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ISCR Case 16-02592.h1 — CASE

ISCR Case 16-02592.h1denied

Case Headnote

ISCR Case No. 16-02592.h1

deniedOct 18, 2017· Hon. Francisco Mendez· hearing

Summary

A 61-year-old defense contractor and retired Navy veteran was denied a security clearance under Guideline G (Alcohol Consumption). The denial stemmed from a pattern of alcohol-related misconduct, specifically four drunk driving arrests over a 40-year period.

Despite completing court-mandated alcohol counseling, the applicant continued to drink and drive. This ongoing behavior raised significant concerns regarding his reliability and trustworthiness, as he failed to demonstrate a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

The decision highlighted that the applicant had not successfully completed a treatment program along with any required aftercare. His continued drinking and driving directly undermined any potential mitigating factors, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant has four drunk driving arrests, indicating a pattern of alcohol-related misconduct.
He continues to drink and drive, undermining any mitigating factors from his past behavior.
The applicant did not demonstrate a clear and established pattern of modified consumption or abstinence from alcohol.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“[N]o one has a ‘right’ to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedNov 4, 2016
Answer filed—
Hearing heldSep 28, 2017mutually agreed date
Decision dateOct 18, 2017

Cite For

Pattern of Alcohol-related Misconduct Under Guideline G
Impact of Continued Alcohol Consumption on Security Clearance Eligibility
Self-reporting of Past Incidents as a Factor 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: denied

The judge ruled against the applicant on all allegations related to alcohol consumption, citing four drunk driving arrests and the applicant's continued drinking and driving behavior as significant security concerns. Despite some favorable evidence regarding the applicant's character and service, the judge found that the applicant did not demonstrate sufficient mitigation of the alcohol-related issues, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has four drunk driving arrests.	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	—	—
1.b	The applicant continues to drink and drive.	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	—	—
1.c	The applicant has not demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.	Against Applicant	Continued Use After Treatment	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.d	The applicant has not successfully completed a treatment program along with any required aftercare.	Against Applicant	Treatment Non Compliance	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.e	The applicant's alcohol-related incidents raise questions about his reliability and trustworthiness.	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	—	—

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. 16-02592 ) ) Applicant for Security Clearance

For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Corrinne R. Crimmins, Personal Representative

10/18/2017 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant did not present sufficient evidence to mitigate security concerns raised by four drunk driving arrests. He continues to drink and drive. Security concerns regarding his alcohol consumption remain. Clearance is denied.

Statement of the Case

On November 4, 2016, the Department of Defense (DoD) issued a Statement of Reasons (SOR) alleging security concerns under the alcohol consumption guideline. Applicant answered the SOR and requested a hearing (Answer).

On September 28, 2017, a date mutually agreed to by the parties, the hearing was held. Applicant testified and called his facility security manager (FSO) as a witness. The exhibits offered by the parties were admitted into the administrative record without objection.1 The hearing transcript was received on October 6, 2017.

FINDINGS OF FACT

Applicant, 61, is married with two adult-age children. He served for 20 years in the U.S. Navy, retiring in 1995. Since retiring, Applicant has been primarily employed as a defense contractor. He has been with his current employer since 2003. He has received numerous awards for his work. He is an active member of a fraternal order of retired military members and veterans. He has held a security clearance for over 40 years.2

First Drunk Driving Incident. In approximately 1978, Applicant was a then 28- year-old sailor returning from a long deployment to sea and nearing the end of his initial enlistment. While on shore leave in a foreign country, Applicant consumed an excessive amount of alcohol before getting behind the wheel of a car. He was stopped by military police for erratic driving and was subsequently disciplined by the military.3

Second Drunk Driving Incident. In approximately 1993, Applicant, who was then a 37-year-old married father of two children, consumed an excessive amount of alcohol with a friend. He was stopped by police for erratic driving and charged with driving under the influence (DUI). He pled guilty, receiving a fine and his driving privileges were suspended for 60 days.4

Third Drunk Driving Incident. In approximately 1998, Applicant, who was then 43 years old and, by that point, retired from the Navy and working as a defense contractor, was arrested for driving while intoxicated (DWI). After work, Applicant went to a local bar, consumed too much alcohol, and decided to get behind the wheel of his car. He was stopped by police for erratic driving and arrested and charged with DWI. He subsequently pled guilty to the DWI charge. He received a 30-day suspended jail sentence, 18 months of unsupervised probation, and a fine. His driver’s license was also suspended, and he was required to complete a six-week alcohol education course.5

Fourth Drunk Driving Incident. In approximately 2013, Applicant, who was then 58 years old and working for his current employer, was arrested for DUI. He consumed an excessive amount of alcohol watching and celebrating his favorite football team beat their rival. He was stopped by police for erratic driving and was arrested for DUI. He provided a breath sample, which measured a blood alcohol concentration level of .18.

In May 2014, Applicant pled guilty to the DUI charge. He was sentenced to 180- days in jail (171 days suspended) and two years of probation. He was ordered to complete 12 weeks of alcohol counseling and attend a drunk driving victim impact panel. He was also ordered to attend alcoholics anonymous at least once a week while on probation and to abstain from alcohol.6

Applicant completed the terms of his probation in 2016, including successfully completing the court-mandated alcohol counseling. He then started consuming alcohol again. He admits to drinking alcohol and then driving his car, including a week before his hearing. He stopped attending AA after his probation was completed. Several AA members approached Applicant about becoming his sponsor, but he declined their offers.7

Applicant self-reported his recent DUI arrest and conviction to his FSO. He also reported his recent DUI and past drunk driving incidents on his security clearance application. He then discussed his past alcohol issues with a security clearance background investigator.8

Applicant’s FSO testified, confirming that Applicant self-reported the recent DUI. She noted that it was the first time in 15 years that she has been working in the defense industry that someone had made such a self-report of potentially derogatory information to her. She further noted that Applicant reached out to her after work hours to make the notification. Applicant also informed the FSO about his past drunk driving incidents. The FSO provided her favorable opinion regarding Applicant’s reliability, trustworthiness, and overall character. Her high opinion of Applicant is held by several others, including Applicant’s current supervisor and government customer.9

The FSO further testified that Applicant’s employer has several government contracts that require random alcohol and drug screening for their employees. She went on to state that the company would be willing to implement any conditions that the government saw fit to impose on Applicant’s continued access to classified information, including instituting random alcohol screening and submitting regular reports.10

Law, Policies, and Regulations

This case is decided under Executive Order (E.O.) 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 on June 8, 2017, through Security Executive Agent Directive 4 (SEAD-4). ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards). “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Instead, persons are only eligible for access to classified information “upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2.

When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. AG ¶ 2.

Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15.

Administrative Judges must remain fair and impartial, and carefully balance the needs for the expedient resolution of a case with the demands of due process. Therefore, an administrative judge will ensure that an applicant: (a) receives fair notice of the issues, (b) has a reasonable opportunity to address those issues, and (c) is not subjected to unfair surprise. Directive, ¶ E3.1.10; ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014).

In evaluating the evidence, a judge applies a “substantial evidence” standard, which is something less than a preponderance of the evidence. Specifically, substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive, ¶ E3.1.32.1.11

Any doubt raised by the evidence must be resolved by a judge in favor of the national security. AG ¶ 2(b). See also SEAD-4, ¶ E.4. Additionally, the Supreme Court has held that responsible officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

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. 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 an 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.

ANALYSIS

Guideline G (Alcohol Consumption)

Applicant’s four drunk driving arrests raise a security concern, which is explained at 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.

In assessing Applicant’s case, I considered all the disqualifying and mitigating conditions under Guideline G, including the following:

AG ¶ 22(a): alcohol-related incidents away from work, such as driving while under the influence, . . . regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder;

AG ¶ 22(c): habitual or binge consumption of alcohol to the point of impaired judgment . . .;

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;

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; and

AG ¶ 23(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.

Security clearance assessments about a person require a judge to closely examine the individual’s conduct and circumstances, both past and present. Here, Applicant has had four drunk driving arrests spread out over 40 years, starting in his 20sto his late 50s. Each time, the level of punishment meted out by the authorities has increased. He has also received ever-increasing treatment and counseling. Applicant indicated in his Answer that the victim impact panel that he was ordered to attend following the most recent DUI conviction had a significant impact. Notwithstanding the preceding, Applicant has not altered his behavior to avoid the recurrence of similar security-significant conduct. Notably, he continues to drink and drive. In light of Applicant’s history of alcohol-related criminal conduct, his decision to continue drinking and driving undercuts the mitigating value of the passage of time and the other favorable evidence. AG ¶ 22(a) applies in full, AG ¶ 22(b) applies in part. None of the mitigating conditions fully apply. Security concerns regarding Applicant’s alcohol use remain.

WHOLE PERSON CONCEPT

In addition to the specific adjudicative guidelines at issue, a judge must also take into account factors that are applicable to all cases. These factors are grouped together under the all-encompassing umbrella of the whole-person concept.12 I hereby incorporate my above analysis and highlight some additional whole-person matters.

Applicant served in the U.S. military for 20 years. After retiring from the military, he continued his service to the nation as a contractor. He self-reported the information about his recent DUI and past drunk driving arrests. He also candidly revealed at hearing that he continues to drink and drive. Such service and candor, as well as the other favorable record evidence, raise favorable inferences regarding his eligibility for continued access to classified information. However, this favorable evidence is insufficient to fully mitigate the security concerns at issue. Applicant has yet to fully appreciate the significance of his past alcohol-related criminal conduct and reform his behavior. Overall, the record evidence leaves me with doubts about Applicant’s eligibility for continued access to classified information.13

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by Directive, ¶ E3.1.25, are:

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

Subparagraphs 1.a – 1.e: Against Applicant

CONCLUSION

In light of the record evidence, it is not clearly consistent with the interests of national security to continue Applicant’s access to classified information. Applicant’s request for a security clearance is denied.

____________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 Government Exhibits 1 – 3; Applicant’s Exhibits A – F. Correspondence, the notice of hearing, and the case management order are appended to the record as Appellate Exhibits I – III. 2 Transcript (Tr.) 16-18, 30; Exhibits A-C.

3 Tr. 18-19; Exhibit 2 at 5; Exhibit D at 2.

4 Tr. 19-20; Exhibit 2 at 5; Exhibit D at 2.

5 Tr. 21; Exhibit 2 at 4; Exhibit D at 2-3. 6 Tr. 21-23; Exhibit 2 at 2-4; Exhibit 3; Exhibit D at 3-4.

7 Tr. 24-33; Exhibit C.

8 Tr. 24; Exhibits 2-3.

9 Tr. 36-38; Exhibit F.

10 Tr. 39. 11 However, a judge’s mere disbelief of an applicant’s testimony, without actual evidence of disqualifying conduct or admission by an applicant to the disqualifying conduct, is not enough to sustain an unfavorable finding. ISCR Case No. 15-05565 (App. Bd. Aug. 2, 2017); ISCR Case No. 02-24452 (App. Bd. Aug. 4, 2004). Furthermore, an unfavorable decision cannot be based on solely non-alleged conduct. ISCR Case No. 14-05986 (App. Bd. May 26, 2017). Likewise, a judge can only use non-alleged conduct for specific limited purposes, such as, assessing mitigation and credibility, unless an applicant is placed on notice that such conduct also raises a security concern. ISCR Case No. 16-02877 at 3 (App. Bd. Oct. 2, 2017). 12 See AG ¶ 2. See also SEAD-4, ¶ E.4; Directive, ¶ 6.3.

13 In light of the FSO’s testimony and the other favorable evidence, I considered the exceptions listed in SEAD-4, Appendix C. See SEAD-4, ¶ E.3 and AG ¶ 2(h). However, the applicability of this Appendix to contractor cases adjudicated under the Directive remains a question. Furthermore, even if applicable, no implementation guidance has yet been issued. Accordingly, at this time, I decline to rule or give a formal recommendation on this issue.