, the Individual's accounts of his alcohol consumption are often imprecise and inconsistent. See, e.g., DOE Ex. 1 at 6-7; Tr. at 21.

(6)In the October 1992 PSI, the Individual stated that he had obtained information about his DUI arrests from the local sheriff's office in order to complete the June 1992 QSP. 10/92 PSI Tr. at 14-16. At the hearing, in discussing his DUI arrests the Individual for the most part relied on the dates provided in the Notification Letter. Tr. at 105-14, 119.

(7)There is some confusion in the record as to how many times the Individual was arrested for DUI in the autumn of 1989.The sheriff's office item in the OPM investigation report has the following entry: "Arrest Record: 12/4/89 repeated DUI," DOE Ex. 3 at 12, and the court entry refers to a "DUI charge dated 12/5/89." Id. at 14. The Individual denies that he was arrested in December 1989, and claims that those entries refer to his sentencing for the October 1989 DUI. 10/92 PSI Tr. at 21, 23. The Individual's version appears to be supported by a court entry about a "presentence investigation for DUI dated 11/21/89," in which the date refers to the presentence investigation report (not another DUI) and the investigation appears to relate to the October 1989 DUI for which sentencing presumably had not yet taken place. See DOE Ex. 3 at 14.

(8)In March 1993 another DOE consultant psychiatrist had evaluated the Individual and diagnosed alcohol abuse. See DOE Ex. 3 at 1 and Ex. 1 at 3. However, according to the Security Specialist, the psychiatrist felt that the Individual's alcohol use was under control at that time. 1/96 PSI Tr. at 6.

(9)The tests were the Minnesota Multiphasic Personality Inventory, 2d ed., Revised (MMPI-2R), the Millon Clinical Multiaxial Inventory, 3d ed. (MCMI-III), and the Alcohol Use Inventory (AUI). The Individual also completed two questionnaires: "Are You An Alcoholic?" and the Michigan Alcoholism Screening Test (MAST). While the Individual's responses to the former indicated only a possible alcohol problem, his answers to the latter, particularly his acknowledged four DUI arrests, indicated alcoholism.

(10)At the prehearing telephone conference and in a subsequent letter, I informed the Individual that his physician's opinion would be accorded more weight if the physician testified at the hearing and urged the Individual to contact his physician about testifying. The Individual did not call his physician as a witness, however. At the hearing, the Individual stated that the purpose of his physician's letter was "not to dispute any of [the Psychiatrist's] findings," but to present "another professional opinion" about his health. Tr. at 274-75. Regardless of how the Individual wishes to characterize that letter, its conclusions are diametrically opposed to those of the Psychiatrist on the issues of the Individual's alcohol abuse and mental condition.

(11)The Individual also questions whether a security clearance should be necessary for his position and contends that it is unfair that he was terminated from his job when his clearance was suspended while the DOE and the prime contractor allow employees with suspended clearances to remain working at jobs that do not require clearances. I do not have authority to consider either of these contentions.

(12)Because the mental condition diagnosed by the Psychiatrist is closely related to the Individual's alcohol abuse, the discussion in this section applies equally to the Criteria H and J security concerns.

(13)When asked about this delay, the Individual first stated that he thought he had to wait until he was sentenced. 1/96 PSI at 40. When the Security Specialist pointed out to him that in December 1994, only seven months before the arrest, he had signed a security acknowledgment form indicating that he had to report any arrest within five working days, the Individual stated that his delay was the result of "oversight," though he still tried to argue that he did not know what charge to report until he was sentenced. Id. at 41-42. (In fact, the Individual did not report the arrest until 10 days after the sentencing.) In reviewing the entire PSI colloquy, I find the Individual intentionally delayed reporting the arrest and his explanation for that delay is disingenuous at best.

(14)The documentation consists of photocopies of attendance cards signed by AA group secretaries. In accordance with the AA policy of anonymity, the attendee's name does not appear on the card. However, the Individual did have at the hearing the originals of the more recent attendance cards. See Tr. at 131.

(15)As indicated above, the Psychiatrist also felt that an active AA sponsor was an important component of a successful alcohol rehabilitation program. See also Tr. at 32-33, 78.

(16)At the hearing, the Individual stated that the Twelve Steps are just "suggested steps." Tr. at 100. According to AA, "newcomers" are not required to accept or follow the Twelve Steps. The Twelve Steps. After twelve months of AA attendance, however, the Individual could hardly be described as a "newcomer," and his reluctance to follow the Twelve Steps supports the agency's position that his efforts at rehabilitation have not progressed sufficiently to allay its security concerns.

(17)The Individual and his representative questioned the accuracy of the material in the OPM report that was transcribed from the Individual's file at the treatment center. Tr. at 187-88. Since material was copied by hand by one OPM investigator, id., and compiled in the OPM report by another OPM investigator, Tr. at 243, it is quite possible that there are some inaccuracies. Nevertheless, I believe that the excerpts from the treatment center files in the OPM report accurately reflect the counsellor's position that the individual was in a state of denial. Moreover, the real objection of the Individual, who acknowledged that he did not get along with the counsellor, Tr. at 125, 127, appears to be not the accuracy of the transcription of the treatment center records, but the counsellor's diagnosis and treatment method. For example, the Individual stated that he didn't like the counselling sessions because "[i]t was more of finger pointing...trying to make you feel guilty." 1/96 PSI at 29.

(18)One of the requirements when the Individual was on probation for the October 1989 felony DUI charge was attendance at AA. DOE Ex. 3 at 19. At the hearing, the Individual had only a slight recollection of this prior experience with AA. Tr. at 115. According to the OPM investigation interview with the Individual's then probation officer, the Individual complained about having to attend AA and was let off from that requirement early. DOE Ex. 3 at 19.

(19)In his report, the Psychiatrist opined that the Individual had probably consumed alcohol on other occasions during that period of supposed abstinence as well, as indicated by the following statement by the Individual quoted in the report: "?If I drink beer, I set a limit of three beers, but I mostly drink non-alcoholic beer now. . . . When I go to a bar to socialize, I'll rarely have an alcohol type beer.'" DOE Ex. 1 at 2; see also id. at 7.

(20)Four months before completing the AUI, the Individual told the Security Specialist that he drank alcohol three or four times a week during the period of his heaviest drinking. 1/96 Tr. at 19.