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ISCR Case 16-02486.h1 — CASE

ISCR Case 16-02486.h1denied

Case Headnote

ISCR Case No. 16-02486.h1

deniedSep 20, 2017· Hon. Robert E. Coacher· hearing

Summary

A 34-year-old defense contractor was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol-related incidents and a diagnosis of severe alcohol use disorder. The Statement of Reasons (SOR) detailed five alcohol-related charges, including underage possession or consumption in 2002, and four separate DUIs occurring in April 2005, April 2007, June 2013, and October 2015.

The decision to deny the clearance was based on several factors. The applicant's history included five alcohol-related incidents, with four DUIs. Furthermore, the applicant had been diagnosed with severe alcohol use disorder but had not completed a formal treatment program.

Although the applicant claimed abstinence since November 2015, the judge found this claim insufficient. The judge determined that the claims of abstinence were made within a controlled environment and lacked adequate evidence to demonstrate long-term behavioral change or rehabilitation. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant has a history of five alcohol-related incidents, including four DUIs.
The applicant was diagnosed with severe alcohol use disorder and has not completed a treatment program.
The applicant's claims of abstinence were made in a controlled environment and lacked evidence of long-term change.

Conditions Referenced

Disqualifying

G.21(a)raisedAlcohol-related Incidents Away From Work
G.21(c)raisedHabitual or Binge Consumption of Alcohol
G.21(d)raisedDiagnosis of Alcohol Use Disorder

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedSep 19, 2016
Answer filedOct 6, 2016
Hearing heldApr 10, 2017
Decision dateMay 12, 2017

Cite For

Evaluation of Alcohol-related Incidents Under Guideline G
Impact of a Diagnosis of Alcohol Use Disorder on Security Clearance Eligibility
Consideration of the Whole-person Concept in Security Clearance Decisions

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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found that the applicant failed to mitigate security concerns related to alcohol consumption under Guideline G. The applicant had multiple DUI incidents and was diagnosed with alcohol use disorder, leading to a denial of security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment (d) diagnosis of alcohol use disorder by a qualified professional	—	—
1.b	The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment (d) diagnosis of alcohol use disorder by a qualified professional	—	—
1.c	The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment (d) diagnosis of alcohol use disorder by a qualified professional	—	—
1.d	The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment (d) diagnosis of alcohol use disorder by a qualified professional	—	—
1.e	The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment (d) diagnosis of alcohol use disorder by a qualified professional	—	—

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: ) ) ) ISCR Case No. 16-02486 ) Applicant for Security Clearance )

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Pro se

09/20/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline G, alcohol consumption. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On September 19, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline G, alcohol consumption. The DOD 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 the DOD on September 1, 2006. 1 Applicant answered the SOR on October 6, 2016, and requested a hearing. The case was assigned me on January 18, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 13, 2017, and the hearing was held as scheduled on April 10, 2017. The Government offered exhibits (GE) 1 through 4, which were admitted into evidence without objection. The Government’s exhibit list was marked as hearing exhibit (HE) I. Applicant testified and offered exhibits (AE) A through C, which were admitted into evidence without objection. The record remained open until May 12, 2017, and Applicant submitted AE D through F, which were admitted without objection. DOHA received the hearing transcript (Tr.) on April 20, 2017.

FINDINGS OF FACT

In Applicant’s answer, he admitted all the allegations. The admissions are adopted as findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 34 years old. He is married and has a stepson. He has worked for a defense contractor since December 2010. He is a high school graduate.2

The SOR alleged Applicant was charged with underage possession or consumption of alcohol in 2002 and driving under the influence of alcohol (DUI) on four occasions: April 2005; April 2007; June 2013; and October 2015 (SOR ¶¶ 1.a-1.e).

Applicant began drinking alcohol socially with his friends when he was about 19 years old. In October 2002, he was drinking alcohol at a friend’s house while underage. The police responded to a noise complaint and Applicant was cited for underage drinking. He paid a fine, was required to do community service, and completed an alcohol education class.3

By the time Applicant was 22, he was consuming five to six drinks two to three times a week. In April 2005, Applicant was out drinking with friends. He had drunk two pitchers of beer and three to four shots of whiskey. He drove to his work place parking lot and planned to sleep there so he would not miss making work in the morning. A police officer woke him up and asked what he was doing. Applicant explained and the officer told him to stay there for the night. After the officer left, Applicant decided to drive home. He was stopped by the same officer. He was given and failed field sobriety tests. He later registered a BAC (blood alcohol content) of .18 percent. He pleaded guilty to driving while impaired. He received a suspended sentence, was fined, was placed on 12 months’ probation, and completed level-two alcohol awareness classes.4 In April 2007, he was stopped by police for having a broken tail light. Earlier that evening, while playing in a band at a local bar, he consumed two pitchers of beer and several shots of whiskey. He failed the field sobriety tests he was given and his BAC registered .20 percent. He was arrested for driving under the influence of alcohol (DUI). He pleaded guilty and was sentenced to 40 hours community service, 60 hours of home detention, and was fined. He also took alcohol education classes. He lost his driver’s license for 18 months.5

After his 2007 DUI, Applicant stopped drinking alcohol for a period of time. In January 2013, Applicant spoke to a defense investigator during his background investigation. When asked about his past alcohol issues, Applicant stated that he had no intentions of ever getting another DUI again. In June 2013, Applicant was drinking at a bar after having an argument with his wife. He consumed three to four beers and shots of whiskey at the bar. He was driving his motorcycle at the time. He went to another bar and drank another beer and several more shots of whiskey. When he attempted to drive home he lost control of his motorcycle and put it on the ground. The police responded and he was given field sobriety tests, which he failed. His BAC registered at .28 percent He was arrested for DUI. He pleaded guilty and was sentenced to 96 hours community service, 60 days jail time (through a work-release program), a fine, 86 hours of level-two education classes, and two years’ supervised probation. His probation ended in July 2015.6

In October 2015, Applicant had an argument with his wife and left the house. He stopped at a liquor store and picked up some beer. He was driving with an open beer when he was stopped by law enforcement for erratic driving. The officer saw the open beer and arrested Applicant for DUI. In April 2016, he was convicted of a felony DUI and sentenced to two years jail time (allowed work release, which he is currently doing), four years supervised probation (ending April 2020), 120 hours public service, and 86 hours of alcohol therapy, including a mental health evaluation, and fines.7

Applicant underwent a psychosocial assessment in November 2016. He was evaluated by a licensed clinical social worker (LCSW) who is a certified addiction counselor (CAC). The evaluation stated:

The client meets criteria for a current diagnosis of Alcohol-Use-Disorder, Severe. The client meets 11 of 11 criteria. The client has continued to drink despite ongoing legal issues caused by his use. He admitted his use impacted his ability to parent, caused him to lose multiple jobs, and damaged his interpersonal relationships. He has tried multiple times to control and stop his use without success. He reported intense cravings and symptoms of withdrawal, to include shaking and malaise. He reported an increase in tolerance and repeatedly drank in dangerous situations. His patterns of use indicate a great deal of time spent in activities related to drinking. He gave up hobbies like hockey and playing guitar because of his drinking. He reported often drinking more than he originally intended.8

Applicant claims he has been abstinent since November 2015. He acknowledges that he is an alcoholic. He is not currently attending Alcoholics Anonymous (AA) because of his work release schedule and because the county detention center does not have in-house AA meetings. He stated he will begin attending AA once he is able to do so. He has not attended an inpatient alcohol treatment program. His current employer is willing to allow him to continue employment if he were to enroll into an alcohol rehabilitation program.9

Applicant presented a letter from his probation officer indicating that as of March 2017, he was in compliance with the terms of his probation. He also presented documentary evidence showing that he was enrolled in level-two education and therapy classes. He also offered two reference letters from current colleagues and supervisors. They describe Applicant as an excellent employee and someone who is professional and conscientious. They recommend continuation of his security clearance.10

POLICIES

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 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, these guidelines are applied 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(a), the entire process is a careful weighing of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and 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 that an 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.

Section 7 of EO 10865 provides that 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).

ANALYSIS

Guideline G, Alcohol Consumption

AG ¶ 21 expresses the security concern pertaining to alcohol consumption:

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.

AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying. The following are potentially applicable 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 with alcohol use disorder;

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder; and (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder.

Applicant’s five alcohol incidents, including four DUI arrests in 2005, 2007, 2013, and 2015, and his alcohol use disorder diagnosis support the application of the above disqualifying conditions.

I have also considered all of the mitigating conditions for alcohol consumption under AG ¶ 23 and found the following relevant:

(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment;

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has established a pattern of modified consumption or abstinence in accordance with treatment recommendations; and

(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

Applicant’s last adverse alcohol incident occurred in October 2015, shortly after he ended his probation from an earlier DUI. His alcohol-related incidents have not been infrequent having been arrested or charged five times since 2002. He committed to not having any future DUI incidents when interviewed by an investigator in January 2013, but he has had two more since that time. Since he has had no inpatient treatment and is still incarcerated, I cannot conclude that an alcohol-related incident will not recur in the future. His actions cast doubt on his current reliability, trustworthiness, and good judgment. AG ¶ 23(a) does not apply.

Even though Applicant acknowledges his alcoholism, he has not received the required treatment or counseling to address his problem. Although he claims abstinence since November 2015, he has done so in the artificial environment of detention. It is unclear what he will do once his freedom is fully restored. In the past, he has resorted to abusing alcohol once again. AG ¶ 23(b) does not apply.

Although Applicant has participated in several alcohol education courses, there is no evidence to support his participation in any alcohol treatment programs. AG ¶ 23(d) does not apply.

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(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 considered Applicant’s compliance with his current probation, letters of recommendation, and his personal circumstances. However, I also considered that he has had five alcohol incidents since 2002 and that he has been diagnosed with alcohol use disorder. Applicant failed to provide sufficient evidence to mitigate the alcohol consumption security concerns.

Overall the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns under Guideline G.

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: AGAINST APPLICANT Subparagraphs 1.a - 1.e: Against Applicant

CONCLUSION

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

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Tr. 5; GE 1. 3 Tr. 23; GE 2, 3. 4 Tr. 24; GE 2, 3. 5 Tr. 25; GE 2, 3. 6 Tr. 27-30; GE 3. 7 Tr. 31-32; GE 3. 8 AE F. 9 Tr. 34-35, 38, 43; AE E. 10 AE C.