CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 17-01137.h1 — CASE

ISCR Case 17-01137.h1denied

Case Headnote

ISCR Case No. 17-01137.h1

deniedFeb 21, 2018· Hon. Edward W. Loughran· hearing

Summary

A 35-year-old military veteran was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol misuse. The Statement of Reasons detailed several incidents, including two alcohol-related offenses in the military for reporting to duty after drinking. Additionally, the applicant was charged with drinking in public in 2006 and again in December 2014, the latter also involving a charge of obstructing governmental operations. A significant concern was a May 2012 arrest and charge for driving under the influence (DUI).

These incidents raised disqualifying conditions G.22.a and G.22.c. Despite the applicant's claim of responsible alcohol use since the last incident, the judge found insufficient evidence to mitigate the security concerns. The denial was based on the multiple alcohol-related offenses, the failure to provide adequate evidence of responsible alcohol use or rehabilitation, and lingering doubts regarding the applicant's reliability and trustworthiness.

Why the Applicant Was Denied

The applicant had multiple alcohol-related offenses, including a DUI and public intoxication.
The applicant failed to provide sufficient evidence of responsible alcohol use or rehabilitation.
The judge had lingering doubts about the applicant's reliability and trustworthiness.

Conditions Referenced

Disqualifying

G.22.aappliedAlcohol-related Incidents Away From Work
G.22.cappliedHabitual or Binge Consumption of Alcohol

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”
— AG ¶ 2(b)

Procedural Posture

SOR issuedMay 4, 2017
Answer filedMay 30, 2017Applicant elected to have the case decided on the written record.
Hearing held—No hearing; case decided on written record.
Decision dateFeb 21, 2018

Cite For

Evaluation of Alcohol-related Offenses Under Guideline G
Insufficient Evidence of Rehabilitation in Alcohol Consumption Cases
Application 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: denied

The judge found that the applicant did not mitigate the alcohol consumption security concerns, resulting in a denial of eligibility for access to classified information. The applicant had multiple alcohol-related offenses, including DUI and incidents of drinking in public, which raised significant questions about his reliability and trustworthiness.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant had two alcohol-related offenses in the military for reporting for duty after drinking alcohol.	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	Applicant was charged with drinking in public in 2006.	Against Applicant	Public Intoxication	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.c	Applicant was arrested and charged with driving under the influence (DUI) in May 2012.	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	Applicant was charged with drinking in public and obstructing governmental operations in December 2014.	Against Applicant	Public Intoxication	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: ) ) ) ISCR Case No. 17-01137 ) Applicant for Security Clearance )

For Government: David Hayes, Esq., Department Counsel For Applicant: Pro se

02/21/2018 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

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

Statement of the Case

On May 4, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline G, alcohol consumption. Applicant responded to the SOR on May 30, 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 22, 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 July 17, 2017. As of September 15, 2017, he had not responded. The case was assigned to me on December 19, 2017. The Government exhibits included in the FORM are admitted in evidence.

FINDINGS OF FACT

Applicant is 35 years old. He served on active duty in the U.S. military from 2001 until he was honorably discharged in 2005. He has an associate’s degree, which was awarded in 2014, and additional college credits. He has never married and has no children.1

Applicant has a history of alcohol-related offenses. He received nonjudicial punishment in the military for reporting for duty on two occasions after drinking alcohol. He was under the legal drinking age at the time. He was required to attend alcohol classes. He was charged with drinking in public in 2006. He decided to sleep in his truck outside a bar rather than drive home after he had been drinking. He was convicted of the charge and received a fine.2

Applicant was arrested and charged with driving under the influence (DUI) in May 2012. He drove a company truck home from a bar and scratched a neighbor’s car. The neighbor called the police. Applicant pleaded nolo contendere. His sentence included probation for one year, a suspended driver’s license for 6 months, an interlock ignition device placed on his car for 18 months, and alcohol education classes. He was terminated from his job.3

Applicant was charged with drinking in public and obstructing governmental operations in December 2014. He was drinking with a professor after graduating from community college. Applicant was a passenger in a car with the professor, who was involved in a minor one-car accident on railroad tracks. Applicant refused to have his picture taken as part of his processing. He pleaded guilty to drinking in public, and the obstructing governmental operations charge was dismissed. He was fined $195.4

Applicant stated that he had no excuses for his DUI and that he should not have been driving. He noted that “two of the instances were rather unusual and don’t reflect [his] current reliability, trustworthiness, or good judgment.” He stated that since his last incident, he has maintained responsible use of alcohol. He is continuing his education in pursuit of a bachelor’s degree.5

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;

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, 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 had two alcohol-related offenses in the military for reporting for duty after drinking alcohol. He had three more offenses between 2006 and 2014. 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.

Applicant’s DUI happened in a company truck and involved a minor accident with a neighbor’s car. Applicant was not driving in his most recent incident, but he was a passenger in a car where the driver had been drinking and was also involved in an accident. It has been more than three years since the last offense, and Applicant stated that he has maintained responsible use of alcohol. He chose to have his case decided on the written record vice a hearing. There is simply not enough evidence in the FORM and his response for me to conclude that irresponsible alcohol use is in his past. None of the mitigating conditions are sufficient to overcome concerns about his alcohol use.

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 Guideline G in my whole-person analysis. I also considered Applicant’s honorable military service.

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 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.d: Against Applicant

CONCLUSION

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