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ISCR 16-01743.h1: Guideline G security clearance hearing, granted (2017) · CASE

ISCR Case 16-01743.h1granted

Case headnote

ISCR Case No. 16-01743.h1

grantedFeb 1, 2017· Hon. Mark W. Harvey· hearing

Summary

A 53-year-old engineer scientist with 31 years of experience at a defense contractor was granted a security clearance despite concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). These concerns stemmed from a February 2015 arrest and subsequent guilty plea for driving while intoxicated (DWI).

The Statement of Reasons specifically cited the 2015 DWI arrest and conviction. However, the judge found that the applicant had taken substantial mitigating steps. She completed an alcohol counseling program and fulfilled all court-ordered requirements related to her conviction.

The applicant demonstrated a commitment to responsible alcohol consumption, including not driving after drinking. The judge concluded that the DWI incident was unlikely to recur and did not negatively impact her current reliability or judgment, leading to the decision to grant the security clearance.

Why the applicant prevailed

The applicant completed an alcohol counseling program and fulfilled all court-ordered requirements after her DWI conviction.
She demonstrated a commitment to responsible alcohol consumption and does not drive after drinking.
The judge found that the DWI incident was unlikely to recur and did not cast doubt on her current reliability or good judgment.

Conditions referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol
AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAdmission of Criminal Conduct

Mitigating

AG ¶ 23(a)appliedUnlikely to Recur
AG ¶ 23(d)appliedSuccessful Rehabilitation
AG ¶ 32(a)appliedTime Elapsed Since Criminal Behavior
AG ¶ 32(d)appliedEvidence of Successful Rehabilitation

Key rule quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural posture

SOR issuedAug 15, 2016
Answer filedSep 7, 2016
Hearing heldDec 6, 2016
Decision dateFeb 1, 2017

Cite for

Mitigation of Alcohol Consumption Concerns Under Guideline G
Mitigation of Criminal Conduct Concerns Under Guideline J
Whole-person Assessment in Security Clearance Determinations

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 53: “Applicant is a 53-year-old engineer scientist, who has been employed by a major defense contractor for 31 years.”
Held a clearance before: Yes: “She has held a security clearance for 31 years, and there is no evidence of security violations.”
Delinquent debt cited: $665: “In July 2015, Applicant pleaded guilty to DWI, and the court ordered her to complete a 10-hour alcohol-counseling program, to be on probation for two years until July 2017, and to pay a $665 fine.”

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding the alcohol consumption concerns. Although the applicant had a DWI conviction, the judge determined that the incident was infrequent and unlikely to recur, and that the applicant had taken steps to mitigate the concerns by completing an alcohol counseling program and reducing her alcohol consumption.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding the criminal conduct concerns. The applicant was convicted of a misdemeanor-level DWI in July 2015, but the judge determined that the circumstances surrounding the incident and the applicant's subsequent actions mitigated the security concerns. The applicant demonstrated a commitment to responsible behavior and completed all court-ordered requirements, leading to the granting of her security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-01743 ) Applicant for Security Clearance )

For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Lynette M. Petruska, Esq.

02/01/2017 ___________

STATEMENT OF CASE

___________

HARVEY, Mark, Administrative Judge:

In February 2015, Applicant was arrested for driving while intoxicated by alcohol (DWI). She pleaded guilty to DWI. She completed an alcohol counseling class and all court-ordered requirements. She reduced her alcohol consumption, and she does not drive after consuming alcohol. Her DWI is unlikely to recur, and her DWI does not cast doubt on her current reliability, trustworthiness, or good judgment. Alcohol consumption and criminal conduct security concerns are mitigated. Access to classified information is granted.

History of the Case

On June 4, 2015, Applicant completed and signed an Electronic Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 1) On August 15, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued an SOR to Applicant pursuant to Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive); and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), which became effective on September 1, 2006.

The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) Specifically, the SOR set forth security concerns arising under Guidelines G (alcohol consumption) and J (criminal conduct).

On September 7, 2016, Applicant responded to the SOR. (HE 3) On October 12, 2016, Department Counsel was ready to proceed. On November 10, 2016, the case was assigned to me. On November 17, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for December 6, 2016. (HE 1) Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered four exhibits; Applicant offered four exhibits; and all proffered exhibits were admitted into evidence without objection. (Transcript (Tr.) 11-14; GE 1-4; Applicant Exhibits (AE) A-D) On December 14, 2016, DOHA received a copy of the transcript of the hearing. One additional exhibit was admitted after the hearing without objection. (Tr. 65, 82; AE E)

FINDINGS OF FACT

In Applicant’s SOR response, she admitted the SOR allegations. She also provided extenuating and mitigating information. Applicant’s admissions are accepted as findings of fact.

Applicant is a 53-year-old engineer scientist, who has been employed by a major defense contractor for 31 years. (Tr. 15-16, 61; GE 1) She works on a crucial DOD weapons system. One of her other responsibilities is to mentor and train less experienced engineers. (Tr. 21) She has received excellent performance evaluations from her employer. (Tr. 22-31; AE A-AE C) Her evaluations lauded her diligence, honesty, integrity, contributions to mission accomplishment, and good judgment. Applicant believes she is contributing to the national defense, and she loves her work. (Tr. 66) She has held a security clearance for 31 years, and there is no evidence of security violations. (Tr. 15)

In 1999, Applicant married, and in 2012, she divorced. (Tr. 61) In 2013, she married her current spouse. (Tr. 61) She does not have any children. (Tr. 61) She has never served in the U.S. Armed Forces. (Tr. 62) In 1985, she received a bachelor of science degree in electrical engineering. (Tr. 62) She completed three semesters towards her master’s degree. (Tr. 62)

Alcohol Consumption and Criminal Conduct

In February 2015, Applicant attended a post-funeral gathering of friends of the deceased, and she consumed an excessive amount of wine. (Tr. 31, 34) She was sad because of the loss of her close friend of 30 years, and she uncharacteristically consumed more wine than was customary over a 90-minute period. (Tr. 35-37, 47, 64) She drove away from the bar; she hit another car that was stopped at a light; and she was arrested for DWI. (Tr. 48-49) She was going about five miles per hour when she struck the back of the other vehicle. (Tr. 57) There were no injuries. Restitution was paid to the other driver for the damage to his vehicle. (Tr. 58) Her blood alcohol content (BAC) was .18 and the DWI level in her state was a BAC of .08. (Tr. 47-49, 63)

In July 2015, Applicant pleaded guilty to DWI, and the court ordered her to complete a 10-hour alcohol-counseling program, to be on probation for two years until July 2017, and to pay a $665 fine. (Tr. 55, 73; GE 2) Her probation was unsupervised, and the only requirement was for her not to violate any criminal laws. (Tr. 56) On January 12, 2017, the court granted Applicant’s motion for early termination of her probation. (AE E) She successfully completed the alcohol-counseling program, and she paid the fine. (Tr. 32, 37-39, 64; AE D) She was remorseful about the DWI. (Tr. 36) After February 2015, she did not drive after drinking any alcohol, and she committed to not driving after drinking alcohol in the future. (Tr. 37, 45, 53)

Except for her February 2015 DWI, Applicant has never been stopped for suspicion of DWI or arrested for DWI. (Tr. 32, 46) She continues to consume alcohol. (Tr. 53) Before February 2015, Applicant usually asked a friend to drive her home if she drank an excessive amount of alcohol. (Tr. 33) Typically, she consumes one or two glasses of wine three or four times a week. (Tr. 39, 69) She may drink until she can feel the effect of the alcohol, which involves consumption of three glasses of wine; however, she does not drink alcohol to intoxication. (Tr. 40, 53-54) She has never been diagnosed with alcohol abuse, alcohol dependence, or alcohol use disorder. (Tr. 65)

Applicant’s husband has been diagnosed with stage four cancer. (Tr. 70) Applicant has been taking excellent care of him. (Tr. 70) Her husband believes Applicant is reliable, trustworthy, and responsible, and her judgment is impeccable. (Tr. 70-71)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Alcohol Consumption

AG ¶ 21 articulates the Government’s concern about alcohol consumption, “[e]xcessive 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.”

Two alcohol consumption disqualifying conditions under AG ¶ 22 could raise a security concern and may be disqualifying in this case:

(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 whether the individual is diagnosed as an alcohol abuser or alcohol dependent; and

(c) habitual or binge consumption of alcohol to the point of impaired judgment,1 regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent.

In February 2015, Applicant consumed an excessive amount of wine, and then drove her vehicle, striking another vehicle stopped at a traffic light. She was arrested for DWI. Her BAC result was .18, which is more than double the level under state law for a DWI. A BAC of .18 is sufficient to establish binge alcohol consumption to the point of impaired judgment. In July 2015, Applicant pleaded guilty and was found guilty of a misdemeanor-level DWI. She was not diagnosed with alcohol abuse or alcohol dependence under the Diagnostic and Statistical Manuals of Mental Disorders (DSM) IV- TR, or alcohol use disorder under DSM-V.2 AG ¶¶ 22(a) and 22(c) are established.

Four conditions under AG ¶ 23 are potentially applicable and may mitigate security concerns:

(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 good judgment;

(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser);

DSM remission criteria and leaves mitigation to a case-by-case determination. (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and

(d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶¶ 22(b) and 22(c) do not apply because alcohol abuse or dependence is not established, and Applicant is not currently participating in an alcohol treatment or counseling program. AG ¶ 23(a) applies, and AG ¶ 23(d) partially applies. In February 2015, Applicant consumed an excessive amount of alcohol, drove her vehicle, and was involved in an accident. She was arrested, charged, and convicted of DWI. Her DWI is relatively recent; however, her DWI is “infrequent” because it is the only alcohol-related offense she has committed. She promised not to drive after consuming alcohol. Her DWI therefore “happened under such unusual circumstances that it is unlikely to recur,” and her DWI does not cast doubt on her “current reliability, trustworthiness, or good judgment.” She successfully completed an alcohol-counseling program. She reduced her alcohol consumption after February 2015, and she demonstrated a clear and established pattern of modified alcohol consumption. Because she did not provide a favorable prognosis, AG ¶ 23(d) cannot be fully applied. Alcohol consumption security concerns are mitigated. Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to 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.”

AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying: “(a) a single serious crime or multiple lesser offenses . . . ;” and “(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.” In February 2015, Applicant was arrested for DWI. In July 2015, she was convicted of DWI. Although her DWI conviction is a misdemeanor,3 it is a serious offense. When Applicant drove while intoxicated, she risked serious injury to herself and others. She completed all sentence requirements. On January 12, 2017, she completed her probation. AG ¶¶ 31(a) and 31(c) are established.

AG ¶ 32 provides four conditions that could potentially mitigate security concerns:

(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;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person’s life;

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

AG ¶¶ 32(b) and 32(c) do not apply because Applicant was not pressured into committing the DWI, and she admitted that she committed the offense. AG ¶¶ 32(a) and 32(d) apply for the same reasons as discussed in AG ¶¶ 23(a) and 23(d) under the alcohol consumption guideline, supra. Applicant’s misdemeanor-level DWI in February 2015, was two years ago and is still relatively recent. Such criminal activity is infrequent, has not recurred, and is unlikely to occur in the future. Applicant made a sincere and credible commitment not to drive after consuming alcohol. Aside from her DWI, she has an excellent employment record. Criminal conduct security concerns are mitigated.

offense.

WHOLE PERSON CONCEPT

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 have incorporated my comments under Guidelines G and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant is a 53-year-old engineer scientist, who has been employed by a major defense contractor for 31 years. She has received excellent performance evaluations from her employer. Her evaluations laud her diligence, honesty, integrity, contributions to mission accomplishment, and good judgment. She has held a security clearance for 31 years, and there is no evidence of security violations. In 1985, she received a bachelor of science degree in electrical engineering, and she completed three semesters towards her master’s degree. Her husband believes Applicant is reliable, trustworthy, and responsible, and her judgment is impeccable.

Applicant’s single misdemeanor-level DWI in February 2015 is serious and reflects poorly on her judgment. It is her first and only DWI. After her DWI, she completed an alcohol counseling course and all court-ordered requirements. She successfully completed her probation. She was not diagnosed with alcohol abuse or dependence under DSM-IV-TR, or alcohol use disorder under DSM-V. She assured she does not drive after drinking alcohol. Her DWI “happened under such unusual circumstances that it is unlikely to recur,” and her DWI does not cast doubt on her current reliability, trustworthiness, or good judgment.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Alcohol consumption and criminal conduct security concerns are mitigated.

FORMAL FINDINGS

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

For Applicant Subparagraph 2.a:

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________________ MARK HARVEY Administrative Judge

FOOTNOTES

1 The term “binge” drinking is not defined in the Adjudicative Guidelines. “Binge drinking is the most common pattern of excessive alcohol use in the United States. See the Center for Disease Control website, (stating “The National Institute on Alcohol Abuse and Alcoholism defines binge drinking as a pattern of drinking that brings a person’s blood alcohol concentration (BAC) to 0.08 grams percent or above. This typically happens when men consume 5 or more drinks, and when women consume 4 or more drinks, in about 2 hours.”), https://www.cdc.gov/alcohol/fact-sheets/binge-drinking.htm.

2 The criteria for “alcohol abuse” and “alcohol dependence” are drawn from the Diagnostic and Statistical Manuals of Mental Disorders (DSM) DSM-IV-TR, which was in effect when the Adjudicative Guidelines were issued in 2006. In May 2013, the American Psychiatric Association (APA) issued the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5).The criteria in DSM-IV-TR for alcohol dependence and in DSM-5 for alcohol use disorder (AUD) are objective, well established, and rely primarily on self-reports and descriptions. DSM–5 integrates the two DSM–IV disorders, alcohol abuse and alcohol dependence, into a single disorder called alcohol use disorder (AUD) with mild, moderate, and severe sub-classifications. DSM-IV-TR and DSM-5 are used throughout the medical and legal communities to determine alcohol dependence and AUD severe, which have the same criteria. AUD-moderate overlaps with both alcohol abuse and alcohol dependence. The alcohol consumption guideline does not incorporate 3See Missouri Revised Statute Section 577.001 (stating first driving while intoxicated offense without special circumstances is a misdemeanor). Applicant contended that her DWI was a municipal ordnance violation. (AE E) Applicant did not provide a citation indicating a DWI in Missouri was not a criminal