Case No. VSO-0222, 27 DOE ¶ 82,785 (H.O. Jenkins-Chapman November 24, 1998)

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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 24, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case:Personnel Security Hearing

Date of Filing:July 13, 1998

Case Number: VSO-0222

This Opinion concerns the eligibility of XXXXXXXXXXX (the individual) for continued access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria for Access to Classified Matter or Special Nuclear Material.” The individual’s access authorization was suspended by one of the Department of Energy’s (DOE) Operations Offices. As explained below, it is my opinion that the individual’s access authorization should not be restored.

I. Background

The individual has held an access authorization throughout his XXXXXXX term of employment with a contractor at a DOE facility. In January 1997, the individual reported to his employer that he had been arrested for “Driving While Under the Influence” (DUI). This revelation prompted the DOE to conduct a Personnel Security Interview (PSI) to obtain information regarding the circumstances surrounding the DUI arrest and the extent of the individual’s alcohol use. After the PSI, the DOE referred the individual to a board-certified psychiatrist (DOE consultant-psychiatrist) for a mental evaluation. The DOE consultant-psychiatrist examined the individual, and memorialized his findings in a report dated February 5, 1998 (Psychiatric Report or DOE Exhibit 8). In the Psychiatric Report, the DOE consultant-psychiatrist opined that the individual suffers from alcohol abuse and does not present evidence of adequate rehabilitation or reformation. Since information creating doubt as to the individual’s eligibility for a security clearance remained unresolved after the mental evaluation, the DOE suspended the individual’s security clearance and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

On June 15, 1998 and August 11, 1998, the DOE issued Notification Letters to the individual which identified the derogatory information that cast doubt on his continued eligibility for access authorization. According to the DOE, the derogatory information falls within the purview of the disqualifying criteria set forth in 10 C.F.R. § 710.8, on two grounds, subsections (j) and (f). First, the June 15, 1998 Notification Letter alleges that the individual 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). In this regard, the Notification Letter specifies that the DOE consultant- psychiatrist diagnosed the individual as suffering from alcohol abuse with three arrests for DUI. Second, the August 11, 1998, Notification Letter alleges that the individual “deliberately misrepresented, falsified, or omitted significant information from a personnel security questionnaire, a questionnaire for sensitive positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding elibility for DOE access authorization, . . .” 10 C.F.R. § 710.8(f). In this regard, the DOE specifies a number of instances in which the individual allegedly misrepresented information on personnel security questionnaires.

The individual filed a response to the allegations contained in the June 15, 1998 Notification Letter together with a request for a hearing regarding those allegations. The DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA) Director. The OHA Director appointed me as Hearing Officer in this case. 10 C.F.R. § 710.25(b). The scope of this proceeding was expanded to include the allegations described in the August 11, 1998 Notification Letter. I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative hearing process. At the hearing, the DOE called two witnesses: the individual and a DOE personnel security specialist.(2) The individual, represented by counsel, offered the testimony of seven witnesses: a licensed professional counselor, an alcohol counselor/evaluator, his current supervisor, his former supervisor, a colleague, a probation officer and a co-worker/former supervisor. The individual also testified on his own behalf. I received the hearing transcript in this case on October 23, 1998. Subsequently, I held a conference call with the parties and requested a post-hearing submission from DOE to resolve ambiguities in the record regarding possible material facts in the case. I closed the record on November 24, 1998 after receiving DOE’s submission. See 10 C.F.R. § 710.27(e).

II. Analysis

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

the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence; and other relevant and material factors.

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 by OSA, 1996). A 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 by 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.

A. Individual’s Use of Alcohol

The individual is XX years old and has been employed by the DOE contractor for XXXXXyears. The determination by DOE to suspend the individual’s security clearance evolved from the individual informing his employer that on January 1, 1997, he was arrested for DUI. Following receipt of this information, the conducted a PSI and referred him to a DOE consultant-psychiatrist. DOE Ex. 8; Psychiatric Report. In the course of his examination, the DOE consultant-psychiatrist interviewed the individual, performed a detailed analysis of the individual’s personal background and referred the individual to submit to a battery of tests including the Minnesota Multiphasic Personality Inventory II (MMPI-II). On the basis of the information received, the DOE consultant- psychiatrist diagnosed the individual as suffering from alcohol abuse as specified in the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Id. at 5. For the reasons stated below, I find that the record contains ample evidence to support the findings of the DOE consultant-psychiatrist.

The individual has been arrested for driving a vehicle while under the influence of alcohol on three separate occasions. The first arrest occurred on December 21, 1989. The individual was charged and convicted of driving a snowmobile while under the influence of alcohol. Ex. B. According to the record, the individual operated a snowmobile on a public street or highway, and was subsequently involved in an accident while under the influence of alcohol. The individual registered .178 on a Blood Alcohol Test (BAT). Following this arrest, the individual was fined $1,000. The second arrest for DUI occurred six years later on February 4, 1995, where the individual’s BAT registered at .155/.147 (on two readings). After the second arrest, the individual was ordered to attend an Alcohol Awareness course. The third arrest for DUI occurred on January 1, 1997. The individual stated that he had consumed four or five beers over a two-and-one half hour period. Tr. at 96. According to the record, the individual did not submit to a BAT, but pled guilty to DUI. Id. at 95 This arrest resulted in the individual being placed by the court on a two-year supervised probation and ordered to attend weekly Alcoholics Anonymous (AA) meetings.

During the examination by the DOE consultant-psychiatrist, the individual described his alcohol use. The individual stated that he began experimenting with alcohol around age 18, consuming about two beers once a month (usually on weekends with friends). Ex. 8 at 3. The individual further indicated that he does not find alcohol important in his life, but just drinks it occasionally when he is socializing with friends. Id. In addition, he indicated that his drinking has increased over time to about two to three beers, one to two times per month. Id. He added that at the time of his two DUIs, his drinking had stabilized at two to three beers.

As part of his psychiatric evaluation, the DOE consultant-psychiatrist referred the individual for psychological testing. The individual was given three psychological tests: the MMPI-II, the Substance Abuse Subtle Screening Inventory 2 and 3 (SASSI 2 and 3) and the Thematic Appreception Test (TAT). The SASSI 2 classified the individual as chemically dependent and the results suggested that he was very likely to be defensive in his responses related to substance use. Psychological Tests Report at 1. According to the SASSI 3, the individual was classified as “having a high probability of having a substance dependence disorder.” It further showed that the individual lacks insight into how his drinking is affecting his life. Id. As for the MMPI-II, the individual was characterized as being somewhat defensive in his test responses, which may relate to “denial and/or histrionic dynamics.” This test indicates that the individual either has a current substance abuse/dependence problem or is an individual who has had a substance problem and is in recovery. Id. at 2. Finally, the individual’s scores on the TAT also revealed a guardedness in his responses. According to the psychological report, the psychologist’s overall impressions of the individual’s psychological testing indicated that because he episodically abuses alcohol, he may have a psychological dependence rather than a physiologic dependence. In addition, the report states that “because [the individual] has never acknowledged that he has an alcohol problem and because he currently is drinking, adequate remediation at this time of his alcohol problem is unlikely.” Id. at 4. Finally, an intensive outpatient treatment program was recommended as being helpful to the individual.

On the basis of this information, the DOE consultant-psychiatrist determined that the individual is “an abuser of alcohol and maybe alcohol dependent.” Psychiatric Report at 5. He further concluded that the individual’s alcohol usage enables him to function socially, adding that the individual is in denial, with poor insight into the nature of his illness. Id. at 5.

Based on the foregoing, I find substantial evidence to support the findings of the DOE consultant- psychiatrist that the individual suffers from alcohol abuse and possibly alcohol dependence. The Personnel Security Specialist testified that such excessive use of alcohol raises serious security concerns:

An individual who uses alcohol to excess would perhaps under the influence of alcohol or in severe cases because of impairments due to a history of alcohol use not be able to safeguard classified information or proprietary information. Also the concern with excessive use of alcohol or possible excessive use of alcohol is the illegal activity associated with that use, poor judgment, oftentimes decisions made by the person who is under the use of alcohol.

Tr. at 186.

For these reasons, hearing officers in DOE security clearance proceedings have consistently found that the excessive use of alcohol raises important security concerns. See, e.g., Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995). Accordingly, I will turn next to whether the individual has presented adequate evidence of rehabilitation and reformation, or other mitigating circumstances, to overcome the legitimate security concerns of DOE.

B. Mitigating Circumstances

At the hearing, the individual presented several mitigating factors in favor of his continued eligibility to retain his security clearance despite the concerns of DOE with regard to his alcohol use. First, the individual testified that he has not consumed alcohol for about two months and has no intention of consuming alcohol in the future. Tr. at 92 and 130. According to the individual, “My plan is to just entirely divorce myself from that situation [drinking at bars with friends], . . . not getting around those people and not going to the places to do that.” Tr. at 130. In addition, on July 13, 1998, the individual submitted himself to counseling with a licensed treating counselor and has attended four separate one-on-one sessions. Id. More recently, on September 21, 1998, the individual began an intensive outpatient substance abuse program, and had attended twelve hours of group psychotherapy as of the date of the hearing. Id. at 52. The individual stated that he fully intends to continue the outpatient program.

In support of his testimony regarding his abstinence from alcohol, the individual offered the testimony of his treating counselor, who is a licensed professional with a doctorate in counseling education. Tr. at 29. She testified that she has counseled with the individual on a one-on-one basis for about five hours. Id. Contrary to the DOE consultant-psychiatrist, the treating counselor did not find that the individual possessed any of the antisocial or histrionic traits as specified on the MMPI- II. Based on her one-on-one sessions with the individual, the treating counselor believes that the individual has modified his behavior in a manner that is supportive of sobriety. Id. at 37. She observed that the individual is “extremely motivated to get this matter settled and is a good candidate to successfully rehabilitate himself.(3) Id.

The individual also offered the testimony of a licensed alcohol counselor who operates an intensive outpatient treatment program. As of the date of the hearing, the alcohol counselor had spent 12 hours together with the individual in group therapy. Id. at 52. According to the alcohol counselor, the outpatient treatment program is designed to “help the person understand what addiction is, understand how the events in their life have been impacted by the use of substances, and to incorporate psychotherapy in exploring feelings, exploring their motivation to make changes, with respect to using chemicals.” Id. at 53. His treatment plan for the individual includes the following: two months of intensive outpatient treatment, abstinence from all mood/mind altering chemicals, weekly Alcoholics Anonymous (AA) meetings, AA sponsorship, random urinalysis and/or breathalyser tests, twelve months of weekly relapse prevention group therapy and compliance with DOE’s EAP requirements to return to work. Counselor’s Report (Ex. D) at 2. Based on his impressions of the individual, the alcohol counselor believes that the individual possesses the symptoms to confirm a diagnosis of Alcohol Dependence. Id. However, he believes that if the individual follows through with the recommended treatment plan and completes the intensive outpatient program, his prognosis is good. Tr. at 66. He further indicated that the individual is in the “early middle phase of the progression of alcoholism and very treatable.” Ex. D at 2. The alcohol counselor noted that the individual “has demonstrated motivation by beginning group therapy on September 21, 1998, and attending all sessions on time.” Id.

There are other considerations that weigh in favor of the individual’s stated commitment to his sobriety. Despite his problems with alcohol, the individual has been able to maintain stability in his work and home life by keeping himself busy running his auto body repair business. His two supervisory co-workers were uniform in their testimony that the individual was never under the influence of alcohol while at work, but instead is commonly known to be a valuable and highly reliable worker. Tr. at 155-166, 169.

Notwithstanding the mitigating evidence and other factors presented by the individual, I am unable to find that the individual has overcome the security concerns of DOE with regard to his alcohol use. While the individual was sincere and convincing in stating his intention to maintain his sobriety, I am yet unpersuaded that the individual has established adequate rehabilitation or reformation. Even the individual’s own witness, the alcohol counselor with whom the individual presently participates in an intensive outpatient treatment program, admits that the individual is in the early stages of rehabilitation. As stated earlier, the alcohol counselor, whom I found to be very credible, recommends that the individual complete the 14-month intensive outpatient treatment program, a recommendation consistent with that of the DOE consultant-psychiatrist.(4)

On the basis of the testimony in the record and supporting evidence, I find that the individual cannot be considered rehabilitated or reformed from his use of alcohol at this time. While it is commendable that the individual has not consumed alcohol since July 1998, this two-month period of abstinence is insufficient to demonstrate rehabilitation and reformation, particularly in view of the fact that the individual has only recently begun the type of structured treatment program recommended by both the DOE consultant-psychiatrist and the alcohol counselor. In addition to the relatively short period of time for which the individual has sought rehabilitation, the alcohol counselor’s diagnosis of Alcohol Dependence (the more serious addiction to alcohol) is another consideration that leads me to conclude that the individual has not been sufficiently rehabilitated or reformed.(5) In view of the likelihood of relapse in such cases of alcoholism, I cannot find that the individual has overcome the legitimate security concerns of DOE. See, e.g., Personnel Security Hearing, Case No. VSO-0099, 25 DOE ¶ 82,759 (1996); Personnel Security Hearing, Case No. VSO-0015, 25 DOE ¶ 82,760 (1995); Personnel Security Hearing, Case No. VSO-0042, 25 DOE ¶ 82,771 (1995).

C. The Individual’s Falsification

DOE alleges that on the following six occasions the individual gave false or misleading information on personnel security questionnaires:

(1) First, DOE asserts that on January 25, 1990, the individual indicated “No” in answer to the following question on a Personnel Security Questionnaire (PSQ), “Have you ever been arrested, charged or convicted of any offenses related to alcohol or drugs?” The DOE asserts that the individual gave false information on this questionnaire because on December 21, 1989, the individual was arrested for unlawfully driving a snowmobile while under the influence of alcohol;

(2) DOE contends that on May 16, 1991, on a Security Supplement Questionnaire (SSQ), the individual answered “No” to the question “ Are you now, or have you ever been a user of alcoholic beverages which has resulted in the loss of a job, arrest by police, or treatment of alcoholism?” Again, DOE asserts as it did with the first incident that the individual provided a false answer to this question because of the aforementioned December 21, 1989 arrest for driving a snowmobile while under the influence of alcohol;

(3) DOE states that on a January 30, 1995 Questionnaire for Sensitive Positions (QSP) the individual responded “No” to the question, “Have you experienced problems (disciplinary actions, evictions, formal complaints, etc.) on or off the job from your use of illegal drugs or alcohol?” DOE asserts that on November 23, 1992, the individual received a security infraction for driving on DOE’s site with a cooler containing six bottles of beer in his truck, and therefore the individual falsely answered the question;

(4) DOE contends that on a March 11, 1995 SSQ, the individual stated that he “had never consumed alcohol during a workday, . . . seldom drinks to the point of intoxication, . . . and seldom consumes alcohol.” However, DOE asserts that the individual also falsely misrepresented information on this questionnaire because he was arrested for a DUI on February 4, 1995;

(5) DOE asserts that the individual answered “no” in response to the following question on a QSP on June 9, 1996, “In the last seven years, has your use of alcoholic beverages . . . resulted in any alcohol-related treatment or counseling . . .” DOE questions the individual’s response because of information it possessed which indicated that as a result of his February 4, 1995 arrest for DUI, the individual was ordered by the court to undergo alcohol counseling; and

(6) DOE contends that the individual falsely responded to a January 24, 1997 SSQ when he stated that he seldom drinks to intoxication and that the last time he was intoxicated was six months ago. To support this assertion, DOE states the individual was arrested for DUI on January 1, 1997.

See June 15, 1998 and August 11, 1998 Notification Letters.

The DOE security program is based on trust, and when an individual breaches that trust by misrepresenting, falsifying, or omitting information during the access authorization review process, it is difficult for the DOE to trust that individual. See Personnel Security Hearing, Case No. VSO- 0099, 26 DOE ¶ 82,759 (1996). The DOE must rely on individuals who are granted access authorization to be honest and truthful; this important principle underlies the criterion set forth in 10 C.F.R. § 710.8(f). See Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,752 (1995) (affirmed by OSA, 1995). Criterion F applies, however, only to misstatements that are “deliberate” and involve “significant” information. 10 C.F.R. § 710.8(f). In this case, I find that several of the individual’s misstatements involved significant information and were deliberate. For the reasons set forth below, I find that the DOE correctly cited Criterion F as a basis for suspending the individual’s access authorization and that the individual has not mitigated this concern.

During the hearing, the individual denied falsifying all but one of the questionnaires cited by the DOE in its August 11, 1998 Notification Letter. With respect to the first two allegations of misrepresentation, the individual stated during the hearing that his December 21, 1989 arrest for driving a snowmobile under the influence was officially cited as the “Unlawful Operation of a Snowmobile.” He asserts that he did not believe that he was falsifying the January 25, 1990 PSQ or the May 16, 1991 SSP and testified to the following:

When I was arrested for this accident in [another town], I had to go back to court for sentencing, and it was my understanding talking to the judge that it wasn’t an alcohol-related occurrence. It was an improper operation of a snowmobile. And also I understood if I paid this thousand dollar fine, which was pretty substantial, that it wouldn’t go on my record as - - you know, as a driving under the influence or anything like that. It was some city ordinance that they had that they just dismissed that you paid this terrible fine and, you know, it was dismissed. So I understood that it wouldn’t go on my record, that it wouldn’t be listed as driving under the influence.

Tr. at 93-94.

In addition, the individual offered documentary evidence which indicated that he was charged and convicted for the “Unlawful Operation of a Snowmobile,” in violation of a state statute. Ex. B. However, according to the police report and the arresting officer’s notes submitted by the individual during the hearing, the individual was observed as being intoxicated. Id. The officer wrote that he “noticed that his [the individual’s] eyes were blood shot and that his speech was slurred. He was also unsure of his balance and I detected a strong odor of an alcoholic beverage on his breath.” Id. According to the Officer’s written notes, the individual admitted to consuming three beers and consented to performing several field sobriety tests. After his poor performance on those tests, the individual admitted to being under the influence of alcohol, the Officer agreed and he was placed under arrest. Id. In addition, the individual’s blood alcohol content registered .178, well over the legal limit for operating a vehicle. Even during the hearing, the individual admitted to being under the influence of alcohol during this incident and stated that he considered this arrest an alcohol- related arrest until he was sentenced in court. Tr. at 140 and 144. When asked whether when completing the questionnaire the individual believed the snowmobile incident was an alcohol- related offense, he responded:

For some reason after the sentencing I thought it wasn’t a DUI, that wasn’t what I was arrested for . . . It wasn’t, now looking at it, you’re exactly right but that’s how I felt about it at the time I filled out the questionnaire.

Tr. at 144-145.

Although the individual asserts that he was not technically cited for a DUI, neither the January 25, 1990 PSQ nor the May 16, 1991 SSQ refer specifically to DUI. Rather, the questionnaires refer to “offenses related to alcohol” and “whether alcoholic beverages have resulted in the loss of a job, arrest by police, or treatment for alcoholism.” August 11, 1998 Notification Letter at 2. It is clear from the documentary evidence, that the individual was arrested for operating a snowmobile on a public street or highway while under the influence of alcohol. Ex. B. The pertinent state statute under which the individual was charged and convicted reads as follows:

Unlawful operation on streets and highways. (1) It is unlawful for a person to operate a snowmobile on a public street or highway;

(a) at a rate of speed greater that provided by law for motor vehicles;

(b) while under the influence of intoxicating liquor or narcotics or habit-forming drugs; . . . (emphasis added)

Id.

Based on a review of the record, it appears that this charge of operating a snowmobile “while under the influence of intoxicating liquor” was not officially recorded on the individual’s record as a DUI. However, the individual knew it was alcohol-related and I believe his responses on the DOE questionnaires were intended to conceal this fact. I therefore cannot find that the individual’s responses regarding this significant information were not at all deliberate.

With respect to the third allegation of misrepresentation, the individual asserted that he did not believe that the security infraction he received was a disciplinary action for using alcohol. The individual contends that he had no intention of drinking beer while on site, but planned to consume a beer on his way home from work. He asserts that the cooler of beer was confiscated and both he and a co-worker riding with him were asked to report to the on-site security inspector. Tr. at 100. According to the individual, “we were under the understanding that, you know, we didn’t get a disciplinary action or we didn’t get any time off.” Id. He states that the security inspector told him and his co-worker that alcohol was not allowed on site and “to not do it again.” Id.

To mitigate this falsification allegation, the individual presented the testimony of the co-worker who was riding in the individual’s truck and also involved in the incident. The co-worker corroborated the individual’s testimony that neither of them had any intention to drink the beer on site. Tr. at 161. The co-worker also stated that he did not consider the security infraction to be a disciplinary action as described in the security questionnaire. He testified that “there was nothing said other than they took the beer and . . . took some information as far as who we were, our badge numbers.” Tr. at 162. The co-worker further testified that he did not recall receiving any paperwork regarding the incident. Id. Based on the individual’s testimony and that of his co-worker, I am convinced that the individual was not cited for “use” but only for possession and did not deliberately falsify significant information on his January 30, 1995 QSP.

The individual also denies that he misstated information on a March 11, 1995 SSQ. As stated above, the individual was arrested for DUI on February 4, 1995 and reported this arrest to DOE. However, the individual stated on the SSQ that he had never consumed alcohol during the workday, seldom drank to the point of intoxication and seldom consumed alcohol. August 11, 1998 Notification Letter; Ex. 6. I find the individual’s testimony regarding this allegation to be unpersuasive. When questioned as to how he viewed his consumption of alcohol in February 1995, when he was arrested for DUI, the individual testified that he viewed himself as a moderate drinker. Tr. at 101. Although he admitted that he probably drank a little more than he normally would have, he still did not believe he answered the SSQ incorrectly. It is clear from this testimony that the individual was in denial about his drinking. As noted earlier, both the DOE consultant-psychiatrist and the individual’s alcohol counselor concluded that the individual is in denial concerning his alcohol addiction. Therefore, I do not believe that the individual was answering the questionnaire truthfully.

Also, the individual denies that he incorrectly responded to a June 9, 1996 QSP when he answered “no” to the question, “In the last seven years, has your use of alcoholic beverages resulted in any alcohol-related treatment or counseling.” In disputing DOE’s allegation that as a result of the February 1995 arrest he was ordered to undergo counseling, the individual asserts instead that he was ordered to attend an Alcohol Awareness course. Tr. at 102; Ex. F. According to the individual, he did not feel that this course constituted alcohol counseling. He testified to the following:

I believe it was a two hour course. . . We [the individual and several others] watched some films, discussed about driving under the influence . . . That’s basically what we covered, and that was about it. It was like it says, an alcohol awareness course. It made you aware you shouldn’t get behind the wheel of an automobile and drive.

Tr. at 146 and 147.

I am convinced by the individual’s testimony and his interpretation of the words “alcohol-related treatment and counseling,” that he did not deliberately falsify this information.

Finally, with respect to the DOE’s sixth allegation of misrepresentation, the individual admits to deliberately falsifying information on a January 24, 1997 SSQ. On that SSQ, the individual stated that he seldom drank to the point of intoxication and that the last time he was intoxicated occurred six months ago. As stated above, the individual was clearly arrested for DUI on January 1, 1997. As with three of the above-mentioned allegations of misrepresentation, this deliberate falsification of significant information properly comes within the ambit of Criterion F and raises a substantial question as to the individual’s honesty, reliability and judgment. When asked during the hearing whether he answered the January 24, 1997 SSQ correctly, the individual responded in the following manner:

No, I answered that wrong. I guess I was just trying to cover up more [of] my drinking problem. . . . I, that’s all I can say there. I think that now that I’ve been through this therapy thing I can almost say that I think I was just trying to cover up for my drinking problem would be the only way I can answer that, why I did that, but I answered it wrong.

Tr. at 103.

The individual explained that since he has been attending an alcohol rehabilitation program, he knows now that he was in denial about his drinking. Id.

Although the individual appeared to express remorse and contrition for this falsification, and indicated that he sincerely values his job at DOE, I cannot find that he has overcome the legitimate security concerns associated with this deliberate falsification of significant information on his SSQ.

I therefore find with respect to the January 25, 1990 PSQ, the May 16, 1991 SSQ, the March 11, 1995 SSQ and the January 24, 1997 SSQ that the DOE correctly cited Criterion F as a basis for suspending the individual’s access authorization and that the individual has not presented sufficient evidence to mitigate DOE’s legitimate concerns arising from these falsifications.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(j) and (f), in suspending the individual access authorization. It is my opinion that, within the meaning of those provisions, the individual has: (1) “[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, and (2) “deliberately misrepresented, falsified, or omitted significant information from a . . . personnel security questionnaire, . . . written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” The individual has failed to present adequate mitigating facts or circumstances to erode the factual basis for these findings or otherwise alleviate the legitimate security concerns of DOE. In view of these criteria and the record before me, I cannot find that restoring the individual’s access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be restored at this time.

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

wishes to contest within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Kimberly Jenkins-Chapman

Hearing Officer

Office of Hearings and Appeals

Date: November 24, 1998

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

(2)Prior to the hearing, DOE Counsel arranged to call the DOE consultant-psychiatrist as its third witness. However, on the day of the hearing, I was informed by DOE Counsel that the DOE consultant- psychiatrist would not be available to testify. At the close of the hearing, both parties agreed to allow the DOE consultant-psychiatrist’s written report to stand alone, without his oral testimony or the opportunity to cross-examine him. See Transcript (Tr.) at 201.

(3)” The treating counselor testified that she is primarily an individual, family counselor and not an alcohol counselor. She stated that she is not in the position to recommend the amount of rehabilitation needed for the individual and would not be able to give a prognosis. Tr. at 49.

(4) The individual also submitted into evidence the written report of another licensed professional, a certified clinical social worker and alcohol counselor with whom the individual met on September 1, 1998 for a clinical assessment. According tho the clinical social worker’s findings, which she based on her interview with the individual and his score on the Michigan Alcohol Screening Test, it is her opinion that the individual is in the early middle stages of alcohol addiction. Id. at 2. Her conclusions are consistent with those of the alcohol counselor and the DOE consultant-psychiatrist. She indicated that the individual “appears to be in denial to the degree that he blames his drinking on the friends with whom he socializes . . . “ Id. She further recommended that at a minimum the individual should enter a formal, intensive outpatient program for his alcohol problems. Following this program, the clinical social worker suggested that the individual take part in a series of outpatient aftercare sessions for a minimum of one year. Id.

(5)These same considerations have led hearing officers in other recent DOE security cases to find that there was insufficient evidence of rehabilitation or reformation. See Personnel Security Hearing, Case No. VSO-0079, 25 DOE ¶ 82,803 (1996) (five months of abstinence); Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758, aff’d, 25 DOE ¶ 83,006 (1995) (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, 25 DOE ¶ 83,003 (1995) (four months).