Case No. VSO-0129, 26 DOE ¶ 82,781 (H.O. Lipton June 17, 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 XXXXXXX's.

June 17, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 26, 1996

Case Number: VSO-0129

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold 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 record testimony and other evidence presented in this proceeding, the individual's suspended access authorization should be restored.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a detailed statement of the derogatory information. The DOE concern involves information that indicated 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. 10 C.F.R. § 710.8(j) (hereinafter Criterion J).

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual was represented by counsel. He testified on his own behalf, and presented testimony of three co- workers/friends, and that of a certified addictions counselor (hereinafter referred to as the individual's counselor). The DOE Counsel presented the testimony of a security specialist and that of a DOE consultant psychiatrist (DOE psychiatrist).

II. Statement of Derogatory Information

As stated above, the area of concern identified in the Notification Letter involves the individual's use of alcohol, and the Letter also sets forth the events giving rise to that concern.

The key incidents as set out in the Letter are as follows:

1. On December 11, 1994, the individual was arrested for domestic violence, child abuse, harassment and third degree assault on his spouse. Some of these charges were in connection with a December 9, 1994 incident, in which the individual grabbed and bruised his wife while they were fighting over possession of a checkbook. The individual consumed two or three beers that evening. On December 11, 1994, the individual consumed four or five rum and coke drinks during the afternoon, and after arguing with his wife, took their small child out for a drive in a vehicle, leading to a child abuse charge for possible endangerment to the child by taking him for a drive after the individual had consumed a significant amount of alcohol. After returning home, he remained with his sleeping son in the garage, and consumed three shots of liquor in a ten-minute time period. He then reentered the house. Within one hour the police arrived. The individual was arrested. At the police station, the individual was given a breathalyser test. His alcohol level was .14.

2. Following the December 11 arrest, the individual was placed on court-ordered random urinalysis testing for alcohol as a condition of his bond. He abstained from alcohol use from the time of the arrest through the disposition of the arrest, on February 10, 1995, at which time all but the third degree assault charge was dropped, due to a plea bargain, in which he pled guilty to the assault charge. The individual's sentence was deferred and he was required to serve an 18-month probation period and attend 36 hours of domestic violence classes. On the day of the disposition, the individual resumed drinking at the level of two or three beers a week, until later that month. At that time he was informed that he would be subject to random breathalyser tests for alcohol as a condition of the monitored probation. The individual abstained from all alcohol until after both the random tests and monitored probation were over in January 1996. (2) He resumed his use of alcohol in February 1996 at the level of three or four beers on weekend evenings.

3. On March 2, 1996, while still serving the probation regarding the December 11, 1994 arrest, and three weeks after resuming his consumption of alcohol, the individual was arrested for driving under the influence (DUI), and "weaving." He registered .14 on a breathalyser test and claimed that he had consumed six or seven beers over a three hour time period. (3)

The Notification Letter also gives the results of an evaluation of the individual performed by the DOE psychiatrist. According to the letter, the psychiatrist found that the individual (i) was using alcohol in increasing amounts in order to achieve intoxication; (ii) was experiencing a diminished effect with the same amount of alcohol; (iii) was drinking in larger amounts than he intended; (iv) had had unsuccessful efforts to reduce his consumption of alcohol; (v) continued to use alcohol despite knowledge that it caused problems, including legal and personal difficulties; and (vi) used alcohol in dangerous situations. Based on these findings, the DOE psychiatrist was of the opinion that the individual is a user of alcohol habitually to excess, and suffers from alcohol dependence.

III. The Hearing

At the hearing, it was the general position of the individual that he is not alcohol dependent or an habitual user of alcohol to excess. The three witnesses, who were personal friends of the individual and/or acquainted with him through the work environment, all testified that they had never seen him intoxicated. None had ever known the individual to drink while on the job.

The individual's counselor opined at the hearing that the individual was not a habitual user of alcohol to excess or alcohol dependent. The DOE psychiatrist maintained his original position that the individual is alcohol dependent. The DOE also presented a security specialist who testified that excessive use of alcohol indicates problems with judgment and reliability. He stated that excessive use of alcohol makes an individual an above-average security risk as far as maintaining confidentiality of national security material and special nuclear material.

IV. Analysis

The Hearing Officer's role in this proceeding is to evaluate the information presented by the DOE Office and the individual, and to render an opinion based on that evidence. The 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. See 10 C.F.R. § 710.7(a).

In rendering my judgment in this case, I must consider whether there are factors present to mitigate the DOE's security concerns. 10 C.F.R. § 710.7(c); § 710.27(a). Among the factors I am to consider 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; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. § 710.7(c).

The first question to be addressed is whether the individual is or has been 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." 10 C.F.R. § 710.8(j). As discussed above, the diagnosis of the DOE psychiatrist has clearly identified an alcohol dependence problem with respect to this individual. This individual has had two alcohol related arrests, involving three separate uses of alcohol, within a period of 15 months. He was serving a deferred sentence and probation for the first alcohol-related arrest when the March 1996 DUI occurred. Two of the standard conditions of that probation were not to break any laws and not to use alcohol to excess. Exh. 16. Based on these facts I find that the DOE Office had a sufficient basis to conclude that the individual's use of alcohol gives rise to a security concern. (4)

Once a security concern has been found to exist, it is the burden of the individual involved to resolve that concern. Personnel Security Hearing (Case No. VSO-0084), 26 DOE ¶ 82,754 (1996),aff'd, 26 DOE § 83,004 (1996)(VSA-0084). The individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff'd, 25 DOE ¶ 83,013 (1995)(VSA-0005).

In the present case, the individual has not met this burden. He denies that he uses or has in the past habitually used alcohol to excess. He disputes the diagnosis of the DOE psychiatrist that he is alcohol dependent. At the hearing, he brought forth evidence from several friends, and from his own counselor on the issue of his alcohol dependence. He also testified on his own behalf. As discussed below, I find that the testimony does not overcome the DOE's security concerns. In particular, the individual failed to bring forth adequate evidence to substantiate his current levels of alcohol use or his past usage.

A. Views of the DOE Psychiatrist and the Individual's Counselor

The DOE psychiatrist and the individual's counselor both considered whether the individual suffers from "alcohol dependence," or "uses alcohol habitually to excess." (5) The conclusion that the individual's counselor reached in his report was that the individual was "a non alcohol dependent, regular moderate to heavy social/recreational drinker....in full control of this behavior and appears to self-regulate in a manner which is adequate to the demands of his ...responsibilities and to society." Exh. 17.

In his written report, the DOE psychiatrist found the individual to be suffering from alcohol dependence. The basis for this conclusion was that the individual (i) was using alcohol in increased amounts in order to achieve intoxication; (ii) acknowledged that he has a diminished effect from drinking the same amount of alcohol; (iii) seems to be drinking in larger amounts than he intended; (iv) has had unsuccessful efforts to cut down; (v) has continued the use of alcohol despite the fact that it was causing problems; (vi) uses the substance repeatedly in dangerous situations.(6) Exh. 15.

At the hearing these two witnesses discussed their findings in greater detail. The individual's counselor generally adhered to his original position that the individual is a moderate to heavy recreational drinker. Transcript of Hearing (hereinafter Tr.) at 156. He added that the individual needs to learn when to moderate and that his past drinking patterns have occasionally been irresponsible, but that he did not believe that it was a habitual problem. The DOE psychiatrist maintained that the individual was alcohol dependent. He believed that the individual was at some risk to return to a high level of drinking that might cause a recurrence of the prior problems. Tr. at 177.

Overall, I was not convinced by the position advanced by the individual's counselor. As an initial matter, the individual engaged this counselor in order to obtain an evaluation to assist a court in making a determination of the safety of his children during overnight or weekend visits to his home after separating from his wife. The counselor's conclusion was that there was no "reason why [the individual] should not have his children stay with him overnight or for any other period of time." Thus, his views of whether the individual had an alcohol problem were grounded in whether or not the individual was fit to have custody of his children. Obviously, this does not address the DOE's concern, which focuses on national security.

In assessing whether the individual had an alcohol-related problem the individual's counselor did not use the standards applicable in these personnel security cases. (7) The individual's counselor stated that for him to accept a serious diagnosis, such as alcohol dependence, one that would have a significant impact on someone's life, the evidence would have to be "clear cut." Without such clear-cut evidence, he would tend to be conservative about giving a diagnosis of alcohol dependence, if it would result in the withholding of a security clearance. Tr. at 165-66.

While this type of so-called "conservative" approach may be appropriate in some circumstances, it is inapplicable in the national security arena. The DOE's standard is to take a conservative approach in granting or restoring a security clearance. In cases such as these, there is a presumption against restoring a security clearance. Dep't. of Navy v. Egan, 484 U.S. 518, 531 (1988). In view of the "conservative" approach taken by the individual's counselor in reaching his diagnosis in this case, I am not inclined to accept his opinion that the individual is not alcohol dependent.

I also found the testimony of the individual's counselor to be rather hesitant on some key points. He used expressions such as "fuzziness" [Tr. at 162, 151, 156] and "gray area" [Tr. at 147, 153], when asked to discuss the concept of alcohol dependence and the degree of the individual's alcohol problem. Although he seemed to reject the notion that the individual was alcohol dependent, he also stated that the individual "does at times abuse alcohol. There is no question about it." Tr. at 154. He stated that it was difficult to pin down whether the individual suffers from alcohol abuse, but then qualified this by saying that the individual was a "moderate to heavy recreational drinker who needs to learn when to moderate. Some drinking patterns have been occasionally in the past irresponsible, but I don't see it as an habitual thing." Tr. at 156. Later, he stated, "I'm not saying any of this is dead clear black and white. It's not. This is a real tough call. And tough calls I tend towards the conservative." Tr. at 164. As indicated above, in this type of close situation, being "conservative" would mean that the individual's counselor would refrain from a diagnosis of alcohol abuse or dependence. This approach does not reflect the standards I must apply here. I find this testimony to be insufficient to overcome the Criterion J security concerns at issue here.

I was convinced by the DOE psychiatrist's testimony, which was more detailed as to the nature of the individual's condition. His knowledge of the individual's condition and the overall record was more thorough and complete. I believe that the DOE psychiatrist's diagnosis was more clearly based on the standards I must use. His understanding of the term "alcohol dependent" was more precise. Tr. at 132-144. He was able to point out clear reasons for his conclusions that the individual was alcohol dependent. (8) He stated that the individual was drinking more than he intended. He cited as an example that the individual had the DUI, in which he clearly did not intend to drink and drive while intoxicated [Tr. at 137]. The DOE psychiatrist also pointed out that the individual had continued to use alcohol in spite of personal problems and being told by his wife that he should cut down his alcohol use [Tr. at 139]. He stated that the individual had used increased amounts of alcohol to get intoxicated [Tr. at 140], and had made persistent, unsuccessful efforts to cut down [Tr. at 137, 140, 141]. In this regard, the psychiatrist pointed out that the individual had stated that he had anticipated that after his divorce, his use of alcohol would increase to the same level as that prior to the 1994 arrest. However, he quickly escalated to the DUI level. Tr. at 141. He also indicated that the individual had shown increased tolerance [Tr. at 143]. He believed that the individual clearly met the criteria for alcohol dependence. Tr. at 137. (9)

The DOE psychiatrist was well informed about the specific events of this case. (10) He was aware of the details of this individual's background. He did not equivocate on his diagnosis that there was substance dependence. Tr. at 138. For these reasons I am convinced by the DOE psychiatrist's diagnosis that this individual suffers from alcohol dependence.

B. The Significance of the December 9 and 11, 1994 Incidents

The individual believes that the December 9 and 11, 1994 incidents, cited in the Notification Letter, did not result from the excessive use of alcohol. He sees no alcohol-related problems in his life. He admits only to one alcohol-related incident: the March 6, 1996 DUI. While he admits that this DUI was his own fault, the individual argues that this one incident is insufficient to give rise to a diagnosis of alcohol dependence, or habitual use of alcohol to excess.

As I discuss below, I am not convinced by this position. As an initial matter, I believe that the December 9 and 11 incidents both resulted from alcohol use. I find that the individual's very failure to admit to the problems that alcohol use has caused in his life is in and of itself symptomatic of his disease. Tr. at 120. I have concluded that use of alcohol has created family, marital and legal problems for this individual. This raises a Criterion J concern.

1. The December 11, 1994 Incident

I was keenly aware of the individual's avoidance and concealment in discussing the alcohol-related events of December 11, 1994 during both the hearing and a January 24, 1995 Personnel Security Interview (PSI). His descriptions left out key elements and tended to make him appear in a more favorable light. At the PSI, the security specialist asked the individual to describe the circumstances leading up to the December 11, 1994 arrest. I have quoted the key section of the individual's response below:

[S]he [individual's wife] had gotten a little bit upset with me that evening, and she wanted [her mother] to come over and pick up the children. And I said "well it's Sunday night and I think that might be kinda disruptive being that we have work and the older two children have school...and take ?em halfway across town and stuff like that. So I really didn't think it was a good idea. And my mother-in-law...came over and she was wanting to take the children...well it wasn't an ideal situation. We were having some conversations, you know, rasing our voices a little bit....I just figured it might be better just to calm everything down, and I really didn't want her to take the children that night.... And anyway they ended up calling the police, my wife did. And she was wanting to get actually some information as far as can the mother-in-law take the children....So anyway she ended up calling the police, and they came over. And after about 10 or 15 minutes they took me out on the front porch...and after about 10 minutes or so of answering questions the male officer came out front and said I'm gonna place you under arrest and cuffed me up. He named a few charges and things like that.

1/24/95 PSI Tr. at 13-14. At the hearing, the individual reiterated this version of the events. He stated that on December 11, when he got back from his drive with his son, his mother-in-law was at his home, "and wanted to take the children. And I disagreed with that. I didn't want her to take the children that evening. Then she [his wife] called the police." Tr. at 89. This statement portrays the same inaccurate picture as that given by the individual in the January 1995 PSI. I find the statements not credible, and the individual certainly has not offered any corroboration for them.

There is in fact other evidence in the record that is more believable on the issue of why the individual's wife called the police. The wife's stated to the police was that she called them because she was concerned that the individual had taken their son out for a drive after having had a considerable amount of alcohol. Exh. 40, Police Report at 8.

Overall, the individual's description of the December 11 incident at both the hearing and the 1/24/95 PSI show a failure to confront and admit the traumatic and abusive nature of the events that had taken place. He conceals unflattering information. He never mentioned in these descriptions that he had consumed four to five rum drinks. He did not refer to the confrontation with his wife, which caused her to ask her mother to come pick up the children. He did not reveal that his wife phoned the police because she was concerned about his drinking.

It was not until the security specialist, who had access to the police report and other information about the event, pressed the individual for a more complete rendition, that the individual began to admit some of the key details concerning the confrontation with his wife, the drinking and intoxication. 1/24/95 PSI Tr. at 18-21. These additional details were not particularly flattering to him, and he certainly did not admit to them without prompting and insistence.

The individual categorically denies that he was drunk during the altercation on December 11. The individual admits to being "a little bit impaired," but not "feeling intoxicated" when he took his son out for a drive in the car. 4/19/95 PSI Tr. at 38. At a March 28, 1996 PSI he stated: "I know I was under the influence," referring to the time he had his child in his truck, but prior to drinking the shots of liquor. 3/28/96 PSI Tr. at 31. He states that he only became intoxicated after drinking the three shots of liquor in the garage. Tr. at 98-99. He therefore seems to believe that alcohol played no role in his wife's calling the police. This hairsplitting is not credible. Whether he was impaired, under the influence, or intoxicated, excessive use of alcohol did play a significant role in the events leading up to the arrest. Moreover, both the individual's wife and his step-daughter state that the individual was intoxicated at the time he went for the drive. Exh. 40, Police Report at 5,7.

The individual has brought forth no evidence to corroborate his version of the events. For example, he could have brought in his wife for questioning as to her reason for the phone call to the police, and the intoxication and ingestion levels. His mother-in- law could also have provided some relevant testimony on these points. (11)

The individual has steadfastly maintained that during the afternoon of December 11, he drank four or five rum and cokes while watching a football game, from about 2 p.m. to 6 p.m. Tr. at 96, 97. Once again, he has not offered any support for this. Moreover, there is other evidence disputing the individual's account. According to the police report, the individual told the police he had consumed eight to ten rum drinks during that period. Exh. 40, Police Report at 11. His wife told police that the individual had consumed a half liter of rum during that period. Exh. 40, Police Report at 7. In light of the failure of the individual to corroborate his consumption levels, I believe that his stated use of alcohol forms part of a general pattern of minimization related to alcohol.

In his January 24, 1995 PSI, the individual denies pushing, touching, shoving, or laying hands on his wife during the December 11, 1994 incident. 1/24/95 PSI Tr. at 16. At the hearing, the individual stated that he and his wife argued over the medication of their child and "things just kind of escalated a little bit from there." Tr. at 89.

Once again, the individual's uncorroborated version minimizes the event and is profoundly evasive. According to the Police Report, the individual's wife states that he pushed her during that incident. Exh. 40 Police Report at 8. This is confirmed by the individual's step-daughter. Exh. 40 Police Report at 5.

In sum, I am not convinced about the individual's version of the events of December 11. The individual made no effort to bring in witnesses to corroborate important details in his version of the events. For example, he could have brought in his wife and mother- in-law to give testimony as to the events of that day. I believe that alcohol played a significant role in the family trauma of that day.

2. The December 9, 1994 Incident

I also note the individual's tendency to minimize the serious occurrences of the December 9, 1994 incident, in which he inflicted bruises on his wife during an altercation. For example, he described it as "a little occurrence" and "a little discrepancy." 1/24/95 PSI Tr. at 16. This occurrence resulted in a third degree assault charge. He nevertheless did not refer to it in a serious way.

In this same vein, he described the bruises his wife received on December 9, in the following way: "She bruises really easily or whatever, so she had a couple of little bruises on her wrists apparently from where I had her hands." Id. at 17. At the hearing, the individual stated that "she received some minor bruises on both of her arms around her wrists." Tr. at 90.

I certainly cannot discount the seriousness of this incident on the grounds stated by the individual, that the bruises were only minor. I also reject the individual's implication that he is not to blame because his wife "bruises easily." In any event, I believe that the individual is once again minimizing this event. These bruises were serious enough that a policeman was still able to detect them two days after they were inflicted. Exh. 40 Police Report at 4. Moreover, the Police Report further noted bruises and scratches on the wife's inner and outer arms, not just on her wrists. Thus the report is not consistent with the individual's assertion that he "had her hands." Exh. 40 Police Report at 7.

I cannot accord this uncorroborated view of the events any credence. I see this as a further example of the individual's denial and minimization of rather serious family violence events under scrutiny here.

It is in the context of this apparent disregard for the seriousness of the December 9 domestic violence incident that I consider the individual's claim that alcohol played no role in the occurrence. He states that he had only two or three beers that evening and that he was therefore not intoxicated. Given the individual's tendency to minimize and the lack of corroboration as to how much alcohol he consumed, I am not convinced that his level of alcohol use was as he stated and that alcohol played no role in this event.

These examples of avoidance, minimization and discrepancies persuade me that the individual is not particularly reliable when it comes to giving a recitation of events that involve his use of alcohol. As the DOE psychiatrist testified, discrepancies and lying reflect the habits of a substance abuser and the hallmarks of an addiction. Tr. at 120. In the absence of testimony or other evidence corroborating the individual's position about these events, I cannot conclude that his use of alcohol was not at the root of the occurrences. I therefore find that these events substantiate the DOE psychiatrist's view that this individual suffers from alcohol dependence, and habitual excessive use of alcohol.

C. Testimony Regarding the Individual's Alcohol Consumption

1. The Individual's Testimony

At the hearing the individual testified as to his own alcohol use. Some of this testimony disputed assertions made by the DOE psychiatrist in his written evaluation. For example, in his report the DOE psychiatrist states that he asked the individual how many times he drank and drove. According to the report, the individual stated that he drank and drove one to two times a year for at least ten years. At the hearing, the individual denied this. The individual contended that he may become intoxicated one to two times a year, but he doesn't drive. Tr. at 81-82. I find it hard to believe that the individual could misunderstand the psychiatrist's question, and provide a response to the question, "how often do you become intoxicated," rather than "how often do you drink and drive." Thus, I am not particularly convinced by this attempt to reconstruct the record.

There are other instances in which the individual disputes the DOE psychiatrist's assertions in the report. E.g. Tr. at 86-88, 91-93. These disagreements relate to the length of his required abstinence from alcohol during his probation, whether the individual experienced alcohol-related blackouts, whether his domestic violence instructor and his wife asked him to refrain from using alcohol, whether his wife and the police said that he drank too much, and whether alcohol use interfered with his marriage. He further denies using alcohol in increasing amounts, drinking larger amounts than intended, or making unsuccessful efforts to cut down. Tr. at 95.

As an initial matter, as I noted above, I find that the individual has a tendency to minimize and evade issues relating to his alcohol use. Therefore, I am not particularly convinced by his assertions denying the DOE psychiatrist's findings concerning his alcohol use. Further, these denials, without any supporting evidence, can be accorded little weight. The individual has offered no support to corroborate his position with respect to these assertions. See Personnel Security Review (VSA-0087), 26 DOE ¶ 83,001 at 86,507 (1996). Therefore, I cannot conclude that he has met his burden with respect to his contentions regarding the alcohol use. (12)

The individual has also asserted that he has abstained from alcohol for considerable periods and has cut down his use. For example, he states that he did not drink alcohol during the time that he was going through his recent divorce. The individual implies that the fact that he is able to cease alcohol use or cut down at will indicates that he is not alcohol dependent. As I indicated above, I have no independent corroboration as to the individual's overall level of alcohol use. However, even if I accept his assertions that he has been able to abstain and moderate at will, I would not conclude that such behavior establishes that he is not alcohol dependent. It is true that the individual stopped drinking in response to a crisis when he was on monitored probation. However, as soon as this period was over, however, he resumed drinking, with a rapid escalation in several weeks to the DUI incident. As the DOE psychiatrist pointed out, this pattern is one of a "high risk user," one "who can abstain, but can't control." Tr. at 142. This pattern, then, further supports the DOE psychiatrist's opinion that the individual suffers from alcohol dependence.

2. Testimony of Friends/Co-Workers

The individual brought forth three friends/coworkers intending to have them corroborate his overall drinking pattern. I find that their testimony is not persuasive on this issue.

The first witness, who is the individual's foreman on the job, stated that the individual is a good worker and that intoxication has not been a problem on the job. However, he was unable to provide any evidence as to the individual's overall drinking pattern outside the employment situation.

The second witness, who had both some social contacts and work- related contacts with the individual, indicated that he had never seen the individual drink to excess. He testified that he had seen the individual drink possibly four beers over a four hour period. Tr. at 25. However, this individual did not seem to have regular, frequent contact with the individual. Over the course of their 13- year acquaintance, he indicated that he had socialized with the individual only approximately 20 times. Tr. at 16. He last had social contact with the individual approximately eight months prior to the hearing. He admitted that he would not know if the individual had a substance abuse problem, unless he had personally seen evidence of it. Tr. at 22. This witness admitted that he did not have a particularly close personal relationship with the individual. Tr. at 30. The individual and this witness did not discuss use of alcohol. Tr. at 31.

The third witness also testified that he had only seen the individual drink in moderation. Tr. at 35-36. However, he too appeared rather unfamiliar with the individual's personal life, including the circumstances surrounding the individual's marital difficulties. Tr. at 49, 51. He did not socialize with the individual very frequently. He stated that during the eight years he has known the individual, they have socialized only about 25 or 30 times, in addition to some excursions to see baseball games. Tr. at 44. The last time that this witness socialized with the individual was approximately one month prior to the hearing. Tr. at 43.

Overall, I find the testimony of these witnesses to be rather limited. It is obvious that the individual could have a substantial drinking problem and use alcohol to a significantly greater extent than he alleges in this case, and yet these three witnesses would hardly be likely to be aware of it. I am therefore not confident that these witnesses have sufficient knowledge of the individual's drinking pattern. They provide only the most minimal support for the individual's claim that he does not now abuse and has not in the past abused alcohol. I therefore conclude that the individual has failed to substantiate his position that his use of alcohol is at a moderate level and that he is not alcohol dependent.

After considering all the evidence brought forward by the individual, I have concluded the he has not met his burden of establishing that there is no basis for a DOE concern that he is alcohol dependent. I have found the DOE psychiatrist's testimony more persuasive than that of the individual's counselor. I believe that excessive use of alcohol has created family problems for this individual. I am not persuaded by the testimony of the individual and his three witnesses concerning the pattern of his alcohol use. I therefore find that the individual has not shown that there is no Criterion J concern in this case.

D. Mitigation

I am required to consider the evidence in the record that might mitigate the DOE's security concerns related to alcohol dependence. In this regard, the individual states that he has never consumed alcohol on the job. His foreman describes him as an excellent, trustworthy employee who has never missed work due to intoxication. Tr at 4-5.

The testimony about the individual's job performance is 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-0079), 25 DOE ¶ 82,803 at 85,842 (1996). The fact that it has not occurred in the past is no guarantee that it will not occur in the future.

The security concerns present here would be mitigated if there was sufficient evidence of rehabilitation, so that I could conclude that it was highly unlikely that the individual would abuse alcohol in the future. In this regard, I note that the individual has apparently had no recurrence of any alcohol-related legal problems since the March 1996 DUI, a period of more than one year. The DOE psychiatrist stated that this was a factor in the individual's favor. Nevertheless, excessive use of alcohol presents security concerns even if no laws are violated and no legal problems result. For example, during periods of intoxication, an individual's judgment and reliability are diminished, resulting in an increased possibility of a breach of security.

Towards the end of the hearing in this case, the individual for the first time raised the issue of mitigation of the DOE's security concerns through attendance at an education program in connection with the resolution of the DUI charge. He stated that he attended 20 hours of alcohol classes in which he was counseled not to drink and drive. Tr. at 107.

I cannot find that this level of education alone is sufficient to allay the DOE's security concerns regarding the individual's use of alcohol. No outside testimony was presented concerning the nature of the education, and the degree of the individual's participation in the classes. Further, excessive drinking presents security concerns even if the individual has learned not to drink and drive. As stated above, excessive use of alcohol presents reliability and judgment concerns.

Moreover, the DOE psychiatrist was not at all inclined to find that this rather limited educational component resulted in rehabilitation. He stated that from the sporadic drinking levels currently reported by the individual, he would conclude that the individual was "in some degree of remission, but incomplete, temporary and partial. On the other hand, I don't know that the information as presented is correct.... Remission, however, is just the absence of symptoms." Tr. at 128. Rehabilitation, on the other hand "would include a change in a way of life, a change in thinking, some degree of acceptance that would allow adaptation to occur. More frequently than not, the discrepancies and lying would disappear the more you would become proud of actually being recovered. They would accept the illness and accept the consequences of it and let the chips fall where they might and be proud of where they've gotten to." Tr. at 128. The DOE psychiatrist testified that the individual would need to acknowledge that alcohol had damaged his life, before he could move on towards rehabilitation. Tr. at 129. The DOE psychiatrist believes that the individual is still failing to be completely honest about alcohol issues and therefore cannot be considered to be even in the recovery stage. Tr. at 178. In this regard, as stated earlier, I am not convinced by the individual's statement as to his current drinking levels. Further, as I stated above, in his own current statements, the individual does not appear to recognize that he has an alcohol problem. In view of these considerations I cannot conclude that there has been any showing of rehabilitation in this case. (13)

V. CONCLUSION

The individual in this case has failed to bring forward sufficient evidence to mitigate the Criterion J concerns raised by the DOE. His response to the concerns has been denial. He seems to believe that those who identify his pattern as that of a problem drinker are the ones with the problems. His wife, mother-in-law and step- daughter had all indicated that he had a drinking problem. He brushed these concerns aside by saying that his wife was confused, or kidding, his mother-in-law was just repeating what his wife said, and his daughter was mistaken about the meaning of intoxication.

The individual disobeyed the standard conditions of his 18 month deferred sentence on the domestic violence charge by using alcohol to excess. Exh. 16 at 1-2; 1/24/95 PSI Tr. at 25. This resulted in the DUI. He ignored the DOE psychiatrist's finding that his use of alcohol was dangerous, and that a rehabilitation program was appropriate. Exh. 15 at 12. Thus, the individual has refused to heed even professional advice that he abstain from alcohol. He sees as his greatest mistakes that he had a DUI and he married the wrong woman. Tr. at 180. This is in my view a continuation of the avoidance and minimization problems that I discussed above. He still is unable to readily connect his alcohol use with ongoing problems and conflict in his life.

In the above analysis, I have found that there is significant derogatory information in the possession of the DOE which raises serious concerns under Criterion J as to whether the individual's access authorization should be restored. I have also found that the individual has failed to bring forth sufficient evidence to mitigate these security concerns. I am therefore unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 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., S.W. Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: June 17, 1997

(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)The requirement for the individual to participate in the random alcohol tests was discontinued in November 1995.

(3)In the applicable State, .05 is the lowest level of alcohol that is a chargeable offense. At the .05 level, the charge would be driving while ability impaired. Transcript of Hearing at 150. A motorist is presumed to be driving under the influence of alcohol if a breathalyser shows an alcohol level of .1g al/210 ml of breath.

(4)The individual's lawyer has argued that the individual was not accorded due process in connection with the issuance of the Notification Letter. He based this on his belief that the DOE security specialist testified that there are no DOE guidelines for determining when an individual uses alcohol habitually to excess. Transcript of Hearing at 185-6. I cannot see any failure to accord appropriate process here, inasmuch as the current security hearing provides the individual with an opportunity for a complete review of the circumstances surrounding the issuance of the Notification Letter. As I have indicated above, I find there was an adequate basis for the issuance of the Notification Letter. Further, there is no allegation that there has been any failure to follow procedures set forth in Part 710. Accordingly, the individual has received all the process due in this case.

(5)The term "alcohol dependence" is used in Criterion J. It is also a medical term that is defined in the Diagnostic and Statistical Manual-IV of Mental Disorders of the American Psychiatric Association (4th ed. 1994) (DSM-IV). See Transcript of Hearing at 112.

(6)With the exception of item (vi) these are among the seven elements set out in the DSM-IV as indicia of substance dependence. The DSM-IV states that substance dependence is manifested by any three of these elements occurring in the same 12-month period.

(7)The individual's counselor also did not seem to frequently use the term alcohol dependence, as it is used in the DSM-IV. Tr. at 161.

(8)These reasons were of course based in part on what the individual himself was willing to reveal. The DOE psychiatrist testified in this regard that he had some difficulty in eliciting accurate information from the individual. He stated that the individual was not straightforward and that he did not want to reveal facts that the DOE psychiatrist did not already know. The DOE psychiatrist indicated that he suspected the accuracy of the interview. Tr. at 119-20. It is the duty of an individual seeking to acquire or maintain a security clearance to be completely forthright and candid at a psychiatric evaluation conducted as part of the security clearance process. In view of the DOE psychiatrist's reservations as to the accuracy of the interview, it is appropriate for him to draw negative inferences regarding the individual's pattern of alcohol use.

(9)Although the DSM definition of alcohol dependence indicates that manifestations of the disease must occur within one year, the DOE psychiatrist stated that if there is a return of symptoms within a period of as long as 16 months, the slate has not been wiped clean merely by the passage of the one year mark. There may just have been a partial remission. Tr. at 136.

(10)The individual's attorney expressed concern that the DOE psychiatrist may have unfairly dated the individual's substance abuse problems from 1976. Tr. at 184-85. The record is not clear as to when the DOE psychiatrist dates the substance abuse problems. However, even if I date the substance abuse problems from the December 1994 incidents, the result in this case would be no different.

(11)In a letter of March 11, 1997, addressed to the individual's attorney, I stressed that it was important for the individual to bring in testimony to corroborate his past and present use of alcohol.

(12)One stated dispute seemed to me to show a lack of understanding of the report. The individual objected to the DOE psychiatrist's statement in the evaluation that "...he has continued to drink. He drinks three to four beers on weekend nights." In response, the individual stated that: "I don't continually drink on weekend evenings. Some evenings I'll have three or four beers and other evenings I don't." Tr. at 81. Obviously, the DOE psychiatrist did not claim that the individual continually drinks, just that he has continued to drink. The individual himself does not deny this. I fail to see any inaccuracy here.

(13)The individual's lawyer seemed to suggest that the individual has been denied due process because the DOE failed to offer the individual the chance to participate in the Substance Abuse Program Referral Option (SAPRO). Tr. at 184. Under the Part 710 regulations I am not authorized to make any decisions about this type of program and I cannot review the decisions of a DOE office on this matter. Personnel Security Review (VSA-0014), 25 DOE ¶ 83,002 at 86,512 (1995).