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ISCR Case 10-05120.a1 — CASE

ISCR Case 10-05120.a1denied

Case Headnote

ISCR Case No. 10-05120.a1

Jan 3, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A maintenance mechanic's security clearance was denied under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) due to a history of alcohol abuse and multiple alcohol-impaired driving incidents. The applicant had four convictions for alcohol-impaired driving and was diagnosed with alcohol abuse, stemming from a long history of excessive drinking.

Despite attending counseling and initially meeting treatment goals, the applicant resumed drinking, failing to demonstrate sustained abstinence. This indicated a lack of sufficient rehabilitation and an inability to mitigate the risks associated with their alcohol consumption.

The judge concluded that the security concerns remained unaddressed, specifically citing disqualifying conditions 22(a), 22(c), and 22(e). Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

DC 22(a)raisedAlcohol-related Incidents Away From WorkThe applicant's four alcohol-related offenses raised security concerns.
DC 22(c)raisedHabitual or Binge Consumption of AlcoholThe applicant's pattern of alcohol consumption established security concerns.
DC 22(e)raisedEvaluation of Alcohol Abuse or DependenceThe applicant's diagnosis of alcohol abuse raised security concerns.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedApr 17, 2012
Answer filed—
Hearing heldSep 26, 2012
Decision dateJan 3, 2013

Cite For

Security Concerns Related to Alcohol Consumption Under Guideline G
Impact of Repeated Alcohol-related Offenses on Security Clearance Decisions
Failure to Mitigate Alcohol-related Risks Despite Counseling and Treatment Efforts

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on the Applicant's history of alcohol-related offenses and diagnoses of alcohol abuse. The Applicant argued that the Judge erred in finding security concerns under Guideline G and in applying mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in concluding that his circumstances raised security concerns under Guideline G.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge failed to properly apply the mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding security concerns raised by the Applicant's alcohol-related offenses were supported by substantial evidence and that the application of mitigating conditions was appropriate given the Applicant's history.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline G; Guideline E DIGEST: Applicant’s four instances of alcohol-impaired driving resulting in convictions; his various diagnoses of alcohol abuse/dependence; and his overall history of excessive or binge drinking support the Judge’s conclusion that the case raised security concerns Adverse decision affirmed. CASE NO: 10-05120.a1 DATE: 01/03/2013 DATE: January 13, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-05120

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Joseph F. Collins, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 17, 2012, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 26, 2012, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in concluding that Applicant’s circumstances raised security concerns under Guideline G and whether the Judge failed properly to apply the mitigating conditions. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge made the following findings pertinent to the issues raised on appeal: Applicant is a maintenance mechanic who has worked for a Defense contractor since 2001. He has held a security clearance for most of this time. On three occasions–in 1990, 1997, and 2000–Applicant was arrested for DUI. On the first occasion he had crashed his car into a ditch. On the second he had driven the wrong way down a one-way street. On the third he crashed his car into a tree. Although Applicant had been drinking before each infraction, the first two instances resulted in convictions for the lesser included offense of reckless driving. The third resulted in a conviction for DUI.1 In 2009, Applicant visited a fraternal club, where he consumed approximately ten 12-ounce bottles of beer, after which he drove home. A policeman pulled him over for failure to stay within the marked lane and, suspecting that Applicant had been drinking, performed a field sobriety test. Subsequent additional testing demonstrated that Applicant’s blood alcohol level was .1 %. Applicant pled guilty to Driving While Intoxicated (DWI). He was required to attend a multiple offender program, pay a fine, and undergo a drivers license revocation of 320 days duration. At the multiple offender program, Applicant was advised to attend alcohol counseling. Later in 2009, he attended 15 to 21 sessions of outpatient counseling, at which he was diagnosed as “addicted to alcohol” and advised to abstain from drinking. Decision at 4. Applicant has a long history of alcohol consumption. He began drinking at age 15, and, by the time he was in college, he was consuming five to six beers at a time on weekends, occasionally as many as fifteen “with no adverse consequences.” Id. at 3. He later reduced his alcohol intake to every other weekend, four to six beers at a time. Despite the counselor’s advice in 2009 that Applicant refrain from drinking alcohol, in 2011 he acknowledged in response to DOHA interrogatories that he still consumed alcohol and intended to continue doing so. Later in 2011, Applicant was evaluated by another counselor, in an effort to retain his security clearance. He appeared to minimize his drinking and stated that he had stopped consuming alcohol because “nothing good” ever came from it. Id. at 5. This counselor diagnosed Applicant as an alcohol abuser, though not dependent. The reason for this diagnosis was Applicant having matched only two criteria, three being needed for a diagnosis of dependence. He counselor noted that Applicant “may have under-reported his use and/or consequences of his use of alcohol.” Id. Applicant was advised to abstain from all mood-altering substances, including alcohol. He was also recommended for alcoholics anonymous (AA) attendance and further counseling sessions. Applicant attended weekly treatment sessions and was found to have achieved his treatment goals. He was found to be at a low risk for recidivism and to have a credible plan for continued sobriety by identifying “triggers” that might result in relapse. Applicant expressed an intention to continue with AA meetings, although he attended only two or three more after his counseling ended and none after February 2012. At the hearing, Applicant stated that alcohol should not be part of his life. However, he had resumed drinking in March 2012, and, as of mid-August 2012, he was associating with friends who drink. He stated that being at a club with friends is a trigger for him drinking more than two beers. Applicant enjoys an excellent reputation for the quality of his work performance. He has had no security incidents. In the Analysis, the Judge concluded that Applicant’s four alcohol related offenses set forth security concerns under Disqualifying Condition (DC) 22(a).2 She concluded that his pattern of alcohol consumption, to include binge drinking,3 established DC 22(c).4 She also concluded that his circumstances raised DC 22(e),5 given Applicant’s diagnosis of alcohol abuse. In evaluating Applicant’s evidence for mitigation, the Judge noted that his most recent DWI was part of a larger pattern of criminal acts resulting from irresponsible drinking and, therefore, was not isolated. She also noted that, although Applicant was found to be a low risk for recidivism, this prognosis was based upon Applicant’s stated plan to continue self help meetings. However, as the Judge found, he attended only 2 or 3 AA meetings thereafter. She also noted that Applicant continued to drink as recently as August 2012, and that his presence at locations where friends are drinking was one of his self-identified triggers for possible alcohol abuse. All in all, the Judge concluded that Applicant had failed to mitigate the security concerns in his case. Applicant contends that the evidence, viewed as a whole, does not raise security concerns under Guideline G. However, given Applicant’s four instances of alcohol-impaired driving that resulted in convictions, his various diagnoses of alcohol addiction and/or alcohol abuse, and his overall history of apparently excessive or binge drinking, we conclude that the Judge did not abuse her discretion in ruling as she did on this question. See, e.g., Cole v. Young, 351 U.S. 536 at 559 n. 13 (1956) (Excessive use of alcohol can render a person a security risk). Moreover, given the repeated nature of Applicant’s alcohol-related offenses and his continued drinking despite that history and despite professional advice that he abstain, the Judge’s application of the mitigating conditions is supportable. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 These three incidents were not alleged in the SOR. However, citing to ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006), the Judge stated that she was considering them in order to assess Applicant’s credibility, to evaluate his case for mitigation, to consider whether he had demonstrated rehabilitation, to determine which portions of the Directive were applicable to his circumstances, and to perform a whole-person analysis.

2 Directive, Enclosure 2 ¶ 22(a): “alcohol-related incidents away from work, such as driving while under the influence . . . regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent[.]”

3 The Judge noted that the Directive does not define “binge drinking.” However, she stated that the “generally accepted definition of binge drinking for males is the consumption of five or more drinks in about two hours. This definition of binge drinking was approved by the National Institute on Alcohol Abuse and Alcoholism (NIAAA) National Advisory Council in February 2004.” Applicant has not challenged the Judge’s use of this definition on appeal, although he argues that his Substance Abuse Evaluation of September 20, 2011, admitted as Government Exhibit 3, does not include a finding of binge drinking. We conclude that a reasonable person could characterize Applicant’s consumption of alcohol as binge drinking, given the Judge’s findings that he sometimes consumed as many as 15 beers at a time. See ISCR Case No. 05-16753 at 4 (App. Bd. Aug. 2, 2007), in which the applicant acknowledged that having consumed 12 to 18 beers at a July 4 celebration constituted binge drinking.

4 Directive, Enclosure 2 ¶ 22(c): “habitual or binge consumption or alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent[.]”

5 Directive, Enclosure 2 ¶ 22(e): “evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program[.]”