Case No. VSO-0419, 28 DOE ¶ 82,814 (H.O. Augustyn August 3, 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.

August 3, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:November 21, 2000

Case Number: VSO-0419

This Opinion concerns the eligibility of XXXXX (the individual) for restoration of his access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "General Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."(1) A DOE Operations Office suspended the individual’s access authorization pursuant to the provisions of Part 710. As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend that the individual’s access authorization not be restored.

I. Background

For several years the individual has been employed by a DOE contractor in a position that requires him to maintain an access authorization. In 1998, the DOE commenced a routine background reinvestigation of the individual. During the reinvestigation process, the DOE learned that the individual had been arrested twice for Driving While Intoxicated (DWI) and once for Aggravated Battery on a Household Member (Domestic Violence arrest). In March 2000, the DOE conducted a Personnel Security Interview (PSI) with the individual to explore the extent of the individual’s alcohol use and to clarify the circumstances surrounding the DWI and Domestic Violence arrests.

After the PSI, the DOE referred the individual to a board-certified psychiatrist (DOE consultant- psychiatrist) for an evaluation. The DOE consultant-psychiatrist examined the individual on August 15, 2000 and, shortly thereafter, issued a Psychiatric Report in which he opined that the individual suffers from alcohol abuse and does not present evidence of adequate rehabilitation or reformation. Since information creating doubt as to the individual’s eligibility for a security clearance remained unresolved after the mental evaluation, the DOE suspended the individual’s security clearance and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding. The DOE then issued a Notification Letter to the individual, citing the DOE consultant-psychiatrist’s opinion regarding the individual’s alcohol consumption and his rationale for that opinion as information that created a substantial doubt as to the individual’s continued eligibility for an access authorization under 10 C.F.R. §710.8(j) (Criterion J). (2)

Upon receipt of the Notification Letter, the individual filed a response and requested a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director, and the OHA Director appointed me as the Hearing Officer in this case. 10 C.F.R. § 710.25 (a), (b). (3) I convened a two-day hearing in this matter after receiving an extension of time from the OHA Director. 10 C.F.R. § 710.25(g).(4)

At the hearing, 13 witnesses testified, two of them twice. The DOE called five witnesses: a personnel security specialist, two police officers, a social worker, and the DOE consultant- psychiatrist. The individual who was represented at the hearing by two attorneys testified himself and presented the testimony of seven other witnesses: his wife, two colleagues, two drug and alcohol abuse counselors, a security specialist from another agency and an internist. The DOE submitted eight exhibits into the record, the majority of which had several subsections (Exhibits 1-8); the individual tendered 17 (Exhibits A through Q). On July 5, 2001, I closed the record in this case when OHA received the DOE’s closing statement. See 10 C.F.R. § 710.27(e).(5)

II. Standard of Review

A DOE administrative proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing under 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). Rather, in Part 710 hearings, a different standard is applied in order 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 DOE Security has made a showing of derogatory information raising security concerns, 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).

III. Findings of Fact

Many of the facts in this case are contested, and there is conflicting documentary and testimonial evidence regarding some of those facts. As an initial matter, it is undisputed that the individual has been arrested three times in a two-year period for incidents allegedly involving alcohol. The individual adamantly maintains, however, that he was not intoxicated on any of those three occasions. The three arrests are chronicled below.

In April 1995, the individual reports that he was driving his vehicle after having consumed three alcoholic beverages(6) over a four-hour period when he encountered a police sobriety checkpoint. Ex. 4-2 at 17; Ex. 6-1 at 10. The individual failed a field sobriety test that the police administered to him at the checkpoint. (7) Ex. 4-2 at 17. The individual then refused to take a breathalyser test, after which he was arrested and charged with DWI (1995 DWI arrest). Ex. 6-1 at 10. According to court records, the DWI charges were dismissed in June 1996 under the state’s “six-month rule.(8) Ex. 4-2 at 25.

In February 1997, the individual states that he had consumed as many as four beers (9) over a four- hour period when he began to drive home with his wife. Ex. 4-2 at 17. En route home, the individual decided to stop at an Automated Teller Machine (ATM) to obtain cash. As the individual approached the parking lot where the ATM was located, he swerved his vehicle to avoid hitting a parked car and then drove over a small concrete barrier and curb as he entered the parking lot. Ex. 4-2 at 17; Ex. 3-1 at 2. A police officer who had been observing the individual’s car as it almost struck a vehicle and jumped the curb, approached the individual as he exited his vehicle. Ex. 5-2. According to the police report, the individual’s physical condition was as follows on the night in question: his eyes were watery and blood-shot, his speech was slurred, his pupils were dilated, his balance was wobbly, and his attitude was polite but dazed. Id. (10) The police officer arrested the individual and charged him with aggravated DWI and careless driving (1997 DWI arrest) after the individual allegedly failed a field sobriety test (11) and refused to take a breathalyser test. Ex. 4-2 at 25; Tr. at 37. The charges against the individual were dismissed under the “six-month rule” referred to above when the police officer failed to appear in court on the scheduled court date. Ex. 4-2; Tr. at 37.

Three weeks after the individual’s 1997 DWI arrest, the individual’s teen-aged son summoned the police to the individual’s residence. According to a detailed handwritten police report, the police entered the individual’s home and observed evidence of probable domestic violence. Ex. 5-1. One of the officers noted in his report that the individual had a strong odor of alcoholic beverage on his breath and was swaying. Id.(12) The individual was arrested for aggravated battery on a household member, assault on a household member, and abandonment or abuse of a child (domestic violence arrest). Ex. 5-1; Ex. 4-2 at 18-19, 24. The individual’s wife and children were taken to a shelter and Child Protection Services were contacted. Ex. 5-1.

The day after the individual was arrested, a social worker with Child Protection Services was assigned to investigate the allegations of child abuse. Tr. at 70. Two days later, the social worker met with the individual, his wife and their children. Id. at 71. According to the contemporaneous notes taken by the social worker on that day, the individual indicated that “he and his wife had had a little too much to drink and that may have had an effect on what happened that evening.” Id. at 72. (13)

Subsequently, the individual’s attorney recommended to the individual that he seek counseling prior to his court appearance in connection with the Domestic Violence arrest. Tr. at 327. The individual took his attorney’s advice and consulted with a licensed drug and alcohol counselor in March 1997 (Alcohol Counselor #1). According to Alcohol Counselor #1's recollection, (14) the individual met with her once or twice a week for one hour over an eight-month period. Tr. at 171. The individual testified that he had been in counseling with Alcohol Counselor #1 for three months when the court continued his trial on the domestic violence arrest. Tr. At 328, 341. The individual testified further that the court advised him that the domestic violence matter would be dismissed in six months if the individual refrained from drinking and sought counseling. Tr. at 328.

On July 31, 1997, the individual executed a document that outlined the general terms and conditions of his supervised probation. Ex. A. Among the terms and conditions of the individual’s supervised probation are the following mandates:

No use of alcohol. No violence or hostility-related behavior. Counseling as ordered by the court, to include alcohol, anger management and parenting counseling. Anatabuse [sp] if medically authorized.

Id. The individual apparently complied with all the terms and conditions(15) of his supervised probation, and the criminal charges stemming from the 1997 domestic violence arrest were dismissed. Ex. 4-2.

Sometime in 1998, the DOE commenced a routine reinvestigation of the individual for purposes of continuing his access authorization. As part of that process, OPM conducted a full field investigation of the individual in 1999. DOE learned of the three arrests described above during the course of the reinvestigation process. Concerns regarding these arrests prompted the DOE to conduct a Personnel Security Interview (PSI) with the individual in March 2000. In August 2000, a DOE consultant-psychiatrist examined the individual, administered the Minnesota Multiphasic Personality Inventory II (MMPI-II) to him, and ordered laboratory tests, including a blood and urine sample screening. Tr. at 86. The laboratory tests revealed several abnormalities, including the following:

Ex. 3-1. In addition, the ratio of the individual’s serum GGT enzyme to his alkaline phosphatase (ALK) was 3.6 (222/62), a fact that not only suggests alcoholic liver disease but is considered diagnostic for the problem. Ex. 7G; Ex. 3-1. After reviewing the individual’s laboratory results in conjunction with the three alcohol-related arrests and the information the individual provided during the interview, the DOE consultant-psychiatrist concluded that the individual suffers from alcohol abuse and shows no signs of reformation or rehabilitation. Id.

In October 2000, the individual visited a licensed drug and alcohol counselor (Alcohol Counselor #2) for an alcohol assessment. Ex. B; Tr. at 190, 342. Alcohol Counselor #2 administered the Michigan Alcohol Screening Test (MAST) to the individual. Ex. B at 2. The individual scored 2 on the MAST on a scale where 4 indicates a serious problem with alcohol. Tr. at 200. Alcohol Counselor #2 opined that the individual does not meet the criteria for alcohol abuse, although he believes there needs to be further examination into the issue relating to the individual’s two DWI arrests. Id.

In April 2001, the individual consulted with an internist (Internist) for purposes of obtaining a referral for additional laboratory tests. Ex. C. The Internist repeated only two of the seven laboratory tests that yielded abnormal results in August 2000, the ALT enzyme and glucose. Id. On the April 2001 retest, the individual’s ALT and glucose levels were within the normal ranges.

Two weeks later, the Internist repeated five of the seven laboratory tests (second retest) that the DOE consultant-psychiatrist had performed in August 2000: the GGT, ALT, Glucose, Triglycerides, and Cholesterol. The second retest revealed normal ALT, Glucose, Triglycerides, and Cholesterol levels. Ex. F. With regard to the GGT levels, the second retest showed that the GGT levels had reduced by 50% from the August 2000 test (121 compared to 222), but still remained well in excess of the normal range of 5-75. Id. In addition, the Internist performed several autoimmune screening tests, three of which revealed abnormalities, C-Reactive Protein, H. Pylori IgG, and Chlamydia pneumoniae IgG. Based on the autoimmune screening tests and another test showing a low red blood count, the Internist believes it is more likely that the individual has a peptic ulcer or gallbladder disease than a problem with alcohol. Tr. at 453.

IV. Analysis and Findings

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). (16) While the individual has raised some compelling arguments in his defense, I am not convinced that the evidence he has brought forward mitigates the Criterion J concerns in this case. After due deliberation, it is my opinion that the individual’s access authorization should not be restored. I cannot find 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 I make in support of this recommendation are discussed below.

A. Derogatory Information

Under the Part 710 regulations, the DOE may rely on the diagnosis of a board-certified psychiatrist that a person suffers from alcohol abuse as justification for invoking Criterion J and suspending a person’s security clearance. The individual has challenged some of the facts the DOE consultant- psychiatrist relied on to formulate his diagnosis in this case, suggesting that no security concern exists when the facts are properly examined.

In determining that there was sufficient derogatory information regarding the individual’s alcohol use to rise to the level of a legitimate security concern, I considered and rejected the individual’s argument that he had been vindicated from the charges associated with the three alcohol-related arrests because they were dismissed. Tr. at 467. The dismissal of the three alcohol-related charges on technical grounds is not tantamount to an evidentiary adjudication of “vindication” in my opinion. Moreover, my role is to evaluate all the available information regarding the individual’s use of alcohol rather than to focus solely on the outcome of a legal proceeding. See Personnel Security Hearing (Case No. VSO-0168), 26 DOE ¶ 82,803 (1997) (affirmed by OSA, 1998). In this case, the dismissals of the 1995 and 1997 DWI arrests and the 1997 Domestic Violence arrest on technical grounds do not prevent me from considering the individual’s following admissions regarding those arrests: (1) that he consumed three alcoholic beverages over a four-hour period prior to his 1995 DWI arrest; (2) that he consumed as many as four beers over a four-hour period prior to his 1997 DWI arrest; (3) that he and his wife had had a little too much to drink prior to the 1997 Domestic Violence arrest and their drinking might have had an effect on them on the evening in question; (4) that he almost hit a parked car with his vehicle prior to the 1997 DWI arrest; and (5) that he drove his vehicle over a curb and cement barrier prior to his 1997 DWI arrest. Nor do the dismissals negate the import of the following additional evidence suggesting that the individual’s alcohol consumption prior to his three alcohol-related arrests may have impaired the individual’s abilities on the nights of those arrests: (1) the police reported that he had failed the field sobriety test prior to the 1995 DWI arrest; (2) the police officer reported that prior to his arresting the individual during the 1997 DWI arrest, he observed that the individual had watery, blood-shot eyes, slurred speech, dilated pupils, wobbly balance, and a dazed attitude; and (3) a police officer reported that prior to arresting the individual on the 1997 Domestic Violence arrest, he observed the individual swaying and having a strong odor of alcohol on his breath.

In addition, documentary evidence in the record reflects that in August 2000 the individual had elevated liver enzymes (GGT, ALT, and LDH), elevated lipid levels (triglycerides, cholesterol) and other abnormal blood tests (low glucose and elevated uric acid). In addition, the ratio of GGT to ALK in this case of 3.6 is considered diagnostic for alcoholic liver disease. When the DOE consultant-psychiatrist interviewed the individual, the individual denied that he had infectious hepatitis, was taking hepatotoxic medications, had been exposed occupationally to substances that might cause liver damage, or had any other medical illnesses that would explain the abnormal laboratory results. The DOE consultant-psychiatrist therefore found that the abnormal test results strongly suggested that the individual was drinking excessively at the time. Ultimately, after considering the three alcohol-related arrests in conjunction with the abnormal laboratory results, the DOE consultant-psychiatrist exercised his clinical judgment and opined that the individual suffered from alcohol abuse and showed no signs of reformation or rehabilitation.

My review of the factual underpinnings of the DOE consultant-psychiatrist’s opinion convinces me that a legitimate security concern existed with regard to the individual’s alcohol consumption. It was reasonable for the DOE to conclude based on the DOE psychiatrist’s expert opinion that the individual’s alcohol use might impair his judgment and reliability and prevent him from safeguarding classified matter or special nuclear material. Under the influence of alcohol, an individual may unwittingly divulge information or may conduct himself in less than a socially acceptable manner, perhaps even engage in criminal activity. For these reasons, Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse, alcohol dependence, and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0322), 27 DOE ¶ 82,845 (2000) (affirmed by OSA, 2000). Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996) (affirmed by OSA, 1996); Personnel Security Hearing (Case No. VSO-0042), 25 DOE ¶ 82,771 (1995) (affirmed by OSA, 1996).

A finding of derogatory information does not, however, end the evaluation of evidence concerning the individual’s eligibility for access authorization. See Personnel Security Hearing (Case No. VSO- 0244), 27 DOE ¶ 82,797 (1999) (affirmed by OSA, 1999); 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). In this case, the individual challenges the DOE consultant-psychiatrist’s diagnosis that he suffered or suffers from Alcohol Abuse, contending that the DOE consultant-psychiatrist’s opinion is flawed.

B. Mitigating Factors

There is substantial disagreement between two medical professionals regarding the medical reason why the individual’s liver enzymes were elevated in August 2000 and why the individual’s GGT level continues to be elevated today. Understanding the underlying causes of the abnormal laboratory tests is crucial in this case because the DOE consultant-psychiatrist testified at the hearing that he would not have diagnosed the individual as suffering from alcohol abuse in August 2000 had the individual’s liver enzymes not been elevated.(17) Tr. at 124.

1. Differing Opinions whether the Individual Suffers from, or Suffered from, Alcohol Abuse

a. Medical Opinion of the Internist

The Internist testified by telephone twice at the hearing.(18) He related that he is board-certified and has practiced medicine since 1979. Tr. at 249, 455. He testified that during his career he has treated many patients with alcohol addictions. Id. at 241.

The individual visited the Internist in April 2001 to obtain a referral for laboratory tests. It is the individual’s position that the Internist is a diagnostician who is qualified to interpret the constellation of laboratory results and provide differential diagnoses for those results.(19)

The Internist first asserts that the DOE consultant-psychiatrist focused only on seven abnormal laboratory tests in August 2000, but ignored three others that might have provided information for differential diagnoses. Tr. at 243. Specifically, the Internist pointed out that in August 2000, the laboratory results showed an elevated total protein level, an elevated serum globulin count and a low red blood cell count. According to the Internist, the possible explanations for an elevated total protein level and an elevated serum globulin include a variety of autoimmune diseases . Tr. at 247. As for the low red blood cell count, the Internist testified that it signals anemia with an underlying differential diagnosis of peptic ulcer.

The Internist noted that in his entire medical career, he has never seen an alcoholic with an elevated total protein. Id. As for the elevated GGT levels, the Internist stated that the most common cause of elevated GGT levels is gallbladder disease. Tr. at 256. The Internist admitted at the hearing that there is some possibility that the low blood count might be related to alcoholism, but he questioned that theory in view of the laboratory results he obtained in April 2001 showing normal ALT, AST and ALK.

On the second day of the hearing, the Internist commented on additional laboratory tests (second retest) that he had ordered during the hiatus between the first and second day of the hearing. The Internist pointed out that the results from the second laboratory test he had ordered continue to show that the individual has a low red blood count, a fact that causes the Internist to believe that the individual has peptic ulcer disease. Tr. at 451. The Internist also noted that the second retest revealed for the first time that the individual has a slightly elevated bilirubin (1.7 on a normal scale of 0-1.4), a fact that the Internist believes is suggestive of a peptic ulcer. Id. Other indicators that the individual has a peptic ulcer is an elevation in his H.Pylori IgG antibodies, according to the Internist. Further, the second retest revealed an elevated C-Reactive Protein, a fact the Internist believes might support a diagnosis of peptic ulcer or gallbladder disease. The Internist stated that he has never seen an alcoholic with an elevated level of C-Reactive Protein in his career. Moreover, the second retest indicated that the individual has an elevated level of chlamydia pneumoniae IgG antibody. According to the Internist, this antibody is associated with a variety of diseases. Finally, the Internist noted that the individual’s folic acid is within normal limits, a fact that undermines a diagnosis of alcoholism. He explained that alcoholics have low folic acid counts because alcohol is toxic to folic acid.

b. Opinions of Alcohol Counselor #1 and Alcohol Counselor #2

Neither of the Alcohol Counselors who testified believed that the individual had a problem with alcohol. Id. at 170, 190. I do not believe either of the counselors testimony should be accorded much weight, however. The regulations codified at 10 C.F.R. § 710.8(j) specifically delineate the kinds of medical professionals who are competent to render a diagnosis regarding the presence or absence of alcohol abuse or alcohol dependence. Those medical professionals are a board-certified psychiatrists, other licensed physicians, or licensed clinical psychologists. Neither of the two alcohol counselors who testified fall within the definitions of the medical professionals delineated in 10 C.F.R.§ 710.8(j). To be sure, both are licensed by the State and both testified they have valuable insights into their clients because they are both recovering substance abusers themselves.(20) Id. at 178, 201. Nevertheless, neither possesses the requisite educational or professional background required by the Part 710 regulations.

c. Opinion of the DOE consultant-psychiatrist

As an initial matter, the DOE consultant-psychiatrist disagreed with the Internist’s statement that gallbladder disease is the most common cause of elevated GGT levels. The DOE consultant- psychiatrist testified that alcohol abuse is statistically the main cause of elevated GGT levels. Tr. at 392.

According to the DOE consultant-psychiatrist, the individual’s 3.6 ratio of GGT to ALK in August 2000 is quite telling. Exhibit 7G, entitled Source Book of Substance Abuse and Addiction, confirms that “the ratio of serum GGT to ALK has become useful in distinguishing alcoholic from nonalcoholic liver disease: a ratio greater than 1.4 suggests alcoholic liver disease while a ratio greater than 3.5 is considered diagnostic for this problem.” Ex. 7G at 129.

The DOE consultant-psychiatrist also opined that the classic finding of gallbladder disease is an elevation in the ALK. In this case, the individual’s ALK is normal in the August 2000 test, the April 2001 test and the second retest as well, thus calling into question the likelihood that a gallbladder problem is the cause of the individual’s elevated GGT levels.

The DOE consultant-psychiatrist also disagreed with the Internist’s testimony that alcoholics always have reduced total protein levels. He pointed out that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision 2000 (DSM-IV-TR) does not list total protein level as an alcohol-associated laboratory finding. Tr. at 392. In contrast, most of the individual’s abnormal laboratory results obtained in August 2000 are specifically delineated in the DSM-IV-TR as indicators of possible alcohol abuse. Id.

As for the normalization of six of the seven abnormal test results between August 2000 and April 2001, the DOE consultant-psychiatrist attributes the laboratory improvements to the individual’s near or total abstinence from alcohol. Tr. at 392. As for why the individual’s GGT is still elevated after eight months of sobriety, the DOE consultant-psychiatrist speculates that the individual may still be consuming alcohol. Id. at 150.

d. Finding

Both the DOE consultant-psychiatrist and the Internist have presented credible testimony to support their respective positions. After evaluating the conflicting evidence, I find that it is possible that the individual currently suffers from some medical condition, perhaps peptic ulcer disease.(21) The individual’s low red blood cell count and presence of H-phyloria bacteria in his blood appear to support a diagnosis of peptic ulcer disease. In this regard, the DOE consultant-psychiatrist admitted at the hearing that the presence of H-pyloria bacteria is consistent with peptic ulcer disease. Tr. at 434.

Notwithstanding this finding, there is simply no evidence in the record that allows me to conclude that any peptic ulcer the individual might currently suffer from either caused, or might have caused, the elevations in the individual’s GGT, ALT, and LDH enzymes, cholesterol, triglycerides, uric acid and low glucose in August 2000. Had the individual submitted evidence showing a direct correlation between peptic ulcer disease and the elevated GGT and other abnormal laboratory tests, I might have been inclined to find that the individual’s medical condition, not his alcohol use, caused at least the individual’s elevated GGT level. (22)

Moreover, what is troubling about this case is the fact that the individual’s ALT, LDH, cholesterol, triglycerides, uric acid and glucose normalized between the August 2000 test and the April 2001 test. If the individual’s peptic ulcer caused the elevated liver enzymes and other associated abnormal laboratory results in August 2000, it is difficult to understand why six of the seven abnormal laboratory results normalized eight months later if the individual is still suffering from a peptic ulcer.

On the other hand, the individual’s GGT level, while reducing dramatically between August 2000 and April 2001, still remains above normal limits.(23) Tr. at 133, 288. It is quite possible that the individual’s asserted abstinence from alcohol since September 2000 caused or contributed to the 50% reduction in his GGT levels. In this regard, the Internist admitted at the hearing that the improvement in the individual’s liver function tests could have come from the individual’s abstention from alcohol and nonsteroidal medications. Id. at 460. If this is true, then something else must be causing the individual’s GGT levels to remain elevated. Ultimately, the burden is on the individual to prove that his alcohol consumption did not cause his elevated abnormal test results. He has not met his burden in this regard.

In the end, the individual has presented many possible differential diagnoses for the abnormal laboratory results. Without a definite diagnosis and further explanation of the nexus between whatever illness the individual may have and the laboratory abnormalities, I cannot find a specific illness, other than alcohol abuse, caused the individual’s abnormal laboratory results in August 2000. However, since I believed the individual’s testimony that he has abstained from alcohol since September 2000, I must next decide whether the individual is rehabilitated or reformed from his alcohol abuse.

2. Rehabilitation and Reformation

The DOE consultant-psychiatrist believes that individual needs one to two years of outpatient treatment of moderate intensity to achieve rehabilitation and reformation. According to the DOE consultant-psychiatrist, the individual cannot be considered rehabilitated because he has not sought treatment and is in denial of his problem.

The individual counters by stating that he already received eight months of treatment with Alcohol Counselor #1 in 1997 and that he is in no need of any further treatment. Alcohol Counselor #2 is in agreement that no treatment is needed at this time.

The DOE consultant-psychiatrist’s recommendation regarding rehabilitation is consistent with other cases involving diagnoses of excessive alcohol use, finding that DOE 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). On the basis of the record before me, I am unable to find that the individual is rehabilitated or reformed from his Alcohol Abuse.

First, the individual had only abstained from alcohol for a period of eight months by the time I convened the second day of the hearing. Second, I am not totally convinced that the individual was motivated to enter treatment with Alcohol Counselor #1 to address his alcohol problem. Rather, the facts lead me to conclude that the individual followed his attorney’s advice to obtain counseling from Alcohol Counselor #1 because his attorney anticipated that the court with jurisdiction over his Domestic Violence Arrest would require such treatment. Even if I were to consider the individual’s eight months of counseling with Alcohol Counselor #1 as voluntary, viable treatment, it would still fall short by four months of the minimum treatment recommended by the DOE consultant- psychiatrist.

3. Job Performance

The individual argues that the individual’s consumption of alcohol has not had a deleterious effect on his work performance. Tr. at 467. To support his contention, the individual tendered numerous commendations, honors, and outstanding appraisals that he has received during his employment. Exs. H-O. In addition, two colleagues attested that the individual is an honest, responsible, and competent worker. Tr. at 216, 230. One of the colleagues has worked with the individual for 20 years and has traveled on international assignments with the individual. According to the colleague, he has never seen the individual intoxicated and does not believe the individual has an alcohol problem. Id. at 232.

It appears from the documentary and testimonial evidence submitted that the individual’s alcohol problem has not, to date, affected his ability to perform his job responsibilities. However, sobriety and reliability on the job do not overcome the security concerns. Personnel Security Hearing (Case No. VSO-0079), 25 DOE ¶ 82,803 (1996). Excessive consumption of alcohol off the job raises security concerns because of the possibility that a clearance holder may say or do something under the influence of alcohol that compromises national security. See Personnel Security Hearing, (Case No.VSO-0106), 26 DOE ¶ 82,767, aff’d, Personnel Security Review, 26 DOE ¶ 83,009 (1997) (affirmed by OSA, 1997), and cases cited therein. The fact that this has apparently not occurred in the past is no guarantee that it will not occur in the future. For this reason, I cannot find that the individual’s work record alone resolves the alcohol-related concerns advanced by the DOE.

4. Summary

In examining the totality of the evidence, I find that the individual’s three alcohol-related arrests, coupled with the individual’s abnormal laboratory findings in August 2000, create a legitimate security concern under Criterion J. The individual did not convince me that any of the police officers connected with the three arrests falsified documents or fabricated evidence. Similarly, the individual did not convince me that the social worker’s contemporaneous notes of her meeting with the individual and his family regarding the Domestic Violence Arrest are inaccurate. While the arrests are not recent, I find that they remain relevant because recent laboratory results strongly suggest the individual was excessively consuming alcohol in August 2000.

There is a divergence of medical opinion whether the individual’s abnormal test results in August 2000 can be interpreted to indicate that the individual was abusing alcohol at the time and whether the abnormal GGT result in April 2001 can be interpreted to mean the individual is still abusing alcohol. While the Internist raised many possible explanations for the individual’s abnormal test results, I find that the evidence tendered is simply not sufficient for me to conclude that alcohol abuse did not cause the abnormal laboratory tests in August 2000.

It is possible that the improvement in the individual’s laboratory tests between August 2000 and April 2001 may have been caused by the individual’s sobriety since September 2000. In evaluating whether the individual demonstrated rehabilitation or reformation from his alcohol abuse, I find that he has neither been abstinent long enough nor received sufficient outpatient treatment to achieve rehabilitation.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R. § 710.8(j) in suspending the individual's access authorization. After considering the totality of the circumstances, I find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying that criterion. In view of Criterion J and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the individual's access authorization should not be restored.

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, SO-21

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: August 3, 2001

(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 concerns information that a person has “[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j).

(3)The OHA Director appointed Thomas O. Mann as the Hearing Officer in this case on November 21, 2000. The Director subsequently reassigned the case, appointing me the Hearing Officer in the case on January 3, 2001.

(4)Prior to the hearing date originally scheduled in this case, the individual’s attorney sustained an injury to his arm which resulted in his taking high doses of prescription medication to alleviate the pain associated with his injury. The attorney requested that the hearing be delayed four weeks because the pain medication he was taking impaired his mental agility and ability to represent his client properly. The attorney ultimately retained co-counsel to assist him with the case notwithstanding the extension of time that he received.

(5)The DOE Counsel became ill on the second day of the hearing and was unable to present her closing statement. She agreed that the individual’s attorney could proceed with his closing statement in her absence, provided she would be permitted the opportunity to submit her closing statement at a later date. The individual’s counsel voiced no objection when the DOE counsel subsequently requested until July 5, 2001, to tender her closing statement in the case.

(6)According to the investigative report compiled by the Office of Personnel Management (OPM) in 1999, the individual told the investigator that he had consumed three mixed drinks on the night of the April 1995 DWI. Ex. 4-2 at 17. However, the individual told the DOE consultant-psychiatrist in August 2000 that he had consumed three beers on the night in question. Ex. 3-1 at 2. I find that the kind of alcoholic beverage the individual consumed on the night in question is not relevant. What is relevant is the individual’s admission that he consumed three alcoholic drinks before operating a motor vehicle. In making this finding, I was not persuaded by the individual’s wife’s testimony that her husband had consumed only one beer on the night in question. See Transcript of Hearing (hereinafter Tr.) at 229. The wife admitted at the hearing that she was not with her husband every moment of the night so it is possible the individual could have consumed alcohol without his wife’s knowledge.

(7)The individual told both the OPM investigator and the Personnel Security Specialist who interviewed him in March 2000 that he thought he had passed the field sobriety test. Ex. 4-2 at 17; Ex. 6-1 at 9-10.

(8)”The “six-month rule” is grounded in statute in the State where the individual resides. The statute generally requires that any charge which is pending for six months must be dismissed with prejudice if a trial has not commenced within six months from the date of a defendant’s arrest or from the filing of the criminal complaint or citation, whichever is latest (judicial notice of the relevant statute).

(9)There is conflicting evidence in the record regarding the amount of alcohol the individual consumed on the date in question. According to the police report for the arrest in question, the individual told the arresting officer that he had consumed two alcoholic beverages. Ex. 5-2. The individual’s wife testified that according to her recollection, the individual had only consumed one beer on the night of the arrest. Tr. at 279. The individual told an investigator from the OPM in 1999, however, that he had consumed approximately four beers in the course of the evening. Ex. 4-2 at 17. The individual also told the DOE consultant-psychiatrist in 2000 that he had consumed four beers between 8:30 p.m. and midnight on the night in question. At the hearing, the individual testified that he tries not to “go beyond an alcoholic beverage an hour.” Tr. at 293. In view of the conflicting testimonial and documentary evidence, I find only that the individual consumed as many as four beers in a four-hour period on the night he was arrested and charged with DWI in 1997.

(10)The individual disputes the information contained in the police report and suggests that the police officer simply checked the box for watery eyes to substantiate the charge against him. Tr. at 361. The individual further related that he usually has blood-shot watery eyes because he suffers from allergies. Ex. 6-1 at 17. I am not persuaded that the police officer falsified the police report in question. There is no evidence in the record suggesting, let alone supporting, that the police officer who wrote the report has a reputation for lying or has been disciplined for unprofessional conduct in this or any other case. I therefore presume that the records which were complied in the normal course of police business, were not falsified. For this reason, I will accord no weight to the individual’s rank speculation otherwise.

(11)The individual claims he did not fail the field sobriety test; he was simply not able to perform the tasks requested because he has gout, a medical condition that is documented in the record. Ex. 6-1 at 12.

(12) The individual disputes the officer’s observation on the night in question. The individual does not believe he was swaying. Tr. at 337. He states that if he was swaying it was because he had just gotten out of bed when the police officers entered his home. Id. The individual also denies that he had an odor of alcohol on his breath. Ex. 6-1 at 49; Tr. at 337. He adds that he only consumed one or two beers that day and his consumption occurred much earlier in the day. The individual testified further that the report is “far out of wack” and inaccurate. Tr. at 380.

Even though the individual claims the police department in his city has a bad reputation, there is no documentary evidence in the record to impugn the integrity of the officer who wrote the report or the department for which he works. In addition, the officer who wrote the report testified under oath that he did not put anything in the report that was untruthful. Tr. at 273. It is my opinion that the contemporaneous police report compiled during the normal course of an investigation into possible domestic violence contains probative evidence suggesting a possible link between the individual’s alcohol consumption on the day of the subject arrest and the events that transpired on the night in question.

(13)Both the individual and his wife deny that either of them ever admitted that alcohol “had taken an effect on them that evening.” Tr. at 285, 356. I am inclined to accord more weight to the contemporaneous notes of the social worker than the more dated recollection of the individual or his wife on this matter. After observing the demeanor of the social worker at the hearing, I found her to be earnest, and her testimony forthright. Furthermore, she is a disinterested person who has no stake in the outcome of this administrative proceeding. If she were testifying based only on her recollection of the events four years earlier, I might not have found her testimony as probative as I did. However, her contemporaneous notes of the meeting with the individual and his family three days after the 1997 Domestic Violence Arrest offer relevant evidence for purposes of this proceeding.

(14)Alcohol Counselor #1 had not reviewed any treatment records relating to the individual because she had closed her outpatient counseling center more than three years before the hearing and had shipped her counseling records out-of-state. Tr. at 177-79.

(15)The individual testified that he refrained from consuming alcohol during the six month period of his probation and obtained the counseling from Alcohol Counselor #1. Tr. at 330; Ex. 6-1 at 32.

(16)The factors enumerated in 10 C.F.R. § 710.7(c) include the following: 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.

(17)17/ The DOE consultant-psychiatrist testified that the individual’s three alcohol-related arrests, by themselves, would most likely not been enough to trigger a current diagnosis of alcohol abuse because that diagnosis usually expires after a one-year period. Id. at 111, 124. In this case, the arrests occurred four and six years prior to the hearing.

(18)There was a one-month hiatus between the first and second day of the hearing and the Internist testified on both days of the hearing.

(19)There is no evidence in the record that the Internist obtained a medical history from the individual or performed a physical examination on him. The record does reflect that the Internist read the DOE consultant-psychiatrist’s report. The Internist was not, however, prepared to testify about the Psychiatric Report at the hearing. Tr. at 250-51.

(20) As an aside, I found it curious that Alcohol Counselor #1 would have provided eight months of alcohol counseling to the individual if she believed he did not have a problem with alcohol at the outset of the treatment.

(21)21/ There is not enough evidence in the record to support the numerous other potential differential diagnoses mentioned by the Internist in his hearing testimony.

(22)The individual had many opportunities during the pendency of this case to submit evidence on this matter. The individual’s attorney represented to the DOE in October 2000 that the individual would be seeing his primary care physician that month for a full physical to determine why he had elevated enzyme levels. See Letter from Counsel to DOE Operations Office (October 14, 2000). The individual states that he never obtained a physical in October 2000. In February 2001, Counsel for the Individual advised me that the Individual had been evaluated by his personal psychiatrist and that he was waiting for a report from the psychiatrist. See Memorandum Regarding Canceled Pre-Hearing Telephone Conference dated February 20, 2001. The individual states that he never saw a personal psychiatrist. The individual waited until four days before the first day of the hearing to consult with the Internist. While he consulted with the Internist a second time before the second day of the hearing, he testified at the hearing that he was simply too busy to follow up on other tests that might pinpoint the cause of his medical condition. Tr. at 373.

(23)Evidence in the record suggests that liver enzymes levels typically return to normal anywhere from one week to three months after cessation of drinking. Id. at 395.