Case No. VSO-0254, 27 DOE ¶ 82,803 (H.O. Brown May 19, 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.

May 19, 1999

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: December 31, 1998

Case Number: VSO-0254

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."(1) The Department of Energy (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored. As set forth in this Opinion, I have determined that the individual's security clearance should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made

after consideration of all 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 this instance, DOE granted the individual an access authorization as a condition of his employment with a DOE contractor. However, on September 8, 1998, the DOE Office of Security Affairs (DOE Security) initiated formal administrative review proceedings by informing the individual that his access authorization would be suspended pending the resolution of certain derogatory information received by DOE that created substantial doubt regarding his continued eligibility. This derogatory information is described in a Notification Letter subsequently issued to the individual on November 18, 1998. More specifically, Enclosure (1) attached to the Notification Letter contains DOE Security’s findings with respect to the individual that fall within the purview of potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. §§ 710.8(j) and (l). The bases for these findings are summarized below.

A. Criterion J

Enclosure (1) of the Notification Letter alleges initially 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." 10 C.F.R. § 710.8(j) (Criterion J). In this regard, Enclosure (1) describes several alcohol related incidents which resulted in the individual being arrested: 1) on August 20, 1993, on a charge of driving under the influence (DUI) of alcohol; 2) on May 30, 1994, on a charge of domestic assault at which time the arresting officers reported a strong odor of alcohol on the individual’s breath and his speech was slurred; 3) on April 23, 1995, following a heated altercation at a bar with a female bartender; 4) on June 10, 1995, on a charge of DUI; and 5) on September 10, 1995, on charges of driving while intoxicated and trespassing. In addition, the individual stated during a DOE Personnel Security Interview (PSI) conducted on May 6, 1996, that he had never tried to stop drinking and that his weekly alcohol consumption at that time was “at least a six pack or more, 10 to 12 beers a weekend.”

Following the May 6, 1996 PSI, the individual was referred to a DOE consultant psychiatrist (DOE Psychiatrist) who conducted a psychiatric evaluation of the individual. In a letter dated September 27, 1996, the DOE Psychiatrist reported his professional opinion that the individual is a user of alcohol habitually to excess, within the meaning of 10 C.F.R. § 710.8(j). The DOE Psychiatrist further stated that although the individual had begun alcohol abstinence prior to the evaluation, he recommended that the individual continue abstinence, coupled with Alcoholics Anonymous and successful completion of an alcohol awareness and treatment program in order to show adequate evidence of rehabilitation and reformation. In view of the psychiatric report and recommendation, DOE offered the individual the Employee Assistance Program Referral Option (EAPRO) during a PSI conducted on November 13, 1996, as an alternative to entering into administrative review proceedings concerning the individual’s eligibility to continue to hold a security clearance. At that time, DOE Security explained that EAPRO was a 24-month commitment program requiring counseling and testing for alcohol by a provider to be chosen by the individual. The individual agreed to participate in EAPRO and signed all of the requisite acknowledgment forms, including an EAPRO Statement of Understanding which sets forth the requirement for total abstinence from the use of alcohol for 24 months. The individual subsequently informed DOE that XXXXXX (EAPRO Provider) would be his EAPRO provider, and on December 9, 1996, a representative of that organization confirmed its agreement to serve in that capacity.

The EAPRO Provider transmitted monthly reports to DOE Security, for January 1997 through May 1998, verifying that the individual was fulfilling EAPRO requirements. However, during a follow-up PSI conducted on June 4, 1998, the individual revealed to DOE Security that he had resumed drinking alcohol on a social basis in January 1998, after completing one year of the EAPRO program. According to the individual, he believed that under EAPRO, drinking in moderation was permissible after a successful completion of one year of counseling and urinalysis testing. DOE Security asserts in the Notification Letter, however, that the individual’s claim is totally without foundation and contrary to the EAPRO Statement of Understanding signed by the individual, which unequivocally requires total abstinence from the use of alcohol for 24 months. DOE Security therefore asserts that, in view of the individual’s past alcohol use and violation of the agreed-upon EAPRO requirements, “alcohol abuse is both a dominant force and a continuing issue . . . and [the individual is] without adequate evidence of reformation and rehabilitation.”

B. Criterion L

In addition, DOE Security alleges under section 710.8(l) (Criterion L), that the individual has “engaged in unusual conduct ... which tends to show that [he] is not honest, reliable, or trustworthy, or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interest of the national security.” In this regard, DOE Security alleges that the cumulative effect of the information concerning the individual’s alcohol-related arrests, coupled with the individual’s “flouting” of his EAPRO agreement, “serves to directly impugn [the individual’s] honesty, reliability and trustworthiness.”

In a letter received by the DOE Office of Hearings and Appeals (OHA) on December 31, 1998, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On January 7, 1999, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE Counsel called as witnesses the individual, the individual’s EAPRO Provider counselor (EAPRO Counselor), the DOE Personnel Security Specialist who conducted the PSIs with the individual, and a Personnel Security Manager. Other than testifying on his own behalf, the individual elected to call no witnesses. The transcript taken at the hearing will be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and will be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. 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). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't 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).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving 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. After due deliberation, it is my opinion that the individual's access authorization should be restored since I have concluded that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Criterion L; Honesty, Reliability and Trustworthiness

Although the Notification Letter initially describes DOE Security’s concerns relating to the individual’s use of alcohol, I have determined that the matter raised under Criterion L should be first be addressed since it relates directly to the individual’s rehabilitation and reformation. In November 1996, the individual agreed to enter into EAPRO and signed a Memorandum of Understanding which clearly sets forth the requirement for total abstinence throughout the 24-month duration of the program. However, in January 1998, after completing one year of treatment with his EAPRO Provider, the individual admittedly resumed moderate drinking. According to DOE Security, the individual thereby “breached a commitment” and the “flouting of [his] EAPRO agreement . . . serves to impugn [the individual’s] honesty, reliability and trustworthiness.” Notification Letter, Exh. 2 at 4. For the reasons below, however, I have concluded that although the violation of the individual’s EAPRO agreement is certainly a serious matter, it was not a deliberate act of noncompliance on the part of the individual.

The individual maintains that in January 1998, he mistakenly believed that moderate drinking after one year of abstinence was acceptable under EAPRO. Tr. at 42-43. The individual insists that “I sincerely thought I was operating within the parameters of the EAPRO Program.” Exh. 1 (Hearing Request) at 2. The individual believes that his confusion may have stemmed from his reading of a supplemental EAPRO procedure document that was given to him by the Personnel Security Specialist at the time he signed the EAPRO Memorandum of Understanding. Id.; Tr. at 32. This supplemental EAPRO document states in pertinent part: “AT THE COMPLETION OF THE SECOND 12 MONTHS PERIOD, THE EAP PROVIDER SHOULD FURNISH THE DOE DOCUMENTATION TO SUBSTANTIATE THAT THE INDIVIDUAL HAS CONTINUED TO ABSTAIN FROM THE USE OF ALCOHOL HABITUALLY TO EXCESS OR THE USE OF ILLEGAL DRUGS.” The individual submits that this requirement, which is different and less stringent than the EAPRO requirements relating to the first 12 months, appears to suggest that he would be in compliance as long as he did not drink “habitually to excess” during the second 12 months.(2) Tr. at 29-30.

Adding to the individual’s confusion were the differing requirements of EAPRO and the treatment program generally administered by the agency that ultimately became his EAPRO Provider. The individual was referred to the agency by State Parole and Probation, which required the individual to complete an alcohol education program during a one year probationary period under a Probation Before Judgment (PBJ) sentence he received as a result of the September 1995 DUI. Exh. 11. Thus the individual initially enrolled with the agency as his PBJ counselor in September 1996; however, upon being offered EAPRO by DOE Security in November 1996, the individual chose and DOE Security accepted his then PBJ counselor as EAPRO Provider, thereby allowing the individual to combine his PBJ requirement with EAPRO. Tr. at 52-53; Exh. 9 (Statement of Understanding and Consent to Participate).

However, a conflict arose because unlike EAPRO, persons attending the program to fulfill PBJ requirements are instructed that they may choose whether to resume moderate drinking, if they successfully maintain abstinence and attend the required counseling sessions during the initial one year probationary period. Tr. at 54-55.(3) The individual’s EAPRO Counselor confirmed that after completion of the initial phase of the provider’s PBJ program, participants who have fully complied are permitted to decide whether to attempt social drinking. Tr. at 60; Exh. 6 (PSI, August 14, 1998) at 23 (EAPRO Provider offered individual “an option”).(4) The EAPRO Counselor testified that the individual was an active participant in the counseling sessions, displayed no signs of alcohol use, and tested negative on all of the random alcohol screening tests that were administered. Tr. at 63-64, 69. Therefore in January 1998, when the EAPRO Counselor informed the individual that he had successfully completed the one year probationary period, the individual states that he made the determination to begin moderate drinking and informed the EAPRO Counselor of his decision. Tr. at 46. The individual states that although he mistakenly believed that this was not a violation of his EAPRO requirements, he felt confirmed in his belief since the EAPRO Counselor did not object to his decision. Id.(5)

Whatever the basis for the individual’s confusion, however, I am convinced that the individual is being truthful when he states that he did not intentionally violate the EAPRO abstention requirement. I find very persuasive the fact that the individual himself brought his resumption of drinking to the attention of DOE Security during a routine status PSI conducted on June 4, 1998. Exh. 8. During this PSI, the individual directly and openly informed the Personnel Security Specialist that he had resumed drinking in moderation since he understood that it was permissible under EAPRO after successfully completing the first year terms of the program. Id. at 6-7. The Personnel Security Specialist testified that the individual appeared honest in stating his belief that he was in compliance with EAPRO. Tr. at 24. While the Personnel Security Specialist cannot account for the individual’s misunderstanding(6), DOE Security is equally at a loss to explain why the individual would admit that he had resumed drinking during the PSI, if he did not actually believe that he was in compliance with EAPRO requirements. Exh. 6 at 6-8; Tr. at 85-86. At that time, in June 1998, the individual had but six of the 24 months of EAPRO remaining, and all of the individual’s alcohol urinalysis test results were negative.

The transcript of the June 4, 1998, PSI displays the individual’s surprise in finding out that he was in violation of EAPRO, and he immediately asserted his willingness to do anything necessary to complete his remaining six months of EAPRO. See Exh. 8 at 7, 11-12. During the hearing, the individual was forthright and convincing in his testimony concerning his misunderstanding and appeared to be genuinely contrite for his failure to fulfill the EAPRO requirements. The individual stated that he has only himself to blame, and the individual knows now that he should have reexamined the EAPRO documents prior to making a decision to begin drinking in moderation. Tr. at 47. The individual states that he is willing to start back at the beginning if that is required in order to retain his clearance. Tr. at 96. According to the individual, he immediately resumed abstinence in September 1998, when his security clearance was suspended, and he has maintained abstinence since that time. Tr. at 44.

On the basis of the circumstances presented, I have determined that the individual has adequately mitigated the security concerns relative to the violation of his EAPRO commitment. In reaching this determination, I am well aware of the seriousness of this matter. The individual was permitted to retain his security clearance in November 1996, based upon his assurance and signed agreement to comply with EAPRO requirements. The DOE security program is based on trust, and if an employee lies to the DOE or breaks a written promise to the DOE, that trust is violated. However, I do not believe that the individual poses an unacceptable risk to violate classified rules or other security obligations. In an analogous case, involving the violation of a signed Drug Certification, a Hearing Officer concluded that security concerns under Criterion L were sufficiently mitigated where such violation was not “either (I) a conscious decision to ignore a previous warning that future drug use would lead to the revocation of his clearance, or (ii) a conscious decision to violate a personal commitment made to the DOE to abstain illegal drugs.” Personnel Security Hearing, Case No. VSO-0045, 25 DOE ¶ 82,774 at 85,662 (1995). Similarly in this case, I find that the individual’s violation of his EAPRO commitment was not a “conscious decision” to ignore a previous warning or to violate a personal commitment made to DOE. I believe he is a person who is honest and has the integrity required to hold a security clearance. Whether due to lack of understanding, faded memory or a confusion of treatment program requirements, I am persuaded that the individual did not intentionally violate the EAPRO Memorandum of Understanding. While the individual was clearly negligent, as he has conceded, I do not find that this failing demonstrates that the individual is not honest, reliable or trustworthy, to a degree rendering him ineligible to hold a security clearance.

B. Criterion J; Alcohol Use

The Personnel Security Specialist described the security concerns with habitual excessive use of alcohol during her testimony. Specifically, she stated that there is a concern regarding the individual’s ability to safeguard national security information because his judgment or reliability may be impaired, and also that individuals who abuse alcohol are susceptible to being coerced or exploited to reveal classified matters. Tr. at 14. These security concerns are indeed important and have been recognized by a number of Hearing Officers in similar cases. See, e.g.,Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 at 85,762 (1999); Personnel Security Hearing, Case No. VSO-0200, 27 DOE ¶ 82,770 at 85,628 (1998). In the present case, the individual had several alcohol-related arrests during the period August 1993 through September 1995, including three DUIs, a domestic dispute and an altercation at a bar.

On September 25, 1996, approximately one year following the most recent incident, the individual was referred to the DOE Psychiatrist who evaluated the individual. On the basis of his evaluation, the DOE Psychiatrist reported his diagnosis in letter transmitted to DOE Security on September 27, 1996, that:

[The individual] has been a user of alcohol habitually to excess within the meaning of 10 CFR. 710.8(j). I do not believe that there is the presence of rehabilitation or reformation or behavioral changes within the meaning of 10 CFR 710(c). [The individual] has embarked on a course of abstinence and has enrolled in an alcohol awareness program. I believe his continued abstinence coupled with Alcoholics Anonymous, a successful completion of the recommendations of the alcohol awareness program or successful completion of the outpatient alcoholism rehabilitation program, (which may be offered through the EAP), may result in adequate evidence of rehabilitation and reformation.

Exh. 12 at 2. DOE Security asserts in the Notification Letter that this diagnosis coupled with the individual’s violation of his EAPRO agreement make it “readily apparent that alcohol abuse is both a dominant force and a continuing issue in [the individual’s] life; and that [he is] without adequate evidence of reformation or rehabilitation.” Exh. 2, Enclosure 1 at 3. I do not agree. While I do not challenge the expert opinion of the DOE Psychiatrist rendered in September 1996, I differ with the assessment of DOE Security that now nearly three years later the individual still has not achieved adequate reformation and rehabilitation. As set forth below, my examination of the record leads me to a different conclusion. I have determined that the individual has presented adequate evidence of rehabilitation and reformation to overcome the legitimate concerns of security relating to his past use of alcohol.

My assessment of the requisite level of rehabilitation and reformation in this case is certainly made more difficult by the fact the diagnosis of the DOE Psychiatrist was rendered in September 1996, more than two and one half years ago. DOE Security chose not to call the DOE Psychiatrist as a witness at the hearing or to have the individual reevaluated. Notwithstanding, it has been recognized in a number of Hearing Officer opinions involving diagnoses of habitually excessive alcohol use that DOE’s security concerns may be mitigated by evidence of the successful completion of a viable alcohol treatment program combined with a minimum of one year of abstention from alcohol. See Personnel Security Hearing, Case No. VSO-0245, 27 DOE ¶ 82,795 at 85,783 (1999), citing Personnel Security Hearing, Case No. VSO-0167, 26 DOE ¶ 82,801 (1997),Personnel Security Hearing, Case No. VSO-0226, 27 DOE ¶ 82,780 (1998); see also Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 at 85,763 (1999).(7) The evidence before me establishes that the individual has met his burden in this regard.

The record shows that the individual underwent a 17-month period of abstinence, from August 1996 to January 1998. Tr. at 44, 48. Within that time, from September 1996 January 1998, the individual successfully completed a substantial alcohol treatment program administered by the agency which became his EAPRO Provider. Tr. at 58-60; Exh. 6 at 9-10. The treatment program began with a six-week (12-hour) education program, followed by 20 weeks of group counseling “where people learn about their own behavior, the effect of alcohol in their life and how they can change their attitudes and behavior and values.” Tr. at 50-60. The individual then continued in weekly counseling sessions until his probation ended in January 1998. Exh. 6 at 10. The individual underwent weekly urinalysis testing for alcohol use throughout the entire probationary program. Id. The EAPRO Counselor confirmed that the individual successfully fulfilled all aspects of the treatment program, and has supplied verifying documentation to DOE Security. Tr. at 56; Exh. 17. Nothing in the report of the DOE Psychiatrist leads me to believe that a longer or more rigorous program of treatment was necessary in order for the individual to achieve adequate evidence of reformation and rehabilitation. According to the EAPRO Counselor, who holds a doctorate in clinical psychology, the individual has demonstrated that he is not an “alcoholic,” unable to resist alcohol: “[A] person who can stay alcohol-free for an extended period of time, despite whatever reason the person has, that means he has the ability to do it. If he is alcoholic, he wouldn’t have stopped that long. He either would have switched to another kind of chemical or gone to a prescription medication. Or he would have continued drinking, and we would have caught him at least a few times with alcohol positive.” Tr. at 70.

The individual admits that he began moderate social drinking in January 1998, which he ceased in September 1998 when he resumed abstinence. However, for the following reasons, this admission does not diminish my belief that the individual has accomplished the requisite level of reformation and rehabilitation to overcome the security concerns regarding his past alcohol use. First, as discussed above, the individual did not resume drinking out of an uncontrollable compulsion to drink, nor by a conscious decision to violate EAPRO restrictions(8), but based upon instruction he received in the course of his treatment that he was permitted to make that decision after successfully completing the initial one-year phase of his program. See note 4,supra. Secondly, it is apparent that during this period, the individual did not digress into a level of excessive alcohol use detectable by either his counselor or urinalysis. Although the individual had fulfilled his PBJ requirement in January 1998, he continued in monthly counseling sessions and urinalysis testing under EAPRO.(9) The monthly reports submitted to DOE Security by the EAPRO Counselor show that the individual continued to satisfy all provisions of his treatment, and all urinalysis tests were negative. Exh. 17; Tr. at 61.

I further note that there have been no reported alcohol-related incidents involving the individual since the cluster of incidents from August 1993 through September 1995. In explaining this period, the individual admits that he “used poor judgement during a time in my life when I was faced with some personal domestic issues,” but now assures that “[a]lcohol is no longer a dominant force in my life.” Exh. 1 at 1-2. The individual’s wife submitted a letter highly supportive of the individual, which corroborates the individual’s assertion that he has taken meaningful steps to change his life since that time. Exh. 16.(10) Finally, I note the impressive work record that the individual has maintained before and including the period when he resumed moderate drinking, as exemplified by high level performance appraisals and several contemporaneous letters of appreciation and commendation submitted by the individual into the record. See Exh. 18.

III. Conclusion

As explained in this Opinion, I find that DOE Security properly invoked 10 C.F.R. § 710.8(j) in suspending the individual's access authorization. It is my opinion that the individual "has been . . . a user of alcohol habitually to excess." 10 C.F.R. § 710.8(j). However, in view of the individual’s showing with regard to rehabilitation and reformation, I find that the individual has sufficiently mitigated the security concerns of DOE relating to his past use of alcohol. In addition, I have concluded that the individual’s eligibility to hold an access authorization should not be revoked on the basis that he is dishonest, unreliable or untrustworthy, 10 C.F.R. § 710.8(l), for having failed to comply fully with EAPRO requirements. While the individual’s EAPRO violation is a serious matter, the record convinces me that it did not reflect a conscious decision to renege on a commitment made to DOE. Under the circumstances presented, I am unpersuaded that the individual’s negligent misunderstanding of EAPRO requirements casts such doubt upon the individual’s honesty, reliability or trustworthiness as to disqualify him from holding a security clearance. I therefore 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 be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer'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. 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 where 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

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: May 19, 1999

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as an access authorization or security clearance.

(2)During the initial 12 months, EAPRO generally requires monthly counseling sessions and unannounced monthly testing for alcohol use, while during the second 12 months, EAPRO requires continued counseling and testing at least every 3 months. See Exh. 9.

(3)While all of their “clients or patients” are not eligible, the EAPRO Counselor confirmed that those, such as the individual, who “show no symptom of dependency or abuse or uncertain behavior[, t]hen we consider that they are capable of being social users, and we leave it there.” Tr. at 55.

(4)Upon questioning by the DOE Counsel, the EAPRO Counselor explained that in his view only those “problem drinkers” who are identified as “alcoholic” must forever abstain from alcohol: “Problem drinkers are supposed to modify their behavior and learn how to be responsible drinkers, if they can. But if they have developed alcoholism . . . abstinence is the only solution.” Tr. at 58-59. In the opinion of the EAPRO Counselor, the individual is not an “alcoholic.” Tr. at 70.

(5)The EAPRO Counselor testified that he did not recall the individual informing him of his determination to begin moderate drinking, although the individual generally kept him apprised of all matters relating to his status under EAPRO. Tr. at 64; Exh. 6 at 20-21. In any event, the individual’s revelation would not have set off any alarm in the mind of the EAPRO Counselor since at the time the EAPRO Counselor did not himself recall whether EAPRO required 24 months of abstinence, or only abstinence during the first 12 months. Tr. at 65- 66. Indeed, even during the hearing under questioning of the DOE Counsel, the EAPRO Counselor confused the individual’s EAPRO and PBJ requirements:

A:According to our record, [the individual] successfully completed the requirement of the EAPRO program as he was referred from the probation office.

Q:He successfully completed the probation officer’s program of 12 months. Is that what you’re stating?

A:Yeah.

Tr. at 56. Interestingly, the EAPRO Counselor shared the individual’s confusion with EAPRO requirements although he too read the Memorandum of Understanding in December 1996, and retained a copy in his files. Tr. at 53-54; Exh. 6 at 16.

(6)The same Personnel Security Specialist conducted the PSI in November 1996 (Exh. 10), when the individual was offered EAPRO. She is convinced that she fully explained EAPRO and the individual appeared to understand when he read and signed the Memorandum of Understanding which clearly sets forth the requirement for abstention during the 24-month duration of the program. Tr. at 16-17. DOE Security now has a booklet that it gives to EAPRO participants which fully describes the EAPRO program and requirements. Tr. at 30- 31. However, this booklet was not available in November 1996. Tr. at 33.

(7)For instance, in Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 (1999), the individual had been arrested for driving while intoxicated (DWI) on five occasions, and failed in several attempts to abstain from the use of alcohol. Similar to the present diagnosis, the DOE psychiatrist in that case determined that the individual did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria for alcohol abuse or alcohol dependence, but instead diagnosed the individual as “a user of alcohol habitually to excess.” 27 DOE at 85,761. When asked to specify the minimum period of abstinence and treatment required for adequate evidence of rehabilitation and reformation, the DOE Psychiatrist responded “about a year.” Id. at 85,763.

(8)I find the situation here markedly different from the typical case involving a violation of EAPRO where an individual fails in the attempt to abstain as a result of alcohol dependency. See, e.g., Personnel Security Hearing, Case No. VSO-0245, 27 DOE ¶ 82,795 (1999).

(9)Under the EAPRO agreement, the individual was only required to continue counseling and urinalysis testing every three months during the second 12 months of the program. However, on this point also, the individual misunderstood the EAPRO requirements: “Well, it was supposed to be every three months. I thought it was every month. So I was going every month.” Tr. at 61. The EAPRO Counselor testified that persons who revert to a pattern of excessive alcohol consumption will likely be uncovered in urinalysis testing. Tr. at 70; see Exh. 6 at 11-13.

(10)The individual’s wife is in the military and was on travel on the date of the hearing, and therefore was unavailable to testify. DOE Hearing Counsel therefore agreed to accept her letter into the record. In her letter, the individual’s wife states that the individual went back to school in 1997 and is scheduled to receive his Bachelor’s Degree in August of this year, and they have now purchased a home. She further states that the individual has been positive and committed throughout his rehabilitation process. She also corroborates the individual’s assertions regarding his abstinence until January 1998, when he began drinking “on occasions” but that he resumed abstinence in September 1998. See Exh. 16.