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ISCR Case 06-07230.h1 — CASE

ISCR Case 06-07230.h1granted

Case Headnote

ISCR Case No. 06-07230.h1

grantedJun 25, 2007· Hon. Joseph Testan· hearing

Summary

A 26-year-old defense contractor employee was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). These concerns stemmed from a November 2005 arrest where the applicant was charged with Driving Under the Influence and Driving While Having a 0.08% or Higher Blood Alcohol Level. In August 2006, the applicant pleaded no contest to the second charge, and the first charge was dismissed.

The judge determined that the 2005 incident was an isolated occurrence of poor judgment and unlikely to recur. Disqualifying conditions J 31(a) and J 31(d) were raised, but mitigating conditions E 32(a) and E 32(d) were applied.

The decision to grant the clearance was based on several factors: the applicant demonstrated a credible commitment to not drive after consuming alcohol, there was no evidence of ongoing alcohol abuse or dependence, and favorable character references supported the applicant's reliability and trustworthiness.

Why the Applicant Prevailed

The applicant demonstrated credible commitment to not drive after consuming alcohol.
There was no evidence of ongoing alcohol abuse or dependence.
Favorable character references supported the applicant's reliability and trustworthiness.

Conditions Referenced

Disqualifying

J 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
J 31(d)raisedIndividual Is Currently on Parole or Probation

Mitigating

E 32(a)appliedSo 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
E 32(d)appliedThere Is Evidence of Successful Rehabilitation; Including but Not Limited to the Passage of Time Without Recurrence of Criminal Activity, Remorse or Restitution, Job Training or Higher Education, Good Employment Record, or Constructive Community Involvement

Key Rule Quoted

“Conduct involving questionable judgment . . . can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.”

Procedural Posture

SOR issuedFeb 9, 2007
Answer filedMar 30, 2007
Hearing heldJun 12, 2007
Decision dateJun 25, 2007

Cite For

Isolated Incident of Poor Judgment Under Guideline E
Successful Rehabilitation Under Guideline J
Credibility of Character References 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's alcohol-related arrest was an isolated incident of poor judgment that is unlikely to recur. The applicant demonstrated credible commitment to not driving after consuming alcohol, leading to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1–2	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant's 2005 alcohol-related arrest was deemed an isolated incident of poor judgment that is unlikely to recur. The judge found for the applicant on all allegations under Guideline J, leading to the granting of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In November 2005, applicant was arrested and charged with (1) Driving Under the Influence of Alcohol or Drugs and (2) Driving While Having a 0.08% or Higher Blood Alcohol Level.	For Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse Credited No Subsequent Offenses
1.b	In August 2006, he pleaded no contest to the second charge and the first charge was dismissed.	For Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse Credited No Subsequent Offenses

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

SYNOPSIS

KEYWORD: Personal Conduct; Criminal Conduct

DIGEST: Applicant’s 2005 alcohol-related arrest was the result of an isolated incident of poor judgment that is unlikely to recur. Clearance is granted.

CASENO: 06-07230.h1

DATE: 06/25/2007

DATE: June 25, 2007

) ) In Re: ) ) ISCR Case No. 06-07230 ------------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

APPEARANCES

SYNOPSIS

Applicant’s 2005 alcohol-related arrest was the result of an isolated incident of poor judgment that is unlikely to recur. Clearance is granted.

STATEMENT OF CASE

On February 9, 2007, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on March 30, 2007. The case was assigned to the undersigned on May 1, 2007. A Notice of Hearing was issued on May 29, 2007, and the hearing was held on June 12, 2007. The transcript was received on June 21, 2007.

FINDINGS OF FACT

Applicant is 26 years of age. He has been a full-time employee of a defense contractor since June 2004.

Applicant began drinking alcohol in Junior or Senior High School. He continued to consume it through college and after he obtained his current employment. Other then the incident discussed below, there is no credible evidence that he abuses alcohol.

In November 2005, applicant was arrested and charged with (1) Driving Under the Influence of Alcohol or Drugs and (2) Driving While Having a 0.08% or Higher Blood Alcohol Level. In August 2006, he pleaded no contest to the second charge and the first charge was dismissed. He was placed on probation for three years, ordered to pay approximately $1,697.00 in costs and fines, and ordered to complete a first offense alcohol program. Applicant paid the $1,697.00, and completed the alcohol program (Exhibit A). He is still on probation.

Applicant testified that on the night he was arrested he didn’t appreciate the extent of his intoxication. He further testified that since he now realizes he can’t accurately estimate if he has consumed too much alcohol to drive, he will no longer drive after consuming any alcohol. He further testified that he is committed to this course of action irrespective of his probationary status (TR at 21, 26-27, 36-37). Applicant’s testimony was credible and worthy of belief.

Declarations from three of applicant’s coworkers, including his immediate supervisor, were admitted into evidence. All three individuals state that applicant is reliable and trustworthy, and has shown no signs of having an alcohol problem.

CONCLUSION

Applicant’s alcohol-related arrest and conviction reflect adversely on his judgment, and raise concerns under both Guideline E and Guideline J. Disqualifying Conditions 31(a) (a single serious crime or multiple lesser offenses) and 31(d) (individual is currently on parole or probation) are applicable.

Applicant clearly learned a valuable lesson from this incident; namely, he cannot accurately assess his level of impairment after consuming alcohol. As a result, he made the decision not to drive after consuming any alcohol. This decision, the lack of any evidence indicating he may be unable to follow through with it (e.g., diagnosis of alcohol dependence), and the very favorable character references admitted into evidence, lead me to conclude that this was an isolated incident of criminal conduct that is unlikely to recur. Mitigating Conditions 32(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 32(d) (there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement) are applicable.

Based on the foregoing, and after consideration of the general factors set forth in Enclosure 2, Paragraph 2 of the Directive, Guidelines E and J are found for applicant.

FORMAL FINDINGS

PARAGRAPH 1: FOR THE APPLICANT PARAGRAPH 2: FOR THE APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for applicant.

____________________________ Joseph Testan Administrative Judge

Guideline E: Personal Conduct. 15. The Concern. Conduct involving questionable judgment . . . can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.

Guideline J: Criminal Conduct. 30. The Concern. 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.

Pages 18 and 19.

FOOTNOTES

FOR GOVERNMENT Jeff A. Nagel, Department Counsel

FOR APPLICANT Virginia Gomez, Attorney at Law