Case No. VSO-0124, 26 DOE ¶ 82,773 (H.O. Dugan)

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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: November 20, 1996

Case Number: VSO-0124

This opinion concerns the eligibility of XXXXXXXXXXXXXXXXXX ("the individual") to receive an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual is eligible for access authorization.

I. Background

The individual is an employee of a contractor at a DOE facility. He has been employed at that facility since December 1992. In March 1995, his employer requested that he be granted access authorization. From material provided by the individual and a background investigation that was performed, information was obtained which created doubt as to the individual's eligibility for a clearance. Pursuant to 10 C.F.R. § 710.9(a), the DOE conducted a recorded Personnel Security Interview (PSI) with the individual on July 13, 1995. Since the information creating doubt as to the individual's eligibility for access authorization remained unresolved after that PSI, DOE requested that the individual be interviewed by a DOE-consultant psychiatrist. The psychiatrist interviewed the individual on September 12, 1995 and issued an evaluation on that same day. After receiving that report, the DOE requested that the psychiatrist conduct a second interview with the individual. That interview occurred on September 25, 1995 and the psychiatrist issued a second

evaluation after that interview. On November 28, 1995, the DOE conducted another PSI with the individual. Because the matters of concern were still unresolved, DOE requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated August 14, 1996. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On October 24, 1996, the individual requested a hearing. DOE forwarded the individual's request for a hearing to the Office of Hearings and Appeals, and on November 25, 1996, I was appointed the Hearing Officer in this matter.

At the hearing convened pursuant to 10 C.F.R. § 710.25(e) & (g) , the following witnesses testified: (i) the individual, (ii) a DOE Personnel Security Specialist, (iii) the DOE-consultant psychiatrist, (iv) the individual's wife, (v) an uncle of the individual, and (vi) two of the individual's friends who are fellow employees at the facility. DOE Counsel submitted sixteen exhibits, and the individual submitted no exhibits.(2) I received the transcript of the hearing on February 24, 1997.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the individual's eligibility for access authorization. In the Notification Letter, the DOE specified the following types of derogatory information:

A. The individual has been, or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse. See 10 C.F.R. § 710.8(j). The statement is based on the psychiatrist's reports of September 12 and 25, 1995.

B. The individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. See 10 C.F.R. § 710.8(l). The bases for this statement are (i) alleged inconsistencies between what the individual told the psychiatrist on September 12, 1995 and what he told DOE in the July 13, 1995 PSI, regarding his alcohol and drug use; and (ii) the influence of the individual's family on him to use illegal drugs.

III. Discussion

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 must consider in rendering my 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). It is the totality of these facts and circumstances that will shed light on whether the individual could fail to perform his security responsibilities adequately. Although it is impossible to predict with absolute certainty an individual's future behavior, as Hearing Officer, I must make a predictive assessment. The burden is on the individual to demonstrate that granting him access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. After careful consideration of all the evidence and testimony presented in this proceeding, I conclude that the individual has failed to make this showing.

A. Factual Background

The principal historical facts in this case are not disputed. The individual, who is now in his twenties, has an extensive history of illegal drug use between the ages of 13 and 20. According to the individual's statements in the July 13, 1995 PSI, his background included using, buying, and selling marijuana and phencyclidine (PCP), and using lysergic acid diethylamide (LSD) and crack cocaine. Ex. 14 at 70-80, 93, 97-99, 102, 106-108. As a juvenile, he was arrested 3 or 4 times for possession or use of PCP or marijuana. Ex. 14 at 86, 143, 151-152, and Ex. 7 at 2. He also began drinking alcohol in the mid-1980s. He has stated that, as a teenager, he would drink beer every two or three weeks and would get drunk after consuming 5 or 6 beers. Ex. 14 at 37-39. In March 1990, he was arrested for Driving Under the Influence (DUI) after drinking two or three beers and smoking PCP. Ex. 14 at 45-47. He was convicted and was sentenced to 120 days in jail. The individual claims to have made the decision to stop using illegal drugs after serving his jail term. Ex. 14 at 112-119. However, after his release from jail in July 1990, he began drinking alcohol regularly in large amounts. He has stated that he did so because of the stress he was experiencing in deciding how he was going to change his behavior and because of problems he was having with his wife. Ex. 14 at 56, 61. He has made various statements regarding the amount that he was drinking during the period from July 1990 through sometime in 1991: a 12-pack per day (Ex. 14 at 55), 6-8 beers per day (Ex. 14 at 59), and an average of 2 cases of beer per week with his wife (Ex. 8 at 1).

The individual began working at the DOE facility in December 1992; however, a security clearance was not requested until early 1995. On July 13, 1995, the individual was interviewed by a DOE security specialist. During that PSI, the individual stated that he had not used illegal drugs since his release from jail five years earlier. He also informed the DOE that he was continuing to consume alcohol but that he was not drinking excessively as he did during the 1990-1991 period. He stated that he drank beer almost every weekend (Ex. 14 at 62), and two to four mixed drinks when he went out to nightclubs (Ex. 14 at 48-49, 63). He also stated that, when he and his wife were separated during the prior five months (February through June 1995), his drinking had increased and he was frequenting nightclubs. Ex. 14 at 61-62.

He was first interviewed by the DOE-consultant psychiatrist on September 12, 1995. In that interview, he discussed his history of drug and alcohol use. He told the psychiatrist that he had not used illegal drugs since his release from jail in July 1990. He also reported that he continued to drink alcohol but at a reduced level. Ex. 7 at 5. He described his alcohol consumption as a glass of wine 4 or 5 times per month and occasionally a beer, and he told the psychiatrist that he had not drunk any beer during the prior two months. Ex. 7 at 1. Based on the individual's history of drug and alcohol abuse, the psychiatrist found that, during the period from the mid-1980s through 1990, the individual met the criteria for polysubstance dependence as defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994) (DSM-IV). However, based on the individual's statements that he had discontinued the use of illegal drugs in 1990 and had significantly reduced his consumption of alcohol, the psychiatrist found that the polysubstance dependence was in remission. Ex. 7 at 4-5. He also concluded that there was no current evidence that the individual had psychological deficits that would affect his judgment or reliability. Ex. 7 at 5.

Because DOE security personnel believed there to be inconsistencies between what the individual had stated in the July 1995 PSI and what he had told the psychiatrist regarding his consumption of alcohol, the psychiatrist was asked to interview the individual again. In his report following the second interview on September 25, 1995, the psychiatrist found that the estimates the individual had given regarding how much alcohol he was drinking were varied and conflicting. Ex. 8 at 3. He noted the inconsistency between what the individual had reported to him in the September 12 interview and the individual's statements in the PSI about drinking at nightclubs and having increased his drinking during the period when he and his wife were separated. Furthermore, the psychiatrist's report states that, while the individual again claimed that he had not used alcohol in the prior two months, after further questioning in the second interview, he admitted having drunk beer and wine during that period. Ex. 8 at 1. In view of the fact that the individual was continuing to use alcohol and in greater amounts than previously reported, the psychiatrist amended the findings of his earlier report. He concluded that, while the individual's polysubstance dependence was in remission, in view of the individual's history of substance abuse and the problems it had caused him, any continued use of alcohol demonstrated poor judgment and raised serious doubts regarding the individual's reliability. Ex. 8 at 3. At the hearing, the psychiatrist clarified his diagnosis by saying that after the second interview he believed the individual was no longer polysubstance or alcohol dependent, but had, in the terminology of the DSM-IV, an "alcohol-related disorder, not otherwise specified." Hearing Tr. at 55, 65-66.

During this second interview, the psychiatrist also questioned the individual further about the influence that some members of his family and his wife's family may have on him in encouraging him to return to using illegal drugs. During the interview, the individual acknowledged that his father-in-law and other relatives continue to use illegal drugs and have offered drugs to him in the past. He stated that his wife's father and stepmother want the individual and his wife to move back to the town where her family lives. He also mentioned in the second psychiatric interview that his wife had reminded him of one instance in which he had smoked marijuana after his release from jail. He claimed that he had previously forgotten this incident and that it was the only time he had used an illegal drug since his release from jail in July 1990. Ex. 8 at 2.

In light of this new information, the DOE conducted a second PSI with the individual on November 28, 1995. During that PSI, the individual admitted that, contrary to his earlier statements to the DOE, he had smoked marijuana with his cousins and wife on that one occasion after his release from jail. He was unable to remember when the incident occurred, but thought it was soon after his release. Ex. 11 at 5-8.

B. Use of Alcohol

As indicated above, the DOE claims that the individual has been, or is a user of alcohol habitually to excess or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse. As the Personnel Security Specialist stated, an employee who uses alcohol habitually to excess or suffers from alcohol abuse or dependence is a security risk because his use of alcohol renders him less capable of protecting classified information and diminishes his ability to be reliable and make responsible judgments. Hearing Tr. at 34. Although the employee may have a good work record and be sober on the job, he may still pose an unacceptable risk. Excessive consumption of alcohol off the job creates security concerns because of the possibility that the employee will say or do something under the influence of alcohol that violates security regulations. Personnel Security Hearing, VSO-0099, 26 DOE ¶ 82,759 at 85,560 (1996); Personnel Security Hearing, VSO-0079, 25 DOE ¶ 82,803 at 85,842 (1996).

In this case, the individual was diagnosed in 1995 by a board-certified psychiatrist as having been polysubstance dependent (drugs and alcohol) from the mid-1980s through 1990, but with the dependence in remission at the time of the diagnosis. It was the psychiatrist's view that, even though the individual was no longer substance dependent, his continued use of alcohol demonstrated an alcohol-related disorder that might cause a significant defect in judgment or reliability.(3) Ex. 8 at 3-4; Hearing Tr. at 67. Based on the individual's admitted history of alcohol and drug use, I believe there was a sound basis for the psychiatrist's diagnosis that the individual had been polysubstance dependent at an earlier age. In addition, based on the amount of his drinking during the mid-1980s and the period following his release from jail in 1990, I believe that he has in the past been a user of alcohol habitually to excess. Therefore, I find that Criterion (j) of § 710.8 was correctly raised as a concern in this case.

At the hearing, which occurred more than 16 months after the psychiatric interviews, the individual attempted to mitigate this concern by showing that he is rehabilitated. He maintains that, although he has continued to drink alcohol occasionally, he has significantly reduced his drinking since the period in 1995 when he and his wife were separated. He alleges that he drank more than usual during his separation in 1995 only because he was under a lot of stress as a result of his marital problems. Hearing Tr. at 102. Since that time, according to his testimony, he and his wife share a six-pack of beer at home about twice a month, but not every month, and that is all the alcohol he drinks. Hearing Tr. at 89, 96-98, 104. He claims that he has gone to a nightclub only once or twice since July 1995 and the last time was approximately one year prior to the hearing. Hearing Tr. at 97, 100. He further testified that he had not consumed alcohol during the two months prior to the hearing and that the last time he had (in November 1996), he drank only three beers. Hearing Tr. at 88. He believes that he has no problem with alcohol consumption and can stop drinking entirely at any time. Hearing Tr. at 91.

The individual's statement that he has reduced his drinking during the past year and a half was supported by the statements of the witnesses who testified on his behalf. His uncle, with whom he has had frequent social contact since 1994 and with whom he has lived some of that time, testified that the individual does not drink regularly or to excess. Hearing Tr. at 151. He stated that he and the individual sometimes drink a few beers after work, but this does not happen regularly. Id. The uncle also stated that in 1994 and 1995 they used to go out to nightclubs together and drink a few beers, but the last time they did so was in January 1996. Hearing Tr. at 150, 155- 156.

Two of the individual's friends, who are also employees at the facility, testified that they have had social contact with the individual in the past two years and have never seen him drink to excess. Hearing Tr. at 21-22, 169. One of them stated that, since June 1994 when he became acquainted with the individual, he and his wife have spent several evenings with the individual and his family. He claimed that he has seen the individual drink alcohol only one time and on that occasion, the individual drank only one glass of wine. Hearing Tr. at 170. Both of the friends also testified that the individual was a very reliable and responsible worker. Hearing Tr. at 24, 175.

The individual's wife testified that she was aware that the individual drank heavily as a teenager in the mid-1980s and also drank excessively for several months in 1990 after his release from jail. She also testified, however, that he has drunk alcohol only moderately since then and has not consumed alcohol at all in the prior two months. Hearing Tr. at 126-129, 133-134. She stated that the amount the individual now drinks causes no problems in their family life and that, while they used to go to nightclubs once or twice per month, they have not done so since January 1996. Hearing Tr. at 129, 135-136.

After hearing the individual's testimony, the psychiatrist was asked to give his opinion regarding the individual's condition. He stated that it appeared the individual had taken steps to distance himself from his history of polysubstance use and was making progress toward rehabilitation. Hearing Tr. at 112-114. He further stated that he does not consider the individual's current alcohol use to be "maladaptive," provided that (i) the individual is being truthful about how much he currently drinks, (ii) the individual has in fact not drunk alcohol at all in the past two months, (iii) his drinking does not take place in nightclubs or in situations where he has to drive, and (iv) the individual does not use alcohol as a means of coping with stress. Hearing Tr. at 112. Based on the assumption that the individual's testimony was accurate, he concluded that the individual does not currently demonstrate an illness that affects his judgment or reliability. Hearing Tr. at 118. However, when he was questioned about the prerequisites for rehabilitation, he stated that, in his opinion, under the standards of the DSM-IV, complete abstinence from alcohol for a period of at least six months is required to conclude that someone who has had an alcohol-related disorder is rehabilitated.(4) Hearing Tr. at 57, 113- 115. Therefore, because the individual still drinks on occasion and has not abstained for at least six months, the psychiatrist stated that he would be unable to conclude "to a convincing degree" that the individual was rehabilitated. Hearing Tr. at 114-115.

I am not convinced that the assumptions on which the psychiatrist based his opinion that the individual's current alcohol use is not "maladaptive" are valid. As I will discuss in more detail in Section III. C. below, several of the statements the individual has made in the past regarding his alcohol use have been inconsistent and less than truthful. In addition, his accounts of how much and how often he drinks have often been vague. The psychiatrist pointed this out in his report of September 25, 1995 and also in his testimony at the hearing. Ex. 8 at 3; Hearing Tr. at 54, 63-64. I also noticed this vagueness in his testimony regarding his current alcohol consumption. See e.g. Hearing Tr. at 97-98. It is my opinion that this demonstrates a tendency by the individual to minimize the amount and frequency of his drinking. Because of this minimization, I am not confident that the individual's testimony accurately portrays his alcohol consumption during the past year and a half. Furthermore, I am not confident that he was being entirely truthful when he stated that he had not drunk alcohol during the two months prior to the hearing. He made a similar statement in both interviews with the psychiatrist but, after further questioning in the second interview, admitted having drunk beer and wine during the prior two months. Therefore, even though his statements regarding the amount and frequency of his drinking during the past year are supported by his witnesses' testimony, I am not convinced that he is being entirely truthful regarding his current alcohol consumption.

Even if I assume the individual's statements regarding his current alcohol use to be accurate, I am unable to find that he is sufficiently rehabilitated to mitigate the security concern. The individual has not committed to a program of complete abstinence. I agree with the psychiatrist that, for a person with the individual's history of substance use, exercise of good judgment would require complete abstinence. See Hearing Tr. at 57. I also believe that after only two months of abstinence the individual cannot be considered rehabilitated. As the psychiatrist stated, "time is a good indicator" of whether an individual with an alcohol-related disorder will return to excessive use. Hearing Tr. at 67. Given the facts in this case, I believe the individual's relatively short period of abstinence is insufficient to demonstrate rehabilitation. See Personnel Security Hearing, VSO-0099, 26 DOE ¶ 82,759 (1996); Personnel Security Hearing, VSO-0079, 25 DOE ¶ 82,803 (1996); Personnel Security Hearing, VSO-0054, 25 DOE ¶ 82,783 (1995); Personnel Security Hearing, VSO-0038, 25 DOE ¶ 82,769 (1995); Personnel Security Hearing, VSO-0018, 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995).

In addition, because the individual does not believe that he has an alcohol-related problem, he has not recognized a need to participate in an alcohol abuse treatment or counseling program. The only substance abuse program he has attended was a court-ordered program in 1993 related to his 1990 arrest. He has stated that he did not believe he needed to attend the program and found it to be a waste of time because it dealt mainly with alcohol abuse, and in his opinion that was not his problem. Ex. 14 at 52-53. However, two years later in 1995, he returned to excessive drinking in order to cope with the stress of his separation. In view of his reluctance to participate in any rehabilitative program, I believe there is a likelihood, particularly during periods of stress, that he might return to a pattern of drinking excessively.(5) Accordingly, I find that DOE had sufficient grounds under § 710.8 (j) for denying this request for a security clearance, and further find that the individual has not shown rehabilitation or otherwise mitigated the derogatory information presented.

C. Reliability

The other area of derogatory information specified in the Notification Letter involves questions regarding the individual's honesty and reliability and whether his conduct makes him susceptible to pressure or coercion. See 10 C.F.R. § 710.8 (l). According to the Letter, the DOE had concerns regarding the individual's honesty because of inconsistencies between what he told the DOE in the July 13, 1995 PSI about his alcohol and drug use and what he told the psychiatrist in his first interview two months later. In addition, the individual's statements to the psychiatrist regarding the continuing use of illegal drugs by his relatives and their desire to influence the individual, caused the DOE concern about the individual's reliability and trustworthiness and raised the possibility of his being susceptible to pressure or coercion.

The information regarding his alcohol use that the individual reported to the psychiatrist in the first psychiatric interview was not consistent with the individual's statements to the DOE in the July 13, 1995 PSI.(6) Although, in both situations, some of his responses were vague, it is apparent that the individual failed to report to the psychiatrist the full extent of his drinking. In the PSI, he stated that he went to nightclubs where he drank two to four mixed drinks, that he drank beer almost every weekend, and that he had increased his drinking during that year because of his separation from his wife. Ex. 14 at 48-49, 62-63. In contrast, in the first psychiatric interview, he gave the psychiatrist the impression that he had significantly reduced his drinking that year and made no mention of drinking more during his separation or drinking at nightclubs. Ex. 7 at 5 and Hearing Tr. at 53-54, 64. When he told the psychiatrist that he only drank a glass of wine 4 or 5 times a month and an occasional beer, and that he had not drunk alcohol in the prior two months, he was not fully disclosing the extent of his drinking.

At the hearing, the individual attempted to mitigate this concern by stating that, during the interview, he did not have documents to refer to for complete and accurate answers and that he had tried to answer all questions honestly. Hearing Tr. at 74. I am not persuaded by these statements. The discrepancies referred to above involved the individual's recent behavior during the prior nine months, and I do not believe that he forgot about that behavior. Moreover, the individual's failure to disclose the full extent of his alcohol use to the psychiatrist in the first interview is not the only incident in which he has failed to mention significant information about his past alcohol and drug use. In the first PSI, the Personnel Security Specialist pointed out to him that, when he was interviewed by a background investigator, he had failed to mention his period of excessive drinking in 1990. Ex. 14 at 60-61. In both psychiatric interviews, he stated that he had drunk no alcohol in the prior two months but after further questioning he acknowledged that he had drunk beer and wine during that period. In addition, during the first PSI and the first psychiatric interview, he stated that he had not used illegal drugs after his release from jail, when in fact he had done so. While he attributes these discrepancies and failures to disclose information to an inability to remember incidents and when they happened, I believe they stem from a desire to minimize, or not mention at all, those parts of his past behavior that he believes would not be received favorably. Minimization of alcohol and drug use is a common tendency among persons who have been diagnosed as having an alcohol or other substance related illness. See e.g. Personnel Security Hearing, VSO-0040, 25 DOE ¶ 82,773 (1995); Personnel Security Hearing, VSO-0043, 25 DOE ¶ 82,777 (1995); Personnel Security Hearing, VSO-0042, 25 DOE ¶ 82,771 (1995). The individual's tendency to minimize his substance use in order to conceal derogatory information makes it harder for me to believe that he is being completely truthful about his current alcohol use and raises a serious question regarding his honesty and reliability.

The individual also attempted to mitigate the DOE's concern regarding the influence that members of his family and his wife's family who continue to use illegal drugs may have on him. He admits that some family members, particularly his father-in-law and his father-in-law's wife, continue to use marijuana on a regular basis, but he claims that there are no grounds for the DOE's concern because he cannot be influenced by those relatives and he has not hesitated in rejecting illegal drugs when they have been offered to him. Hearing Tr. at 75, 95-96. He maintains that he has not used illegal drugs since 1990, has no desire to do so, and is steadfast in his determination not to return to that lifestyle. He stated that he has not been offered drugs by any member of his own extended family since 1990. Hearing Tr. at 107. He could not remember the last time he was offered drugs by his wife's family, but he stated that he thought it was before his separation in 1995. Hearing Tr. at 106. He stated that he and his wife now visit her father and stepmother, who live about 200 miles away, only once or twice a year. Hearing Tr. at 109. During those visits, he sees that they are using marijuana, and "he feels bad for what they're doing." Hearing Tr. at 96, 105, 110-111. He also stated that his wife no longer wants to move closer to her family, as she did prior to their separation. Hearing Tr. at 108.

The individual's wife corroborated the individual's testimony. She testified that the individual is not influenced at all by her family, has firmly refused illegal drugs when offered by her father and stepmother, and is determined not to return to the lifestyle he led prior to his arrest in 1990. Hearing Tr. at 130-132. She stated that in November 1995, she and her husband made it clear to her family that they did not want to be offered drugs and that they were never going to use them again. According to her testimony, her family has accepted that. Hearing Tr. at 138. She stated that they visit her father and step-mother about three times a year and she no longer has any desire to move to the area where they live. Hearing Tr. at 138, 140. She also stated that the individual is now a very responsible husband and father and since 1990 has been determined to become a better person and improve the livelihood of his family. Hearing Tr. at 141-144.

The individual's progress in distancing himself from the lifestyle of illegal drug use in which he grew up is commendable. I am convinced that he sincerely intends not to return to that type of behavior and wishes to create a better life for himself and his family. Nevertheless, he continues to come in contact with illegal drug users because of the prevalence of drug use by family members. This situation continues to create some pressure on the individual and his wife. As shown by the following excerpt from the hearing transcript, the psychiatrist also recognizes this as an ongoing problem, and believes the individual has increased his resistance to such pressures:

HEARING OFFICER DUGAN: [D]o you see a continuing problem, with respect to the influence that family members may have on [the individual] to use illegal drugs?

[THE PSYCHIATRIST]: From the testimony that I heard, it seems that this is an ongoing situation, at least on the part of family members.

But, on the part of [the individual], what is I believe developing in him is a build-up of his own will, or resistance, if you will, to avoid any kind of influence on their part that may jeopardize him.

Hearing Tr. at 117. While I believe that the individual has made great progress in increasing his resistance to pressures that would encourage him to return to illegal drug use, I must conclude that because of the continuing use of illegal drugs by some of his close relatives, the risk remains higher than acceptable for someone entrusted with a security clearance. The individual's history of drug use and the prevalence and easy accessibility of marijuana among his relatives are factors that I cannot ignore in attempting to predict the level of risk involved in this case. Furthermore, I am troubled by the fact that the individual continues to drink alcohol when he visits those relatives. Hearing Tr. at 103-104. It is my opinion that his drinking on those occasions increases the risk that he may weaken in his resolve not to use drugs again. Given the individual's history of substance abuse, illegal drug use by family members in the presence of the individual while he is drinking alcohol creates a particularly risky situation. Thus, while I believe that the individual has taken the initial steps toward a more mature and responsible life, I find that granting him access authorization would be an unacceptably high risk.

I therefore find that the DOE had a sufficient basis for denying the individual a security clearance under § 710.8(l) and that the individual has not adequately mitigated the DOE's concerns.

IV. Conclusion

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

Either the Office of Security Affairs or the individual may file a request for review of this Opinion within 30 calendar days of receipt of the Opinion. 10 C.F.R. § 710.28(a). Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues on which he or she wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files the request for review. The party seeking review must serve a copy of the statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

Richard W. Dugan

Hearing Officer

Office of Hearings and Appea

Date: March 21, 1997

(1)1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

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

(3)Although paragraph (h) of § 710.8 refers to a security concern when there is a diagnosed illness or mental disorder that may cause a defect in judgment or reliability, this section has not been listed by the DOE as a separate area of concern in this case. It should also be noted that Subsection (k) of § 710.8 which pertains to illegal drug use has not been invoked in this case because, according to the Security Specialist, there was "some evidence of rehabilitation" from illegal drug use. Hearing Tr. at 40.

(4)I find no reference in the DSM-IV to a specified period of abstinence that is required to make a determination that an individual who has been substance dependent or had any other alcohol-related disorder is rehabilitated. I therefore interpret the psychiatrist's statement to be his opinion of the minimum amount of time necessary to find that an individual diagnosed as having such a disorder is rehabilitated.

(5)It should be noted that the individual's last two periods of excessive drinking (in 1990 and 1995) occurred when he was experiencing significant stress. Ex. 14 at 56, 61-63, 102.

(6)After reviewing the transcript of the PSI and the psychiatrist's report of his first interview with the individual, I find no inconsistencies in what the individual said regarding his use of illegal drugs. In both situations, he stated that he had not used illegal drugs since his release from jail in 1990. A discrepancy in the individual's statements regarding his drug use did not exist until after his second interview with the psychiatrist in which he admitted to using marijuana one time after his release from jail.