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ISCR Case 17-00282.h1 — CASE

ISCR Case 17-00282.h1denied

Case Headnote

ISCR Case No. 17-00282.h1

deniedOct 20, 2017· Hon. Edward W. Loughran· hearing

Summary

A 56-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The applicant had a history of five alcohol-related driving arrests, with the most recent occurring in April 2016. In that incident, the applicant consumed approximately 12 beers over four hours, registered a 0.22% blood alcohol content, and drove the wrong way on a one-way street. The applicant remains on probation for this offense.

Further concerns arose because the applicant did not disclose the April 2016 arrest and pending DUI charge during an August 2016 background interview. This omission was cited as a lack of candor. The judge determined that the applicant's multiple DUI arrests and convictions demonstrated questionable judgment and an unwillingness to comply with rules and regulations, also creating a vulnerability to exploitation, manipulation, and duress.

The decision to deny the security clearance was based on the applicant's history of alcohol-related driving offenses, the failure to disclose a pending DUI charge during the background investigation, and the overall pattern of questionable judgment and non-compliance with regulations. No mitigating conditions were found in the record.

Why the Applicant Was Denied

The applicant has a history of five alcohol-related driving offenses, including a recent DUI with a high blood alcohol concentration.
The applicant failed to disclose a pending DUI charge during a background investigation, indicating a lack of candor.
The applicant's conduct reflects questionable judgment and an unwillingness to comply with rules and regulations.

Conditions Referenced

Disqualifying

G 22(a)raisedAlcohol-related Incidents Away From Work
G 22(c)raisedHabitual or Binge Consumption of Alcohol
E 16(b)appliedDeliberately Providing False or Misleading Information
E 16(e)appliedPersonal Conduct Creating Vulnerability to Exploitation

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedApr 20, 2017
Answer filedMay 10, 2017Applicant elected to have the case decided on the written record.
Hearing held—No hearing; case decided on written record.
Decision dateOct 20, 2017

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Multiple DUI Offenses as Disqualifying Under Guideline G
The Importance of Full Disclosure During Background Investigations

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 that the applicant did not mitigate personal conduct concerns related to his failure to disclose a DUI arrest during a background interview. The applicant's multiple DUI arrests and convictions raised questions about his judgment and reliability. Ultimately, eligibility for access to classified information was denied.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—
2.b	Applicant did not disclose his April 2016 arrest and pending DUI charge during his August 2016 background interview.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Criminal Conduct	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.c	Applicant’s multiple DUI arrests and convictions reflect questionable judgment and an unwillingness to comply with rules and regulations.	Against Applicant	Questionable Judgment General	—	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—

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 applicant had a history of multiple alcohol-related driving offenses, including five DUI arrests, with the most recent occurring in April 2016. The judge found that the applicant did not mitigate the alcohol consumption security concerns, ruling against him on all allegations under Guideline G.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant had five alcohol-related 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	His most recent DUI arrest was in April 2016, when he drank around 12 beers over a four-hour period, had a 22% BAC, and drove the wrong way on a one-way street.	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	He is still on probation for that offense.	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.d	There is nothing in the record that would substantiate any of the mitigating conditions.	Against Applicant	Unspecified Alcohol Incident	Unknown	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.e	Applicant's multiple DUI arrests and convictions reflect questionable judgment and an unwillingness to comply with rules and regulations.	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.f	They also created vulnerability to exploitation, manipulation, and duress.	Against Applicant	DUI or DWI Alcohol	Unknown	(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: ) ) ) ISCR Case No. 17-00282 ) Applicant for Security Clearance )

For Government: Erin P. Thompson, Esq., Department Counsel For Applicant: Pro se

10/20/2017 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant did not mitigate the personal conduct and alcohol consumption security concerns. Eligibility for access to classified information is denied.

Statement of the Case

On April 20, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines E (personal conduct) and G (alcohol consumption). Applicant responded to the SOR on May 10, 2017, and elected to have the case decided on the written record in lieu of a hearing.

The Government’s written case was submitted on June 7, 2017. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on June 14, 2017. As of July 31, 2017, he had not responded. The case was assigned to me on October 19, 2017. The Government exhibits included in the FORM are admitted in evidence.

FINDINGS OF FACT

Applicant is a 56-year-old employee of a defense contractor. He has worked for his current employer since 2005. He is applying for a security clearance for the first time. He is a high school graduate. He is divorced with an adult child.1

Applicant has a history of alcohol-related driving offenses. He was arrested and charged with driving under the influence (DUI) in 1979, 1989, 1993, 2006, and April 2016. Several of the arrests, including the arrests in 1989, 2006, and 2016, resulted in convictions. The last arrest occurred after he drank around 12 beers over a four-hour period, had a 22% blood alcohol concentration (BAC), and drove the wrong way on a one-way street. He was sentenced on the last offense in January 2017. He is on probation for that offense until January 2018.2

Applicant wrote that the alcohol-related arrests had never affected his professional life. He stated that about every ten years “drinking has caused [him] trouble and [he] always dealt with it and did what was necessary to get it taken care of.” He assures “that this will not happen again or cause any problem with [his] job performance or security.”3

Applicant submitted a Questionnaire for National Security Positions (SF 86) in February 2016. He reported DUI arrests in 1996, 1999, and 2005. He wrote that he estimated the dates. He also wrote in the comments section: “I have missed some of my driving records and have a lot of the dates estimated on my traffic offenses.”4 I find that Applicant did not intentionally falsify the SF 86 when he failed to report all of his DUI arrests.

Applicant was interviewed for his background investigation in August 2016, which was after his last arrest but before his conviction and sentencing. He discussed his criminal history up through 2006, which included a few minor offenses that were not alleged in the SOR. After discussing the 2006 conviction, he told the investigator that he had no other charges, offenses, or arrests. He stated that he no longer drinks and drives and has absolutely no future intention to have any alcohol-related issues. He stated that he is very careful when drinking to ensure he has a designated driver as he does not want any further alcohol arrests or charges. Applicant did not tell the investigator that he had been arrested in April 2016 for DUI and was pending charges.5 Applicant was contacted again by the background investigator in October 2016 and confronted with the charges from the April 2016 arrest. Applicant stated that he did not disclose the arrest during the previous interview because there was a chance the charges would be dropped. He stated that he did not realize that he should have reported the arrest because it was still pending when the interview occurred.6 I do not find that explanation believable. I find that Applicant intended to mislead the investigator when he failed to divulge his April 2016 arrest and pending DUI charge.

POLICIES

This case is adjudicated 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), which became effective on June 8, 2017.

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 to be 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, administrative judges apply the guidelines 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 conscientious scrutiny 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.”

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

Section 7 of EO 10865 provides that adverse 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

The security concern for alcohol consumption 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 22. 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 the frequency of the individual's alcohol use or whether the individual has been 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 had five alcohol-related driving arrests. His most recent DUI arrest was in April 2016, when he drank around 12 beers over a four-hour period, had a 22% BAC, and drove the wrong way on a one-way street. He is still on probation for that offense. AG ¶¶ 22(a) and 22(c) are applicable.

Conditions that could mitigate alcohol consumption security concerns are provided under AG ¶ 23. The following are potentially applicable:

(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 demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations;

(c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; 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.

There is nothing in the record that would substantiate any of the above mitigating conditions.

Guideline E, Personal Conduct

The security concern for personal conduct is set out in AG ¶ 15, as follows:

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 clearance investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable:

(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;

(b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative;

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes:

(1) engaging in activities which, if known, could affect the person's personal, professional, or community standing.

Applicant did not intentionally falsify the February 2016 SF 86. AG ¶ 16(a) is not applicable. SOR ¶ 2.a is concluded for Applicant. However, he did intend to mislead the investigator when he failed to divulge his April 2016 arrest and pending DUI charge during his August 2016 background interview. AG ¶ 16(b) is applicable.

Applicant’s multiple DUI arrests and convictions reflect questionable judgment and an unwillingness to comply with rules and regulations. They also created vulnerability to exploitation, manipulation, and duress. AG ¶ 16(e) is applicable. AG ¶ 16(c) is not perfectly applicable because Applicant’s conduct is sufficient for an adverse determination under the alcohol consumption guideline. However, the general concerns about questionable judgment and an unwillingness to comply with rules and regulations contained in AG ¶¶ 15 and 16(c) are established.

AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable:

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

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(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;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant’s conduct was egregious and recent. He cannot be trusted to tell the truth, and he is on probation. There are no applicable mitigating conditions.

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 relevant 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 have incorporated my comments under Guidelines E and G in my whole-person analysis.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the personal conduct and alcohol consumption security concerns.

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.f: Against Applicant Paragraph 2, Guideline E: Against Applicant

Subparagraph 2.a: For Applicant Subparagraphs 2.b-2.c: 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.

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Item 3. 2 Items 2-6. 3 Item 2. 4 Item 3. 5 Item 4. 6 Item 4.