Case No. VSO-0412, 28 DOE ¶ 82,792 (H.O. Woods March 9, 2001)

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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.

March 9, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 27, 2000

Case Number: VSO-0412

This Opinion considers the eligibility of XXXXXXXXXXXX (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." As explained below, it is my opinion that the individual's request for access authorization should be granted.

I. BACKGROUND

The individual is an employee of a Department of Energy (DOE) contractor and had possessed a DOE access authorization since 1981. For the last several years, the individual had also participated in his employer’s Personnel Assurance Program (PAP). However, in April 2000, the individual was removed from the PAP based on findings by PAP officials that he suffered from an “alcohol use disorder.” DOE Exhibit 2-5 At that time, the individual was referred to a psychologist (hereafter the “DOE psychologist”) for a psychiatric evaluation. In August 2000, the individual’s DOE access authorization was suspended. DOE Exhibit 2-9. In October 2000, the Director of Personnel Security for the DOE’s local Operations Office issued a Notification Letter to the individual. DOE Exhibit 2- 12. The Notification Letter indicates that the individual’s conduct has raised a security concern under Sections 710.8(h) and (j) of the regulations governing eligibility for access to classified material. Specifically, the Operations Office finds that the individual has been diagnosed by a board- certified psychiatrist (the DOE psychiatrist) as suffering from an Alcohol Use Disorder which has been a concern since 1997 and that the DOE psychiatrist found that the individual meets the Diagnostic and Statistical Manual of Mental Disorder Fourth Edition (DSM-IV) criteria for Alcohol Dependence, without physiological dependence. In his Report to the DOE, the DOE psychiatrist also concluded that the individual has not demonstrated adequate evidence of rehabilitation or reformation “as he denies that he has a problem with alcohol consumption.” Id.

In addition to the psychiatrist’s findings, the Operations Office relies on statements made by the individual at a February 2000 Personnel Security Interview (the PSI) concerning problems arising from his past use of alcohol, and his decision to continue drinking despite the advice he received from the occupational medicine staff at the facility where he works. Id.

The individual requested a hearing to respond to the concerns raised in the Notification Letter. In the pre-hearing submissions made by the individual’s counsel, the individual contested the correctness of the diagnosis and other findings of the DOE psychiatrist. In a letter prepared and signed by his counsel, the individual also contended that several statements that he made in his PSI were erroneously construed as admissions of his having a problem with his past use of alcohol. Specifically, he denied admitting: (i) that he has a drinking problem and that he should abstain from drinking alcohol; (ii) that the Alcohol Use Disorder is a correct diagnosis for him; (iii) that he was “required” by his employer to attend EAP and to completely abstain from alcohol prior to the removal from the PAP in early February 2000; (iv) that alcohol has ever interfered with his job performance; and (v) that his use of alcohol was a contributing factor to his divorce in 1987.(1) Individual’s October 2000 Response to the Notification Letter. In his additional evidentiary filings, the individual also provided evidence aimed at supporting his position that he has completely refrained from using alcohol since mid-February 2000 and has thereby demonstrated rehabilitation from any pattern of drinking that could be of concern to the DOE. Accordingly, the hearing convened on this matter focused chiefly on the correctness of the DOE psychiatrist’s diagnosis of the individual and the other facts cited in the Notification Letter as raising a concern with regard to the individual’s use of alcohol, and on the individual’s efforts to mitigate those concerns. For this purpose, I received the testimony of expert medical witnesses who had evaluated the individual and witnesses who are knowledgeable concerning the individual’s assertion that he has stopped consuming alcohol. The individual and eleven other witnesses, two presented by the DOE and nine by the individual, testified at the hearing.

II. REGULATORY STANDARD

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. §§ 710.21(b)(6) and 710.27(b), (c) and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. The hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The individual must 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). Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA- 0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, we generally expect the individual in these cases to bring forward witness testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

B. Basis for the Hearing Officer's Opinion

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue an Opinion as to whether granting an 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(a). The 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). I must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing.

III. ANALYSIS

A. The Individual has Not Refuted the DOE’s Finding that He is Alcohol Dependent

At the hearing, the DOE Security Specialist testified that the individual had possessed a DOE access authorization since March 1981. She stated that the DOE had been aware of the individual’s 1977 arrest for public intoxication, his 1985 DUI, and his two day suspension in 1984 for arriving at work with alcohol on his breath. He had been the subject of routine reinvestigations in 1990 and 1996, and the information provided to the DOE by the individual and other sources did not raise a significant concern regarding his current use of alcohol. TR at 13-14. She testified that in early 2000, the DOE received information from the individual’s occupational medicine staff, which had been monitoring the individual and had diagnosed him with an alcohol use disorder on the basis of elevated readings on tests for liver enzymes (Gamma-glutamyltranspeptidase or “GGT”) and enlarged red blood cells (Mean Corpuscular Volume or “MCV”). At the February 2000 PSI, the individual was questioned about his drinking. She indicated that he admitted that the high GGT and MCV test results had impacted his work. Specifically, because he had been removed from the PAP program because of the test results, and was now required to attend the Employee Assistance Program (EAP). She further stated that the DOE had been concerned when he reported having an alcoholic drink on the Sunday prior to the PSI, in spite of his awareness of the problems caused by his alcohol consumption.

. . . the concern was that it was made clear to him that he should abstain a hundred percent from any alcohol use . . . because of the problems that had occurred, and he had agreed to abstain. Then when I asked him in the interview why it is that he had a beer with a relative, he indicated that he had it because it had been offered to him. So the concern in that regard was that despite noting that he should completely abstain from alcohol use because of the problems that it had already caused, he went ahead and drank anyway.

TR at p. 17.

On the basis of the PSI, the DOE determined that the individual should be evaluated by the DOE psychiatrist concerning his use of alcohol. This evaluation occurred in June 2000. In his Report, the DOE psychiatrist concluded that based on the individual’s admitted past behavior in connection with alcohol, the individual “meets the DSM-IV criteria for Alcohol Dependence, without physiological dependence.” DOE Exhibit 3-7 at p. 6. The DOE psychiatrist cited the following evidence of the individual’s alcohol use as supporting his conclusion:

[The individual’s] history - most of which is by his own report - includes a significant amount of alcohol usage. He has experienced alcohol-related problems chronically. Arrests for public intoxication 93/76) and DUI (11/85) as well as a two -day job suspension (1987/88) due to alcohol consumption immediately prior to beginning a work shift indicate a long-term pattern of alcohol-related difficulty. Alcohol Use Disorder has been a concern for this subject since 1997. Previous recommendations to utilize EAP services for assistance have gone unheeded. Physiological evidence points to significant abnormalities likely due to alcohol usage as other etiologies were ruled out. Evidence strongly identifies [the individual] with an alcohol use disorder.

Id. (2) In his Report, the DOE psychiatrist also supports his diagnosis with the results of two personality tests, the “Brief Neuropsychological Cognitive Examination” (BNCE) and the “Minnesota Multiphasic Personality Inventory - 2" (MMPI-2), that he administered to the individual during his examination. He concludes that

Characteristics of [the individual’s] personality are consistent with one who experiences an alcohol use disorder. Neuropsychological screening indicates a mild cognitive impairment consistent with chronic alcohol usage.

Id. at p. 5.

At the hearing, counsel for the individual challenged the DOE psychiatrist’s conclusion that there existed sufficient instances of current alcohol related-problems and of evidence of tolerance or symptoms of withdrawal to support a DSM-IV diagnosis of Alcohol Dependence for the individual. The DOE psychiatrist responded that the DSM-IV specifically stated that where a person continued to use alcohol despite adverse physical consequences, a diagnosis of alcohol dependence is supported. He cited the individual’s elevated liver function as measured by tests administered by physicians in the PAP as an adverse physical consequence. TR at p. 73. He further testified that even if the only documented instance of a work related alcohol incident occurred sixteen years ago, other physical evidence supported the conclusion that the individual had a continuing alcohol problem.

[I]f there are elevated [liver function] values, if there is a pattern of problems, that likely there is still some alcohol involvement that may not actually be documented. The only thing we can do is document that indirectly. And I’m documenting that indirectly because of the neurocognitive impairment that was present [in the individual’s BNCE], as well as the continued elevation of the liver values. Now if you can prove to me that the liver values were totally and completely separate from an alcohol use problem, then that would be significant to me.

TR at p. 78. Under direct and cross examination at the hearing, the DOE psychiatrist reiterated the findings and conclusions contained in his Report, and further discussed the bases for his diagnosis of “Alcohol Dependence, without physiological dependence.” Based on my review of the DOE psychiatrist’s report and on the additional explanations concerning his diagnosis that he presented at the hearing, I conclude that the DOE psychiatrist’s diagnosis appears to be reasonable and persuasive, and is based on an accurate and complete knowledge of the individual’s history, medical conditions, and personality characteristics. It is clear from his testimony at the hearing that the DOE psychiatrist is an experienced professional in the field of addictions and substance dependence and that he firmly believes that the individual has demonstrated the requisite behaviors and medical conditions to support the diagnosis of alcohol dependency.

At the hearing, the individual attempted to show that that the medical and other evidence did not support DOE Psychiatrist’s diagnosis of “Alcohol Dependence, without physiological dependence.” He presented the testimony of four medical or psychology experts: (1) the EAP counselor who examined and counseled the individual in 2000 (the EAP Counselor); (2) an addiction counselor who examined the individual in November 2000 (the Addiction Counselor); (3) a medical doctor who examined the individual in December 2000 (the Consulting Physician); and (4) a physician who is the medical director for the individual’s employer and who had monitored the individual’s GGT and MCV test results (the Medical Director). These medical professionals offered different and sometimes conflicting opinions concerning the proper diagnosis arising from the individual’s use of alcohol, and concerning the proper interpretation of his GGT and MCV tests. However, as discussed below, I find that their testimony does not successfully refute the qualified diagnosis of alcohol dependence made by the DOE psychiatrist.

The EAP counselor testified that he is a licensed professional counselor who provides assessment and referral services for the individual’s employer. TR at 120. He stated that he examined the individual and met with him on several occasions from February through August of 2000. He testified that he conducted a clinical interview with the individual and administered a couple of tests from the substance abuse subtle screening inventory (SASSI) to further assess his condition. He testified that this interview and inventory suggested that the individual was not chemically dependent on alcohol from a physiological perspective. TR at p. 99. He stated, however, that he would characterize the individual’s use of alcohol under DSM-IV as alcohol abuse based on his DWI and the public intoxication, and the fact that he ended up getting in trouble [with the PAP] over his alcohol use. TR at p. 103. He stated that he believed that some form of out-patient treatment was appropriate for the individual. TR at p. 120. Following his customary procedure (TR at p. 120), he referred the individual to the Addiction Counselor for further evaluation and assessment.

The Addiction Counselor testified that she interviewed the individual in November 2000 and reviewed the three documented instances of alcohol problems that occurred in 1976, 1984 and 1985. She then administered a SASSI that she testified is very effective in identifying persons with substance abuse disorders. TR at p. 132. Based on the interview, information and test results, she concluded that the individual did not suffer from alcohol abuse or dependence, and that he was in need of no further chemical dependency or treatment services at that time. TR at p. 130. However, she further testified that when she made her evaluation, she had not considered the individual’s current employment problems and medical tests as evidence of an ongoing problem with alcohol. TR at pp. 134-138. She also stated that the individual’s score on the SASSI indicated a high “defensiveness” score. She stated that this elevated score “increases the probability of a SASSI missing substance dependence [and] may also relate to situational factors.” TR at 132. She administered the test a second time and found a much lower defensiveness score, which she “assumed was emotional pain, could be some depression as to the job situation.” Id.

Neither the testimony of the EAP Counselor or the Addiction Counselor successfully rebutted the diagnosis of the DOE Psychiatrist that the individual suffered from “Alcohol Dependence, without physiological dependence.” The EAP Counselor suggested that Alcohol Abuse might be a more appropriate diagnosis than alcohol dependence because the individual’s problems with alcohol appeared episodic in nature and do not appear to include any physical dependence on alcohol. However, he did not challenge the DOE Psychiatrist’s reliance on the individual’s continued use of alcohol despite his awareness of adverse physical consequences (i.e., elevated liver function) as supporting a diagnosis of alcohol dependence rather than abuse. The record indicates that the Addiction Counselor did not consider the individual’s current employment and medical problems relating to alcohol in her evaluation, and she acknowledges that the individual’s defensiveness in his responses to the SASSI that she administered may have lowered its effectiveness in identifying a substance disorder. Accordingly, I find that the DOE Psychiatrist’s diagnosis appears to be based on the most comprehensive and accurate evaluation of the individual’s condition.

The individual also presented witnesses for the purpose of challenging the reliance placed by the DOE and the DOE psychiatrist on the elevated readings of his GGT and MCV tests as evidence that he routinely consumed large quantities of alcohol. However, as discussed below, the testimony of the Medical Director indicated that these tests are used as a routine and reliable method to screen PAP employees for problems with alcohol. While the Consulting Physician suggested other possible causes for some of the individual’s test results, he did not successfully refute the DOE position that high levels of alcohol consumption were the most likely reason for these test results.

The Medical Director, a licensed physician, testified that the individual had been monitored for excessive alcohol use by the Occupational Medicine staff under his direction since January 1997. In October 1998, he and another staff physician concluded that the individual had Alcohol Use Disorder (AUD), for which he is considered a safety risk under the PAP. TR at 163-164. The Medical Director described these monitoring tests as follows:

We use some laboratory values which tend to indicate alcohol use disorder. There are two principal tests, one liver function test [GGT] and one for the size of the red blood cells, or the mean corpuscular volume [MCV], which are the two most sensitive indicators. And either one of them alone can indicate a problem, but when you have both of them together showing an abnormality in the same individual, the probability of AUD is extremely high. And [the individual] did have both indicators several times. And we’ve got a time-weighted equation that makes those values and attempts to regress them against some known data and estimate alcohol consumption. And you can see there were some spikes in his intake.

TR at p. 165. He testified that the base line used by Occupational Medicine is thirty ounces of alcohol per month (approximately 60 beers per month), and that test results indicating more than that level of consumption are “potentially a problem.” TR at p. 177. According to the Medical Director, the AUD diagnosis was made in 1998 when “he was bordering right on the line (indicating a consumption level of thirty ounces of alcohol per month) and “there was a little concern, because we saw a trend where it was going back the wrong way for a short time, but then he started coming down again.” He also stated that “we’ve noticed a trend in his pattern where he has a tendency to come down and come back up again.” TR at 177-178.

With respect to the individual’s liver enzyme tests, he indicated that following years of fluctuation, since 1997 the GGT results have come down and stayed down.

The peak in ?95 was 359. . . . Then in ?96 it came down to 75, then in ?97 it jumped up to 207, and by ?98 it was back down to 75 again. . . . [F]rom ?99 it continued to come down, and the last test we got in April [2000] it was down to 14, which is completely normal.

TR at p. 167. With respect to MCV blood cell tests, he reported that in 1995, the result was about 103, “and then it dropped back to 100, and in ?97 looks like it popped up to 103 again.” TR at p. 166. After going down, he reported that the individual’s MCV result “hopped back up to 101 again” in January 2000, which is what led the Occupational Medicine Staff to recommend the individual’s temporary removal from the PAP. TR at p. 179-180. His final test was in late April 2000, when his MCV test result was back down to 99. TR at p. 166. After reviewing this test result, the Medical Director recommended that the individual be reinstated in the PAP. He states that this continues to be his recommendation. TR at p. 162.

In his testimony, the Medical Director indicated that physical conditions other than high amounts of alcohol consumption can produce high MCV and GGT test results in some people. He stated that high MCV results can be caused by a B-12 or folic acid deficiency, or by runner’s macrocytosis, a condition where long distance runners develop larger blood cells over time. He testified that clinical interviews were conducted with the individual to rule out these other potential causes. TR at p. 169- 70. Under questioning, the Medical Director admitted that the individual’s reported program of running two and one half miles a day, that this could increase his MCV test results. He also stated that he did not recall having information that the individual was involved in running as a steady form of exercise. TR p. 181.

With respect to the GGT testing, the Medical Director stated that a number of physical factors could produce high liver enzymes, including obesity, high triglycerides and hepatitis. He stated that Occupational Medicine was aware that the individual had those conditions. TR at p. 180. In his testimony, the Consulting Physician stated that he interviewed the individual and reviewed his medical records, and that he believed that the individual’s former obesity and high triglyceride levels may have been the chief cause of his high GGT results in 1997, with alcohol consumption as a contributing factor. TR at 150. The Medical Director acknowledged that these other factors may have affected the individual’s GGT results, but did not see that as in any way invalidating Occupational Medicine’s monitoring program.

It’s hard to know which particular hazard is causing what degree of the problem. But based upon our findings, we thought that alcohol played at least part of the problem, and was one of the reasons that we were having our problem [with the individual’s test results]. We certainly couldn’t rule out the other factors as being contributing factors. And that one of the reasons, as I say, there is no single laboratory test or a single finding that will absolutely prove to us that you are or are not abusing alcohol. So what we’re doing is a screening and prevention program where we’re trying to identify the problem early, get people into treatment and abort the problem before it becomes an issue which might cost them their job or their clearance.

TR at 184.

I believe it was reasonable for Occupational Medicine to use the elevated readings of the individual’s GGT and MCV tests as indicating a potential problem with the individual’s consumption of alcohol. While other possible causes may account for some of the individual’s elevated test results, the pattern evidenced by the combined GGT and MCV scores does appear to indicate a pattern in the individual’s consumption of alcohol. The MCV tests in particular show a pattern of higher and lower readings that does not seem to be the result of any other factor, including the potential condition of runner’s macrocytosis. The individual reported to the DOE Psychiatrist in June 2000 that he was currently running two and one half miles per day. Although this running program might lead to increases in the MCV test results, it does not correlate with the high MCV test result in January 2000 followed by a lower result in late April 2000 and a still lower result in December 2000.(3) Accordingly, I find that the Occupational Medicine staff and the DOE Psychiatrist acted reasonably in utilizing this data as part of their overall assessment of the individual’s level of alcohol consumption.

Finally, the Medical Director testified that Occupational Medicine never considered the individual as suffering from alcohol dependency, and that he personally did not believe that the individual ever exhibited alcohol dependence.

Based upon the pattern that I see, it looked like simply [our] counseling [him], and he was able to reduce his alcohol intake almost at will to levels that were more acceptable. And that type of behavior did not imply addiction or dependency to me, it implies social use that might have gotten a little bit out of hand, because otherwise the counseling wouldn’t have had such rapid effect. . . . Each time we counseled him we saw rapid improvement, which is why I say I don’t see dependence.

TR at 185. The DOE Psychiatrist listened to the testimony of the Medical Director and expressed disagreement with this assessment.

[The Medical Director] identified a pattern, an up and down pattern, that with counseling or with intervention of some sort, the [test] values would go down because evidently there had been some behavioral change. And yet as soon as there was some backing off, then the values would again increase. And that’s a dangerous pattern. And that’s indicative of the fact that only external kinds of forces will cause some change. And I think that’s significant, because it tells something about internal motivation. The EAP was recommended two times. I know it was not required, but here again, if somebody is in a troubled situation and something is recommended that might be helpful . . . if we want to make it better, we won’t wait until we’re forced to do things about it, we do those things that make sense. It was not until the third time until it was required that he did his rehab.

TR at 240-241. He reiterated his opinion that the individual’s personality pattern is one that is compatible with his previous diagnosis of “alcohol dependence, without physiological dependence.”

[The Medical Director] also mentioned that [the individual’s] social use [of alcohol] occasionally got out of hand. I think that very fact that he said it got out of hand is indicative of a disorder that’s troublesome, one that one can’t control, and one that has historically had to be controlled by external forces, either some sort of limitation or restriction in his work assignment.

TR at 241. I find that the DOE Psychiatrist’s diagnosis is reasonable and should be accepted. His evaluation of the individual’s behavior appears to be supported by the available evidence and based on a full and professional assessment of the individual’s personality, medical condition, and case history.

I therefore find that the individual has failed to refute the DOE’s finding that he suffers from “Alcohol Dependence, without physiological dependence.”

B. The Individual has Demonstrated Rehabilitation from his Alcohol Dependence

In the administrative review process, it is the Hearing Officer who has the responsibility for making the initial decision as to whether an individual with alcohol and/or drug problems has exhibited rehabilitation or reformation. See 10 C.F.R. § 710.27. The DOE does not have a set policy on what constitutes rehabilitation and reformation from substance abuse, but instead makes a case-by-case determination based on the available evidence. Hearing Officers properly give a great deal of deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (finding of rehabilitation); Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995) (finding of no rehabilitation). In the present case, I find that the individual has successfully mitigated the concern of alcohol dependency raised by his actions prior to entering the EAP in February 2000.

The individual testified that he has abstained from consuming any alcohol since since he consumed one beer on Sunday, February 13, 2000. He also testified that he is prepared to continue abstaining from alcohol for as long as the DOE requires him to do so. TR at p. 220. In his June 2000 interview with the DOE Psychiatrist, with the individual indicated that he “would abstain from alcohol for the remainder of his employment tenure.” DOE Psychiatrist’s Report, DOE Exhibit 3-7 at p. 6. Accordingly, I find that the individual has committed himself to maintaining abstinence from alcohol while he is employed a in position requiring DOE access authorization. I also find that this commitment to maintaining abstinence from alcohol is a necessary requirement to any showing of rehabilitation by the individual from his diagnosis of alcohol dependence. Id. at p. 7.

As corroborative support for his continuing abstinence, he presented the testimony of his wife, his senior supervisor and three friend/co-workers. His wife testified that she has known the individual for five or six years, and that they have been married for three years. She stated that since she’s known him, he rarely consumed alcohol in her presence, except at parties, weddings and other social functions. She testified that she was surprised when she learned that he was having trouble at work because of the diagnosis that he was misusing alcohol. With respect to his continuing abstinence, she testified that she has not seen him drink alcohol since at least February 2000, and that she and her husband do not keep alcohol in their house. TR at pp. 198-199.

The individual’s senior supervisor, a department manager, testified that he has known the individual since 1992 and considers him “one of our better employees.”

Over the years he’s proven to be very trustworthy, conscientious, when we give him a task to perform, he performs that task. If he has any problems he’ll deal with you one-on-one, discuss them in a professional manner.

TR at p. 190. The senior supervisor stated that he was “shocked” when he learned that Occupational Medicine had identified the individual as having an alcohol use disorder. He stated that he has observed the individual drink beer at company softball games along with all of the other members of the softball team, and that his level of drinking did not appear unusual. TR at 191. He testified that it has been about “a couple of years” since he observed him consume alcohol. Id.

The first friend/co-worker testified that he has known the individual for eighteen years. He states that he and the individual are very good friends and that their two sons were involved in a lawn mowing business together. He states that he still socializes with the individual frequently and that it has been more than a year since he has observed the individual consume alcohol. TR at pp. 201- 206. The second friend/co-worker states that he has known the individual for thirteen years, considers him a very good friend. He states that he visits the individual “every once in a while and work on my car, because I live in an apartment complex and I’m not allowed to work on my car out there, so I go to his house and change my oil or do whatever I have to do to my automobiles.” TR at pp. 206-208. He states that it has been “a long time . . . a year anyway” since he observed the individual consume alcohol. Id. The third friend/co-worker testified that he has known the individual since 1985, that they were roommates for a period in 1985. He testified that during the past year, their socializing has mainly involved providing the individual with a ride home “when his wife has to work later or what have you, and I’ve taken him by the nursery to pick up his stepdaughter.” TR at p. 212. He has thus been a frequent observer of the individual’s initial after work activity. He states that in the past year, he has not observed the individual consume alcohol. Id.

The testimony of his wife, his senior supervisor and friend/co-workers supports the individual’s assertion that he has abstained from consuming alcohol since February 13, 2000. Moreover, as discussed above, his MCV test results for April 2000 and December 2000 are consistent with his assertion that he has been abstinent during this period. Based on this evidence, I conclude that he has abstained from alcohol from that date until the hearing date of January 11, 2001, a period of eleven months. As discussed below, the individual has now made a commitment to attend AA meetings on a weekly basis, and has documented his initial attendance at these meetings. That commitment coupled with his declared intention to maintain his abstinence from alcohol convinces me that as of the date of this decision, the individual has now abstained from consuming alcohol for more than a full year.

In his June 2000 Report, the DOE Psychiatrist stated that the individual’s abstinence since February 13, 2000 was “positive”, but that this amount of time was “not indicative of complete rehabilitation.” DOE Exhibit 3-7 at p. 6. In addition, he emphasized the need for the individual to be involved in a recovery program.

[The individual] denies there is a problem with his alcohol consumption suggesting the need for a continuing, structured exposure to a supportive program like Alcoholics Anonymous. He would need to be involved in a positive relationship with an AA sponsor - not just attendance at meetings.

Id. At the close of the hearing, the DOE Psychiatrist revised his conclusions concerning rehabilitation in light of the individual’s much lengthier period of abstinence from alcohol.

He’s ostensibly been abstinent for approximately a year, and that’s good, I think that’s excellent. He’s demonstrated the ability to self-monitor, but he’s also shown a [past] pattern of fluctuating usage that even concerned [the Medical Director]. My concern though is that his personality pattern is one that is compatible with an alcohol use disorder, and that is one resistant to . . . the admission of there being a problem. . . . I think it would be useful to include involvement in AA for at least a year, because I think that kind of accountability . . . would be ideal. Research indicates that people that are involved in AA for one or more times a week have a tremendous different and more successful remission [rate] than those who are sporadic with their AA involvement.

TR at p. 241-242. However, the DOE Psychiatrist does not view his recommendation that the individual attend weekly AA meetings for one year as a requirement for a showing of rehabilitation by the individual. He testified that he views the individual as currently evidencing a level of rehabilitation sufficient for the reinstatement of the individual’s clearance. TR at 245.

Although the DOE Psychiatrist concluded that the individual had demonstrated sufficient evidence of rehabilitation to be eligible for reinstatement, he clearly indicated in his testimony that a year of AA attendance would be desirable to further reduce the individual’s risk of relapse. Id. At that point, the individual made a commitment to attend AA on a weekly basis for one year. TR at p. 246. Subsequent to the hearing, at my request, the individual’s counsel provided me with attendance sheets documenting the individual’s initial two AA meetings on January 15 and January 22, 2001.

At this time, then, the individual has demonstrated a full year of abstinence from alcohol, and the DOE Psychiatrist has indicated that this period of abstinence evidences sufficient rehabilitation from the individual’s alcohol dependence. Moreover, the individual has committed himself to maintaining his abstinence and to attending weekly AA meetings for one year as a means of further reducing his risk of relapse. Under these circumstances, I believe that the individual has demonstrated rehabilitation from his diagnosed condition of “Alcohol Dependence, without physiological dependence” and that his chance of experiencing a relapse is at an acceptable level of risk.

Accordingly, I find that the individual has successfully mitigated the Criterion (h) and (j) concerns set forth in the Notification Letter.

IV. CONCLUSION

For the reasons set forth above, I find that the individual suffers from the disorder of “Substance Dependence, Alcohol, without physiological dependence,” as diagnosed by a board-certified psychiatrist. Further, in resolving the issue concerning the individual's eligibility for access authorization, I find that this derogatory information under Criterion (h) and (j) has been mitigated by sufficient evidence of reformation. Accordingly, after considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, it is my opinion that the individual has demonstrated that restoring his a clearance would not endanger the common defense and would be clearly consistent with the national interest. It therefore is my opinion 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 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., SW, Washington, DC 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.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: March 9, 2001

(1)However, in his testimony at the January 2001 hearing, the individual acknowledged under questioning by the DOE counsel that his first wife probably regarded his drinking as one of the factors contributing to their divorce. Hearing Transcript (“TR”) at 223-224.

(2)At the hearing, the individual testified that this instance of being suspended occurred in 1984 rather than 1987/88 as he had previously reported. The DOE psychiatrist indicated that this did not affect his diagnosis. TR at p. 77.

(3)The Consulting Physician reported a December 2000 MCV for the individual of 97.4. TR at p. 141.