Case No. VSO-0260, 27 DOE ¶ 82,812 (H.O. Augustyn July 26, 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.

July 26, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:February 11, 1999

Case Number: VSO-0260

This Opinion concerns the eligibility of XXXXXXXXXXXXX (the individual) to obtain an access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria for Access to Classified Matter or Special Nuclear Material."(1) As explained below, after carefully considering the record before me in light of the relevant regulations, I recommend against granting the individual an access authorization.

I. Procedural Background

The individual has been employed by several DOE contractors at the same DOE facility since xxxx. While the individual has never held a security clearance, she has been an applicant for a security clearance several times during her xxx-year tenure at the facility. This is because different DOE contractors have alternately submitted and withdrawn requests for her to obtain a security clearance.

Substantial derogatory information about the individual’s mental health, and drug and alcohol use first surfaced sometime in xxxx when the DOE was processing the first access authorization request submitted on the individual’s behalf. The DOE attempted to resolve the security concerns associated with that derogatory information several times, but ceased doing so each time the individual’s employer decided the individual did not need to obtain a security clearance.

In 1998, the individual’s employer requested an access authorization for her, thereby reviving the unresolved security concerns. The DOE immediately conducted a Personnel Security Interview (PSI) with the individual in 1998 (1998 PSI) to determine what, if anything, had changed since the individual’s two earlier personnel security interviews, one in 1991 and the other in 1992 (1991 PSI and 1992 PSI, respectively). Lingering doubts about the individual remained after the 1998 PSI, prompting the DOE to refer the individual for a psychiatric evaluation. The DOE consultant- psychiatrist who examined the individual in 1998 was the same board-certified psychiatrist who examined the individual in 1993 while an earlier access authorization request was pending.

After receiving the DOE consultant-psychiatrist’s 1998 Psychiatric Report, the DOE issued a Notification Letter to the individual on January 8, 1999. The Notification Letter advised the individual in detail about the DOE’s security concerns, i.e., the individual’s past drug and alcohol use, and her current mental health. The DOE further informed the individual that the derogatory information at issue falls within the purview of 10 C.F.R. §§ 710.8(j), (k) and (h) (Criteria J, K and H, respectively).(2)

The individual responded to the Notification Letter by filing a request for a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director who appointed me as Hearing Officer in this case. I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative review process. See 10 C.F.R. § 710.25(g). At the hearing, the DOE called two witnesses: a DOE personnel security specialist and the DOE consultant-psychiatrist. The individual offered her own testimony and that of three other witnesses: the Director of the DOE facility’s Occupational Medicine Department (OMD); a member of the “Joint Company-Union Safety Committee” at the DOE facility, and the individual’s niece. The DOE submitted 19 exhibits, and the individual tendered eight. On June 24, 1999, I received the hearing transcript at which time I closed the record in this case. See 10 C.F.R. § 710.27(e).

II. The Notification Letter

The Notification Letter cites excerpts from the DOE consultant-psychiatrist’s 1993 and 1998 Psychiatric Reports as the bases for the DOE’s security concerns in this case. With respect to Criterion H, the Notification Letter states that the DOE consultant-psychiatrist found in 1993 that the individual had a mental disorder, i.e., an antisocial personality disorder, that causes or may cause a significant defect in judgment or reliability. According to the DOE consultant-psychiatrist, the individual first developed a conduct disorder as an adolescent, most likely the result of growing up in a neglectful environment. As an adult, the individual manifested the symptoms of an antisocial personality disorder: frequent job changes, maladaptive home situations, possible neglect as a mother, frequent moves, some degree of financial irresponsibility, irritability, aggressiveness, and no regard for the truth. The DOE consultant-psychiatrist confirmed his findings in this regard by administering the Minnesota Multiphasic Personality Inventory II (MMPI-II) to the individual. The DOE consultant-psychiatrist concluded in 1993 that the individual was a poor candidate for psychotherapy, as she was fixed in her personality and unlikely to change.

In 1998, the DOE consultant-psychiatrist found the individual’s mental health substantially unchanged from the first time he examined her in 1993. This time, however, he diagnosed the individual with adjustment reactive depression compounded by her antisocial personality disorder. According to the DOE consultant-psychiatrist, while the individual’s episodes of depression may be treated with therapy and medication, her personality disorder is pervasive, long-standing, and not likely to remit. The DOE consultant-psychiatrist enumerated the following additional criteria as the basis of his diagnosis of antisocial personality disorder: failure to conform to social norms; deceitfulness as indicated by repeated lying; reckless disregard for the safety of others; irresponsibility; and evidence of a conduct disorder prior to age 15. Finally, the DOE consultant- psychiatrist is concerned that the individual is withholding information or omitting details of her treatment to minimize her illness.

Regarding Criterion J, the Notification Letter refers to the DOE consultant-psychiatrist’s 1998 Psychiatric Report in which he concluded the individual has been a user of alcohol habitually to excess and has suffered from alcohol abuse. The DOE consultant-psychiatrist concludes that the individual has not shown adequate evidence of rehabilitation or reformation since she (1) presented unreliable information to him; (2) is not “psychologically minded;” and (3) is in denial and hence not open to treatment.

Similarly, with respect to Criterion K, the Notification Letter charges that the individual has been a user of illegal drugs and has suffered from illegal drug abuse. According to the DOE consultant- psychiatrist, the individual has not shown adequate evidence of rehabilitation or reformation for the same reasons he concluded she was not rehabilitated or reformed from her past alcohol problems.

III. Standard of Review

The applicable DOE 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 or presence 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 authorized when derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. 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). The individual must come forward 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) (strong presumption against the issuance of a security clearance).

IV. Analysis

I have thoroughly considered the record of this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. 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). After due deliberation, it is my opinion that the individual’s access authorization should not be granted. I cannot find that a grant would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

As an initial matter, the individual disputes almost all the facts alleged in this case. (3) What is uncontested, however, is that the individual has experienced hardship from an early age. For example, she and her five brothers and sisters were placed in foster care when the individual was approximately xxxxx years old because of parental neglect. Ex. C. The individual admits that she frequently ran away from foster care and lived on her own beginning at age xx or xx. It was as a runaway that she first experimented with marijuana and began drinking alcohol to excess. 1992 PSI at 18, 42, 43. At age xx, the individual gave birth to a son. Id. Shortly thereafter, the individual parted ways with her son’s father, after he allegedly abused her. Id. At age xx, the individual sustained a self-inflicted gunshot wound, causing her to remain hospitalized for two to three months. (The individual maintains that the gunshot wound was accidental, although she admits to suicidal thoughts at other times. 1991 PSI at 55, 60; 1992 PSI at 89.) Shortly thereafter, the individual was declared an unfit mother, thereby losing custody of her son. 1992 PSI at 12. To cope with the loss of her son, the individual saw a psychiatric social worker from 1972 to 1978. The individual denies having seen a mental health professional during this period, preferring instead to view the psychiatric social worker as a friend. She admits, however, that she suffered from depression at this time. See Ex. M; 1992 PSI at 80.

During the mid to late 1970s, the individual was involved in a number of criminal activities: she used intravenous amphetamines and marijuana; was arrested for possession of narcotics, heroin and marijuana(4); and was charged with second degree assault and conspiracy as the result of a shoot-out with police in which her two male friends, wanted criminals, were killed by police. (5)

In 1987, the individual sustained a job-related injury while working as a xxxxxxxxx. For a three- month period in 1988, the record reflects that the individual began to see a clinical psychologist for clinical depression, chronic pain syndrome, and social withdrawal. The individual admits that she was depressed because of her job-related injury and the fact that her brother was xxxxxxxx. 1992 PSI at 92, 94. She insists, however, that she saw the psychotherapist for pain management and not for mental health issues.

In 1991, the individual was arrested for Driving Under the Influence of Alcohol and her license was revoked under the express consent laws of the state in which she was arrested when she refused to take a breath alcohol test (BAT).(6) The individual maintains that the arrest was a “set-up” by a policeman who wanted to harass her. She also alleges that the policeman touched her improperly while conducting a “pat-down” after her arrest. While it is debatable whether the individual’s perceptions surrounding the alcohol arrest are accurate, there are two relevant undisputed facts relating to the arrest: a jury convicted her of Driving While Ability Impaired, and the State Motor Vehicle Department upheld the decision to revoke the individual’s license. See Ex. I.

A. Mental Illness

As stated above, a board-certified psychiatrist diagnosed the individual in 1993 and again in 1998 with a mental illness which, in his opinion, causes or may cause a defect in her judgment and reliability. In addition, the DOE consultant-psychiatrist opined that because the individual’s personality disorder is well ingrained and persistent, she would not benefit from psychological counseling.

At the hearing, the DOE consultant-psychiatrist reaffirmed his diagnosis of, and prognosis for, the individual. The DOE consultant-psychiatrist explained that the individual’s antisocial personality disorder has compromised her mental health by causing her to have emotional disturbances, such as depression, irritability and behavioral “acting out.” Transcript of Hearing (Tr.) at 44, 64, 67. Under questioning, the DOE consultant-psychiatrist clarified that a personality disorder itself is not technically a mental illness. Id. at 67. Rather, people with personality disorders frequently have crises that lead them to behavioral “acting out” or mental illness like depression. Id. In the individual’s case, her personality disorder causes her difficulty in relating well to others as manifested by her impulsiveness, moodiness, aggressiveness, irritability and anger. Id. at 65. According to the DOE consultant-psychiatrist, these behavioral characteristics are subsumed under the category of adjustment reaction with depression in the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). Id. at 67. The DOE consultant-psychiatrist emphasized that it is the adjustment reaction with depression, and not the antisocial personality disorder that causes the defect in judgment and reliability. Id. at 64.

The DOE consultant-psychiatrist also testified that he detects in the individual a pattern of “self- righteousness, holding herself above others, blaming others, being a victim, disregard [for] other people . . . lack of empathy, lack of understanding, [and] irresponsibility that fits into . . . [the] diagnosis [of antisocial personality disorder].” Id. at 112. As an example, the DOE consultant- psychiatrist cites the individual’s 1991 DUI arrest. In that incident, a policeman stopped the individual’s car after she had been drinking alcohol at a bar. The individual was later convicted by a jury of Driving While Ability Impaired. The individual claims, however, that she was a victim of harassment by the policeman, and that her conviction resulted from her lawyer’s ineptness. According to the DOE consultant-psychiatrist, when the individual is confronted, she becomes irritable, aggressive, depressed and displays a lack of judgment and reliability. Id.

At the hearing, I asked the DOE consultant-psychiatrist whether he had considered the social and economic context in which the individual’s behavior occurred in assessing the individual’s antisocial traits. Id. at 56. I pointed out that the DSM-IV raises concerns that the [antisocial personality disorder] diagnosis may at times be misapplied to individuals in settings in which seemingly antisocial behavior may be part of a protective strategy. Id. The DSM-IV states that “in assessing antisocial traits, it is helpful for the clinician to consider the social and economic context in which the behaviors occur.” DSM-IV at 647. It is the DOE consultant-psychiatrist’s opinion on this matter that the individual is accountable for her actions despite the neglect, abuse, and abandonment she has experienced. Tr. at 105.

In her defense, the individual denies that she has a mental illness and attempts to demonstrate that the DOE consultant-psychiatrist’s diagnosis is faulty. At the hearing, the individual submitted a letter from her primary care physician which states “[t]here have never been any identified psychiatric or personality issues.” Ex. 2. In addition, the Medical Director of the site’s Occupational Medicine Department (OMD Director), who is board-certified in emergency medicine, testified that he has never seen any evidence of depression in the individual. Tr. at 89. The OMD Director has, however, seen the individual angry and upset at situations occurring in her work environment or with her co-workers. Id. Under questioning, the OMD Director admitted that he has no psychiatric training and was unable to opine about the DOE consultant-psychiatrist’s diagnosis of antisocial personality disorder. Id. He related nevertheless that the individual is an “upfront person or in your face type of personality.” Id. at 88.

Another witness who testified on the individual’s behalf was a member of the “Joint Union- Company Safety Committee.” He addressed whether the individual showed a reckless disregard for the safety of others, one of the criteria the DOE consultant-psychiatrist cited in rendering his diagnosis. The member stated that the individual is safety conscious at the worksite and has frequently reported legitimate safety concerns, often to the chagrin of her employer. Id. at 69-70.

The individual’s adult niece provided testimony that she never observed any signs of depression in the individual, never observed the individual neglecting her son or any other children for whom she cared, and never saw the individual “fiercely mad where [she] would lash out at someone.” Id. at 120-121.

Finally, the individual testified that she disagrees with the DOE consultant-psychiatrist’s characterization of her. Id. at 149. She claims that the DOE consultant-psychiatrist is too judgmental, takes everything out of context, and made her feel uncomfortable. Id. at 126, 127, 130. (7) The individual also testified that she is not irresponsible, pointing out that she rarely misses work and has worked hard to put herself through college. Id. In addition, the individual submitted into the record at the hearing her community college transcript, various professional certificates, and progress reports from her place of employment. Exs. 5, 6, 7. She concluded her testimony by questioning how she could have a mental illness yet accomplish all that she has to date. Tr. at 95-96.

1. Adjustment Reactive Depression and Antisocial Personality Disorder

While the individual maintains that she does not have a mental illness, I find that the weight of evidence suggests otherwise. First, neither the OMD Director who testified on the individual’s behalf nor the individual’s primary care physician have any psychiatric training or background. To be sure, Criterion H allows a licensed physician as well as a board-certified psychiatrist to render an opinion about a person’s mental condition. In this case, however, the DOE consultant-psychiatrist examined the individual twice, once in 1993 and again in 1998. In addition, he administered the MMPI-II to obtain a psychiatric profile of the individual. In contrast, the letter from the primary care physician states an opinion without any indication whether the physician examined the individual for any mental disorders. Furthermore, the primary care physician did not testify at the hearing, thereby preventing the record from being more fully developed on this issue. As for the testimony of the OMD Director, he readily admitted he was unable to opine as to whether the individual suffers from an antisocial personality disorder. The OMD Director’s statement that he has never seen any evidence of depression in the individual pales in comparison to the detailed psychiatric analysis provided by the DOE consultant-psychiatrist on this issue. Moreover, I find that the individual’s own view about her mental health and the observations of her niece, a lay person, cannot overcome the opinion of an expert to the contrary.

As for the testimony that the individual is diligent in reporting perceived safety concerns at the DOE facility, I commend her for her vigilance in this regard. However, it was apparent to me from the DOE consultant-psychiatrist’s testimony that he is concerned that the individual will resort to the coping mechanisms she has learned in the past to deal with depression brought on by stress, namely, disregard for others’ safety and for social norms. The individual’s keen sense of discerning when others are less than safety conscious at the site does not mitigate the DOE consultant-psychiatrist’s concern that the individual might not herself be vigilant in safeguarding others and property should she experience adjustment reactive depression in the future.

I am impressed that the individual has surmounted so many obstacles in her life, and has succeeded in completing her associate degree and received other forms of professional recognition. The individual’s personal stamina and achievements, however, simply do not overcome the board- certified psychiatrist’s opinion regarding the state of her mental health.

Based on all the foregoing, I find that the DOE properly relied on Criterion H as a basis for its refusal to grant the individual an access authorization. It was reasonable for the DOE to conclude that the individual’s adjustment reactive depression, coupled with her antisocial personality disorder, could impair her judgment and reliability and prevent the individual from safeguarding classified matter or special nuclear material.

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, Personnel Security Review, Case No. VSA- 0154, 27 DOE ¶ 83,008 (1998) (affirmed by OSA, 1998).

2. Mitigation of Mental Health Concerns

In considering whether the individual has mitigated the concerns raised by the DOE related to her mental illness, I note that the individual’s mental condition does not appear to be temporary in nature. She appears to have experienced reactive depression from 1972 to 1978, and clinical depression in 1988. More recently, the DOE consultant-psychiatrist diagnosed the individual with antisocial personality disorder in 1993. In both 1993 and 1998, the DOE consultant-psychiatrist opined that the personality disorder was pervasive and that the individual was unlikely to respond to treatment. Furthermore, in 1998, the DOE consultant-psychiatrist expanded his diagnosis to include adjustment reactive depression.

I recognize, of course, that the individual has not sought recent treatment because she does not believe she has a mental condition requiring attention. It is unfortunate that the individual did not consult with an expert to obtain an independent psychiatric opinion regarding her mental health. In the absence of an opinion stating the individual’s mental health problems are in remission and unlikely to recur, I cannot make a finding that the Criterion H concern has been mitigated. See Personnel Security Hearing, Case No. VSO-0133, 26 DOE ¶ 82,782 (1997); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755 at 85,541 (1995). It is worth noting that an access authorization is a privilege not a right, and that the high standards of behavior, reliability, trustworthiness and sound judgment necessarily associated with an access authorization far exceed standards demanded of those who do not hold an access authorization. See Personnel Security Hearing, Case No. VSO-0246, 27 DOE ¶ ___ (May 5, 1999). In this case, it is my opinion that the risk is simply too great that the individual’s mental condition might adversely affect her judgment and reliability to the point where she might endanger the common defense and national security.

B. The Individual’s Alcohol and Drug Use

As noted above, the DOE invoked Criteria J and K after the DOE consultant-psychiatrist opined that the individual (1) had habitually consumed alcohol to excess and used illegal drugs in the past, and (2) has not demonstrated adequate evidence of rehabilitation or reformation from either alcohol or drugs. At the hearing, the DOE consultant-psychiatrist emphasized that the individual presented unreliable, discrepant information regarding her past alcohol and drug usage which leads him to believe the extent of the individual’s alcohol and drug problems was much greater than she had admitted.

The individual claims she does not currently have a drug or alcohol problem. Tr. at 124. While she does not now dispute her marijuana and intravenous amphetamine use twenty years ago, she does take issue with the charge that she consumed alcohol to excess in the past. As for the 1991 DUI arrest, the individual steadfastly maintains her innocence. She claims she only drinks small quantities of alcohol each year on New Year’s Eve. Id. at 129.

1. Recent Usage

The individual has presented documentary and testimonial evidence that cumulatively convinces me she is not currently using illegal drugs, or consuming alcohol to excess. The individual’s primary care physician, who has cared for the individual since 1992, submitted a letter stating he has never identified any alcohol or drug issues in the individual. Ex. 1. The Contractor Manager of the Human Reliability Program at the DOE site submitted a notarized statement in which she states she conducted a search of the contractor’s drug testing records for the period beginning in 1990 and found that the individual had only taken one drug test in 1996. Ex. 8. The 1996 drug test was negative. Id. In addition, the individual submitted a laboratory report for a drug screen she took on May 10, 1999. The results of the drug screen were negative, according to the report. Ex. 2.

The individual also submitted five laboratory reports for blood and urine samples taken from her in 1991, 1993, 1995, 1996, 1998, and 1999. Exs. 2 and 3. The OMD Director testified that those five laboratory reports show the individual does not suffer from alcoholism. Id. at 91.When shown the laboratory results, the DOE consultant-psychiatrist stated that it is more probable than not that the individual is not using alcohol or drugs at this time. Tr. at 39-40, 102.

On the basis of the above, I find that the cumulative weight of the evidence supports a finding that the individual is not using illegal drugs or consuming alcohol to excess at the present time.

2. Past Usage

As for the individual’s past illegal use of drugs and alcohol, the DOE consultant-psychiatrist testified that it was very difficult to ascertain the extent of the individual’s past alcohol and drug use because the individual changed her history from moment to moment and provided discrepant information. Tr. at 39. Nevertheless, the DOE consultant-psychiatrist found that the individual clearly used alcohol and drugs possibly to the point of abuse or dependence. Id. The individual has provided no expert testimony or other documentary evidence to rebut the DOE consultant-psychiatrist’s opinion regarding the extent of her past usage of alcohol and drugs. On the alcohol issue, I find it noteworthy that the individual was convicted by a jury of Driving While Ability Impaired (DWAI) in 1991. This fact suggests to me that she consumed alcohol to excess at least on that occasion despite her representations to the contrary. Similarly, the fact that the State Motor Vehicle Department upheld the revocation of the individual’s license lends support to my finding that the individual used alcohol to excess in the past. While the extent of the individual’s past drug use is unclear from the record, it is undisputed that she used marijuana and intravenous amphetamines in the past.

The focus next shifts to whether the individual has mitigated the security concerns associated with her past drug and alcohol usage. It is the DOE consultant-psychiatrist’s opinion that the individual is not rehabilitated from her past drug and alcohol usage because she lacks honesty and stability, two of the three hallmarks of rehabilitation. Id. at 15, 42, 103, 108. The DOE consultant-psychiatrist states that the individual has probably attained the third hallmark of rehabilitation, i.e., abstinence. The DOE consultant-psychiatrist is quick to point out, however, that abstinence alone is not sufficient to demonstrate reformation from either drug use or excessive alcohol consumption. Id. at 103. Abstinence is sufficient for remission but not for rehabilitation. Id.

The individual insists that she does not lie, but simply has a memory problem caused by the confluence of two factors: Soma, a prescription medication, and her tendency to block out painful memories. Id. at 47-48, 127-28. The individual’s primary care physician confirmed that the individual has taken Soma regularly for a number of years and that the drug may have an effect on the individual’s memory. Ex. 1.

The DOE consultant-psychiatrist responded to the individual’s defense by opining that the individual’s problem is not with her memory, but with her deceitfulness. Tr. at 50. He noted that the deceitfulness stems from her antisocial personality disorder. Id. He explains that rather than being truthful about her past drug and alcohol usage, the individual disregards it as a non-problem. Id. at 104.

During his testimony and in his 1993 and 1998 Psychiatric Reports, the DOE consultant-psychiatrist highlights examples of the individual’s attempts to minimize her past conduct by lying. Except for the individual’s own testimony, no other witnesses have attested to her honesty. Based on the record currently before me, I find entirely credible the DOE consultant-psychiatrist’s rationale for concluding that the individual has been deceitful.

In the end, it is the individual’s burden to demonstrate that her past drug and alcohol usage no longer poses a security concern. The evidence the individual presented at the hearing is simply not sufficient to outweigh the expert opinion of the DOE consultant-psychiatrist. I find, therefore, that the individual has not mitigated the DOE’s security concerns associated with Criteria J and K.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§§710.8(h), (j) and (k) in suspending the individual's access authorization. I further find that the arguments advanced by the individual in her defense do not mitigate the security concerns accompanying those criteria. In view of Criteria H, J and K, and the record before me, I cannot find that granting the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the individual's access authorization should not be granted.

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

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: July 26, 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 from time to time in this Opinion as access authorization or security clearance.

(2)Criterion J relates to a person’s excessive habitual use of alcohol, or a situation where a board-certified psychiatrist has diagnosed a person as alcohol abusive or dependent. 10 C.F. R. §710.8(j). Criterion K concerns a person’s possession, use or experimentation with a drug or substance listed in the Controlled Substances Act of 1970, except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law. 10 C.F.R. § 710.8(k). Criterion H concerns information that a person “has an illness or mental condition . . . which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h).

(3)The individual repeatedly expressed concern throughout this proceeding that she did not have access to the Background Investigation file that the DOE psychiatrist reviewed prior to his interview with her. The individual tried without success to obtain the file from the Office of Personnel Management by filing a request under the Privacy Act, 5 U.S.C. §552a. See Record of Telephone Conversation between Ann S. Augustyn, Hearing Officer, and the Individual (July 16, 1999). At the hearing, the DOE consultant-psychiatrist clarified that he only reviewed the Background Investigation file to formulate interview questions; he did not rely on any portion of the file to render a diagnosis regarding the individual.

(4)The individual states she only pleaded guilty to the marijuana possession charge. 1992 PSI at 32-33. She claims she borrowed the car in which the drugs were found from a friend and that she had no knowledge the drugs were in the car. Id.

(5)The individual claims the charges against her were dropped. At the hearing, she stated she did not know her friends were wanted by the police, why the police were chasing the pick-up truck in which she was a passenger, or that her friends had guns in their possession.

(6)The individual steadfastly maintains that she did not refuse to take the BAT. She admitted, however, that she refused the test until she could contact a lawyer. She never took the BAT because she was released from custody prior to speaking to a lawyer.

(7)In fact, the individual refused my repeated suggestions that the DOE consultant-psychiatrist remain in the hearing room at least during her testimony so that he could assess whether his view of the individual had changed.