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ISCR Case 16-03219.h1 — CASE

ISCR Case 16-03219.h1denied

Case Headnote

ISCR Case No. 16-03219.h1

deniedAug 30, 2017· Hon. Robert E. Coacher· hearing

Summary

A 43-year-old defense contractor and former Air Force technical sergeant was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The Statement of Reasons cited four instances of driving under the influence (DUI) charges in January 1998, January 2006, October 2012, and April 2015.

These repeated incidents indicated a pattern of alcohol-related issues. Disqualifying conditions were raised under G.2.a, G.2.c, J.2.a, and J.2.b. The denial was based on the applicant's four DUI arrests, which demonstrated a continued pattern of alcohol consumption to the point of intoxication, raising concerns about reliability and judgment.

Despite presenting character references, the applicant failed to provide documentation of participation in alcohol treatment programs. This lack of evidence undermined claims of rehabilitation and acknowledgment of his alcohol issues, ultimately leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant has four DUI arrests, indicating a pattern of alcohol-related incidents.
The applicant continues to consume alcohol to the point of intoxication, raising concerns about reliability and judgment.
The applicant did not provide documentation of participation in alcohol treatment programs, undermining claims of rehabilitation.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents Away From Work
G.2.craisedHabitual or Binge Consumption of Alcohol
J.2.araisedPattern of Minor Offenses
J.2.braisedEvidence of Criminal Conduct

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 21, 2016
Answer filedDec 15, 2016
Hearing heldMar 15, 2017
Decision dateAug 30, 2017

Cite For

Failure to Mitigate Security Concerns Under Guideline G Due to Repeated Alcohol-related Incidents
Pattern of Criminal Conduct Leading to Security Clearance Denial Under Guideline J
Importance of Documented Rehabilitation Efforts in Security Clearance Cases

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 found against the applicant on all allegations related to alcohol consumption under Guideline G. The applicant had multiple DUI charges and continued to consume alcohol to the point of intoxication, which raised concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.b	Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.c	Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.d	Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the criminal conduct allegations under Guideline J, specifically regarding multiple DUI charges. The applicant's history of driving under the influence raised significant concerns about his judgment and reliability, leading to a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015 (SOR ¶ 2.a).	Against Applicant	DUI or DWI Criminal	Charged Not Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 16-03219 ) Applicant for Security Clearance )

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

08/30/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

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

Statement of the Case

On November 21, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline G, alcohol consumption, and Guideline J, criminal conduct. 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 December 15, 2016, and requested a hearing. The case was assigned me on January 30, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 27, 2017, and the hearing was held as scheduled on March 15, 2017. The Government offered exhibits (GE) 1 through 5, which were admitted into evidence without objection. Applicant testified and offered exhibit (AE) A, which was admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on March 23, 2017.

FINDINGS OF FACT

In Applicant’s answer, he admitted all the Guideline G allegations in the SOR, but failed to either admit or deny the Guideline J allegations. Since the underlying allegations are the same under both Guidelines, he is deemed to have admitted them all. 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 43 years old. He is married for the second time and has two children from his first marriage and two stepchildren from his second. He has worked for a defense contractor since December 2013. He retired from the Air Force after 21 years of service as a technical sergeant (E-6) in September 2013. During his military career, he deployed to Afghanistan. He has an associate’s degree and is pursuing his bachelor’s degree.2

The SOR alleges Applicant was charged with driving under the influence of alcohol (DUI) on four occasions: January 1998; January 2006; October 2012; and April 2015 (SOR ¶¶ 1.a-1.d). This conduct was also alleged as criminal conduct under Guideline J in the SOR. (SOR ¶ 2.a)

Applicant began drinking alcohol when he was about 18 years old. Early in his military career, he would drink a six-pack of beer three times a month. His consumption rate has remained about the same. He becomes intoxicated about once a month. He was 24 years old at the time of his first DUI in 1998. He found out his wife was pregnant with someone else’s child. He admitted to this offense. He was required to attend alcohol and drug abuse prevention and treatment (ADAPT) after this first DUI. In 2006, he was arrested for his second DUI. He was drinking on this occasion because he was going through a divorce. The DUI was ultimately reduced to a reckless driving as a result of a plea bargain. The Air Force again required his participation in ADAPT. In October 2012, Applicant was at a bar where he drank approximately six beers and two to three “shots” of alcohol. He later left to drive home. On his way home he was stopped by local law enforcement for an improper lane change. He admitted to the officer that he had been drinking, but refused to take the field sobriety tests and a breath test. He was arrested by local law enforcement, but later jurisdiction was given to the military. Applicant accepted nonjudicial punishment from his commander (UCMJ, Article 15). He was reduced in rank from E-7 to E-6 and lost one month’s pay. He was also required to attend ADAPT. In April 2015, Applicant was out boating with friends where he drank approximately seven to eight beers. He then went home. He was later contacted by his friends and met them at a local bar. He drank about three more beers there then drove home. On the way, he was stopped by law enforcement for speeding. He admitted he had been drinking, but refused all roadside tests. He was arrested for DUI. He later pleaded guilty and was placed on one year’s probation, fined, was required to attend DUI school, and was required to have an interlock installed on his car. He completed the terms of his probation in July 2016.3

Applicant continues to drink alcohol and become intoxicated. The last time he was intoxicated was Christmas 2016. He does not believe he has an alcohol problem. There was no evidence presented concerning a formal alcohol diagnosis. Although Applicant stated he went to alcohol treatment programs or attended Alcoholics Anonymous (AA) after each incident, there is no documentation in the record of these programs.4

Applicant presented 17 reference letters from current and former colleagues and supervisors. They describe Applicant as an excellent employee and someone who possesses integrity, honesty, and high character. His friends describe him as dependable, loyal, and trustworthy. They feel Applicant has learned from his mistakes and will not find himself in that position in the future. They recommend continuation of his security clearance.5

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

Applicant’s four DUI arrests or charges 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 April 2015. His alcohol- related incidents have not been infrequent having been arrested or charged four times since 1998. He continues to consume alcohol to the point of intoxication, and therefore 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.

Applicant denies that he has an alcohol problem. He continues to consume alcohol to the point of intoxication, despite his past history. AG ¶ 23(b) does not apply.

Applicant claims participation in alcohol treatment programs after each DUI incident, although there is no documentation of these programs and no details of what this program entailed. AG ¶ 23(d) does not apply.

Guideline J, Criminal Conduct

The security concern relating to the guideline for criminal conduct is set out in AG ¶ 30: 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 conditions that could raise a security concern and may be disqualifying in this case. The following are potentially applicable:

(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; and

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Applicant’s four DUIs constitute a pattern of criminal conduct. I find that both disqualifying conditions apply.

I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32 and considered the following relevant:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

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

Applicant’s last criminal incident occurred in April 2015. His criminal acts have not been infrequent having been arrested or charged four times since 1998. He continues to consume alcohol and therefore I cannot conclude that additional crimes will not recur in the future. He was given at least three opportunities to change his behavior after attending ADAPT courses, yet he failed to do so. His repeated criminal behavior casts doubt on his current reliability, trustworthiness, and good judgment, and it also shows a lack of successful rehabilitation, despite his successful completion of his probation. AG ¶¶ 32(a) and 32(d) do 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 military service, his letters of recommendation, and his personal circumstances. However, I also considered that he has not come to grips with his alcohol issues. He continues to consume alcohol even though it has resulted in four different criminal actions against him. Applicant failed to provide sufficient evidence to mitigate the alcohol consumption and criminal conduct 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 Guidelines G and J.

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.d: Against Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraph 2.a: 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, 21-22, 24; GE 1. 3 Tr. 25-28, 30, 33; GE 3. 4 Tr. 28-29, 37. 5 AE A.