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ISCR Case 16-01771.h1 — CASE

ISCR Case 16-01771.h1denied

Case Headnote

ISCR Case No. 16-01771.h1

deniedAug 2, 2017· Hon. Gina L. Marine· hearing

Summary

A 59-year-old male applicant was denied a security clearance under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) due to a history of excessive alcohol consumption, multiple DUI arrests, and a failure to disclose relevant information.

The applicant's history included an arrest in 1987 for property destruction after consuming alcohol, resulting in a charitable payment and probation. He was arrested for DUI in 1992, 1993, 1998, 2011, and 2014, with each incident leading to convictions, fines, community service, and probation. The 2011 DUI also resulted in his termination from Employer A due to excessive absences related to his sentence. In 1994, he voluntarily entered an inpatient alcohol treatment program, but withdrew due to cost, then attended an outpatient program twice before discontinuing due to a suspended license and job commitments.

Additionally, the applicant deliberately failed to disclose his 1994 alcohol dependence treatment and his 1987, 1992, 1993, and 1998 arrests on his security clearance application. He also failed to report court-ordered or voluntary alcohol counseling related to his 1992 DUI. The judge found that the applicant's history of alcohol-related incidents and lack of sustained behavioral change warranted the denial of his clearance.

Why the Applicant Was Denied

The applicant had multiple DUI arrests and a history of excessive alcohol consumption.
The applicant failed to demonstrate a sufficient pattern of modified behavior or abstinence from alcohol.
The applicant's claims of not having a problem with alcohol were not credible given his history.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol

Key Rule Quoted

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

Procedural Posture

SOR issuedOct 24, 2016
Answer filedNov 22, 2016
Hearing heldMar 29, 2017
Decision dateAug 2, 2017

Cite For

Denial Based on History of Excessive Alcohol Consumption Under Guideline G
Failure to Demonstrate Sufficient Rehabilitation or Abstinence From Alcohol
Credibility Issues Regarding Applicant's Claims of Alcohol Dependency

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline E, concluding that the applicant deliberately failed to disclose significant information regarding his alcohol-related treatment and arrests on his security clearance application. The applicant's omissions raised concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant deliberately failed to disclose on SCA1 his 1994 treatment for alcohol dependence.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	—	—	—
2.b	Applicant deliberately failed to disclose on SCA1 his 1987, 1992, 1993 and 1998 arrests.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
2.c	Applicant failed to report his court-ordered or voluntary alcohol counseling or treatment in connection with his 1992 DUI.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	—	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found multiple allegations against the applicant under Guideline G concerning alcohol consumption, including several DUI convictions and a history of excessive drinking. The applicant's claims of rehabilitation and reduced alcohol consumption were not sufficient to mitigate the security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	specific text not stated in this decision	Against Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
1.b	In 1987, Applicant destroyed a public phone receiver after consuming approximately four to five beers in a local bar. A court found him guilty of property destruction, ordered him to give $150 to a charitable organization, and placed him on probation for one year.	Against Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.c	In August 1992, Applicant was arrested and charged with DUI (after registering a BAC of .17%). A court found him guilty of DUI, placed him in a pretrial education alcohol system for a one-year period, and required him to attend at least eight weeks of alcohol-education counseling.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.d	In July 1993, Applicant was arrested and charged with DUI (after registering a BAC of .17%). A court found him guilty of DUI, sentenced him to six months in jail (suspended), ordered him to complete 100 hours of community service, fined him $563, and placed him on probation for one year.	Against Applicant	DUI or DWI Alcohol	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.e	Seeking to address a self-described “alcohol problem” stemming from marital and financial problems to which he attributed his excessive drinking, Applicant voluntarily entered an inpatient alcohol-treatment program in January 1994. He withdrew from the program after a few days because he was unable to afford it without insurance coverage. Instead, he enrolled in an outpatient alcohol-treatment program, which he attended twice in February 1994 before discontinuing enrollment due to his suspended driver’s license and heavy job commitments.	For Applicant	Treatment Non Compliance	Admitted	—	—	—
1.f	In August 1998, Applicant was arrested and charged with DUI (after he had been out drinking beer with his wife, and swerved his vehicle). A court found him guilty of DUI, placed him in an advanced rehabilitation program, ordered him to complete 100 hours of community service, and placed him on probation for one year.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.g	In January 2011, Applicant was arrested and charged with DUI (after he had been drinking four beers at a bowling alley, and drove off the side of the road). A court found him guilty of DUI, sentenced him to six months in jail (all but 15 days suspended), ordered him to complete an alcohol-treatment program and 100 hours of community service, fined him $750, and placed him on probation for one year.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.h	In June 2011, Employer A fired Applicant because of excessive absences due to his 2011 DUI sentence-related obligations.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.i	In November 2014, Applicant was arrested and charged with DUI (after he had been out drinking at a bar with his friends, and swerved his vehicle). A court found him guilty of DUI sometime in 2015, sentenced him to two years in jail (all but 200 days suspended), ordered him to complete 100 hours of community service and to install an ignition interlock device (IID) on his vehicle for three years, fined him $1,000, and placed him on probation for two years. He served part of his jail time on house arrest.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.j	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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: ) ) [REDACTED] ) ISCR Case No. 16-01771 ) Applicant for Security Clearance )

For Government: Rhett E. Petcher, Esq., Department Counsel For Applicant: Pro se 08/02/2017 ______________

STATEMENT OF CASE

______________

MARINE, Gina L., Administrative Judge:

This case involves security concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on March 12, 2015 (SCA1), and another SCA on March 13, 2016 (SCA2). On October 24, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines G and E. The DOD CAF acted 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) implemented by DOD on September 1, 2006.

Applicant answered the SOR on November 22, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on December 21, 2016, and the case was assigned to me on January 25, 2017. On February 27, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for March 29, 2017. I convened the hearing as scheduled. Government Exhibits (GE) 1 through 6 were admitted into evidence, without objection. I appended to the record a letter the Government sent to Applicant as Hearing Exhibit (HE) I, and the Government’s exhibit list as HE II. At the hearing, Applicant testified and submitted Applicant’s Exhibit (AE) A, which was admitted into evidence, without objection. At Applicant’s request, I left the record open to April 12, 2017. Applicant timely provided additional documents that I admitted into evidence as AE B and C, without objection. I appended the associated post-hearing email exchanges to the record as HE III. DOHA received the transcript (Tr.) on April 7, 2017.

On June 8, 2017, the DOD implemented new AG.1 Accordingly, I have applied the June 2017 AG.2 However, because the September 2006 AG were in effect on the date of the hearing, I have also considered the September 2006 AG. Having considered both versions of the AG, I conclude that my decision would have been the same had I applied the September 2006 AG.

Findings of Fact3

Applicant, age 59, divorced his wife of 31 years in 2011. He has two adult children and one 16-year-old child. He received his high school diploma in 1977, and has taken some college and technical-school courses. He honorably served in the U.S. Navy from 1977 through 1981.4

Applicant has worked for his current employer since January 2017, after being unemployed for approximately one and a half years. He had previously been employed by a defense contractor (Employer A) for about 31 years, for whom he maintained security clearances at various times. Employer A fired Applicant in June 2011, rehired him in June 2013, and then separated him in January 2015 pending adjudication of his security clearance. Applicant is subject to rehire by Employer A.5

The SOR contains 10 allegations under Guideline G involving Applicant’s excessive alcohol consumption between 1977 and May 2015, including five DUI arrests (in 1992, 1993, 1998, 2011, and 2014),6 one non-DUI but alcohol-related arrest (in 1987), 1994 treatment for a condition diagnosed as alcohol dependence, and a 2011 termination from employment (SOR ¶¶ 1.a through 1.j). Under Guideline E, the SOR cross-alleges each Guideline G allegation (SOR ¶ 2.a) and also alleges that Applicant deliberately failed to disclose on SCA1 his 1994 treatment (SOR ¶ 2.b) and his 1987, 1992, 1993 and 1998 arrests (SOR ¶ 2.c). In his SOR answer, Applicant admitted the facts alleged in SOR ¶¶ 1.a through 1.c, 1.e. through 1.j, and ¶ 2.a (except as to ¶ 1.d). Applicant denied that he was arrested in 1993 as alleged in SOR ¶ 1.dand that he deliberately falsified SCA1 as alleged in SOR ¶¶ 2.band 2.c.

Guideline G

In 1987, Applicant destroyed a public phone receiver after consuming approximately four to five beers in a local bar. A court found him guilty of property destruction, ordered him to give $150 to a charitable organization, and placed him on probation for one year.7 (SOR ¶1.b).

In August 1992, Applicant was arrested and charged with DUI (after registering a BAC of .17%). A court found him guilty of DUI, placed him in a pretrial education alcohol system for a one-year period, and required him to attend at least eight weeks of alcohol- education counseling.8 (SOR ¶ 1.c).

In July 1993, Applicant was arrested and charged with DUI (after registering a BAC of .17%). A court found him guilty of DUI, sentenced him to six months in jail (suspended), ordered him to complete 100 hours of community service, fined him $563, and placed him on probation for one year.9 (SOR ¶ 1.d).

Seeking to address a self-described “alcohol problem” stemming from marital and financial problems to which he attributed his excessive drinking, Applicant voluntarily entered an inpatient alcohol-treatment program in January 1994. He withdrew from the program after a few days because he was unable to afford it without insurance coverage. Instead, he enrolled in an outpatient alcohol-treatment program, which he attended twice in February 1994 before discontinuing enrollment due to his suspended driver’s license and heavy job commitments.10 (SOR ¶ 1.e). Applicant admitted that he was treated in 1994 “for a condition diagnosed as Alcohol Dependence” (SOR ¶ 1.e) in his SOR answer. However, at the hearing, Applicant denied that he was ever diagnosed as alcohol dependent or as an alcohol abuser during his 1994 treatment or otherwise.11 Another DOHA administrative judge who had access to the actual medical record for the 1994 treatment did not find it sufficient to conclude that Applicant was so diagnosed, because it was unsigned and missing pertinent details. In this case, the Government did not provide either a medical record or other evidence that Applicant was so diagnosed.12

In January 1995, DOHA issued an SOR to Applicant alleging under Guideline G his 1987, 1992, and 1993 arrests and his 1994 treatment. The SOR also alleged under Guideline E that Applicant falsified a 1994 SCA by omitting his 1992 arrest and his 1994 treatment. Applicant chose to contest that SOR and requested a hearing. At his hearing, Applicant acknowledged that he was a recovering alcoholic, who was strongly committed to future abstinence. A DOHA administrative judge found both Guidelines G and E in Applicant’s favor after concluding that his omissions were not intentional and that he demonstrated a commitment to “sustained sobriety,” which at the time was 14 months.13

In August 1998, Applicant was arrested and charged with DUI (after he had been out drinking beer with his wife, and swerved his vehicle). A court found him guilty of DUI, placed him in an advanced rehabilitation program, ordered him to complete 100 hours of community service, and placed him on probation for one year.14 (SOR ¶ 1.f).

In January 2011, Applicant was arrested and charged with DUI (after he had been drinking four beers at a bowling alley, and drove off the side of the road). A court found him guilty of DUI, sentenced him to six months in jail (all but 15 days suspended), ordered him to complete an alcohol-treatment program and 100 hours of community service, fined him $750, and placed him on probation for one year.15 (SOR ¶ 1.g).

In June 2011, Employer A fired Applicant because of excessive absences due to his 2011 DUI sentence-related obligations.16 (SOR ¶ 1.h).

In November 2014, Applicant was arrested and charged with DUI (after he had been out drinking at a bar with his friends, and swerved his vehicle). A court found him guilty of DUI sometime in 2015, sentenced him to two years in jail (all but 200 days suspended), ordered him to complete 100 hours of community service and to install an ignition interlock device (IID) on his vehicle for three years, fined him $1,000, and placed him on probation for two years. He served part of his jail time on house arrest.17 (SOR ¶ 1.i).

Applicant’s consumption of alcohol from 1977 through present has varied. He began consuming alcohol at age 18. His heaviest drinking occurred during his time in the Navy. Following each DUI, he would modify his alcohol consumption. He abstained from consuming any alcohol for at least 14 months between 1994 and 1995, for a year approximately five years ago, and while prohibited from doing so during his probation for his 1998 and 2011 DUIs and his house arrest for the 2014 DUI. Prior to his 2014 DUI, he consumed approximately four or five beers per night, and since then approximately one or two beers per night. He has not consumed alcohol to the point of intoxication since his 2014 DUI. At the hearing, Applicant reported that he further reduced his alcohol consumption to a couple of beers while bowling and maybe a beer at home.18

At the hearing, Applicant proclaimed that did not have a problem with alcohol, nor was he ever an alcohol abuser or alcohol dependent. As such, he has no future intent to participate in Alcoholics Anonymous (AA) meetings or any other alcohol counseling. Applicant attended 14 AA meetings prior to the court date for his 2014 DUI at the suggestion of his attorney, who thought it would benefit his case. A licensed alcohol counselor evaluated Applicant during three sessions at his office in May 2015, and did not assess him to have a substance abuse disorder. In August and October 2015, a licensed alcohol counselor evaluated Applicant, diagnosed him as an alcohol abuser, and recommended that he participate in group therapy for relapse prevention and recovery promotion.19

Applicant attributed his DUI history to a failure to realize that he was too impaired to drive.20 He averred that the IID helps him to better gauge how many alcoholic beverages will impair his driving ability because it locks his vehicle whenever his BAC registers above a certain limit. On at least three or four occasions (most recently in approximately January 2017), the vehicle locked because his BAC was over the limit. On those occasions, he either waited until his BAC dropped or had someone else drive him home. Once his IID is removed, Applicant claimed, alternatively, that he will either not drive at all if he has been drinking any amount of alcohol, or will not drive if he has more than one alcoholic beverage. Applicant claimed that he does not intend to repeat his past mistakes with respect to drinking and driving because he has “lost too much” and wants to be present for his youngest child, who has special needs.21 Guideline E

On March 12, 2015, Applicant signed SCA1 certifying that the statements made therein were “true, complete, and correct to the best of [his] knowledge and belief and [were] made in good faith.” On March 13, 2016, he signed SCA2 certifying same. He was interviewed in connection with his security-clearance investigation on May 1st and 7th of 2015 to discuss, among other things, the contents of SCA1. He completed SCA1 in connection with a ten-year periodic reinvestigation, which was never completed. He completed SCA2 in order to restart the reinvestigation.22

In section 22 (Police Record) of SCA1 and SCA2,23 Applicant reported his 2011 and 2014 DUI arrests. However, he answered “No” to the question of whether, in addition to his listed arrests, he had “EVER been charged with an offense involving alcohol or drugs” and otherwise failed to report his alcohol-related arrests in 1987, 1992, 1993 and 1998 (SOR ¶ 2.c).24

In section 24 (Use of Alcohol) of SCA1 and SCA2, Applicant answered “No” to the question of whether he had EVER “been ordered, advised, or asked to seek counseling or treatment as a result of [his] use of alcohol . . . voluntarily sought counseling or treatment as a result of [his] use of alcohol . . . [or] received counseling or treatment as a result of [his] use of alcohol in addition to what [he had] already listed . . . .”25 He did not otherwise report either his court-ordered or voluntary alcohol counseling or treatment in connection with his 1992 DUI, as alleged, and otherwise.26 (SOR ¶ 2.b).

During his May 1, 2015 interview, Applicant discussed only his 2011 and 2014 DUIs, referring to his 2011 DUI as his “first DUI.” After being confronted during his May 7, 2015 interview, Applicant acknowledged and discussed his 1998 DUI but “could not remember” a 1993 DUI. He claimed that he did not list the 1998 DUI on SCA1 because he “forgot about it.”27

Applicant claimed that he never intended to falsify SCA1 and “tried putting everything down that [he] could possibly think of.” He also claimed that he had problems completing it and sought out human resources to assist him. He complained about it being “long,” and although he was not rushed to complete it, he had to take the time to find a lot of information that needed updating since his prior SCA. Concerning the alcohol counseling and treatment questions in section 24, Applicant claimed, alternatively, that he misunderstood the question and did not think it was asking about his “court-mandated” counseling and treatment, and that he forgot about his “voluntary” treatment.28

POLICIES

“[N]o one has a ‘right’ to a security clearance.”29 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.”30 The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”31

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines 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 and 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 that 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 made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”32 Thus, a decision to deny a security clearance 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.33 “Substantial evidence” is “more than a scintilla but less than a preponderance.”34 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.35 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.36 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.37

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”38 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”39

ANALYSIS

Guideline G (Alcohol Consumption)

The concern under this guideline 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.

Applicant’s history of excessive alcohol consumption, including four DUI convictions between 1992 and 2014, establish the following disqualifying conditions under this guideline:

AG ¶ 22(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; and AG ¶ 22(c): habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.

In his answer to the SOR, Applicant did not specifically admit to the allegation that he was diagnosed as alcohol dependent in 1994. He specifically denied it at the hearing. Therefore, that fact is controverted. In light of the record, the Government did not meet its burden to prove it. Moreover, even if it had, I do not find it disqualifying. Because none of the disqualifying conditions apply to the facts alleged therein, I find SOR ¶¶ 1.e. and 1.j. in favor of Applicant. Receiving alcohol treatment alone (SOR ¶ 1.e) is not a security concern. Applicant was diagnosed as an alcohol abuser in 2015, but not as alcohol dependent in 1994 (SOR ¶ 1.e). Applicant’s continued consumption of alcohol, as alleged in SOR ¶ 1.j., is not itself a security concern unless it is preceded by a diagnosis of alcohol use disorder (under the 2017 AG).40

The security concerns raised under this guideline have not been mitigated by either of the following applicable factors:

AG ¶ 23(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

AG ¶ 23(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.

Applicant’s four DUI convictions spanned a 22-year period, most recently in 2014. He is not able to drive his vehicle without an IID through at least 2018. While the IID is helping Applicant understand the effect alcohol consumption has on his ability to drive, it is too soon to tell for how long its impact will last. In light of his DUI history, Applicant has not demonstrated a sufficient pattern of modified behavior for me to conclude that the questionable judgment associated with his excessive alcohol consumption is behind him. Guideline E (Personal Conduct)

The concern under this guideline is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility:

(a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and

(b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

Notwithstanding my adverse determination under Guideline G, Applicant’s history of excessive alcohol consumption also raises concerns under Guideline E. While none of the listed disqualifying conditions under this guideline strictly applies, I find that his conduct establishes the general concerns involving questionable judgment and unwillingness to comply with rules and regulations, which Applicant has not mitigated.41

When a falsification allegation is controverted, the Government has the burden of proving it. An omission, standing alone, does not prove falsification. An administrative judge must consider the record evidence as a whole to determine an applicant’s state of mind at the time of the omission.42 An applicant’s level of education and business experience are relevant to determining whether a failure to disclose relevant information on a security clearance application was deliberate.43 Applicant intentionally falsified materially relevant facts on SCA1, which establishes the following disqualifying condition under this guideline:

AG ¶ 16(a): deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities;

The security concerns raised under this guideline have not been mitigated by either of the following applicable factors:

AG ¶ 17(a): the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and

AG ¶ 17(c): the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment.

Applicant’s failure to report his entire alcohol-related arrest history or any of his alcohol counseling and treatment history on SCA1 is security significant, especially in light of his familiarity with the clearance process. Not only has he maintained a security clearance for a significant period of time, undergone several investigations, but he also appeared previously before a DOHA judge who adjudicated an SOR involving substantially similar SCA falsification allegations. I did not find credible his explanations and excuses for failing to report these materially relevant facts on his SCA1.

Not only did Applicant fail to avail himself of the opportunity to correct his omissions before being confronted during his 2015 interviews, but he also failed to do so on SCA2. The fact that he referred to his 2011 DUI as his “first” DUI is troubling given the facts and circumstances of his earlier DUI arrest history. Although not alleged in the SOR, I find that his omissions and falsifications during his 2015 interviews and on SCA2 further evince Applicant’s intent to exclude materially relevant information from SCA1. Given these facts, I find substantial evidence of an intent on the part of the Applicant to omit, conceal, and falsify security-significant facts from and on SCA1. I have serious doubts about his current reliability, trustworthiness, and good judgment based not only upon his falsification of SCA1 but also his history of excessive alcohol consumption.

WHOLE PERSON CONCEPT

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. An 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.

I have incorporated my comments under Guidelines G and E in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). After weighing the disqualifying and mitigating conditions under Guidelines G and E, and evaluating all the evidence in the context of the whole person, I conclude that Applicant has not mitigated the security concerns raised by his history of excessive alcohol consumption (including four DUI convictions between 1992 and 2014), and his deliberate omission of security-significant information from SCA1. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline G (Alcohol Consumption): AGAINST APPLICANT

Subparagraphs 1.a – 1.d: Against Applicant Subparagraph 1.e: For Applicant Subparagraphs 1.f – 1.i: Against Applicant Subparagraph 1.j: For Applicant

Paragraph 2, Guideline E (Personal Conduct): AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraphs 2.b – 2.c: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information. Clearance is denied.

Gina L. Marine Administrative Judge

FOOTNOTES

1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability). 2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DOD policy and standards). 3 Unless otherwise indicated by citation to another part of the record, I extracted these facts from Applicant’s SOR Answer, his two SCAs (GE 1 and GE 2), and the summary of his 2015 subject interview with an investigator in connection with this security-clearance investigation (GE 6). 4 See also Tr. at 7-11, and 29. 5 See also Tr. at 7-11, 30, 60-61. 6 I considered that Applicant was charged in 1992 and 1994 with driving under the influence (DUI) and in 1998, 2011, and 2014 with operating under the influence (OUI). However, for ease of reference, I will refer to each of them as DUIs in my decision. 7 GE 5 at 2; Tr. at 47-48. 8 GE 5 at 2; Tr. at 48-50, 53. 9 GE 5 at 2-3. 10 GE 5 at 3; Tr. at 54-55. 11 Tr. at 31, 32, 37, 40-41, 44. 12 GE 5 at 3; Tr. at p. 37. 13 GE 5. 14 GE 6 at 4; Tr. at 55-57. 15 GE 3, GE 4 at 1; GE 5 at 2-3; Tr. at 57-59. 16 GE 6 at 4; Tr. at 59-61. 17 GE 4 at 2; GE 6 at 4; Tr. at 33-35; 61-65, 78-79. 18 GE 5 and 6; AE B, Tr. at 30-33, 47, 57, 59, 63-66. 19 Tr. at 65-89; AE C. 20 Tr. at 49-50, 56, 58; AE B. 21 Tr. at 80-93. 22 Tr. at 74-75. 23 The SOR alleges Guideline E falsifications only as to SCA1. I will consider them as to SCA2 only to evaluate mitigation and whole person. 24 GE 3 at p. 25; GE 2 at p. 26. 25 The SOR only alleges Applicant’s failure to answer one of these questions. As to the questions not alleged in the SOR, I consider them only to evaluate mitigation and whole person. 26 GE 3 at p. 26-27, 68-69; GE 2 at p. 28. 27 GE 6; Tr. at 50-51, 53. 28 See also Tr. at 26-27, 66-69, 76-78. 29 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 30 Egan at 527. 31 EO 10865 § 2. 32 EO 10865 § 7. 33 See Egan, 484 U.S. at 531. 34 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 35 See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 36 Directive ¶ E3.1.15. 37 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 38 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 39 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 40 I considered that Applicant’s 2015 alcohol-abuse diagnosis and continued alcohol consumption thereafter could have established security concerns under the 2006 AG. AG ¶¶ 22(d), (e), and (f). However, because the SOR did not allege the 2015 diagnosis, it and his continued alcohol consumption would have been relevant only to my evaluation of mitigation and whole person. Whether alleged or not, I would have still concluded that Applicant failed to mitigate the Guideline G concern as I have under the 2017 AG. 41 ISCR Case No. 13-01281 at 4 (App. Bd. Aug. 4, 2014) ([T]he DCs listed under any of the Guidelines are not exclusive [citation omitted]. To the contrary, they are illustrative in nature, and, even when none of the DC’s under a particular Guideline can be applied with literal preciseness, it is not improper for a Judge to conclude that an applicant’s conduct sets forth concerns under that Guideline). 42 See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004). 43 ISCR Case No. 08-05637 (App. Bd. Sep. 9, 2010).