ISCR Case No. 21-01250

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 21-01250 ) ) Applicant for Security Clearance ) Appearances For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se January 14, 2022

CEFOLA, Richard A., Administrative Judge: Statement of the Case On August 4, 2019, Applicant submitted a security clearance application (SCA). On June 21, 2021, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines G and I. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense on June 8, 2017. Applicant answered the SOR in writing (Answer) on June 29, 2021, and requested a decision based on the administrative record. However, on July 22, 2021, Department Counsel asked for a hearing before an administrative judge. The case was assigned to me on August 23, 2021. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on September 2, 2021. I convened the hearing as

1.a. Applicant admits that she has consumed alcohol, at times in excess and to the point of intoxication, from about June of 2004 until about September of 2021, “a few weeks ago,” as admitted at her hearing, which was after the issuance of the SOR. She is also an admitted alcoholic. (TR at page 26 line 16 to page 33 line 23, at page 42 line 3 to page 47 line 24, and at page 56 lines 1–11.)

1.b. In about August of 2013, Applicant admits that she was placed on probation by Employer A due to issues related to her alcohol abuse. (TR at page 33 line 24 to page 34 line 11.)

1.c. In about May of 2017, Applicant admits that she received a written warning from Employer B for being intoxicated while on the job. (TR at page 34 line 22 to page 37 line 20.)

1.d. In about October of 2017, Applicant was hospitalized as the result of an alcohol-related incident. (TR at page 37 line 21 to page 38 line 17.)

1.g. In about March of 2018, Applicant admits that she was terminated from her place of employment, with Employer C, for being under the influence of alcohol on the job. (TR at page 34 line 22 to page 37 line 20.)

1.e. In about January of 2019, Applicant abandoned employment at Employer D, due to her misuse of alcohol. (TR at page 38 line 18 to page 40 line 5.)

1.f. In about March of 2019, Applicant again abandoned employment at Employer E, due to her misuse of alcohol. (TR at page 40 line 6 to page 41 line 5.)

1.h. and 2.a. In February of 2021, Applicant was diagnosed as suffering from Alcohol Use Disorder, severe, in sustained remission. (GX 3.) Subsequent to this diagnosis, she has consumed alcohol “five or six” times; and as such, her consumption scheduled on October 21, 2021. The Government offered Government Exhibits (GXs) 1 through 6, which were admitted without objection. Applicant testified on her own behalf and offered Applicant Exhibits (AppX) A through N, which were admitted without objection . DOHA received the transcript of the hearing (TR) on October 29, 2021. The record was left open for the receipt of additional evidence. On November 29, 2021, Applicant submitted a closing statement. The record closed at that time.

Applicant admitted to all the allegations in SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 34 years old, and lives with her mother. She is unmarried, and has no children. (TR at page 23 line 7 to page 26 line 9, and GX 1 at page 34.) Guideline G: Alcohol Consumption & Guideline I: Psychological Conditions

of the intoxicant is clearly no longer in remission. (TR at page 57 line 18 to page 58 line 1.)

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person applying for national security eligibility seeks to enter into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants national security eligibility. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

Guideline G: Alcohol Consumption The security concern relating to the guideline for Alcohol Consumption is set out in AG ¶ 21: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. The guideline at AG ¶ 22 contains seven conditions that could raise a security concern and may be disqualifying. Five conditions may apply: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder; (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder; (e) the failure to follow treatment advice once diagnosed; and (f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder. Applicant has five alcohol-related work incidents between 2013 and 2019. She has also been diagnosed as suffering from a severe Alcohol Use Disorder. These facts establish prima facie support for the foregoing disqualifying conditions, and shift the burden to Applicant to mitigate those concerns. The guideline at AG ¶ 23 contains four conditions that could mitigate security concerns. Three conditions may apply: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment;

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations; and (d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. None of these apply. Applicant, still consumes alcohol, despite being diagnosed with a severe Alcohol Use Disorder. Guideline I – Psychological Conditions The security concern relating to the guideline for Psychological Conditions is set forth at AG ¶ 27: Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g. clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline and an opinion, including prognosis, should be sought. No negative inference concerning the standards in this guideline may be raised solely on the basis of mental health counseling. The guideline at AG ¶ 28 contains five conditions that could raise a security concern and may be disqualifying. Three conditions are established: (a) behavior that casts doubt on an individual’s judgment, stability, reliability, or trustworthiness, not covered under any other guideline and that may indicate an emotional, mental or personality condition, including, but not limited to, irresponsible, violent, self-harm, suicidal, paranoid, manipulative, impulsive, chronic lying, deceitful, exploitative, or bizarre behaviors;

(b) opinion by a duly qualified mental health professional that the individual has a condition that may impair judgment, stability, reliability, or trustworthiness; and (d) failure to follow a prescribed treatment plan related to a diagnosed psychological/psychiatric condition that may impair judgment, stability,

Under the whole-person concept, the administrative judge must evaluate an applicant’s national security eligibility by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

reliability, or trustworthiness, including but not limited to failure to take prescribed medication or failure to attend required counseling sessions. Appellant is suffering from Alcohol Use Disorder; i.e., her alcoholism is affecting Applicant psychologically. Therefore, AG ¶ 28 is established. The guideline at AG ¶ 29 contains five conditions that could mitigate security concerns: (a) the identified condition is readily controlled with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan; (b) the individual has voluntarily entered a counseling or program for a condition that is amenable to treatment, and the individual is currently receiving counseling or treatment with a favorable prognosis by a duly qualified metal health professional; (c) recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by, or acceptable to and approved by the U.S. Government that an individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation; (d) the past psychological/psychiatric condition was temporary, the situation has been resolved, and the individual no longer shows indications of emotional instability; and

(e) there is no indication of a current problem. None of these apply. Despite her “severe” Alcohol Use Disorder diagnosis, Applicant still consumes alcohol.

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation

________________________ for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

According to AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the applicable guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines G and H in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the Alcohol Consumption and Psychological Conditions security concerns.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline G: AGAINST APPLICANT Subparagraphs 1.a~1.h: Against Applicant Paragraph 2, Guideline I: AGAINST APPLICANT Subparagraph 2.a: Against Applicant

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge