Case No. VSO-0221, 27 DOE ¶ 82,792 (H.O. Cronin February 16, 1999)

Case No. VSO-0221, 27 DOE ¶ 82,792 (H.O. Cronin February 16, 1999)

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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.

February 16, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:July 7, 1998

Case Number:VSO-0221

This Opinion concerns the eligibility of XXXXXXXXXX (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.” (1) The Individual’s access authorization was suspended by the Manager of a Department of Energy (DOE) Operations Office pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the Individual’s access authorization should not be restored.

I. Background

A. Procedural History

The Individual is an employee at a DOE facility. Pursuant to a reinvestigation as to his eligibility for continued access authorization, the Operations Office discovered potentially derogatory information concerning the Individual's consumption of alcohol. The Operations Office subsequently conducted a Personnel Security Interview with the Individual on February 24, 1998. See DOE Exhibit 2. Since the security concern remained unresolved after the PSI, the Operations Office requested that the Individual be interviewed by a DOE consultant psychiatrist (DOE Psychiatrist). The DOE Psychiatrist interviewed the Individual on April 28, 1998, and issued an evaluation to the

DOE on May 7, 1998, in which he concluded that the Individual was “a user of alcohol habitually to excess.” DOE Exhibit 4-A.

The Operations Office ultimately determined that the derogatory information concerning the Individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved in a manner favorable to the Individual. Accordingly, the Operations Office suspended the Individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

After the Manager of a DOE Operations Office has authorized the suspension of an individual’s access authorization, and has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the suspension and provided “the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (a 'hearing').” 10 C.F.R. §§ 710.10(b), (d), 710.21(a), (b)(3). If a hearing is requested, the individual [has] the right "to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and . . . to be present during the entire hearing . . . .” 10 C.F.R. § 710.21(b)(7).

The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See June 10, 1998 Letter from Director, Safeguard and Security Division, DOE Operations Office, to Individual (Notification Letter); 10 C.F.R. § 710.21. That letter informed the Individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the Individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The Individual requested a hearing, and the DOE forwarded the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. A telephone conference and hearing were subsequently held pursuant to 10 C.F.R. § 710.25(f) and (g). At the hearing, the DOE Counsel presented two witnesses, the DOE Psychiatrist and a Personnel Security Specialist. In addition to the Individual, four witnesses testified on his behalf: a licensed master's degree social worker, a member of his current Alcoholics Anonymous group, a past supervisor and the Individual's wife.

B. The Basis for the DOE’s Security Concern

The derogatory information cited in the Notification Letter issued to the Individual falls within the ambit of paragraph (j) of 10 C.F.R. § 710.8 (Criteria J). See Enclosure 2 to Notification Letter. Specifically, the Notification Letter states that the DOE possesses information indicating 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.” Id.; see 10 C.F.R. § 710.8 (j). The Individual admits to having an alcohol problem but believes he is now rehabilitated since he has recently completed an alcohol treatment program.

C. The Standard for Review

“The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). In considering the question of the Individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors.

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding in which the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, (Case No. VSO-0078), 25 DOE ¶ 82,202 (1996), aff’d, Case No. VSA- 0078, 25 DOE ¶ 83,016 (1996) (affirmed OSA, 1996). 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). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to 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). See Personnel Security Hearing, (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed OSA, 1996), and cases cited therein. This standard implies that there is a strong presumption against the granting or restoring of 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). For the reasons discussed below, I find that the individual has not met his burden in this case.

II. Analysis

A. Findings of Fact under Criterion J

Criterion J pertains to information 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).

The facts regarding his alcohol usage and his prior attempts at rehabilitation are essentially undisputed in this case and are briefly presented below as my findings of fact in this case.

The Individual has been arrested for Driving While Intoxicated (DWI) on five occasions: September 1981; November 1981; March 1983; May 1983; and July 1989. (2) See DOE Exhibits 1-A, 1-B, 7 and 8. (3) On January 11, 1985, the Operations Office conducted a PSI with the Individual regarding issues raised by his DWIs and his consumption of alcohol. DOE Exhibit 3-B. At this PSI the Individual stated that prior to his arrest in March 1983, he was consuming approximately three six- packs of beer during each weekend. Id. at 37-38. After the March 1983 arrest, the Individual "realized that [he] had a drinking problem" and received alcohol counseling at an facility for 12 weeks. Id. at 13-15, 28-31. The Individual also attended Alcoholics Anonymous meetings twice a week but still continued to consume alcohol. Id. at 13-14, 16; DOE Exhibit 8 at 26-28. At the time of this PSI, January 1985, the Individual reported that he had stopped consuming alcohol since the prior two months and further stated that he intended to abstain from alcohol consumption in the future. DOE Exhibit 3B at 28, 42-43.

After his July 1989 DWI arrest, the Operations Office conducted another PSI with the Individual on August 3, 1989. DOE Exhibit 8. At this time, the Individual stated that in 1987 he had resumed consuming alcohol. Id. at 19-20. He further stated that he was consuming two beers approximately once a week and that in the past year he had been intoxicated only once. Id. at 9-11. Because the Operations Office's concerns had not been addressed, the Individual was sent for an examination by a psychiatrist. The psychiatrist's October 10, 1989 report indicated that the Individual had "a history of excessive alcohol abuse" and that the Individual tended to minimize his reporting of his alcohol consumption. DOE Exhibit 9 at 4-5. The psychiatrist also found that the Individual's chronic use of alcohol could cause a defect in judgment and reliability and recommended that he be referred to an employee counseling program. Id. at 5. (4) Subsequently, the Individual signed a DOE form entitled "Statement Regarding Alcohol Treatment and Authority to Release Information" (Alcohol Statement). On that form the Individual indicated that he "may have an alcohol problem" and that he was receiving treatment with a Alcoholics Anonymous group. DOE Exhibit 11.

Pursuant to a 1997 reinvestigation of the Individual, the Operations Office obtained information that the Individual was continuing to consume alcohol. (5) See DOE Exhibit 17. The Operations Office subsequently conducted another PSI with the Individual on February 24, 1998. In this PSI, the Individual stated that six months after his August 3, 1989 PSI he began to consume alcohol again on an intermittent basis. DOE Exhibit 2 at 15-16. The Individual again stated that his intention was to totally abstain from the use of alcohol. Id. at 25. The Operations Office referred the Individual to the DOE Psychiatrist for an examination. The DOE Psychiatrist found in his May 7, 1998 report that the Individual did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition criteria for alcohol abuse or alcohol dependence. DOE Exhibit 4-A at 8-9. However, the DOE Psychiatrist did opine that the Individual was a user of alcohol habitually to excess. Id. at 9. The DOE Psychiatrist stated that in light of his past treatment failures long term treatment of one or two years duration would be required in order to consider that the Individual was rehabilitated and reformed. Id. at 10.

The record in this case indicates that the Individual was arrested on five occasions for DWI in the 1980s. The Individual admits that he has used alcohol to excess and that he has a problem with alcohol. Tr. at 29-31. The record also contains a letter from the Individual's physician at his outpatient treatment facility stating that "It is my conclusion that [the Individual] is clearly 'alcoholic,' and that he has been alcoholic for most of his adult life." Ind. Exhibit B-1. From the information contained in the record and from the Individual's own admissions concerning his problems with alcohol consumption, I find that the Individual has been a user of alcohol habitually to excess and that DOE had sufficient grounds to invoke Criterion J. (6)

The personnel security specialist outlined the concerns with habitual excessive use of alcohol during her testimony. Specifically, she stated that there is a concern that individuals who abuse alcohol are susceptible to being coerced or exploited to reveal classified matters. Tr. at 97. Further, when an individual is under the influence of alcohol that person's judgement and reliability is impaired. Id. These security concerns have been recognized by a number of hearing officers in similar cases. See, e.g., Personnel Security Hearing, (Case No. VSO-0200), 27 DOE ¶ 82,770 at 85,628 (1998) (affirmed OSA 1998) and cases cited therein.

B. Mitigating Factors

A finding of derogatory information does not, however, end the evaluation of the evidence concerning the Individual’s eligibility for access authorization. See Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff'd, 27 DOE ¶ 83,008 (OHA 1998) (affirmed OSA, 1998). In this case, the Individual asserts that his efforts to maintain sobriety during the seven months preceding the hearing, his participation in an intensive outpatient treatment program, his exemplary job performance and the lack of explicit instruction from DOE that he should cease drinking alcohol should mitigate the security concerns associated with his use of alcohol. See Tr. at 29-31, 120-21. I will address each of the mitigating circumstances the Individual has advanced in turn.

1. Rehabilitation

The Individual entered an intensive outpatient treatment program at a medical facility in June 1998. Id. at 24, 31; Ind. Exhibit B-5. The Individual completed the intensive outpatient program which consisted of three hour meetings three times a week for eight weeks with random urine tests, all of which were negative for alcohol. (7) Ind. Exhibit. B-3, B-4. During this program, the Individual was required to attend three additional community support meetings per week. Ind. Exhibit B-3. The Individual then began attending an aftercare program meeting once per week and is currently attending Alcoholic Anonymous (AA) meetings twice a week. Ind. Exhibit. B-14; Tr. at 26. The Individual testified that he has not consumed alcohol since May of 1998. Tr. at 28. To substantiate his attendance at AA meetings, the Individual called as a witness a member of his AA group. This witness testified that the Individual has been a regular member of his AA group since June 1998. Id. at 109.

The Individual's wife testified that since May 1998 she has not seen the Individual consume alcohol or noticed any indication that he may have been using alcohol. Id. at 79-80. The Individual's wife also testified that since his abstinence began the Individual has become more spiritual and has attended church more often. Id. at 80. Additionally, their family finances have improved and his abstinence has strengthened their marriage. Id.

At the hearing, both the Individual and the DOE called an expert to testify as to whether the Individual could be considered rehabilitated and reformed from his alcohol problem. Each expert was allowed to listen to the Individual's testimony as well as to ask questions of the Individual and the other expert before testifying.

The DOE Psychiatrist testified that as of the date of the hearing he did not believe that the Individual had shown adequate evidence of rehabilitation and reformation. Tr. at 44. As a general matter, the DOE Psychiatrist believed that the generally accepted minimum period of abstinence and treatment required for adequate evidence of rehabilitation and reformation from alcohol dependence is "about a year." Id. at 45. In the Individual's specific case, the DOE Psychiatrist stated that a minimum abstinence period of a year would be required to demonstrate rehabilitation and reformation. Id. Several factors regarding the Individual's previous history indicated the need for more than the Individual's current seven month period of abstinence to establish his rehabilitation. First, the Individual has had five DWI arrests and has unsuccessfully attended a number of treatment programs as well as two attempts of treatment with AA which have not been successful. Id. at 45, 49-50. Second, with regard to his last attempt at abstinence after signing the Alcohol Statement, the Individual began drinking alcohol again after six months. Id. at 45. Given this relapse, the DOE Psychiatrist testified that he would need to see more than six months of abstinence to assure him that the Individual's rehabilitation and reformation were in place. Id. The DOE Psychiatrist also noted that such factors as the Individual beginning drinking alcohol at 16 and his history of severe consequences from his use of alcohol without being able to change his consumption of alcohol were unfavorable prognostic factors. Id. at 49-50.

The DOE Psychiatrist also expressed concerns regarding the Individual's current treatment program. While the DOE Psychiatrist believed that the Individual's treatment program was appropriate, he expressed concern that the Individual testified that he has not had an AA sponsor for the past two months. Id. at 46. The DOE Psychiatrist testified that a sponsor in AA is very helpful in keeping an individual on track with his treatment program and to provide support to an individual in AA. Id. While the DOE Psychiatrist stated that the Individual lost his sponsor through no fault of his own, the DOE Psychiatrist believed that two months were more than enough time for the Individual to have gotten another sponsor. Id.

The DOE Psychiatrist was also concerned as to the possibility that the Individual's primary, if not sole, motivation in his attempt at rehabilitation was to regain his security clearance. Id. at 48, 56-57. While that specific motivation was not in itself bad, once the Individual's clearance was restored his motivation for continued abstinence would be greatly reduced. Id. The DOE Psychiatrist based this opinion on the fact that while the Individual, in his testimony, cited health concerns as a factor motivating his treatment, the Individual did not have significant health concerns, other than the risk of injury by drinking and driving, when the DOE Psychiatrist previously examined him. Id. at 48. However, the DOE Psychiatrist also stated that he believed that the Individual was starting to "internalize" the belief that he has a problem with alcohol and that he needs treatment. Id. at 57.

The Individual presented testimony from a licensed master's degree social worker (Social Worker) who counsels him at the outpatient treatment facility. After describing the treatment programs the Individual completed, the Social Worker then described the profound changes that had occurred in the Individual as a result of therapy. Id. at 63-66. The Social Worker stated that the Individual had begun to "put together that he had all these DWIs, having trouble with his wife and having trouble with his job, together with the fact that he was actually drinking alcohol, and those two somehow went together. . . ." Id. at 66-67. The Social Worker also stated his opinion that the Individual has a very strong commitment to his rehabilitation. Id. at 68.

The Social Worker also contrasted the Individual's current experience with AA as opposed to the Individual's last experience with AA where he resumed drinking alcohol after approximately six months. The Social Worker stated his opinion that the Individual's prior participation in AA and DWI schools was essentially externally motivated by others requiring him to attend such programs. Id. at 70-71. As for the Individual's current motivation, the Social Worker stated that the Individual was now over 50 percent internally motivated and realizes that to maintain his job he must not consume alcohol. Id. at 71.

The Social Worker did express some concern regarding the Individual's current rehabilitation program:

I have concern - I also know the amount of stress he has been under in all of this at work. I've seen him on a weekly basis. But I also have concern as to two [AA] meetings a week and no sponsor, but that's the nature of what I do, I look for more support rather than less . . . I believe he still has a strong commitment to his own rehabilitation, and I would be a lot more satisfied if he was going to more meetings and had a sponsor.

Tr. at 68. The Social Worker testified further that he had spoken to the Individual about these concerns and that in response the Individual informed him that the hearing regarding his security clearance had taken up a significant portion of his time. Id. at 72. The Individual also informed the Social Worker that he planned to attend more AA meetings and to obtain another sponsor. Id. Despite these concerns, the Social Worker stated that the Individual was demonstrating adequate evidence of rehabilitation and reformation. Id. at 69.

On the issue of the Individual's rehabilitation from his alcohol problem, I am presented with contrasting views from the two experts who have testified in this matter. In the administrative process, it is the Hearing Officer who has the responsibility for assessing whether a person with an alcohol problem has presented sufficient evidence of rehabilitation or reformation to allay security concerns. See Personnel Security Hearing, (Case No. VSO-0106), 26 DOE ¶ 82,767 (1997), aff’d, 26 DOE ¶ 83,009 (OHA 1997). The DOE does not have a set policy on what constitutes rehabilitation and reformation from alcohol dependence, but instead makes a case-by-case determination based on the available evidence. See Personnel Security Hearing, (VSO-0200), 27 DOE ¶ 82,770 (1998) (affirmed OSA, 1998); Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff'd, 27 DOE ¶ 83,008 (OHA 1998) (affirmed OSA, 1998). However, hearing officers accord great 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-0146), 26 DOE ¶ 82,788 (1997), appeal dismissed, (affirmed OSA, 1998); Personnel Security Hearing, (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (affirmed OSA, 1995); Personnel Security Hearing, (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (affirmed OSA, 1995).

After reviewing their testimony as well as all of the evidence contained in the record, I find that the Individual has not demonstrated sufficient evidence such that I can conclude that at this point in time he is adequately rehabilitated from his alcohol problem. I am persuaded by the DOE Psychiatrist's testimony outlining the facts of the Individual's history, which indicate that adequate evidence of rehabilitation in the Individual's case would require a minimum of a year of abstinence and treatment. Especially significant is the fact that the Individual has had several prior unsuccessful attempts at treatment using AA. Further, while not specifically mentioned by the DOE Psychiatrist, I find it significant that the Individual's problem with alcohol is of long standing. I also note the areas of concern regarding the Individual's current treatment program identified by both the DOE Psychiatrist and the Social Worker. While the Social Worker's testimony indicates that the Individual has made significant progress in his treatment program and is more motivated for treatment than in the past, it is not sufficient to convince me, in light of the other facts and testimony, that the Individual is rehabilitated. (8) Consequently, I can not make an affirmative finding that the Individual has demonstrated adequate evidence of his rehabilitation from his alcohol problem.

2. Other Mitigating Factors

The Individual has submitted a number of documents into the record regarding his job performance. These documents indicate that the Individual has demonstrated superior job performance and has been commended by his superiors. See Ind. Exhibits C1-C13. The Individual has also submitted an impressive number of written statements attesting to the Individual's character and workplace performance. See Ind. Exhibits A1-A12. Many of these statements also assert that the Individual has not shown any signs of impairment while on the job. See, e.g., Ind. Exhibits A1, A3, A-4.

One of the Individual's former supervisors testified at the hearing. The supervisor testified that the Individual had a good work ethic and was a productive employee. Tr. at 113-15. The supervisor also testified that he had never observed the Individual use alcohol inappropriately or suffer from the after effects from the use of alcohol the night before. Id. at 114. The supervisor also stated that the Individual had never caused him to be concerned that he would reveal classified material. Id. at 115.

The evidence before me indicates that the Individual has never demonstrated any alcohol related impairment of the job and has been an exceptional employee. However, these facts, while useful in considering an individual's eligibility for an access authorization, do not in themselves mitigate the security concern raised by the Individual's alcohol problem. Excessive consumption of alcohol off the job can raise security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that compromises national security. See Personnel Security Hearing, (Case No. VSO-0200), 27 DOE ¶ 82,770 (1998) (affirmed OSA, 1998). Further, eligibility for access authorization involves a determination concerning national security concerns which are different from standards of employee performance evaluation. The former must be concerned with an individual's judgment, reliability and trustworthiness twenty-four hours a day, seven days a week, while the later focuses on behavior and performance in the workplace. The fact that the Individual has not allowed his alcohol problem to affect his on-the-job performance cannot in itself completely mitigate the concerns arising from potential excessive alcohol related problems arising outside the workplace. See Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 at 85,530 (1995), aff'd, 25 DOE ¶ 85,013 (OHA 1995).

The Individual also offers as mitigation his record indicating that he has never revealed classified materials. However, I need not find that the Individual actually failed to properly handle and safeguard classified material in order to make a recommendation that an individual's access authorization be revoked or denied. See Personnel Security Hearing (Case No. VSO-0029), 25 DOE ¶ 82,766 at 85,610 (1995), aff'd, 25 DOE ¶ 83,003 (OHA 1995) (affirmed OSA, 1996). A person who habitually drinks alcohol to excess presents a potential risk that classified material could be mishandled. See Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,542 (1996) (affirmed OSA 1996). Consequently, the Individual's record in not mishandling classified materials is not sufficient, by itself, to mitigate the security concern raised by his alcohol problem.

The Individual's counsel offers as mitigation the assertion that in the Individual's entire career he was never explicitly told by the DOE that he must cease drinking alcohol. Counsel argues that given the Individual's relatively limited formal education he probably did not realize that he needed to be abstinent from alcoholic beverages in order to work for DOE. Tr. at 120-121. This ground for mitigation goes to the DOE's handling of the Individual's case. However, this ground for mitigation does not pertain to the Individual's inherent fitness for a security clearance. In the present case, my jurisdiction is limited to making a recommendation as to whether restoring the Individual's clearance would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R. § 710.27(a). Consequently, the assertion that DOE failed to instruct him to cease drinking alcohol is irrelevant as a mitigating factor. (9)

In sum, while I believe that the Individual's work record is exceptional and that the Individual has never been impaired on the job or mishandled classified materials, I do not find that these facts are sufficient to mitigate the security concerns raised by the Individual's alcohol problem. (10)

III. Conclusion

I find that the Individual has been a user of alcohol habitually to excess. While the Individual has made an encouraging start towards rehabilitation, I do not find sufficient evidence for me to conclude that he has been rehabilitated. Further, I do not find any other mitigating factors which resolve the security concern raised by the Individual's alcohol problem. After reviewing all the evidence in the record, I cannot conclude that restoring the Individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the Individual’s access authorization should not be restored. 10 C.F.R. § 710.27(a).

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'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 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. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Richard A. Cronin, Jr.

Hearing Officer

Office of Hearings and Appeals

Date: February 16, 1999

(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). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2)The Individual's conviction pursuant to the May 1983 arrest was subsequently reversed on appeal. See DOE Exhibit 3-B at 20.

(3)As a result of these arrests, the Individual had been sent to DWI schools three times. Hearing Transcript (Tr.) at 13.

(4)On later inquiry by the Operations Office, the psychiatrist declined to make a finding that the Individual was a habitual user of alcohol to excess without rehabilitation. See DOE Exhibit 12 (October 16, 1989 case evaluation).

(5)The Operations Office allegedly obtained information from the Individual's wife during the Individual's most recent reinvestigation indicating that the Individual was consuming alcohol and driving. DOE Exhibit 17. At the hearing, the Individual denied that he had been drinking alcohol and driving at the time of the most recent reinvestigation. Tr. at 21. The Individual presented testimony from his spouse denying that she had provided such information to an Office of Personnel Management investigator. Id. at 74-81. However, I need not decide this issue. Even assuming arguendo that the Individual had not been drinking alcohol and driving at the time of the reinvestigation, the remaining derogatory information before me would fall within Criterion J and raise security concerns. See infra.

(6)While not specifically mentioned in the Notification Letter, I also find that the Individual has been diagnosed by a board-certified psychiatrist as alcohol dependent. After reviewing the Individual's physician's letter diagnosing the Individual as "alcoholic" along with other information presented at the hearing, the DOE Psychiatrist modified his diagnosis of the Individual to alcohol dependence in early complete remission. Tr. at 58.

(7)One of the Individual's urine samples tested positive for opiates. Prior to that test the Individual had taken one or two tablets of his mother's prescription for Tylenol No. 3, a prescription medicine containing codeine, to treat a headache. Ind. Exhibit B-14; Tr. at 39. The treatment facility concluded that this positive test was not significant given the circumstances surrounding his taking of the Tylenol No. 3 and the fact that codeine was not the Individual's drug of choice. Ind. Exhibit B-14.

(8)The Individual has submitted letters from his treating physician who is the Director of Substance Abuse Services at the outpatient treatment facility he attends. See Ind. Exhibits B-1, B-2. In one of these letter, the physician states that "[b]ased on information provided to me by [the Individual], I have no reason to consider him to be a danger or risk at work or national security at this time." Ind. Exhibit B-2. However, this letter provides no other information regarding the basis for the physician's opinion. As such, I have only given this letter slight weight in arriving at my conclusion regarding the Individual's rehabilitation.

(9)Even if I could consider this assertion as mitigation, I do not find it very convincing. The Individual, when asked in the January 1985 PSI what his intentions were with regard to alcohol, stated that he intended to stop consuming alcohol. From the transcript of that PSI it is apparent to me that the Individual knew that his alcohol consumption was a concern to the DOE. Additionally, in 1989, the Individual signed the Alcohol Statement stating that he may have an alcohol problem and asking him to list the place where he was obtaining treatment. The Alcohol Statement goes on to provide "I understand that if I do not follow through with my counseling and/or treatment, DOE will re-appraise my entitlement to DOE access authorization or security clearance. Following such re-appraisal, I may lose my access authorization or security clearance, and, if so, I may lose my job." DOE Exhibit 11. Thus, I believe that the Individual knew his alcohol consumption was a concern to DOE and that his position could be in jeopardy from failure to complete a treatment program.

(10)The Individual introduced testimony on the issue of why he was not referred to the Employee Assistance Referral Option (EAPRO) by DOE. The program is available to certain individuals having a security clearance who seek treatment or counseling. Tr. at 103. As I held at the hearing, decisions regarding participation in EAPRO are not subject to review by a Hearing Officer. Tr. at 104-5; see Personnel Security Hearing (Case No. VSO-0146), 26 DOE ¶ 82,788 at 85,767 n. 6 (1997) (affirmed OSA, 1998).