Case No. VSO-0154, 26 DOE ¶ 82,794 (H.O. Woods September 22, 1997)

Case No. VSO-0154, 26 DOE ¶ 82,794 (H.O. Woods September 22, 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.

September 22, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: April 23, 1997

Case Number: VSO-0154

This Opinion considers the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, it is my opinion that the individual's access authorization should not be restored.

I. BACKGROUND

The individual is an employee of a Department of Energy (DOE) subcontractor. In late March 1997, a DOE Official, acting with authority from the DOE Office of Safeguards and Security, suspended the individual's access authorization and initiated the current administrative review proceeding through the issuance of a Notification Letter to the individual. The Notification Letter alleges 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," which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J).

The Notification Letter makes numerous allegations with respect to Criterion J, which are described in the "Findings of Fact" section below. Among these allegations is the conclusion of a DOE- consultant psychiatrist (hereafter "the DOE psychiatrist") that the individual suffers from the disorder of alcohol abuse. The Notification Letter explains that the individual's conduct with respect to alcohol causes the DOE to have substantial doubts about his continued eligibility for access authorization.

In his Response, the individual requested a hearing to respond to the concerns raised in the Notification Letter. In this Response, he admitted that he has a "drinking problem" and generally admitted the correctness of the information presented in the Notification Letter. Accordingly, the hearing convened on this matter focused on the issue of whether the individual's participation in a program of rehabilitation is sufficient to mitigate the DOE's concerns regarding his past actions with regard to alcohol and his diagnosis of alcohol abuse. The individual and seven other witnesses, three presented by the DOE and four by the individual, testified at the hearing. The hearing officer closed the record of the proceeding on August 25, 1997, following the receipt of a post-hearing submission and exhibits by counsel for the individual and a statement from the DOE counsel that he did not intend to submit a response.

II. FINDINGS OF FACT

In the Notification Letter, the DOE presents information concerning the individual's use of alcohol that the individual provided to the DOE during a November 1996 Personnel Security Interview (PSI). This information can be summarized as follows:

(1) The individual estimated that in the Spring of 1994, he consumed about two six-packs of beer every two to seven days, that this period of heavy drinking continued for about a month, and that he experienced a "blackout" once during this period when he drank too much.

(2) His ex-wife regularly complained about his drinking while they were married, and his current girlfriend has told him that she does not like the way he acts when he drinks.

(3) In June 1994, he was arrested for Reckless Driving and Driving While Intoxicated (DWI). He was sentenced to two days in jail, required to attend DWI school, and his license was revoked for 90 days.

(4) In October 1996, he was arrested for DWI. He failed the field sobriety test. He submitted a breath test and the factual results were .10/.09. In November 1996, the state motor vehicles division revoked his driver's license for one year.

The Notification Letter also summarizes the findings of the DOE psychiatrist who evaluated the individual in January 1997 and concluded in his February 3, 1997 Report to the DOE that the individual suffers from the disorder of alcohol abuse. The Notification Letter presents the following information from this Report:

(1) The individual most likely has had drinking problems for the past few years since there is good reason to think that it was a major reason why his wife divorced him. He maintained sobriety for a couple of years prior to the divorce, but then drank heavily following his divorce in the beginning of 1994. Since that period of time, his drinking problem has become more serious in that he has had two DWI arrests.

(2) He indicated that he does drink occasionally and that in December 1996 he consumed a six pack and three mixed drinks, with two beers being consumed at Christmas and two mixed drinks on New Year's Eve. He indicated that his would be a typical drinking pattern that he would hope to maintain.

(3) There is not adequate evidence of rehabilitation and reformation. The individual still appears to be in denial when dealing with his alcohol problem.

There are no material disagreements about the factual information contained in the Notification Letter. In his Response, the individual provides the following description of his drinking in the context of his marriage and in his post-marriage relationship with his girlfriend:

The main cause for my divorce was infidelity on my ex-wife's part. From the time I was made aware of her infidelity I began drinking heavily and it was in this time frame that I received my first DWI. ... It is true that my ex-wife complained about my drinking. That is why during my marriage there were extended periods of sobriety and I only occasionally drank. When I do drink, I become very friendly and my girlfriend always accused me of flirting. Because of her intense jealousy, she preferred that I did not drink.

Response at 2. I find that his description agrees with the allegations contained in the Notification Letter with a couple of minor exceptions. Both the individual's Response and his testimony at the hearing indicate that the individual's divorce was finalized in January 1995 rather than January 1994. At the hearing, the individual testified that he began to drink heavily at the beginning of the breakup of his marriage, and that this led directly to his June 1994 DWI. Transcript of July 10, 1997 Hearing (hereafter "Tr." at 21 (see also PSI at 10-11).

In his Response, the individual also described actions with regard to his drinking that he has taken since his PSI and his psychiatric interview.

I am no longer in denial and admit that I have a drinking problem and have realized that I cannot moderately drink. I have recently started attending Alcohol Anonymous Meetings and have been talking privately with an AA Sponsor.

At the hearing, the individual and his witnesses provided further information concerning his rehabilitation program. According to the individual's counsel, this testimony and accompanying exhibits were aimed at establishing the following:

He initially saw a psychologist every week for two months;

He has since been going to the DOE's Employee Assistance Program (EAP), and sees the EAP counselor once a week;

Since the beginning of March, he has been going to Alcoholics Anonymous (AA) meetings virtually every day;

He is an admitted alcoholic, and has committed himself to absolute sobriety. He has not had a drink since December 31, 1996; and

He is doing everything he can to make sure that he never again drinks, and he has developed coping mechanisms when he is in crisis so that he will not turn to drink.

See Opening statement of individual's counsel, Tr. at 10-11.

III. REGULATORY STANDARD

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. §§ 710.21(b)(6) and 710.27(b), (c) and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. The hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. §710.21(b)(6). The individual must come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. §710.27(d). Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA-0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, we generally expect the individual in these cases to bring forward witness testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

B. Basis for the Hearing Officer's Opinion

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue an Opinion as to whether granting an access authorization 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 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). I must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing. The regulations require that I make specific findings as to the validity of each allegation in the Notification Letter. 10 C.F.R. § 710.27(c).

IV. ANALYSIS

In this case, the individual admits that he is an alcoholic (Tr. at 13) and accepts the diagnosis of alcohol abuse made by the DOE psychiatrist. There is therefore no question that this case raises a Criterion J security concern. However, a finding of derogatory information does not end the evaluation of the evidence concerning the individual's eligibility for access authorization.

In the present case, the individual contends that there are mitigating factors that alleviate the agency's Criterion J security concerns and justify the restoration of his security clearance. Specifically, the individual asserts that he stopped drinking on December 31, 1996 and has not taken a drink since. He further asserts that as a result of the alcohol counseling he has received through the EAP and AA programs, and his firm intention to continue to participate in these programs, he is sufficiently rehabilitated from his past alcohol abuse to pose no threat to DOE security.

In evaluating whether the derogatory information has been mitigated, I have considered the factors set forth in Section 710.7(c): the nature, extent, and seriousness of the individual's conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

I have reviewed the testimony and submissions in this case in light of these factors, evaluating the Report and testimony of the DOE psychiatrist concerning the severity of the individual's condition of alcohol abuse as well as the seriousness of the individual's past actions arising from that condition. I have assessed the individual's evidence of rehabilitation in light of this derogatory information. As indicated below, I find that the evidence in this proceeding indicates that the individual is not fully rehabilitated from alcohol abuse at this time. I therefore find that the individual's access authorization should not be restored.

A. Derogatory Information

The facts concerning the individual's past consumption of alcohol are not disputed by the individual, who acknowledges that he is an alcoholic (Tr. at 13). The individual also does not dispute that he was arrested for DWI on the two occasions. It is also undisputed that the DOE psychiatrist is a board-certified psychiatrist whose opinion is that the individual suffers from alcohol abuse. The DOE psychiatrist made this determination in his February 1997 report and affirmed that evaluation after listening to the individual's testimony at the hearing.

DOE counsel: "... at that time it was your opinion that [the individual] did suffer from alcohol abuse as defined in the DSM-IV, is that correct?

DOE psychiatrist: "That's correct."

DOE counsel: "Okay. You've heard his testimony here today. Has your opinion changed any since hearing his testimony today on this issue?

DOE psychiatrist: "No, in fact, I think he now more acknowledges that this is the diagnosis for his problem than he did when I first saw him.

Tr. at 60. Finally, the individual's EAP counselor, who testified at the hearing, did not disagree with the DOE psychiatrist's diagnosis of alcohol abuse. His description of his work with the individual clearly indicates that he treated and counseled the individual as a recovering alcoholic. Tr. at 84-91.

B. Mitigating Factors

In support of his position that he is rehabilitated from alcohol abuse, the individual acknowledges that he is an alcoholic and states that he has totally abstained from alcohol since December 31, 1996. He also states that he has no intention to resume drinking, and is participating in AA and in a substance abuse EAP counseling program that effectively monitors his behavior. Finally, he has presented evidence that his current level of job performance is extremely good. I will consider the impact of each of these mitigating factors below.

In order to determine that the individual has mitigated the security concerns regarding his alcohol abuse, I must find sufficient rehabilitation or reformation, such that it is highly unlikely that the individual would abuse alcohol in the future. In making a determination on this issue, I place great weight on the testimony of the DOE psychiatrist, a medical expert in this area who evaluated the individual and observed his testimony at the hearing. In his February 1997 Report, the DOE psychiatrist stated that he would consider as adequate evidence of rehabilitation the successful completion of "[a] fairly structured type of treatment over a fairly long period of time (e.g., a year or two)." Report at 9. He provided the following description of such a program.

Structured outpatient treatments such as day treatment programs, intensive outpatient treatment programs, or traditional outpatient programs would possibly all be adequate if followed through rigorously. [The individual] has already entered voluntarily into Alcoholics Anonymous and attends once per week. This may well be adequate treatment by itself if the meetings were increased in frequency, at first perhaps on a daily basis for a few months. He has no sponsor and a sponsor within AA would likely be helpful.

Id. In the Report's final summary, he describes why he believes that a lengthy period of time in a structured program is necessary for this individual.

[The individual] suffers from alcohol abuse as defined in DSM-IV. There is not adequate evidence of rehabilitation since he continues to drink, albeit in moderation, and is still in some denial regarding the seriousness of his drinking problem. His inconclusive laboratory test evaluations leave open the possibility that he has been still drinking somewhat heavily, although the tests are not at all proof that this is occurring.(1) [The individual] has had three previous brief enrollments in Alcoholics Anonymous and following this DWI he re-enrolled himself in AA. He indicated a commitment to maintaining abstinence if this were required of him. I do recommend abstinence for a period of at least two years. I feel this length of time in a structured outpatient treatment program would be necessary for adequate evidence of rehabilitation and reformation.

Id., at 9-10.

At the hearing, the DOE psychiatrist heard testimony concerning the individual's rehabilitation program and questioned the individual concerning his progress. The individual stated that he stopped drinking alcohol on December 31, 1996, Tr. at 22, and does not intend to drink in the future. Tr. at 34. These assertions were supported by the testimony of his girlfriend, who stated that she had not seen him take a drink since 1996. Tr. at 110-111. She noted that his attitude had improved since the beginning of the year. Id. She also stated that she supported his sobriety and would not tolerate excessive drinking by the individual. Tr. at 112-113. The individual's current supervisor testified that he had no indication that the individual had used alcohol in 1997 and that the individual was performing job functions exceptionally well.(2) Tr. at 127-128. The individual's EAP counselor also testified that the individual's appearance and his level of progress in their counseling sessions are consistent with abstention from alcohol. The EAP counselor stated that the individual had agreed to submit to unannounced drug tests, and that the two tests administered to date were negative for alcohol and drugs. Tr. at 87-91. The testimony at the hearing thus supported the individual's claim that he has abstained from the use of alcohol from December 31, 1996 through June 1997, a period of six months.(3)

In addition, the individual's testimony and supporting testimony and materials indicates that he has actively pursued a program of rehabilitation. Beginning in January 1997, the individual attended group counseling sessions with a court-appointed alcohol and drug counselor. Tr. at 23. The state traffic court required the individual to attend these sessions as a result of his October 1996 DWI. He attended these sessions once a week for a period of ten weeks. Id. In March 1997, the individual began to attend AA meetings on a regular basis.(4)He has acquired an AA sponsor who assists him in working the steps of the AA program. Tr. at 41-42. On February 25, 1997, the individual began to meet regularly with the EAP counselor, a licensed clinical mental health counselor, at the DOE facility where he works. At the time of the hearing he had attended 15 counseling sessions with the EAP counselor, who testified that the individual has been conscientiously attending and participating in these sessions and has developed an emotional attachment to his recovery. Tr. at 87-89.

The DOE psychiatrist, who listened to the individual's testimony, stated that, while the individual had made significant progress, he had not yet engaged in his program for a period of time long enough to constitute rehabilitation or reformation. He explained that at least a one year period of sobriety was generally recognized as essential to demonstrating rehabilitation and reformation. In this regard, he noted that in the Fourth Edition of the Diagnosis and Statistical Manual of the American Psychiatric Association (the DSM-IV) the determination of whether a person is in the early stage or the sustained stage of remission from active drinking is defined as one year of sobriety. Tr. at 61. He explained why this one year period was reasonable with regard to the treatment of alcoholism in general and the individual's drinking patterns in particular.

[t]hrough a whole year you generally go through that period of time, the types of triggers that a person might have to deal with in remaining sober. You go though all the major holidays. And, in [the individual's] case, for instance, he had trouble with New Year's Eve, which is a tough time for many alcoholics. It's a long enough period of time just in terms of duration that you will go through things like problems in a relationship, or issues like that that take some period of time to give you enough exposure to show that you're able to handle these problems that are coming up.

Tr. at 62. He also stated that the individual had indicated in the January interview that he had previously maintained periods of sobriety of up to a year and a half prior to his relapse into alcohol abuse. The DOE psychiatrist testified that for these reasons he had concluded in his Report that a year or two of structured outpatient treatment was necessary to demonstrate rehabilitation and reformation. Tr. at 62-63. See Report at 9-10.

Based on his earlier evaluation of the individual and his observation of the individual at the Hearing, the DOE psychiatrist stated that he now believed that one full year of sobriety and adherence to his current program would be necessary for the individual to demonstrate rehabilitation:

The bottom line assessment that there is not yet adequate evidence of rehabilitation and reformation has not changed. I think he has improved significantly from when I saw him. He had fairly heavy use of denial, blaming things on wives and girlfriends, and making statements like, anybody can get DWI, saying he didn't think he was weaving when he got pulled over for the recent DWI, those fairly heavy denials I don't see today. Although I still think that, for the reasons I explained earlier, that I don't think there is yet adequate evidence of rehabilitation and reformation. I think that would be present if he was able to continue this for a period of a year.

Testimony of DOE psychiatrist, Tr. at 65.

The individual's EAP counselor shared the DOE psychiatrist's view that the individual was not yet rehabilitated. He indicated that a two-year program of treatment and monitoring would bring the individual to full rehabilitation. At the Hearing, the following dialogue took place between the EAP counselor and the Hearing Officer:

Hearing Officer: At this point in his rehabilitation, ... do you consider [the individual] fully rehabilitated?

EAP Counselor: No, no, no, I think we have a ways to go.

Hearing Officer: What would you see that path being?

EAP Counselor: I'd like him to stay with his AA, with that support group. I'd like to see him stay in counseling for this next year. I'd like to see him - I think the DOE has laid out a very good pattern in their EAPRO program where they stay in - look more intensely the first year, and then the second year, what they do is, they drop back and they do quarterly unannounced testing, and a least monthly a face-to-face contact.

Tr. at 96-97.

In the administrative review process, it is the Hearing Officer who has the responsibility for making the initial decision as to whether an individual with alcohol problems has exhibited rehabilitation or reformation. See 10 C.F.R. § 710.27. The DOE does not have a set policy on what constitutes rehabilitation and reformation from alcohol abuse, but instead makes a case-by-case determination based on the available evidence. Hearing Officers properly give a great deal of deference to the expert opinions of psychiatrists and other mental health professionals regarding 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 cases filed with this Office, it is very rare for a psychiatrist to find reformation or rehabilitation where an individual has been abstinent for less than one year. See Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996) (Hearing Officer who found individual rehabilitated from alcohol dependency based on a 28-day inpatient treatment program and three months' abstinence was found on appeal not to have considered the psychiatrist's testimony that the passage of time was an important factor in lowering the risk of relapse). This is because, as the DOE psychiatrist stated at the hearing, a period of one year is generally viewed as necessary to reach a state of sustained remission. Tr. at 61.

While I am persuaded that the individual sincerely intends to abstain from alcohol and has been conscientiously attending AA meetings and counseling sessions, I am unable to find that there has been sufficient rehabilitation or reformation to mitigate the DOE's security concerns. My position is based primarily on the relatively short period of time in which the individual has been abstinent and the expert testimony by both the DOE's board-certified psychiatrist and the individual's EAP counselor. These same considerations have led Hearing Officers in other recent DOE security clearance cases to find that there was insufficient rehabilitation or reformation. See Personnel Security Hearing (Case No. VSO- 0079), 25 DOE ¶ 82,803 (five months); Personnel Security Hearing (Case No. VSO-0031), 25 DOE ¶ 82,770 (1995) (nine months); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (eight months); Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,609, aff'd, Personnel Security Review (Case No. VSA-0029), 25 DOE ¶ 83,003 (1995) (four months); Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, Personnel Security Review (Case No. VSA-0018), 25 DOE ¶ 83,006 (1995) (five months).

Counsel for the individual contends that the facts in this proceeding closely resemble another recent case before this Office where the Hearing Officer found that the individual was rehabilitated from alcohol abuse. Personnel Security Hearing (Case No. VS0-0130), 26 DOE ¶ 82,779 (1997) (Request for Review pending). In that instance, the individual also admitted to alcohol abuse, and had participated in a rehabilitation program for six months. The Hearing Officer noted the following:

As stated above, the DOE psychiatrist testified that while the individual "is doing very well" in his recommended treatment programs and will "not likely" return to drinking alcohol, the individual needs continued abstinence from alcohol and more treatment before all of the DOE's concerns are alleviated.

26 DOE at 85,706. The Hearing Officer then made a finding that the individual was "sufficiently rehabilitated and reformed" from alcohol abuse and that his access authorization should be restored. The Hearing Officer identified three major factors in making this finding - (1) the DOE psychiatrist's opinion that the individual's alcohol abuse was "in remission," and that relapse was not likely; (2) the individual's ability to establish substantial progress in his rehabilitation program over a six month period prior to the hearing; and (3) a finding that the individual was committed to continuing his rehabilitation activities for the required period. 26 DOE at 85,707.

I am not convinced that the information relied upon by the Hearing Officer in that case supports his finding that restoration of the individual's access authorization is appropriate. However, the information in the record of this proceeding clearly indicates that the individual is not yet rehabilitated and reformed and that therefore his access authorization should not be restored. In the present case, the DOE psychiatrist has indicated that the individual still remains at an unacceptable level of risk for relapse until he has completed a full year of sobriety. As noted above, the DOE psychiatrist specifically found that the individual's previous ability to maintain fairly lengthy periods of sobriety prior to a relapse requires an extended period of rehabilitation. He also found that the rehabilitation period should extend through all the major holidays, due to the individual's acknowledgment that he drank on New Year's Eve in 1996. Tr. at 62. In this regard, I note that the DOE psychiatrist's Report also indicates that the individual acknowledged drinking two beers at Christmas. Report at 4.

Counsel for the individual argues that the DOE psychiatrist has indicated that the individual's risk of relapse is already at an acceptable level. When asked at the hearing to quantify the individual's current risk of relapse in comparison to the risk of relapse following a full year of rehabilitation, the DOE psychiatrist responded as follows:

As of today, what are the percent chances of his not having a relapse in five years? Picking a number kind of out of a hat, I would say 66 percent, two-thirds chance. If he would go a year, I'd move it to, and again picking it out of a hat, 75 percent. And if he went two years I'd move up to 90 percent. And I probably should have stuck with my first statement and not given the numbers ....

Tr. at 75. At the hearing, counsel for the individual argued that a difference of only nine percentage points in risk of relapse between six months and a full year of rehabilitation should not be viewed as a significant extra level of risk by the DOE. Tr. at 135. I do not agree that this testimony from the DOE psychiatrist supports the position advocated by the individual's counsel. It is clear from the language quoted above that the DOE psychiatrist was uncomfortable with attempting to quantify the individual risk of relapse at specific points in his recovery process. His use of the phrase "picking a number kind of out of a hat" indicates that these figures are only estimates that cannot be precisely relied upon. Far more convincing to me is his testimony, presented above, concerning the importance of a full year in testing this individual's ability to maintain his recovery. It is clear from this testimony that the DOE psychiatrist firmly believes that the individual has not yet demonstrated rehabilitation and reformation from his condition of alcohol abuse. See Tr. at 65. I find the DOE psychiatrist's evaluation to be reasonable and persuasive, and accept his conclusion that rehabilitation and reformation has not yet occurred.(5)

At the hearing, counsel for the individual argued that by the time this decision is issued, the individual will have completed nine full months of sobriety and rehabilitation. In a post hearing submission dated August 22, 1997, she submitted additional evidence consisting of AA sign-in sheets and an August 18, 1997 statement from the EAP counselor that indicate that the individual is continuing with his rehabilitation program. For the reasons discussed above, I do not believe that evidence of less than a full year of sobriety and rehabilitation is adequate to support the restoration of access authorization in this case. Accordingly, the information in this post hearing submission does not affect my findings concerning rehabilitation and reformation.

Finally, counsel for the individual asserts that because the DOE psychiatrist initially was prepared to recommend the individual for the DOE's EAPRO program, it should be possible to permit the individual to maintain his access authorization provided that there is close supervision to ensure that the individual will not relapse and compromise national security.(6) At the hearing, counsel for the individual presented testimony aimed at establishing that the individual's involvement in AA, the support he receives from his girlfriend, and his voluntary participation in the EAP counseling and monitoring program provide the same safeguards against relapse as formal participation in the EAPRO program. She argues that these safeguards make it possible to restore the individual's access authorization even though he is not yet fully rehabilitated from alcohol abuse. See Tr. at 133-37.

I do not agree. The DOE's Employee Assistance Program Referral Option (EAPRO) allows a clearance holder who admits to having a substance abuse problem to maintain his access authorization, provided that the individual abstains from the substance and enters a rehabilitation program. EAPRO, however, is designed for cases that have not been referred for administrative review under 10 C.F.R. Part 710, and the determination by DOE Security on whether to offer EAPRO to an employee is not subject to review by a Hearing Officer. See Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995) aff'd, Personnel Security Review (VSA-0005), 25 DOE ¶ 85,013 (1995). Nor do I believe it appropriate for a Hearing Officer to recognize a particular rehabilitation program as comparable to EAPRO for purposes of permitting an individual to maintain access authorization during the rehabilitative process.(7)

After hearing extensive testimony concerning the individual's rehabilitation program and the support he is receiving from his girlfriend, the DOE psychiatrist continues to view the individual as not fully rehabilitated from alcohol abuse. Tr. at 113. The individual's EAP counselor shares this view. Tr. at 96-97. Accordingly, I believe that it would not be appropriate to restore the individual's access authorization at this time. For the reasons discussed above, the individual's risk of relapse remains unacceptably high. In the clear absence of rehabilitation and reformation, I cannot find that restoring access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

V. CONCLUSION

For the reasons set forth above, I find that the individual suffers from the disorder of alcohol abuse, as diagnosed by a board-certified psychiatrist. Further, in resolving the issue concerning the individual's eligibility for access authorization, I find that this derogatory information has not been mitigated by sufficient evidence of rehabilitation and reformation. After considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, it is my opinion that the individual has not demonstrated that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., SW, Washington, DC 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which 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 within 20 days of receipt of the statement.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: September 22, 1997

(1)In his Report, the DOE psychiatrist notes that a blood test performed on the individual in January 1997 indicated an elevated liver function for the enzyme GGT, which is a potential indicator of excessive drinking. However, he concluded that the individual's elevated GGT appeared to be related to the individual's condition of hyperlipidemia (high levels of triglycerides in his cholesterol) rather than to the individual's consumption of excessive amounts of alcohol. He also noted that hyperlipidemia can itself be exacerbated by heavy consumption of alcohol, but in this case was most likely due to the individual's obesity. Report at 7-8.

(2)The individual currently is performing job functions that do not require a security clearance.

(3)The DOE psychiatrist's Report indicates that at the time of the psychiatrist's January 1997 interview with the individual, the individual did not inform him that he had resolved not to drink after December 31, 1996. However, at the Hearing, the DOE psychiatrist was satisfied that the individual's statement that he took his last alcoholic drink on December 31, 1996 did not contradict anything he said in the January 1997 interview. The DOE psychiatrist stated that for purposes of his evaluation, he would measure the individual's period of sobriety as beginning on January 1, 1997. Tr. at 76-77.

(4)At the hearing, the individual submitted sign-in sheets from AA meetings indicating that from March 16, 1997, he has attended AA meetings four or five times a week. See Individual Exhibit 1.

(5)Moreover, in my opinion, even the imprecise estimates of risk of relapse provided by the DOE psychiatrist (33% versus 25%) show a significant difference between six months of rehabilitation and a full year.

(6)In an initial draft of his February 3, 1997 Report (the Draft Report), the DOE psychiatrist stated that "[the individual] appears to be a suitable candidate for the Employee Assistance Program Referral Option (APR). He appears eligible to participate in that he is most likely not currently consuming alcohol to excess." Draft Report at 10. A copy of the Draft Report was provided to counsel for the individual by DOE counsel and introduced at the hearing as Individual Exhibit 3.

(7)In addition to being inappropriate, there are substantial practical difficulties to such an approach. If I were to attempt to assess whether the individual's rehabilitation program provides sufficient safeguards to permit a restoration of access authorization, I also would have to evaluate the level of risk to DOE personnel posed by certain aspects of the individual's job duties being performed by someone who is still in treatment for alcohol abuse. Tr. at 119, 137. As a local program, EAPRO is much better suited to make these kinds of risk assessments.