Case No. VSO-0432, 28 DOE ¶ 82,810 (H.O. Palmer July 26, 2001)

For full history of this case, and links to other cases, click here.

* 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, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing: May 2, 2001

Case Number: VSO-0432

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXX (hereinafter referred to as "the individual") to retain an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."(1)

I. Background

For a number of years, the individual has been employed by a Department of Energy (DOE) contractor in a job that required that he maintain a security clearance. In the fall of 1999, the individual was arrested for Driving While Intoxicated (DWI), Reckless Driving, Failure to Give Immediate Notice of an Accident, and Fleeing/Eluding a Police Officer.

Because this information raised security concerns, the DOE security office initiated a reinvestigation of the individual. As a part of this reinvestigation, the individual was interviewed by a DOE Personnel Security Specialist in the summer of 2000, and was referred to a DOE consultant psychiatrist for an evaluation. After interviewing the individual, administering the Minnesota Multiphasic Personality Inventory and a series of blood tests, and reviewing his personnel file, the DOE psychiatrist diagnosed the individual as suffering from Alcohol Abuse, with insufficient evidence of rehabilitation or reformation.

The Director of the DOE facility’s Personnel Security Division determined that this information was substantially derogatory in nature, and cast into doubt the individual’s suitability for continued access authorization. The Director informed the individual of this determination in a letter which set forth the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter.

The derogatory information set forth in the Notification Letter pertains to section 710.8, paragraph (j) of the criteria for eligibility for access to classified matter or special nuclear material. See 10 C.F.R. § 710.8(j). Paragraph (j) defines as derogatory information indicating that the individual has “[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse." In this regard, the Notification Letter cites the DOE psychiatrist’s diagnosis and the individual’s four DWI arrests (in 1989, 1990, 1991, and 1999) and a fifth allegedly alcohol-related arrest in 1995 for Contributing to the Delinquency of a Minor, Negligent Use of a Weapon, and Aggravated Battery.

The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization. The individual requested such a hearing. The Director forwarded this request to the Office of Hearings and Appeals and I was appointed the Hearing Officer. The hearing was convened near the individual’s job site. Seven witnesses testified at the hearing. The DOE psychiatrist and the Human Resources Manager for the individual’s employer testified for the DOE. Testifying for the individual were two co-workers, his ex-wife, his fianceé, and the individual himself.

II. Analysis

The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that in these proceedings, a Hearing Officer must make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Specifically, the regulations require me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual’s potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).

A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to produce evidence sufficient 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 (OSA 1996), and cases cited therein. After careful consideration of the factors mentioned above and of all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.

Although at the hearing the individual acknowledged that “alcohol has been a problem” in his life, Hearing Transcript (Tr.) at 26, he contends that mitigating circumstances exist with respect to the arrests cited in the notification letter, and that the record in this matter does not indicate that his current level of alcohol consumption poses a significant security risk.

In support of these contentions, the individual attempted to explain the circumstances surrounding his arrests. He said that the first alcohol-related arrest occurred in the autumn of 1989. While driving home after work with a co-worker, he stated, “we stopped and bought some beer, and I dropped him off.” Tr. at 14. About three miles from his home, he was stopped by an officer for driving with his bright lights on. The individual admitted to the officer that he had had “a couple of beers on [his] way home,” and after he failed a field sobriety test, the officer took him into custody. Id. (2) Although the individual did not believe he was drunk, his blood alcohol content (BAC) registered at .13. During the individual’s July 2000 Personnel Security Interview (PSI), he described his encounter with the “breathalyzer” as follows: “. . . I did the blow test and I blew in the machine I’m gonna say about seven times and I kept on coming out underneath the legal limit and finally [the officer] told me, you know, ?you’re gonna blow in this sucker till I’m happy.’ And he had me going until it marked over the legal limit.” July 2000 PSI at 41-42.

With regard to his next DWI arrest, in the spring of 1990, the individual testified that he and a friend were involved in an auto accident. While changing a flat tire that had been caused by the accident, they were approached by a policeman, who had previously been informed by the occupants of the other car that the individual had been driving when the accident occurred. According to the individual, both he and his friend told the officer that the friend had been the driver. Tr. at 16. Nevertheless, the officer administered a field sobriety test to the individual and then arrested him for DWI. 1991 PSI at 26. Later, two “breathalyzer” tests yielded BAC results of .17 and .18 for the individual. At trial, the individual stated, the officer became confused during cross-examination, and was unable to clearly identify the individual as being the driver. The judge therefore dismissed the charges. Tr. at 17. The individual stated that prior to this arrest, he had consumed “four or five beers that day,” including at least one in the car “about an hour and a half before” his encounter with the officer. Tr. at 35.

The individual’s third DWI arrest occurred in 1991. He testified that he and a friend were driving around in the friend’s new truck. Previously that evening, they had been talking to “some girls that evening that wanted to go driving around with us, and we didn't want to. One of them got upset, she was a dispatcher for [the] city . . . . She called the police and told them that we had been -- that we almost wrecked into them or something, and that's why we got pulled over that day.” Tr. at 18. The individual added that he had had two beers just before his arrest, and that he had again been drinking in the vehicle. At the time of his arrest, his BAC registered at .13 and .12. Tr. at 35.

In 1995, the individual was arrested for Contributing to the Delinquency of a Minor, Negligent Use of a Weapon, and Aggravated Battery. These charges arose from a sequence of events that began when the individual, his brother, and their two dates went “tubing.” The individual testified that on their way home, his brother’s truck broke down, and that a teen-aged friend drove by, picked them up, and took them to the individual’s parents’ home. After dropping off their dates, the individual and his brother accompanied the friend and another teenager to pick up the individual’s car in a nearby town. When they noticed a car behind them blinking its lights, they pulled into a parking lot. The occupants of the car that had been behind them then started questioning his friend “about his car, if that car was his, and about something, he had stolen the tires or something.” Tr. at 19. According to the individual, at this point, two of the occupants pulled the individual’s friend and the other teenager out of the front seat and began beating them up. The individual added that after the two teenagers got away, the occupants of the second car attacked the individual and his brother. While the individual and his brother were thus engaged, the individual’s friend returned to his vehicle, picked up the individual’s firearm, and discharged it into the air. The individual stated that this “broke the fight up, everybody just took off running. [The other teenager] then went and got the gun from [the individual’s friend], and by this time the two . . . that were fighting with us had gotten into their car, he shot at their car.” Tr. at 20. After the second car drove off, the police arrived and began questioning the individual, his brother, and the two teenagers about what had transpired. At that point, the individual testified, the second car returned, and its occupants told the police that one of the teenagers had shot at them. The police then searched the individual’s friend’s car, found the individual’s gun, and arrested the individual. Regarding his use of alcohol, the individual said that he had “three or four beers, and that would have probably been around eleven o'clock in the morning. This incident took place between 6:30 and seven. When we got taken into the jail, they asked me if I had been drinking and I told them, yes, I had some beer earlier that day, . . . but I wasn't intoxicated at the time of this incident.” Tr. at 21. He added that although his attorney negotiated a plea agreement with the prosecution, he did not feel that the charges against him were warranted. “I didn't have any control over the gun when I was fighting,” he stated. “I feel like I was charged with negligent use of a firearm in this incident, and I had no control over the gun at all that day. . . . I felt like this was just a situation that was way out of my control, there was nothing I could do to avoid the fight.” Tr. at 20-21.

The individual’s latest alleged alcohol-related arrest occurred in 1999. He testified that he was driving home at about 10 P.M. in the rain, when he attempted to make a left turn at an intersection with the assistance of a left turn arrow. After a car in the oncoming lanes ran a red light, the individual slammed on his brakes to avoid an accident. He said that when he did this, his truck stalled, “and when it did the brakes just wouldn't like really work that well. My vehicle ended up rolling up on to the curb, and it hit the stoplight.” Tr. at 22. He then put his truck in reverse, backed up, and then drove down the road approximately 200 yards, where he stopped and got out to inspect the damage to his vehicle. At this time, he stated, he noticed a police officer’s car approaching. The officer stopped, got out with his gun drawn, 2000 PSI at 12, and told him to put his hands up. He complied, and then the officer told the individual to

get down on the floor and get on my stomach. I got down on my stomach. And then after he told me to get down on my stomach, he asked me to stand up. I thought it was really unnecessary for me to have to get all muddy, it was raining that day, and get down on the floor. I told the officer that I was passive, you know, what the problem was, or what was going on? And he told me to get down on my stomach again. And I told him, well, you know, I'm passive, you know. And then when I questioned him about getting back down on my stomach again, he deployed his pepper spray on me. . . . I staggered to the floor. I felt a lot of weight on me. By this time some more officers had arrived. I'm not sure who they were, I couldn't see them. They deployed some more pepper spray in my mouth.

***

And the [first] officer, I guess when he saw the accident happen, he tried to turn after me and got in an accident himself. When he got to the scene of the accident, he was very upset. He didn't give me a field sobriety test. I didn't get a fair chance at the blow test. And that afternoon I had drank, around five or six -- about five o'clock I had had two beers, and that's all I had had. I didn't have any alcohol in me when the accident happened, I was not intoxicated. And that's pretty much what happened in that accident.

Tr. at 23-24. The individual testified that around two A.M. that morning at the police station, he was allowed to wash off the pepper spray and was offered the opportunity to take a “breathalyzer” exam. The individual told an officer that he was unable to perform this test because of the effects of the spray, and the officer interpreted this as a refusal to take the test.

The individual also testified that although he drank alcohol before both the 1995 and 1999 arrests, he did not believe that his drinking affected those events, and that they would have occurred had he not been drinking at all. Tr. at 27. With regard to the 1999 incident, the individual said that the arrest was the result of a personal vendetta against him by the arresting officer. That officer allegedly harbored ill feelings toward the individual because the individual was dating a woman (now the individual’s fianceé) whom the officer wished to date. According to the individual, the officer had previously harassed him by following him around and stopping him without adequate justification. On one occasion, he stated, the officer gave the individual a ticket for driving two miles per hour over the speed limit. Because the individual did not have proof of insurance, he testified that he “had to go to court,” where he showed the judge proof of insurance, and the judge threw the ticket out. Tr. at 29.

Regarding his current usage of alcohol, the individual stated that in the four and one half months leading up to the hearing, he had had alcoholic beverages on only one occasion. At that time, approximately a week before the hearing, he had a glass of wine with dinner on his girlfriend’s birthday. Tr. at 26. Prior to that, he said that he was “drinking two or three times a month, and I would have anywhere between sometimes just a beer, sometimes two, at the most three or four.” Tr. at 44. He added that it was his intention to permanently refrain from the future use of alcohol. Id.

In support of his eligibility for access authorization, the individual also presented the testimony of his ex-wife. She stated that she and the individual were married for three years, and separated “between like '99, '98, '99, around there.” Tr. at 51. During this time, she said, the individual would drink “a couple of beers, no more than four beers” five or six times a month, mostly on his days off from work. Id. She also testified that the arresting officer in the ?99 incident told her mother, who is employed with the same municipality as the officer, that “he had it in for [the individual] because [the officer] used to date [the individual’s] current girlfriend . . . .” Tr. at 53. Regarding the 1995 incident, she stated that the individual had had two beers on the day that he was arrested. Tr. at 55.

Two former co-workers of the individual also testified. One stated that he had never seen any problems with the individual’s job performance, and that he would have no reservations about working with the individual again. Tr. at 123, 125. He further stated that he had associated with the individual outside of a work setting on several occasions, and had never seen him consume alcohol to excess. Tr at 125. The other testified that in his extensive interactions with the individual both professionally and socially, he had seen nothing that would indicate that the individual had a drinking problem. Tr. at 134. He indicated that when he and the individual would consume alcohol together, the individual would generally have one to two beers, and never more than three or four. Tr. at 133-34.

Finally, the individual’s fianceé testified on his behalf. She stated that she began dating the individual two and one half years ago, and began cohabiting with him approximately eighteen months ago. Tr. at 136. She also described the individual’s current pattern of alcohol use. She said that he drinks “not [very] often, and it can be anywhere from one to four drinks, just depending on where we are or what's going on, and sometimes it's weeks, months that go by without anything.” Tr. at 137. She also provided information in support of the individual’s contention that his 1999 arrest was the result of a vendetta by the arresting officer. She testified that at the time of this incident, she was working in the emergency room of a local hospital. On the evening of the arrest, she received a telephone call at work from the individual’s sister, informing her that the individual had been arrested. Later that evening, she testified,

[the arresting officer] came into the emergency room to take a drug test. That's required by the police department after they've been involved in a motor vehicle accident. And when he came in I was standing behind a closed curtain . . . . And he stopped to talk to [a] tribal [police] officer on the outside of the curtain. And that's where I heard his version of what had gone on, and kind of a bragging situation that, "Oh, I finally got [the fianceé’s] boyfriend. You should see what I did to him. I beat the heck out of him," he didn't use the work "heck," but, you know, they were laughing about it outside the curtain. And I opened the curtain and he kind of got that look like, "Oh, no," you know, I wasn't supposed to hear that part of the conversation. He turned and left the lab.

Tr. at 139. She then went on to testify that when the individual arrived at the emergency room, she could see that he had been extensively “Maced” and severely beaten. Tr. at 140-41. She further described the statements made by the arresting officer and her previous dealings with that officer.

Q. How did you -- from whom did you find out that [the individual] was Maced in the mouth? Who told you that?

A. That's part of the conversation I overheard taking place with [the arresting officer] and the tribal officer that he was speaking to.

Q. What other things do you remember hearing specifically when -- from [the arresting officer]?

A. That what he had done to [the individual] that night was a payback to me for an incident that occurred between him and I about two years prior.

Q. How did you know [the officer]?

A. . . . . [The] officer took an interest in me to where he was asking me out on dates and wanted to have a personal relationship with me. And I was seeing someone else at the time. And he proceeded to . . . , while he was intoxicated, to come break into my house and end up in an altercation with this person I was dating, who subsequently got beaten, got his knee broken, was Maced, kicked while he was handcuffed down the street from where I lived, and subsequently charged with a variety of things, you know, felonies that he was to spend about 18 years in prison for what [the officer] and his buddies conjured up. And then [the officer] showed up at my house the following days and said, "See, there isn't anything I wouldn't do for you" . . . .

Tr. at 141-43.

Based on this testimony, the individual argues that the 1995 and 1999 incidents would have occurred even if the individual had not been drinking and were therefore not alcohol- related, and that, to the extent that the DOE psychiatrist relied on those incidents in arriving at his diagnosis, that diagnosis is faulty and should not form the basis for revocation of the individual’s clearance. Moreover, the individual points out that the DOE did not revoke his clearance after the 1991 arrest, even though he had three DWIs in a two year period. He therefore contends that these three arrests, which occurred over ten years ago, and the two later arrests, which were not alcohol-related, do not constitute a pattern of alcohol abuse that would warrant revocation of the individual’s clearance.

I do not agree. Examining the record as a whole, I find that valid security concerns remain regarding the individual’s alcohol use. As an initial matter, there is substantial evidence that indicates that the individual was experiencing significant alcohol-related problems during the period of time that culminated in his 1991 arrest. According to the DOE psychiatrist’s report, the individual’s 1989 DWI arrest occurred when the arresting officer observed the individual driving in the wrong lane, which almost resulted in the officer’s car being run off of the road. DOE psychiatrist’s report at 2. The individual’s BAC registered at .13 in three successive Breathalyzer tests. In order to achieve this reading, the individual would had to have consumed the equivalent of approximately nine beers over a three hour period of time. Id. Five months later, and apparently while the individual was on probation from the 1989 arrest, 1991 PSI at 23, he was again arrested for DWI after the pickup truck that he allegedly was driving was involved in an accident with another vehicle. Although the individual was identified at the scene by the occupants of the other vehicle as being the driver, the charges against the individual were dropped after the arresting officer’s failure to properly identify him at the trial, and after a friend, who was with the individual at the time of the accident, testified that he, and not the individual, was driving. The individual’s BAC readings of .18 and .17 were consistent with having ingested approximately 13 beers over a four hour period, DOE psychiatrist’s report at 3, and he admitted that before this arrest, he had been drinking in his automobile. Tr. at 35. Twenty months after this second arrest and after he had been granted access authorization, the individual’s third DWI arrest occurred. The individual again admitted that he had been drinking in the vehicle shortly before his arrest, Tr. at 35, and his BAC was measured at .13 and .12, which would require the ingestion of approximately 10 beers over a four hour period. DOE psychiatrist’s report at 3.

During his testimony, the DOE psychiatrist commented on these three initial DWIs.

his first DWI -- first of all it was at an early age, which is not a good prognostic factor. The earlier the drinking problems start, kind of roughly the worse the prognosis is in terms of how serious the problem is. His first one was at age 19 . . . . His second DWI, looks like it occurred while he was still on probation from his first one, which again is not a good sign in terms of having the first one be a wake-up call being responsible for fact that this has caused problems in my life, and I need to do something to deal with these functional problems. The next DWI came after he'd received his Q clearance, which is again not a good sign in terms of, it was starting to interfere with responsibilities. Either he was unwilling or unable to leave alcohol alone, even though he now was taking on job responsibilities that made it important for him not to drink to excess.

Tr. at 87. The DOE psychiatrist also indicated that the individual would have qualified for a diagnosis of alcohol abuse after the second DWI, and expressed surprise at the DOE’s decision to grant him a clearance in 1991. Tr. at 112.

These arrests and their attendant circumstances indicate that the individual was exercising extremely poor judgement concerning his consumption of alcoholic beverages during this time, therefore causing significant problems in his life and raising valid security concerns. Nevertheless, because of the passage of time since these incidents, I would be inclined to attribute them to the excesses of youth if there were no indications of significant alcohol-related legal or other problems in more recent years. Because this is not the case, I must conclude that the individual has continued to suffer from alcohol abuse, with insufficient evidence of reformation or rehabilitation.

Contrary to the individual’s contention, the record in this matter supports the conclusion that the 1995 incident was another in a series of alcohol-related legal problems. According to the police report, the individual allowed the two juveniles in the vehicle with him to be in possession of 16 beers and a fifth of whiskey. The report quotes one of the juveniles as claiming that the individual and his brother brought these beverages into the vehicle. The individual was also charged with Negligent use of a Deadly Weapon for being in possession of a firearm while under the influence of alcohol. Based on the information before me, I can only conclude that the individual again exercised poor judgement while under the influence of alcohol.

I also conclude that the individual’s alcohol use was a factor in the 1999 arrest. In his report of this incident, the arresting officer stated that he had observed the individual strike a traffic signal at an intersection and then back up and drive away. After the officer pulled the individual over, the individual allegedly exited the vehicle and began to run, with the officer chasing him. The individual fell into a ditch. According to the report, after the officer caught up with him, the individual climbed out of the ditch and began to approach the officer. The officer then “Maced” the individual and handcuffed him after a struggle. The officer stated that the individual smelled strongly of alcohol and had bloodshot, watery eyes and slurred speech. DOE Exhibit 18.

As previously indicated, the individual’s version of what transpired during these two incidents differs significantly from the events described in the police reports. However, for the reasons that follow, I do not find the individual’s testimony to be credible. As an initial matter, the individual has repeatedly been deceptive concerning the amounts of alcohol that he has consumed. The individual stated that prior to his DWI arrests in 1989, 1990 and 1991, he drank “three or four beers,” 1991 PSI at 19 (BAC readings of .12 and .13 indicated ingestion of approximately nine beers in a three hour period), “four or five beers,” Tr. at 17 (BAC readings of .18 and .17 indicated ingestion of approximately 13 beers over a four hour period), and two beers, Tr. at 18, respectively (BAC readings of .13 and .12 indicated consumption of approximately 10 beers in a four hour period). Moreover, the individual testified that up until a few months before the hearing, he would drink “two or three times a month,” and would have “a beer, sometimes two, at the most three or four.” Tr. at 44. However, his ex-wife indicated that the individual would have “a couple of beers, no more that four beers” on “six days, five days maybe” per month. Tr. at 51.

Second, the individual has consistently and inappropriately assigned the blame for his legal problems to parties other than himself. Prior to the 1989 arrest, the individual’s friend “was like forcing us to drink,” telling the individual to “help me drink this and then you drop me off . . . .” 1991 PSI at 18- 19. According to the individual, his BAC registered at .12 and .13 because the officer administering the test made him blow repeatedly into the machine until it registered over the legal limit. 1991 PSI at 21, 2000 PSI at 42. Regarding the 1991 incident, the individual claims that he and a friend were stopped by police, not because they were driving recklessly, but because of a report filed by a woman who had been upset that she and her friend had not been allowed by the individual and his friend to “go driving around” with them. Tr. at 18. The individual also alleged that the arresting officers in the 1995 incident tampered with evidence and committed perjury. March 1995 PSI at 29-30, 38. The individual opined that these officers “gave [him] a hard time” because he was dating the daughter of a municipal employee, and the officers did not like that employee. Id. at 41. However, during his 2000 PSI and at the hearing, the individual alleged that the police harassed him at the behest of this same employee, because the individual would not reconcile with the employee’s daughter, whom he had since married. 2000 PSI at 24, Tr. at 37, 39. In the absence of adequate support in the record for these allegations, I accord them no evidentiary weight. Furthermore, this pattern of blaming others casts doubt on the veracity of the individual’s claim that the 1999 arrest was solely the result of a vendetta against him by the arresting officer.

At the hearing, the individual also offered the testimony of his ex-wife and his fianceé in support of this contention of police harassment. While this testimony does tend to show an animus on the part of the arresting officer against the individual, I cannot ignore the fact that both of these witnesses have a substantial interest in having the individual regain his clearance. The child support payments that the ex-wife was receiving from the individual ceased when the individual was suspended without pay, and will not resume until his clearance is restored or he finds other employment. Tr. at 56-58. The personal and financial interests of the fianceé in having the individual regain his clearance are self-evident. Moreover, the ex-wife admitted that during judicial proceedings involving the couple’s young son, she falsely accused the individual of drinking while in custody of the child, thereby further undermining her credibility. Tr. at 60. Also, the existence of an animus against the individual on the part of the arresting officer does not preclude the possibility that the individual’s alcohol use played a role in the 1999 incident. Indeed, given the totality of the circumstances surrounding this arrest, including the individual’s history of alcohol-related incidents, I believe that that possibility is in fact a likelihood. For these reasons, I find that the individual’s alcohol use contributed significantly to both the 1995 and 1999 arrests. Accordingly, the DOE psychiatrist did not err in relying on them in his diagnosis.

In addition to the 1995 and 1999 arrests, there is another factor that leads me to believe that the individual continues to suffer from alcohol abuse. As part of his evaluation of the individual, the DOE psychiatrist had certain tests performed on the individual’s blood, including measurements of the individual’s liver enzymes. These measurements indicated a slightly elevated level of the ALT liver enzyme and a measurement of the AST enzyme that was within the “normal” range, but still quite high. After ruling out other possible causes of these results, the DOE psychiatrist concluded that “[s]omething is causing mild damage to [the individual’s] liver, and given his documented history of alcohol abuse, excessive use of alcohol is the most likely cause.” DOE psychiatrist’s report at 7.

III. Conclusion

For the reasons set forth above, I find that the individual has failed to adequately address the security concerns set forth in the Notification Letter. The record in this matter clearly supports the DOE psychiatrist’s diagnosis of alcohol abuse, and there is no evidence of reformation or rehabilitation. Therefore, based on the record in this proceeding, I am unable to conclude 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, I find that his access authorization should not 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 the 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, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

Robert B. Palmer

Hearing Officer

Office of Hearings and Appeals

Date: July 26, 2001

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

(2)During his 1991 PSI, the individual admitted to having three or four beers prior to this arrest. 1991 PSI at 19.