ISCR Case No. 22-00396

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 22-00396 ) Applicant for Security Clearance ) Appearances For Government: David Hayes, Esq., Department Counsel For Applicant: Carl Marrone, Esq. 07/03/2024

HYAMS, Ross D., Administrative Judge: Applicant mitigated the alcohol consumption, criminal conduct, and psychological conditions security concerns. Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application (SCA) on October 27, 2020. On March 21, 2022, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines: G (alcohol consumption), J (criminal conduct), and I (psychological conditions). Applicant answered the SOR on June 30, 2022, and requested a hearing before an administrative judge. The case was assigned to me on June 15, 2023. The hearing convened on November 30, 2023. Department Counsel submitted Government Exhibits (GE) 1-4, which were admitted in evidence without objection. Applicant provided documentation with her SOR Answer which was labeled Applicant’s Exhibits (AE) A-CC. She provided no further documentation at the hearing.

Applicant admitted SOR allegations ¶¶ 1.a and 2.a and denied SOR allegations ¶¶ 3.a-3.c. These admissions are incorporated into the findings of fact. Based on my review of the pleadings, evidence submitted, and testimony, I make the following findings of fact. Applicant is 51 years old. She has worked as the director of a software management project for a defense contractor since November 2020. She earned a bachelor’s degree in 1996. She married in 2019 and has two adult stepchildren. (Tr. 21- 23; GE 1) Under Guideline G, SOR ¶ 1.a alleged in May 2021, Applicant pled nolo contendere to driving under the influence (DUI). Her driver’s license was suspended for six months and she was on 12 months of probation. She was required to attend a DUI school, complete 50 hours of community service, and pay court costs. The SOR cross- alleges this allegation under Guideline J in ¶ 2.a. Applicant lived alone her entire adult life before she was married in 2019. The home she purchased in 2015 was small with an open floor plan. When she married, they planned to temporarily reside in her home, however the start of the COVID-19 pandemic impacted their plans. (Tr. 24-64) Applicant’s stepsons both have autism and need special care. One child has required several in-patient mental health treatments for self-harm incidents. She described him pacing in circles for hours and exhibiting unusual behaviors. The other child is aloof and socially disengaged. Her husband has joint custody of the children, and they stay with him for a week at a time. Living with them in a larger home in normal times was difficult. She stated being at home with them for long periods during the COVID-19 pandemic was unbearable for all of them. (Tr. 24-64) In July 2020, Applicant’s dog of 15 years passed away and the loss caused her extreme grief. After a change in a management at her job, she found a new job in October 2020 working for a friend. On the Saturday before she was scheduled to start work, she went to this friend’s house with a bottle of wine to catch up and socialize. She reported being there for two hours and having two glasses of wine. She asserted that she was not impaired when she left her house. (Tr. 24-100; AE F; GE 2, 3) Applicant called her husband on the way home and could hear him making a mess in the kitchen and the TV blaring in the background. She felt unwelcome in her own home, she was still grieving her dog, and needed some time alone. She parked at a school a few blocks from home, and listened to the radio and drank from another bottle of wine she had with her. She asserted that she was parked and not driving and intended to have her husband walk to the car and drive her home. Police approached her parked car and arrested her for driving under the influence (DUI). Her blood alcohol content was around .20, which is well beyond the legal limit. (Tr. 24-100; AE F; GE 2, 3)

The day after her DUI arrest, Applicant informed her new boss and a company executive of the DUI arrest, and she was able to start her new job. She competed a DUI class, and the requirements of her sentence and probation without issue. She has not had any alcohol-related arrests or incidents before or after the October 2020 arrest. She reported that she has not drank alcohol since the DUI arrest in October 2020, and is ashamed of the incident. (Tr. 24-100; AE F, G; GE 2, 3) Under Guideline I, the SOR alleges the following: SOR ¶ 2.a alleged in 2020 Applicant was diagnosed bipolar disorder and was treated by a psychiatrist from about 2011-2021. In January 2022, a DoD-connected psychologist diagnosed her with bipolar disorder and an unspecified anxiety disorder. Alcohol use disorder was ruled out. SOR ¶ 2.b alleged Applicant discontinued her treatment and medication against medical advice and has not returned to see her psychiatrist since June 2021. SOR ¶ 2.c alleged Applicant was evaluated by a DoD-connected psychologist in January 2022. The evaluator used background information, a clinical interview and observations, and a personality assessment for her evaluation. The evaluator stated that Applicant acknowledged a history of bipolar disorder and denied that she needed continuous treatment for this condition. The evaluator stated that without treatment or medication it was possible for episodes or symptoms of depression or hypomania to occur. The evaluator noted that documentation had showed that at times Applicant had requested to reduce medication and later needed additional or different medications. The evaluator also stated that while Applicant was doing well, she showed signs of hypomania during the interview. The evaluator reported that Applicant does not think she needs mental health interventions or medications at this time, and discontinued treatment against medical advice, so her prognosis is poor, and her judgement, reliability, and trustworthiness are likely to be impaired. Applicant has experience using medical care to assist her in difficult periods of life. When she was a child, a sibling was killed in a car accident, and she was given anti- depressant medication. In about 2002, after a job loss, Applicant had seen a therapist for depression, and had terminated their relationship after she felt better. Applicant stated that she has experienced depression at times, but never had a manic episode, nor had anyone ever expressed concern she was manic. She asserted that she was never depressed without a valid reason, such as death of a loved one or job loss. She has never been hospitalized, accused of erratic behavior, or been involved in any incidents at work or with the police, outside of the 2020 DUI. She is professionally focused and a high achiever, and job loss has impacted her hard. (Tr. 24-100) In about 2011, Applicant lost her job and was depressed. She sought a psychiatrist to treat these feelings, so she could move forward. She found a psychiatrist through an internet search. Her initial visit lasted about half hour. Her subsequent appointments, which occurred a few times a year, only lasted between 5 to 10 minutes, for prescription

refills. The psychiatrist provided medication only and did not do psychotherapy or counseling. The medication was intended to stabilize her mood and symptoms of anxiety or depression. She reported that the psychiatrist did not do any testing with her, and he did not give her a formal diagnosis, he just treated her symptoms. There is no documentation in the record from this psychiatrist showing a diagnosis, prognosis, treatment plan, recommendations, or conclusions. (Tr. 24-100) Applicant was prescribed a widely used anti-depressant, anxiety medication for use as needed, and a mood stabilizer. Over the years, on her own initiative, she requested varying dosages and changes in medication to find what worked best for her. In 2015, after four years of trying varying combinations and dosages, she did not feel the medications were improving her quality of life. Knowing that she could not just stop taking medication, she worked with her psychiatrist to wean off the anti-depressant medication. She successfully stopped taking this medication without repercussion, and without objection to her plan from her psychiatrist. After her dog died and she felt extreme grief, she took the anti-depressant again for three months, and stopped usage again once she felt better. (Tr. 24-100) Over time, Applicant had developed a strong relationship with her regular doctor, maintained steady appointments with her, and relied on her more for medical and medication advice. She also received medical and medication advice from her mother, who is an experienced registered nurse, and her best friend who is a pharmacist. She relied less on her psychiatrist over time because she felt he was putting forth minimal effort into their interactions, he was not looking for long term solutions, and she had developed a better support system with these other professionals. After her DUI case was resolved, Applicant started to wean off the mood stabilizer. She reported that she has a family history of rheumatoid arthritis and was taking medication for joint pain. She had consulted with her medical advisers, researched the medications, and found that the mod stabilizer could hinder her arthritis medication. She told her psychiatrist why she intended to wean off the medication, and he was not adamantly opposed to it. She was completely off the medication by June 2021. She then terminated her relationship with the psychiatrist, as he only provided her prescriptions, which she no longer needed from him. After she terminated their relationship, she never heard from the psychiatrist again. Any future medications would be provided by her regular doctor. She was completely off the mood stabilizer for six months with no problems. (Tr. 24-100) In January 2022, Applicant was required to meet with a DoD-connected psychologist as part of the security clearance process. They had a thirty-minute online meeting. Applicant is social, outgoing, and talkative person, but recalled being nervous in the meeting and talking a lot about her love of gardening. Applicant also completed an online form questionnaire for about an hour. Other than Applicant’s SCA, the specific records reviewed and relied upon by the DoD-connected psychologist were not identified or included with her report or submitted into the record for this case. The evaluator’s report includes incorrect dates and timeline of some events, which undermines the findings. The report states that Applicant’s former psychiatrist focused on treating her symptoms and

did not have an accurate diagnosis for her, which supports Applicant’s testimony. (Tr. 24- 100; GE 4) Applicant reported that during the thirty-minute online meeting, the evaluator made several negative comments to Applicant about her medication. She had the impression from the evaluator that without it she would be unable to keep her job or retain a security clearance. For this reason alone, after the meeting she requested her regular doctor re- prescribe the mood stabilizer, and she has been taking it since that time. (Tr. 24-100) In May 2022, after receiving the SOR and seeing the summarized findings of the DoD evaluator, Applicant met with a psychologist for an evaluation and a fresh opinion. She was given two online assessments, including a 600-question assessment. She met with this psychologist in person for several hours. He reported that the evaluation and the testing showed that her personality was within normal limits. Based on his interactions and assessment, he diagnosed her with adjustment disorder with anxiety. He found no current evidence of bipolar disorder. He stated that her prognosis was good, and she is reliable, stable, and trustworthy. (Tr. 24-100; AE H, I) In May 2022, after receiving the SOR and seeing the summarized findings of the DoD evaluator, Applicant met online with a physician who is an addiction specialist. He interviewed her and reviewed her health records. He found that she does not have major depressive disorder and he does not believe she has bipolar affective disorder. He stated that depression affects 50% of the population and medication to treat the condition as needed is appropriate. He did not find that she has a problem with alcohol and was pleased she gave it up after the DUI incident. (Tr. 24-100; AE J) Witness One has been Applicant’s supervisor since 2020 and has known her since 2013. She was with her on the day of the DUI, and said Applicant was not impaired when she left her home. She has no concerns about her demeanor or any substance abuse. She stated that Applicant is an excellent employee, and her performance is outstanding. She is reliable, trustworthy, and should be granted a security clearance. (Tr. 102-108) Witness Two, a Vice President at the defense contractor Applicant works for, has known her since 2020. She reported the DUI to him the day after it occurred, and he said she was embarrassed and distraught. He has no concerns about her demeanor or alcohol use. He stated that she is a great employee, fits in well with the team, and should receive a security clearance. (Tr. 108-113; AE O) Witness Three, Applicant’s work colleague, stated Applicant is professional, and process and detail oriented. She has witnessed no issues with alcohol or demeanor, and reports Applicant is consistently stable. (Tr. 113-118; AE T) Applicant provided documentation showing her work performance, awards, and training achievements. She also submitted eleven character letters from work colleagues, which state that she is a good and skilled employee, reliable, trustworthy, and fit to hold a security clearance. (AE L-BB)

This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017. When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny 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.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision. A person who seeks access to classified information enters 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 access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline G, Alcohol Consumption AG ¶ 21 details the personal conduct security concern: 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. I have considered the disqualifying conditions for alcohol consumption under AG ¶ 22 and the following is potentially applicable: (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. Applicant was arrested for a DUI in 2020. AG ¶ 22(a) applies. I have considered the mitigating conditions under AG ¶ 23. The following are potentially applicable: (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; and (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. AG ¶¶ 23(a) and (b) apply. Applicant had one DUI arrest four years ago, under unusual circumstances during the COVID-19 pandemic. She never had an alcohol-related incident before this arrest, and there have been no subsequent problems. Applicant credibly reported that she stopped consuming alcohol after this incident. This happened under such unusual circumstances that it is unlikely to recur, does not cast doubt on her current reliability, trustworthiness, and judgment. She has successfully abstained form alcohol use, provided evidence of actions taken to overcome the problem, and has demonstrated a clear and established pattern of modified consumption or abstinence. The alcohol consumption security concerns are mitigated. Guideline J, Criminal Conduct AG ¶ 30 expresses the security concern for criminal conduct:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations. The allegation in SOR ¶ 2.a is considered under the following security concern under AG ¶ 31: (b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted. SOR ¶ 2.a cross-alleged SOR allegations in ¶1.a. The Guideline G allegations were found for Applicant and the same analysis applies. I have considered the mitigating conditions under AG ¶ 32. The following are potentially applicable: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and (d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. AG ¶¶ 32(a) and (d) apply. Applicant had one DUI arrest four years ago, under unusual circumstances during the COVID-19 pandemic. She never had an alcohol-related incident before this arrest, and there have been no subsequent problems. She has no other arrests or criminal charges. She credibly reported that she stopped consuming alcohol after this incident. This happened under such unusual circumstances that it is unlikely to recur, does not cast doubt on her current reliability, trustworthiness, and judgment. Applicant provided rehabilitative evidence, documentation of training, awards and work performance, compliance with her sentence and terms of parole, and relevant witness testimony and character letters. There is ample evidence to find there has been successful rehabilitation, and mitigation by the passage of time and other factors. The criminal conduct security concerns are mitigated. Guideline I, Psychological Conditions AG ¶ 27 articulates the security concern for psychological conditions: 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. I have considered the disqualifying conditions for psychological conditions under AG ¶ 28 and the following are potentially applicable in this case: (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) an 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, reliability, or trustworthiness, including, but not limited to, failure to take prescribed medication or failure to attend required counseling sessions. The DoD-connected psychologist’s report for the security clearance process establishes AG ¶¶ 28(a) and (b). AG ¶ 28(d) was not established because there was insufficient evidence in the record of a treatment plan from Applicant’s former psychiatrist to rebut Applicant’s credible testimony about her mental health history and care. I have considered the mitigating conditions under AG ¶ 29. The following are potentially applicable: (a) the identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan; (b) the individual has voluntarily entered a counseling or treatment 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 mental health professional; (c) recent opinion by a duly qualified mental health professional employed 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. AG ¶¶ 29(a), (b), (d), and (e) apply. Applicant provided sufficient evidence to show that her condition is under control and in remission and that she is now stable. She provided documentation from a psychologist and a physician which conducted more recent evaluations of her. The psychologist stated that she was within normal limits, she had temporary anxiety, and there was no current evidence of bipolar disorder. He stated that her prognosis was good, and she is reliable, stable, and trustworthy. The physician and addiction specialist found that she does not have major depressive disorder or a problem with alcohol and he does not believe she has bipolar affective disorder. Applicant is under her regular doctor’s care and obtains medications, as needed, from her. There is sufficient evidence in the record, including her credible testimony, to find that her past psychological symptoms and conditions were temporary, the situation has been resolved, and there are no current indications of emotional instability or indication of a current problem. Applicant has provided sufficient evidence showing that she proactively seeks care when she needs it. In the past she has obtained counseling and medication to treat feelings of depression or anxiety. Neither are disqualifying conditions, and both are experienced by the majority of the population at different times in life. Her mood and symptoms are under control. She has acted in good faith in seeking treatment and terminating treatment when it was no longer needed. The alternative would be to take medications forever that she no longer needs. Applicant worked with her psychiatrist to change her medications and dosages to best suit her. She worked with him to wean off her medications and had successful outcomes. She restarted medication to cope with temporary grief or anxiety, and then stopped when it was no longer needed, which is completely appropriate. She terminated her relationship with the psychiatrist when he was no longer needed, and she sought treatment with other professionals she could rely on. In this case there is insufficient evidence of a current problem. Outside of the 2020 DUI, which occurred under unusual circumstances of the COVID-19 Pandemic, there is insufficient evidence that Applicant has been erratic, unreliable, untrustworthy, had incidents at work or with law enforcement, or behaved in a way that was problematic. The record shows she is a high achiever and professionally focused. She has the liberty, responsibility, and autonomy to make decisions about her health care and medical providers, and the decisions she made were reasonable and appropriate. This case involves differing expert opinions from mental health treatment providers. The Government’s evaluator only met with Applicant for a half an hour before making her assessment. Her report contains date and timeline errors, and draws its conclusions and diagnoses from this information, which undermines its credibility. It also contains information that supports Applicant’s testimony and contradict its findings. For

these reasons, I give the January 2022 report little weight. Applicant submitted two evaluations and a prognosis from a psychologist and a physician from May 2022. They each spent more time with Applicant, and their conclusions are well reasoned and credible. I find these reports to be reflective of the current circumstances, credible, and accurate, and give these two reports more weight. The Appeal Board took up the issue of conflicting expert opinions and addressed the administrative judge’s weighing of evidence in ISCR Case No. 19-00151 at 8 (App. Bd. Dec. 10, 2019): A Judge is required to weigh conflicting evidence and to resolve such conflicts based upon a careful evaluation of factors such as the comparative reliability, plausibility, and ultimate truthfulness of conflicting pieces of evidence. See, e.g., ISCR Case No. 05-06723 at 4 (App. Bd. Nov. 4, 2007). A Judge is neither compelled to accept a DoD-required psychologist’s diagnosis of an Applicant nor bound by any expert’s testimony or report. Rather, the Judge had to consider the record evidence as a whole in decoding what weight to give conflicting expert opinions. See, e.g., ISCR Case No. 98-0265 at 4 (App. Bd. Mar. 17, 1999) and ISCR Case No. 99- 0288 at 3 (App. Bd. Sep. 18, 2000). The psychological conditions security concerns are mitigated.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance 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): (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. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have considered the witness testimony, character letters, and professional achievements. I have incorporated my comments under Guidelines G, J, and I in my whole-person analysis.

________________________ I had the chance to observe Applicant’s demeanor and asses her credibility. She adequately explained the circumstances surrounding the SOR allegations, and I found her testimony and explanations to be credible and substantially corroborated by witness testimony and documentary evidence. Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility for a security clearance. She provided sufficient evidence to mitigate the security concerns under Guidelines G, J, and I.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline G:

FOR APPLICANT Subparagraph 1.a:

For Applicant Paragraph 2, Guideline J: FOR APPLICANT Subparagraph 2.a:

For Applicant Paragraph 3, Guideline E: FOR APPLICANT Subparagraphs 3.a-3.c:

For Applicant

It is clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is granted. Ross D. Hyams Administrative Judge