Case No. VSO-0167, 26 DOE ¶ 82,801 (H.O. Wieker November 18, 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.

November 18, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:July 25, 1997

Case Number:VSO-0167

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

I. BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter to the individual. The Notification Letter stated that information in the possession of a Department of Energy Office (DOE Office) created a substantial doubt concerning the individual’s eligibility for an access authorization. The Notification Letter specified that the individual is “a user of alcohol habitually to excess” and is “alcohol dependent.” The Notification Letter referred to i) the diagnosis of the DOE consulting psychiatrist and ii) the individual’s three arrests (one in 1993 and two in 1995) for Driving While Intoxicated (DWI) and a fourth arrest (1996) for driving on a revoked license. Alcohol abuse and dependence are a security concern pursuant to 10 C.F.R. § 710.8(j) (Criterion J).

Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. A hearing provides “the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to demonstrate 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).

The individual requested a hearing. In accordance with 10 C.F.R. § 710.25(e) and (g), the Hearing was held. Eleven witnesses testified at the Hearing. Two witnesses were called by the DOE Office. The first was a DOE security specialist. The second was a DOE consulting psychiatrist. The individual called nine witnesses: i) his employee assistance program (EAP) counselor (the individual’s counselor), ii) his father, iii) his girl friend, iv) a co-worker, v) a personal friend, vi) three individuals that had each supervised the individual at different times, and vii) himself.

The individual admits that he has had serious problems as a result of his use of alcohol. Transcript at 21. The individual indicates he started drinking beer 6 years ago at the age of 21. He admits that he drank excessive amounts of beer. However, the individual indicates that he drank only on the weekends and he completely stopped drinking about twelve months prior to the hearing.

Given the individual’s admission that he has a serious alcohol problem, it is clear that the DOE properly invoked Criterion J. The individual’s description of his efforts to address the problem indicate I must consider “the absence or presence of rehabilitation or reformation and other pertinent behavioral changes.” 10 C.F.R. § 710.7(c). To recommend a restoration of the individual’s access authorization, I must be convinced that the individual is not likely to have any future serious problem with alcohol that could cause a security concern. The only evidence on this issue is i) the DOE consulting psychiatrist’s report and ii) the testimony at the hearing. In the two sections below I will provide a summary of the relevant testimony presented at the Hearing. I have quoted extensively from the testimony of the DOE consulting psychiatrist because he has succinctly and accurately framed the issues in this case, i.e., the nature of the individual’s alcohol problem and the individual’s efforts to address the problem.

II. TESTIMONY

A. Testimony of the DOE Consulting Psychiatrist

The DOE consulting psychiatrist diagnosed the individual as suffering from alcohol abuse and dependence. Transcript at 37 and DOE consulting psychiatrist report at 41. His diagnosis for these disorders is based on criteria set forth in the American Psychiatric Associations’s Diagnostic and Statistical Manual IV of Mental Disorders (DSM-IV). The DSM-IV Criteria for Substance Dependence are:

A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period.

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of the substance

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome of the substance . . .

(b) the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) the substance is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful effort to cut down or control substance use

(5) a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain smoking), or recover from its effects

(6) important social, occupational, or recreational activities are given up or reduced because of substance use

(7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption)

Specify if:

With physiological Dependence: evidence of tolerance or withdrawal (i.e., either Item 1 or 2 is present)

Without Physiological Dependence: no evidence of tolerance or withdrawal (i.e., neither Item 1 nor 2 is present)

DSM-IV at 181. The DOE consulting psychiatrist testified that the individual’s alcohol use satisfied five of the seven criteria. DOE consulting psychiatrist’s report at 39.

The DOE consulting psychiatrist explained the DSM-IV criteria for substance dependence when he stated,

[P]eople think of [substance dependence] in terms of physical dependence, like you have to be a daily drinker, but most people that have alcoholism are not daily drinkers, they are weekend bingers, and that's certainly the pattern of people who work, they will stay abstinent during the week and then drink every weekend.

But if you look at the actual criteria for substance dependence, there is nothing in there that says that you have to drink daily, except the first and second criteria . . . tolerance or evidence of withdrawal, which would be the kind of thing you would see in a daily drinker, someone who was, you know, drinking an addicting amount of alcohol every day.

Transcript at 46. Thus, the DOE consulting psychiatrist testified that an individual who confines his drinking to weekends may, nonetheless, be alcohol dependent.

According to the DOE consulting psychiatrist, the principal symptom of an alcohol dependent occasional drinker is the inability to moderate his consumption of alcohol. The DOE consulting psychiatrist provided a description of the occasional drinker who is alcohol dependent as well as a test which demonstrates whether a drinker is able to moderate his consumption of alcohol.

[DSM-IV criteria one and two] are applicable to so-called daily drinkers. You know, maybe I could give you this example. I mean, someone can drink a case a beer in a month and not be an alcoholic. You could drink one beer a day and skip four days out of the month and not have any medical, social or any other kind of problems, and that doesn't meet anybody's criteria for alcoholism or substance dependence.

. . . .

On the other hand, you could drink one case a month by having, you know, 12 beers one Saturday night and then two weeks later have 12 beers another Saturday night and just on the basis of the problems related to that kind of drinking be alcoholic or meet the criteria for substance dependence.

. . . .

[T]he main core of substance dependence is loss of control and inability to moderate your use of alcohol and to continue to drink in spite of problems. There is a test for alcohol dependence. You can tell somebody, "I want you to drink two beers a day for the next 30 days and then come back at the end of 30 days and tell me how it went." Somebody who doesn't have a problem with alcohol can do that very easily. Virtually no one with substance dependence can do that. You know, they'll do it for a week, two a day, and then it's the kind of thing where, you know, two feels better than one and three feels better than two and four feels better than three. I mean, it is something chemically different in the brain of people that have substance dependence problems, that sort of every drink feels better than the one before, and with every drink, you have less and less control to stop taking the next one. Most of the people that I see for DOE are not daily drinkers. I mean, if they are working, it's rarely that they are a daily drinker. The typical pattern is people that don't drink during the week and just drink on the weekends. In fact, when I hear somebody say, "I never drink during the week," that's a big clue to me that they've got a big problem, because there is no problem with drinking one drink, you know, on Wednesday and going to work Thursday, but if you know that if you drink one drink on Wednesday, you could wind up drinking ten and you have to get up and go to work in the morning. . . . [C]riteria three through seven really have nothing to do with whether you drink daily or drink just on the weekend.

Transcript at 49. Accordingly, the DOE consulting psychiatrist testified that lack of ability to moderate consumption, rather than the frequency of consumption, is the hallmark of certain forms of alcohol dependence.

The DOE consulting psychiatrist distinguished alcohol dependence from alcohol abuse.

[P]eople that have substance dependence have an inability to control their use of drinking, and that lack of control is beyond their ability to volitionally or willfully stop their drinking when they start drinking. Substance abuse is considered a more volitional abuse of alcohol for a variety of reasons, recklessness, carelessness, disregard for safety of self or others, hedonism, all sorts of reasons, but substance dependence, alcohol, is also synonymous with the -- some people use the term alcoholism, other people use the term substance dependence, alcohol. It's characterized by a couple of things. One is the inability to moderate one's use of alcohol once one starts drinking, to continue to drink in spite of adverse consequences to your health, your psychological well-being, your family, your job. There is a strong hereditary component to substance dependence, alcohol, alcoholism, per se.

Transcript at 38. To clarify the meaning of alcohol dependence the DOE consulting psychiatrist referred to a study which attempted to control the drinking of patients with alcohol related problems.

There have been attempts over the years to see if certain people with alcohol-related problems can learn to drink in a controlled way. Some people with substance abuse, alcohol, can learn to do that. There is a person at the University of New Mexico, William Miller, a psychology professor, who has spent literally a lifetime working on the idea that certain people can learn to drink in a controlled way, but on the other hand, the concept of substance dependence, alcohol, or alcoholism, is really designed to identify a group of people who, over time, have a very, very difficult time moderating their use of alcohol -- not that it can never be done, but it is very unlikely for somebody who meets the criteria for substance dependence, alcohol, to be able to drink in a controlled, moderate way over a prolonged period of time. They often can do it for weeks or months, but rarely can anybody do that over years without getting into trouble. So that's sort of -- that's really the main difference.

Transcript at 39. Thus the DOE consulting psychiatrist views alcohol dependence as a more serious problem than alcohol abuse.

The DOE consulting psychiatrist explained why he diagnosed the individual as alcohol dependent.

There are several types of substance dependence. The most common type, especially in New Mexico, is the type that sort of runs in males in the family and has an early age of onset, usually problems by late teens, early twenties. So that I would say that's the typical pattern of substance dependence, alcohol -- early onset, see it in generations, fathers, sons, brothers -- and it would be typical rather than atypical.

Transcript at 40. Thus the DOE consulting psychiatrist did not find it unusual that the individual had been drinking alcohol for a relatively short period of time -- five or six years.

The DOE consulting psychiatrist did not view the individual as rehabilitated. The DOE consulting psychiatrist testified that he believed that the individual had stopped drinking. However, he further testified that it was “[h]ighly unlikely that, say, within the next five years that he wouldn't relapse into drinking again, and that if he did that, the drinking wouldn't become problematic.” Transcript at 41. The DOE consulting psychiatrist cited data concerning relapse:

[E]ven people that go through treatment that are involved in AA have quite a high relapse rate. Somebody that has only had one-to-one counseling and has not been in a -- I'll just call it a recovery environment with other people in AA and is sort of a treatment program with other people having the same problems, somebody that's not had that would have even a higher chance of relapsing. One of the best correlates of sobriety is voluntary continued attendance at AA, simply because it's a recovering community of people that are helping one another. It's really a shame that he didn't do that. I mean, it's free, it's available, it's around, that would have improved his chance, but, you know, even people that go through alcohol treatment programs and go to AA have more than a 50 percent relapse chance within the year. So, you know, at this point, given that his clearance was suspended, his PSAP was suspended, and he knew that a hearing sort of thing was coming up, he had lots and lots of motivation to not drink, but I definitely believe it's more likely than not that within a few years he'd be drinking again, and given that he has substance dependence, alcohol, his drinking would become problematic again.

Transcript at 42. Thus, the DOE consulting psychiatrist concluded that, in light of the extent and magnitude of the individual’s problem, and the data concerning relapse, the individual’s treatment program did not warrant a conclusion that he was rehabilitated.

The DOE consulting psychiatrist testified concerning what he believed would constitute evidence of rehabilitation or reformation for the individual. The DOE consulting psychiatrist testified that he recommended either of two options: i) attendance at AA for a minimum of a hundred hours at a minimum of once a week for a minimum of a year or ii) satisfactory completion of an outpatient alcohol treatment program with a minimum of 50 hours of active treatment over a six month period and follow on counseling with recovering people for at least a year. Transcript at 42.

Finally, the DOE consulting psychiatrist evaluated the individual’s program and testified that the individual’s treatment thus far could count as six months of active treatment:

[T]he counseling that he’s had could count toward six months of that, I just also wanted him to be in a group with other people. There is such a denial with alcohol problems that it's much easier to see other people's problems than to see your own, and in an environment with other people with these kind of problems, after a while I think you start getting the picture that you also have a problem. . . .

. . . .

In terms of whether he has had adequate evidence of rehabilitation, I would say he's had half of it, he's had at least six months of individual counseling, and what he would need for the other half is to be involved in either AA or in some kind of outpatient alcohol program.

Transcript at 44. Accordingly, the DOE consulting psychiatrist’s conclusion is that the individual needs to be involved in AA or some similar group for a year before the individual can be considered rehabilitated from his substance dependence, alcohol.

B. Testimony Presented by the Individual

At the Hearing the individual was asked “Do you consider yourself an alcoholic?” He answered “Yes, I do.” Transcript at 23. He then testified that he quit drinking in September 1996. When asked what caused him to stop drinking, he replied “Like I said earlier, just because I had lost my clearance and just don’t get along with your family as good as I do now, and I just feel a lot better now that I have quit.” Transcript at 23.

The individual testified that his family consisted of his parents, sister, girl friend and one uncle. Transcript at 28. He testified that he lived with his family on his parents’ farm. He indicated that he spent a substantial portion of his off duty hours doing chores on the family farm. He testified that he had been drinking for five years, that he drank only beer and that he stopped drinking without stress or cravings. Transcript at 26, 28. He testified that his family had encouraged him to stop drinking and were supportive of his efforts to stop consuming alcohol. Transcript at 25. When asked if he ever intended to consume alcohol again he testified, “No, I don’t.” Transcript at 27.

The individual testified that for the last six to nine months he has been having regular group sessions with an EAP counselor (his counselor). He testified that he has had 16 group sessions and he testified that he planned to continue to see his counselor. Transcript at 28. When asked if he attended AA classes he stated that “I just didn’t. I just didn’t feel the need that I needed to go, because I haven’t had no problem since I quit drinking. . . .” Transcript at 26. He further indicated he has not attended any family counseling or any other structured rehabilitation support during his period of sobriety.

The individual called his counselor to testify. The counselor testified that the individual “has been conscientious about keeping his appointments.” Transcript at 71. The counselor indicated that the individual “has been insightful and had worked in a very specific way towards this difficulty.” Transcript at 71. His counselor further indicated the individual had no withdrawal difficulties (Transcript at 71) and he indicated the individual spends a substantial amount of time on farm activities and has obtained support from his family. Transcript at 73.

The counselor testified that when the individual originally came in he was defensive about his problem. In answer to the question “Now, have you seen a change in this defensiveness?” he answered, “Yes, I have. He’s much more readily able to recognize, I think, the problems, both in terms of damaged relationships, financial costs and whatever that the alcohol has caused him, and that’s a direct result of his alcohol consumption.” Transcript at 80. Finally he testified “I am confident that [the individual] will be able to maintain his sobriety.” Transcript at 81.

The individual provided supporting testimony from his father, girl friend and a close personal friend. Each person sees him regularly and confirmed that he is not currently consuming alcohol. His girl friend was very specific that he has not consumed alcohol since September 1996. His father was certain that the individual had not consumed alcohol in the last several months but was uncertain about the exact time he stopped consuming alcohol. His close friend testified that he has not seen him consume alcohol in the last twelve months and described an annual hunting trip. The close friend testified that on the hunting trip in previous years the individual had consumed alcohol. During the November 1996 hunting trip, (two months after he stopped drinking) the individual indicated that he was no longer consuming alcohol and he did not drink during that hunting trip.

Finally the individual brought forward the testimony of his current supervisor, two previous supervisors and a co-worker. All indicated he was an excellent worker. They all indicated he was punctual, reliable and attentive to detail. Each of these witnesses volunteered that they would like to have him work for/with them and thought highly of him.

III. ANALYSIS

The DOE consulting psychiatrist’s diagnosis is well documented in his report. His explanation at the hearing was clear and convincing. From the lack of any testimony, comment or questioning regarding the consulting psychiatrist’s testimony and report, I conclude that the individual and his counselor have accepted the consulting psychiatrist’s diagnosis of alcohol dependence as completely accurate. Therefore, the only substantive question in this case is whether the individual is rehabilitated from his alcohol dependence.

I am convinced that the individual has significantly reduced his consumption of alcohol over the last twelve months. I believe that during that period there have been only one or two minor slips from his stated goal of total abstinence. I believe that the testimony clearly indicates the individual’s alcohol problem is in remission. However, the relevant mitigating factor specified in § 710.7(c) that I am to consider is “the absence or presence of rehabilitation or reformation and other pertinent behavioral changes.” While a long period of remission may in and of itself constitute rehabilitation, I believe that in the case of alcohol dependence one year of remission must be combined with other elements to be considered rehabilitation. As the testimony above indicates, the DOE consulting psychiatrist explained in detail his belief that the individual is not rehabilitated from his alcohol problems. On the other hand, the individual’s counselor indicated that he believed the individual was rehabilitated. However, when questioned, the individual’s counselor indicated that the individual’s rehabilitation program had been somewhat limited. Transcript at 83. The individual’s counselor said that he has recommended that the individual add additional elements such as AA and support groups. However, the counselor indicated that the individual has not included those elements in his rehabilitation program. Transcript at 72. His counselor speculated that the individual’s inability to add those elements to his rehabilitation program may have resulted from limited available time as a result of the individual’s long commute and extensive farm chores. Transcript at 73. The individual confirmed that he had a long commute and that he regularly had farm chores. However, he seemed unsure why he had not attended AA meetings. He testified “I guess I just haven’t had the time to go, because there is one there in [town] close to my house. I just haven’t gone.” Transcript at 78.

From his testimony and demeanor at the Hearing, I do not believe that the individual completely understands the nature of his substance dependence. He testified that he was an alcoholic. However, I had the impression that he did not understand the nature of alcoholism or how to deal with the problem effectively. I believe the individual was sincere and truthful when he said he would not consume alcohol in the future. However, I am not convinced that the individual is accurately assessing the difficulties he will have in dealing with his problem nor has he realistically evaluated his ability to fulfill his commitment not to drink in the future. I therefore find that his promise not to drink in the future, while sincerely given, is not persuasive.

One example of why I think he is not realistic is his testimony explaining why he stopped drinking. He indicated he stopped drinking because drinking “just caused a lot of problems with my family and the job and is just expensive.” Transcript at 16. He never referred to his inability to moderate his consumption of alcohol or that he had an alcohol dependence. This simplistic assessment of his reasons for not drinking suggests the individual does not fully appreciate the risk posed by resumption of any alcoholic consumption. A second example of his limited understanding of his dependence was his testimony regarding the reason he has not attended AA sessions. He indicated he did not attend those sessions because, since he stopped drinking, he has not had any problem. Transcript at 26. My evaluation of his testimony at the Hearing is that he has not recognized nor accepted the long term nature of his problem.

The individual does recognize that alcohol consumption has caused him a number of problems. However, once those problems are resolved, I believe his limited understanding of his dependence will leave little reason for him to continue his sessions with his counselor or continue his sobriety. Further, his failure to recognize his dependence indicates an increased likelihood that he will revert to his prior behavior. Thus I agree with the DOE consulting psychiatrist when he testified that “. . . it’s more likely than not that within a few years he’d be drinking again, and given that he has substance dependence, alcohol, his drinking would become problematic again.” Transcript at 42.

The strongest element in the individual’s rehabilitation program is living and working part time on the family farm. He has regular contact with his extended family during a large portion of his time that he is not working at the DOE site. This daily contact, support and encouragement are certainly a positive element in his efforts at rehabilitation. However, the testimony of his father and girl friend indicated to me that his family is not fully involved in his rehabilitation effort. While both his father and girl friend understood that he is in serious difficulty as a result of his drinking, they did not appear to accept that he has a serious and long term problem. It was my impression that the individual had not shown his family the DOE consulting psychiatrist’s report. The individual’s testimony indicated he is not ready to provide his family with full information about his problem. This lack of information and the lack of any family counseling element in his rehabilitation program reduce the ability of his family members to appreciate the seriousness of the individual’s problem and to understand the type of support the individual will need. I believe the individual’s failure to fully inform and involve his family is another indication that the individual has not developed a complete and effective rehabilitation program. Apparently the individual is suffering from the denial that the DOE consulting psychiatrist indicated was common with alcohol dependence. Transcript at 42. My evaluation is consistent with the DOE consulting psychiatrist’s belief that the individual has not taken steps to fully admit and come to grips with his problem.

Finally, during the hearing I had the impression from the individual’s demeanor that he did not fully understand the DOE consulting psychiatrist’s report. I am not sure whether he did not read the report or did not understand the report after he read it. My impression from the testimony of the family members was that the individual had not asked them for help in understanding the DOE consulting psychiatrist’s report. In addition the testimony was clear that the individual did not show the report to his counselor. The individual’s failure to obtain help in understanding the report is another indication of the individual’s failure to accept that he has a long term serious problem. This aspect of the individual’s denial reduces the likelihood of his long term rehabilitation.

After evaluating the testimony submitted in this proceeding, I cannot conclude that the individual is rehabilitated with respect to his alcohol dependence.

IV. CONCLUSION

I have not been persuaded by the individual that restoring his access authorization would be clearly consistent with the national interest. Accordingly, I find 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 the 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, 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.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: November 18, 1997