Case No. VSO-0146, 26 DOE ¶ 82,788 (H.O. Augustyn July 31, 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.

July 31, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 17, 1997

Case Number: VSO-0146

This Opinion concerns the eligibility of XXXXXXX (the individual) for continued access authorization(1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." The individual's access authorization was suspended by one of the Department of Energy's (DOE) Operations Offices. As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend that the individual's access authorization be restored.

I. Statement of the Case

The individual has been employed since 1982 by a subcontractor at a DOE facility in a position that requires an access authorization. During this 15-year period, the individual has also been included in the DOE's Personnel Assurance Program (PAP), a safety program that requires its participants to submit to annual physical examinations, blood tests, and psychiatric examinations. In March 1996, laboratory results from blood samples taken during the individual's annual PAP medical examination revealed abnormalities in the individual's liver functioning. On March 19, 1996, a physician from the on-site medical department (OMD) at the facility where the individual is employed asked the individual to report to her office to discuss his abnormal laboratory results. When the individual arrived at the physician's office, the physician detected a faint smell of alcohol on the individual's breath. The physician immediately administered a breath alcohol test (BAT) to the individual. The BAT, as well as a subsequent confirmation test, yielded positive results for alcohol at levels in excess of the standard established by the facility.(2)

In August 1996, a personnel security specialist from one of the DOE's Operations Offices conducted a Personnel Security Interview (PSI) with the individual to explore the extent of the individual's

alcohol use. After the PSI, the DOE referred the individual to a board-certified psychiatrist (DOE consultant-psychiatrist) for a mental evaluation. The DOE consultant-psychiatrist examined the individual on October 29, 1996, and memorialized his findings in a report dated November 5, 1996 (Psychiatric Report). In the Psychiatric Report, the DOE consultant-psychiatrist determined that the individual did not meet the diagnostic criteria for alcohol dependence or abuse but opined, nonetheless, that the individual has been a user of alcohol habitually to excess in the past without adequate evidence of rehabilitation.

Three months later on February 11, 1997, the OMD Medical Director at the DOE facility where the individual was employed (OMD Director) prepared a letter in which he recommended that the individual not be reinstated in the PAP. The OMD Director based his recommendation on the following considerations: (1) the individual was not enrolled in a structured alcohol abuse program; and (2) data generated from the individual's blood chemistry laboratory values between May 1996 and January 1997 showed that the individual had reduced his average monthly alcohol consumption, but had not stopped drinking entirely.

On February 18, 1997, the DOE commenced this administrative review proceeding by issuing a Notification Letter to the individual which, among other things, identified the derogatory information that cast doubt on his continued eligibility for access authorization. See 10 C.F.R. § 710.21. That information included the following: the individual's confirmed positive BAT; laboratory results revealing that the individual had elevated liver enzymes; the OMD Director's February 11, 1997 letter; the diagnosis and recommendations contained in the Psychiatric Report; and the individual's admissions in the PSI regarding his alcohol use. According to the DOE, all this derogatory information concerning the individual's alcohol use falls within the purview of 10 C.F.R. § 710.8 (Criterion J). Criterion J concerns, in pertinent part, information that reveals that a person has[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.

10 C.F.R. § 710.8(j). On March 10, 1997, the individual filed a Response to the matters raised in the Notification Letter and requested an administrative review hearing to resolve those matters . The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on March 17, 1997. The OHA Director appointed me as Hearing Officer in this case on March 18, 1997. 10 C.F.R. § 710.25(b). I convened a hearing in this matter on XXXX. See 10 C.F.R. § 710.25(g). At the hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following five witnesses to testify on his behalf: his clinical psychologist, his family physician, his supervisor, his wife and one of his co-workers. The DOE presented four witnesses at the hearing: a DOE personnel security specialist, the DOE consultant-psychiatrist, the OMD Director, and the OMD Staff Physician who administered the BAT to the individual on March 19, 1996 (OMD Physician). I received the hearing transcript in this case on June 18, 1997. Subsequently, I requested a post-hearing submission from the individual to resolve an ambiguity in the transcript regarding a possibly material fact in the case. I closed the record on July 23, 1997 after receiving the DOE's response to the individual's post-hearing submission. See 10 C.F.R. § 710.27(e).

II. Standard of Review

The applicable regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). In resolving questions about the individual's access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the 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.

It is the totality of these facts and circumstances that sheds 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 in this case, I must make a predictive assessment. In this regard, the burden is on the individual to demonstrate that restoring his 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 met his burden in this case.

III. Findings of Fact

The relevant facts in this case are largely uncontested. The individual first began using alcohol, with some regularity, in the 1970s just prior to a divorce from his second wife. See Psychiatric Report at 2; Transcript of XXXXXX Hearing (Tr.) at 248; Exhibit 7 at 19. According to the individual, he developed insomnia during this time as he was coping with the stress associated with the break-up of his marriage. Tr. at 248-49; Exhibit 7 at 19. To remedy his sleeping problems, the individual began drinking up to four to five ounces of vodka two to three times per week. Exhibit 7 at 25; Tr. at 248-49. The individual reports that he then stopped drinking entirely in 1982, when he married his third and current wife. Tr. at 250. A few years into his third marriage, marital discord developed between him and his wife. Exhibit 7 at 29; Psychiatric Report at 2; Tr. at 252-53. The individual claims his insomnia returned as a result of the discord and he resorted to drinking vodka again to aid him in sleeping. Id. The individual claims he typically drank one to three ounces of vodka, one to three times per week during this period. Exhibit 7; Tr. at 253. According to the individual, his wife was always asleep when he consumed alcohol and he generally ceased drinking no later than 11 p.m. Id. at 254, 260. The individual's wife confirmed that the individual never drank alcohol in her presence. Id. at 223.

On March 18, 1996, the individual worked until 11 p.m. or midnight on material he had brought home from his place of employment. Tr. at 258-59. He then began drinking vodka until 3 a.m. or 4 a.m. while he watched two late-night movies. Id. He arose as usual and reported to work as scheduled at 7 a.m. See Exhibit 4. At 8:30 a.m., the OMD Physician requested the individual to report to her office to discuss elevated Gamma Glutamyl Transpeptidase (GGT) levels detected during his routine annual physical earlier that month. See Exhibit 3. The OMD Physician smelled alcohol on the individual's breath upon his arrival at the OMD at which point she requested him to submit to a BAT. See Exhibit 3. The BAT was positive at 0.076 mg/dl, with a confirmatory test at 0.067 mg/dl. Id.(3)

Immediately after the positive BAT, the OMD Physician counseled the individual about the seriousness of this matter and suggested he obtain assistance from the Employee Assistance Program (EAP) at the site. Tr. at 319-22; 341-42. In response to the individual's inquiry whether he could go to his family physician in lieu of EAP, the OMD Physician responded affirmatively. Id. at 321. The OMD Physician made it clear that if the individual sought assistance from his family physician, OMD would require documentation to demonstrate that the individual was addressing his alcohol usage. Id. at 322.

Shortly after the positive BAT, the individual sought medical assistance from the physician with whom he had a doctor-patient relationship since 1982. Id. at 208. The individual's family physician prescribed medication to alleviate the individual's insomnia, the apparent cause of the individual's alcohol consumption, and provided the requisite documentation to OMD. Id. at 208, 322, 342. The family physician also addressed the individual's two other medical problems, his obesity and diabetes.

The OMD Physician testified, and the individual's medical records confirm, that the individual continued to see his family physician and reduced his alcohol intake by approximately 50% between March and June 1996. Id. at 320-21; Exhibit 18. According to the individual, he believed nothing more was required of him at that time other than moderating his alcohol consumption. Tr. at 264-65. In fact, both the OMD Director and the OMD Physician admitted at the hearing that neither had communicated to the individual that he should abstain completely from alcohol. Id. at 264, 302, 335.

Beginning on May 29, 1996, OMD, acting on instructions from the DOE's Nuclear Explosives Safety Department, conducted random breath alcohol tests on the individual and obtained monthly blood samples from him. See id. at 321; Exhibits 11, 17 and 18. The results of all the unannounced breath alcohol tests done during this time period were negative. See Exhibit I.

On October 2, 1996, the OMD Physician advised the individual in writing that results from five random blood chemistry screenings between May and October 1996 showed little improvement in his liver enzyme levels. See Exhibit M. For the first time, the OMD Physician implied in her note to the individual that he should not be consuming alcohol at all. Id. The OMD Physician then urged the individual to consult with his personal physician and consider EAP. She concluded her note by advising the individual that she would not make a favorable recommendation regarding his re- admittance to the PAP based on these laboratory results. Id.

Upon receipt the October 2 letter, the individual became alarmed and realized his job might be in jeopardy. Tr. at 351. The individual asserts, and laboratory tests confirm, that he immediately ceased drinking alcohol.(4)

In late October 1996, the DOE sent the individual to a DOE consultant-psychiatrist for a mental evaluation. The DOE consultant-psychiatrist conducted a two-hour psychiatric interview of the individual and administered the Minnesota Multiphasic Personality Inventory (MMPI) to him. Based on that interview, the results of the MMPI and the results of a liver profile showing elevated GGT levels, the DOE expert opined that the individual has been a user of alcohol habitually to excess in the past without adequate evidence of rehabilitation. Psychiatric Report at 11. At the time, the DOE consultant-psychiatrist believed the individual should be involved in Alcoholics Anonymous (AA) and an outpatient program for one year before he would achieve rehabilitation. Id. With respect to the issue of reformation, however, the DOE consultant-psychiatrist stated affirmatively that the individual was reformed, noting that the individual had abstained from alcohol and was motivated to maintain abstinence. Id.

At some later date which is unclear from the record, the individual sought assistance from the EAP at his place of employment. Id. at 358. The EAP advised him that he had two options, an inpatient treatment program or AA. Id. at 266-268; 358. The individual chose AA. (5)

Upon the advice of his lawyer in this case, the individual subsequently returned to EAP to inquire how he might be considered for the Employee Assistance Program Referral Options (EAPRO). Id. at 359. The EAP advised the individual to visit one of two psychiatrists who evaluates candidates for entrance into EAPRO. Id. On April 30, 1997, the individual was evaluated by one of the two psychiatrists recommended by the EAP (EAPRO consultant-psychiatrist). See Exhibit F. In a letter dated May 9, 1997, the EAPRO consultant-psychiatrist opined that the individual did not need intensive inpatient or outpatient therapy. Id. Instead, the psychiatrist recommended that treatment consist solely of routine monthly medication management visits to his office. Id. (6)

Finally, in April 1997, the individual consulted a clinical psychologist (Clinical Psychologist) who conducted a two-hour clinical interview with the individual, administered two psychological tests to him, and memorialized his findings in a letter. See Exhibit E. According to the Clinical Psychologist, the individual suffered at most from a mild case of alcohol abuse stemming from his use of alcohol as a form of self medication for sedation. Id. The Clinical Psychologist further opined that the individual's alcohol abuse is now in full remission and that the individual is in no need of alcohol rehabilitation at this time. Id. at 3; Tr. at 180, 183-84, 187; Exhibit P.

IV. Analysis

I have thoroughly considered the record of this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. As indicated below, I find first that the DOE properly invoked 10 C.F.R. §710.8(j) in suspending the individual's security clearance. In resolving the question of whether the individual's access authorization should be restored, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual's access authorization should be restored. I find that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make in support of this recommendation are discussed below.

The Individual's Alcohol Use

A. Derogatory Information

It is undisputed that on March 19, 1996, the individual arrived at work with a blood alcohol level in excess of the level permitted by his employer. The confirmed positive BAT on March 19, 1996 and the individual's admissions during the PSI and the hearing regarding his alcohol consumption during the early morning hours of March 19, 1996 establish conclusively that the individual was drinking vodka to excess on the date in question. This alcohol-related incident raises questions in my mind about the individual's judgment on the date in question for two reasons: (1) he consumed alcohol less than eight hours before the beginning of his work shift, knowing his action was in violation of his employer's guidelines; and (2) he began his workday, after traveling by car to the facility, with a blood alcohol level unacceptable to his employer. My concerns in this regard parallel those articulated by the personnel security specialist at the hearing. See Tr. at 33.

Other evidence in the record suggests that the individual may have consumed alcohol to excess on occasions in addition to March 19, 1996. The results of liver profile tests administered to the individual on six occasions between March 7, 1996 and October 1, 1996 reveal elevated GGT levels, often a sensitive laboratory indicator of heavy drinking.(7) See Exhibits 11, 17 and 18; Tr. at 218, 281. Further evidence on this matter comes from the DOE consultant-psychiatrist who opined that the individual habitually consumed alcohol to excess in the past, in part, to alleviate stress.

Based on all the facts enumerated above, it is my finding that the DOE properly invoked 10 C.F.R. §710.8(j) when it suspended the individual's access authorization. It was reasonable for the DOE to conclude that the individual's excessive alcohol use which first occurred in the 1970s and later re- emerged in the late 1980s might impair the individual's judgment and reliability to a point where he might fail to safeguard classified matter or special nuclear material.

B. Mitigating Factors

The individual maintains that he is rehabilitated from his past excessive alcohol use and, as a consequence, has mitigated any security concerns associated with his drinking. To support his position, the individual cites the following facts: (1) he substantially reduced his alcohol consumption between the date of the positive BAT and October 1996; (2) he has completely abstained from consuming alcohol since early October 1996; (3) he has attended AA twice weekly since March 1, 1997; (4) he faithfully takes prescription medication for his insomnia thereby obviating his need to rely on alcohol to help him sleep; (5) his GGT levels have been within normal ranges since November 1996; (6) the OMD Director recommended on XXXXXXthat the individual be re-admitted to the PAP; (7) the EAPRO-psychiatrist whom the individual sees once per month for medication monitoring has opined in writing that he does not need any other rehabilitation; (8) the Clinical Psychologist who examined him in April 1997 testified that his alcohol problem is in remission and is not in need of rehabilitation; (9) the DOE consultant-psychiatrist, after listening to most of the testimony at the 8-hour hearing, now believes the individual is rehabilitated; and (10) he intends to honor the commitment to his wife to attend AA, and to remain abstinent.

In the administrative review process, it is the Hearing Officer who has the responsibility for assessing whether an individual with alcohol problems has presented sufficient evidence of rehabilitation and reformation to allay security concerns. See Personnel Security Hearing, (Case No. VSO-0106), 26 DOE ¶ 82,767 (1997), appeal filed, citing 10 C.F.R. §710.27. To this end, Hearing Officers accord much weight to the opinions of psychiatrists and other mental health professionals regarding the issue of rehabilitation and reformation. See e.g., Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (finding of rehabilitation); Personnel Security Hearing, (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995)(finding of no rehabilitation). In this case, three experts have persuaded me that the individual is either completely rehabilitated or in need of no further alcohol treatment.

1. Expert Views Regarding the Individual's Rehabilitative Efforts

a. The Clinical Psychologist

The Clinical Psychologist who testified on behalf of the individual at the hearing has 13 years experience conducting treatment groups for drug and alcohol addicted clients and three years acting as a drug and alcohol consultant to a professional baseball team. Prior to rendering his opinion regarding the individual, the Clinical Psychologist (1) reviewed the Psychiatric Report; (2) conducted a two-hour psychiatric examination of the individual; and (3) administered two psychological tests to the individual, the Millon Clinical Multiaxial Inventory (MCMI) and the Miale-Holsopple Completion Test. See Exhibit E; Tr. at 178, 183-184.

Since the individual had used alcohol for its sedative properties, the Clinical Psychologist opined that he may have suffered from mild alcohol abuse. Exhibit E. At the hearing, the Clinical Psychologist stated that he believed the individual's alcohol use, while excessive at times, did not approach the level for alcohol dependence. Tr. at 179. He also testified that the results of the MCMI revealed the individual's potential for alcohol abuse is low. Id. He further observed that the individual's alcohol consumption does not even approach the level where a diagnosis of alcohol abuse is ordinarily given. Id. According to the Clinical Psychologist, the individual's "test responses show a level of coherency and thoughtful reflection that is not normally seen in persons who are abusing alcohol." Exhibit E at 2-3. The Clinical Psychologist explained further that those same test results indicate that the individual has no continuing problems with alcohol. Id..

The Clinical Psychologist emphasized at the hearing that the individual no longer needs to rely on alcohol for its sedative properties, pointing out that the individual is controlling his insomnia by taking medication prescribed by his family physician. Tr. at 182. Accordingly, it is the Clinical Psychologist's view that the individual's alcohol problem is in full remission. Id. at 183. The Clinical Psychologist also commented that the individual's attendance at AA twice each week since March 1997 will strengthen the individual's sobriety and fortify him to prevent future relapses. Id. at 181; Exhibit Q. Finally, the Clinical Psychologist testified that the individual is adequately rehabilitated at this point and in need of no further treatment. Id. at 184. He predicated his professional opinion on his belief that the individual's alcohol problem is not serious. Id. at 183. In this regard, he testified that the individual's ability to reduce his alcohol consumption significantly between March 1996 and October 1996 and then cease drinking completely from October 1996 onward is quite telling. According to the Clinical Psychologist, in his experience, alcoholics are not able to curtail or diminish their drinking for the that period of time. In sum, the expert attested that the individual's alcohol problem is currently in remission, that the individual is at low risk of relapse, and is in need of no rehabilitation treatment at this time. Id.; Tr. at 183-84.

b. The DOE consultant-psychiatrist

The DOE consultant-psychiatrist is board-certified in general and forensic psychiatry and neurology and has been in private practice for 20 years. As previously stated, the DOE consultant-psychiatrist examined the individual for two hours in October 1996, and administered the MMPI to the individual on the same day. In the Psychiatric Report, the DOE consultant-psychiatrist found that the individual did not meet the diagnostic criteria for alcohol dependence or abuse as defined in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). At the hearing, the DOE consultant- psychiatrist explained that he did not believe he had sufficient information in October 1996 "to rule in or rule out" alcohol abuse. Tr. at 157. He noted that the individual's alcohol use did not affect the individual's ability to fulfill major role obligations at work, school or home; pose any legal problems for him; or induce memory loss, seizures or blackouts. Id. at 158-59. The DOE consultant- psychiatrist was concerned, however, that the individual might be genetically predisposed to alcohol problems as he had two brothers who had difficulty with alcohol. Id. at 152. He was also concerned that during the late 1970s and again in the late 1980s the individual had used alcohol for self- medication purposes to deal with stress in his life. Id. at 150. These latter two concerns, plus an elevated GGT test result of 91 and the positive BAT in March 1996, led the DOE consultant- psychiatrist to opine in October 1996 that the individual habitually consumed alcohol to excess in the past. The DOE consultant-psychiatrist did not find that the individual was rehabilitated in October because of the individual's family history of alcohol-related illness and the individual's tendency to use alcohol "under duress." Psychiatric Report at 3. The DOE consultant-psychiatrist did find in October 1996, however, that the individual was reformed from his alcohol problem, noting that the individual had stopped drinking and was motivated to maintain abstinence. Id.

At the hearing, The DOE consultant-psychiatrist testified that the recommendations regarding abstention and treatment he made in the Psychiatric Report were guidelines only. Tr. at 167. He explained that the concept of "commitment" is paramount to assessing a person's success in overcoming an alcohol-related problem. Id. He opined that the individual will honor his commitment to abstain from alcohol in the future. Id. at 170. He based this opinion on the individual's MMPI profile and other information he obtained during the psychiatric interview of the individual. In addition, the DOE consultant-psychiatrist cited the following as indicators that the individual will be successful in remaining abstinent in the future: the individual's life has been a productive one; he has a work ethic; and he is goal directed. Id. Moreover, the DOE consultant-psychiatrist stated that the existence of the support network discussed in Section IV.B.2 below, particularly the PAP monitoring mechanism, enhances the likelihood of the individual's success. Id. at 168, 172. Id. Finally, the DOE consultant-psychiatrist testified that he viewed the individual's prognosis as good. Id. at 168. After listening to the testimony of the OMD Director, the OMD Physician, the Clinical Psychologist, the individual's family physician, the individual, the individual's wife and the individual's co-worker and supervisor during the eight-hour hearing, the DOE consultant-psychiatrist testified a second time. When queried by the DOE Counsel as to whether he considered the individual to be rehabilitated as opposed to "on the way to complete rehabilitation," the DOE consultant-psychiatrist stated he would be comfortable saying he is rehabilitated. Id. at 369. The DOE consultant-psychiatrist reaffirmed his position on this matter in a post-hearing telephone conference with DOE Counsel. See Exhibit 20.

c. EAPRO consultant-psychiatrist

The EAPRO consultant-psychiatrist evaluated the individual on April 30, 1997 and opined that "the patient does not need intensive inpatient or outpatient therapy at the present time." See Exhibit F. The only treatment necessary in the opinion of the EAPRO consultant-psychiatrist was for the individual to continue routine medication management visits to his office every month. Id. (8)

2. Other Relevant Factors Affecting the Individual's Sobriety

The individual has an impressive network of people who have supported him in addressing his alcohol-related issues. Those same people have come forward and reaffirmed their commitment to supporting the individual in his efforts to maintain sobriety. The individual's wife testified that she will be sure he attends his AA meetings, takes his sleeping medication, and does everything that is essential to the recovery process. Tr. at 232. The individual's family physician also testified that he will continue to monitor the individual's progress and will assist him in facilitating his recovery. Id. at 212. The family physician opined further that the insomnia medication he prescribed for the individual will be sufficient to assist him in sleeping so that he will not resort to alcohol. Id. at 209. In addition, the OMD Director testified that the PAP will continue to monitor the individual's blood chemistries for as long as he remains an employee. Id. at 168. Finally, the EAPRO consultant- psychiatrist will monitor the individual's medication through monthly visits. Exhibit F.

The individual has also given his assurances that he will continue to take his sleeping medication, abstain from consuming alcohol, regularly attend AA, and keep his appointments with the EAPRO consultant-psychiatrist and his family physician. I accept the individual's assurances for several reasons. First, based on my observations of the individual's demeanor and listening to his testimony at the hearing, I found him to be sincere and honest. More compelling, however, is some objective evidence in the record regarding the individual's psychological profile. The Clinical Psychologist reported that the results of his testing of the individual revealed the profile of a man anxious to conform to the expectations of others. Exhibit E. The results also showed that the individual was disposed to avoid autonomy and independence and to conform his behavior to the rules of others. Id. The DOE consultant-psychiatrist also testified that, based on the results of the MMPI profile and the information obtained during his two-hour psychiatric interview with the individual, the individual is the kind of person who will do what he says he will. Tr. at 170. Based on the individual's compelling testimony at the hearing, his sincere demeanor, and expert testimony and documentary evidence regarding the individual's psychological profile, I believe the individual will conform his behavior to the rules of the workplace and abstain from alcohol completely in the future.

3. Summary

Based on all the evidence before me, I find that the individual has successfully mitigated the security concerns regarding his alcohol use. It is undisputed that the individual is not an alcoholic and does not suffer from alcohol abuse or alcohol dependence as those terms are defined in the DSM-IV. Rather, this case concerns a person who consumed alcohol to excess in the early morning hours of March 19, 1996, and whose elevated GGT levels suggest that his excessive alcohol consumption was not an isolated incident.

In evaluating the totality of all the evidence before me concerning the individual's manner of addressing his alcohol usage, a number of factors persuaded me that the individual has modified his behavior in a manner supportive of sobriety. The documentary and testimonial evidence demonstrates that the individual significantly reduced his alcohol consumption between March and October 1996, and has completely abstained from drinking since October 1996. The evidence also supports the individual's contention that he substituted prescription medication for alcohol to alleviate the insomnia he experiences when he is under stress. In addition, there is corroborating testimony that the individual has sought support from family and medical professionals and is using that support to ensure that he does not relapse. Moreover, I accorded much weight to the medical experts who testifed and provided documentary evidence in this case. At the hearing, the Clinical Psychologist remained unwavering in his conviction that the individual's alcohol problem is in remission, that the individual is at low risk of relapse, and in no need of further rehabilitation. As for the DOE consultant-psychiatrist, his views are now in accord with those of the Clinical Psychologist. After listening to the testimony of other witnesses at the hearing, including other medical professionals, the DOE consultant-psychiatrist reconsidered his earlier recommendations regarding the length of time and the treatment the individual needed to achieve rehabilitation. In essence, the DOE consultant- psychiatrist re-evaluated the individual at the hearing in light of new documentary and testimonial evidence not available to him during the psychiatric interview he conducted in October 1996.

Finally, based on the individual's psychological profile and the testimony of the Clinical Psychologist and the DOE consultant-psychiatrist, it is my predictive assessment that the individual will continue to abstain from consuming alcohol in the future. In making this finding, I also relied on the professional opinion of the Clinical Psychologist who asserted without reservation that individual's likelihood of relapse is low.

In summary, I find that the individual has mitigated all the concerns set forth in the Notification Letter. I find further, based on the cumulative weight of the evidence presented in this case, that restoring the individual's access authorization would not endanger the common defense and would be clearly consistent with the national interest.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R. § 710.8(j) in suspending the individual's access authorization. In view of the mitigating evidence presented by the individual, I 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, in my opinion, the individual's access authorization should be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: July 31, 1997

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).

(2)The DOE's Nuclear Explosives Safety Department immediately removed the individual from the PAP upon learning of his confirmed positive BAT. See Transcript of XXXX Hearing at 95.

(3)At the time of the test, the guidelines at the facility where the individual was employed required employees to refrain from consuming alcohol for eight hours prior to the beginning of their work shift, and, if tested, to have a blood alcohol level no higher than 0.04 mg/dl. The current guidelines at the same facility have lowered the BAT threshold from 0.04 to 0.02 mg/dl. Hearing Tr. at 299-300.

(4)During the hearing, a material, relevant, factual error in the record and Notification Letter was corrected. One of the concerns DOE cited in the Notification Letter as justification for invoking 10 C.F.R. §710.8(j) was a letter dated February 18, 1997 from the OMD Director to a DOE Contractor. In that February 18 letter, the OMD Director concluded that the individual had not stopped consuming alcohol as of January 1997. As explained at the hearing, the OMD's conclusion in that letter was based entirely on an empirically derived formula that was used to calculate the individual's estimated average monthly alcohol consumption from May 1996 through January 1997. See Exhibit 11. At the hearing, the OMD Director revealed that the empirically derived formula is no longer in use, explaining that the formula has been found to over-estimate a person's alcohol consumption by as much as 35 to 40 ounces of alcohol per month. Hearing Tr. at 112-120. Referring to a new formula based on a logarithmic conversion, the OMD Director testified that the results from the new formula support the individual's assertion that he has abstained from alcohol since October 1996. Id. at 139. The OMD Director revealed at the hearing that the application of the new formula to the individual's laboratory results has caused him to reverse his previously held position and recommend that the individual be readmitted to the PAP.

(5)There was some conflicting testimony at the hearing regarding when the individual began attending AA meetings. See Tr. at 229, 266, 268. The individual clarified this matter in a post-hearing Affidavit in which he attested that he began to attend AA on or about March 1, 1997. See Exhibit Q.

(6)The individual was not selected by the DOE to participate in EAPRO. Even though the parties introduced evidence into the record regarding eligibility requirements for EAPRO, I will not review the Office of Security's decision not to select the individual for inclusion in that program. Decisions regarding participation in EAPRO are not subject to review by a Hearing Officer. See Personnel Security Hearing, (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996); Personnel Security Hearing, (Case No. VSO-0005), 25 DOE ¶ 82,753 (1995).

(7)OMD obtained six blood samples from the individual between March 7, 1996 and October 1, 1996 that showed "substantially" elevated GGT levels. The individual's GGT levels ranged from a high of 285 to a low of 171. Exhibits 11, 17 and 18. The normal range for GGT levels is 0-85 according to one laboratory, 7-64 according to a second, and 0-53 according to a third. See Exhibits B, I and K. It was suggested at the hearing that the individual's elevated GGT levels might be caused in whole, or in part, by his obesity and diabetes. See id. at 99, 138, 212, Exhibit E. Ultimately, I concluded, after considering the testimony of all the medical professionals at the hearing, that the individual's obesity and diabetes did not contribute significantly to the elevated GGT levels. I was particularly persuaded by the evidence that the individual's GGT levels returned to normal after he ceased consuming alcohol. Exhibits 11, 17 and 18.

(8)The EAPRO consultant-psychiatrist did not testify at the hearing even though I had issued a subpoena to him to secure his telephone testimony. Repeated attempts to reach him by telephone during the hearing were unsuccessful.