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ISCR Case 09-05605.h1 — CASE

ISCR Case 09-05605.h1denied

Case Headnote

ISCR Case No. 09-05605.h1

deniedJul 1, 2009· Hon. Juan J. Rivera· hearing

Summary

A 46-year-old former law enforcement officer was denied a security clearance under Guidelines E (Personal Conduct), G (Alcohol Consumption), and H (Drug Involvement). The denial stemmed from a long history of alcohol and prescription drug abuse, which included two suicide attempts.

The applicant continued to consume alcohol mixed with prescription drugs despite medical advice and a diagnosis of alcohol dependence. Furthermore, he deliberately falsified his security clearance application regarding the extent of his alcohol and polysubstance dependency, a key factor in the denial.

Although the applicant claimed abstinence since February 2009 following neck surgery, the judge found insufficient evidence of rehabilitation and a credible acknowledgment of his substance abuse issues. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant has a long history of alcohol and prescription drug abuse, including two suicide attempts.
He continued to consume alcohol mixed with prescription drugs despite medical advice and a diagnosis of alcohol dependence.
The applicant falsified his security clearance application regarding his substance abuse history.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work, Such as Spouse Abuse
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol to the Point of Impaired Judgment
AG ¶ 22(d)raisedDiagnosis by a Duly Qualified Medical Professional of Alcohol Abuse or Alcohol Dependence
AG ¶ 22(f)raisedRelapse After Diagnosis of Alcohol Abuse or Dependence and Completion of an Alcohol Rehabilitation Program
AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(d)raisedDiagnosis by a Duly Qualified Medical Professional of Drug Abuse or Drug Dependence

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedFeb 22, 2010
Answer filedMar 8, 2010
Hearing heldJun 8, 2010
Decision date—

Cite For

Denial Based on a History of Substance Abuse and Failure to Disclose Treatment
Impact of Falsifying Security Clearance Applications on Eligibility
Consideration of Personal Conduct in Security Clearance Determinations

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 against the applicant on the personal conduct allegations under Guideline E. The applicant was determined to have deliberately falsified his security clearance application regarding his alcohol and drug treatment history, which raised significant security concerns.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—
3.b	Applicant deliberately falsified his security clearance application regarding the extent of his alcohol and polysubstance dependency.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (c) credible adverse information across areas supporting a whole-person concern	—	Claimed Other

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: deniedAUD DIAGNOSED

The judge found against the applicant on all allegations under Guideline G, citing a long history of alcohol and prescription drug abuse, including incidents of domestic disturbance and suicide attempts. The applicant's claims of abstinence since February 2009 were not supported by participation in recommended aftercare treatment, leading to a denial of his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a–1.h	8 sub-charges — specific text not stated in this decision (7 against, 1 for the applicant).	Mixed			—	—	—

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of drug involvement under Guideline H, citing a history of substance misuse and failure to disclose drug-related treatment on his security clearance application. The applicant's claims of abstinence were not supported by evidence of ongoing treatment or compliance with recommendations, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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. 09-05605 ) ) Applicant for Security Clearance )

For Government: Julie Mendez, Esquire, Department Counsel For Applicant: Alan Edmunds, Esquire

October 13, 2010 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant has a long history of alcohol and prescription drug abuse, developed due to a job-related injury and clinical depression. In 2008-2009, he was diagnosed with alcohol and polysubstance dependence. He continued to consume alcoholic beverages mixed with prescription drugs after two suicide attempts, his alcohol dependence diagnosis, and related treatment. Moreover, he falsified his security clearance application regarding the extent of his alcohol and polysubstance dependency. Eligibility for access to classified information is denied.

Statement of the Case

On March 12, 2009, Applicant submitted a security clearance application. On February 22, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as revised; and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006. The SOR alleges security concerns under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline E (Personal Conduct). The SOR 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 a security clearance for him, and it recommended referral to an administrative judge to determine whether a clearance should be granted or denied.

On March 8, 2010, Applicant responded to the SOR allegations and requested a hearing before an administrative judge. The case was assigned to me on April 16, 2010. DOHA issued a notice of hearing on April 29, 2010. The hearing was convened as scheduled on June 8, 2010. The Government offered Exhibits (GE) 1 through 6, which were admitted without objection. Applicant and one witness testified on his behalf, and he submitted Exhibits (AE) A through M, which were admitted without objection. DOHA received the transcript of the hearing (Tr.) on June 16, 2010.

FINDINGS OF FACT

Applicant admitted the factual allegations under SOR ¶¶ 1.cand 1.h, with explanations. He denied all remaining SOR allegations. His admissions are incorporated herein as findings of fact. After a thorough review of the evidence of record, and having considered Applicant’s demeanor and testimony, I make the following additional findings of fact.

Applicant is a 46-year-old disability-retired state law enforcement officer. He is currently working as a special police officer, performing contract background investigations, and has a business that requires him to have a security clearance to participate in certain contracts. He graduated from college in 2003. Applicant married his first wife in 1986, and they were divorced in 2004. He has three children of this marriage, ages 18, 14, and 10. He married his second wife in 2005, and divorced her in 2008.

Applicant has an extensive career as a law enforcement officer. He started in 1984, working for a county police agency, and became a member of a special weapons and tactics (SWAT) unit. In 1993, he suffered a work-related neck injury that required surgery. After the neck surgery, he continued to suffer excruciating pain and was forced to take a retirement on disability. In 1996, he returned to work on part-time law enforcement positions with a state. Since then, he has performed contract background investigations, worked as a polygraph examiner, taught as an adjunct professor at a university, and worked as a special police officer. He possessed a top secret security clearance between 1996 and 1999. As of the day of his hearing, he was still performing most of these jobs.

At his hearing, Applicant presented the testimony of one character witness, as well as eight strong letters of recommendation. His references span the period of 26 years, from the time he was a rookie police officer in 1984, to present. They include senior retired and working police officers and professionals who served with, supervised, or worked closely with Applicant in his different law enforcement capacities. As a whole, Applicant’s character references lauded his work ethic, honesty, integrity, professionalism, and high degree of competence. As a law enforcement officer, he was commended with a Merit Award, a Lifesaving Award, and a Valor and Bravery Award in the line of duty. His references commented favorably on Applicant’s reliability, dependability, and his performance and abilities as a leader, teacher, and mentor. All of his references trust Applicant’s ability to handle classified information and recommended without reservation his access to classified information. There is no evidence showing that he has ever failed to follow the security procedures required in the handling of classified information.

Applicant started consuming alcoholic beverages at age 15. He continued to do so until around February 2009. His alcohol consumption did not become an issue until after his neck operation in 1993. After his operation, he developed chronic pain syndrome involving his cervical spine and muscle spasms. He also became clinically depressed because he had to forego his law enforcement job and because of family problems and his subsequent divorce. Because of his depression and the pain he was suffering, Applicant was prescribed various opioid and non-opioid medications. He sometimes was taking as much as nine different prescription drugs. From the beginning, his doctors advised him against consuming alcoholic beverages while taking prescription drugs. Notwithstanding the strong prescription drugs he was taking, Applicant self-medicated by consuming alcoholic beverages mixed with the prescribed drugs to ease his pain.

Applicant consumed alcoholic beverages on a weekly basis from 1992 until 1998. From 1998 until June 2008, he consumed five to seven alcohol drinks a day mixed with his prescription drugs. (GE 2 - July 2008, hospital biopsychosocial assessment conducted as part of Applicant’s admission to an intensive outpatient alcohol treatment program.) In 2000, Applicant started seeing a psychiatrist for his depression. At that time, he reported to the psychiatrist that he was consuming two glasses of bourbon with water every evening to relax. He was advised against the adverse effects and consequences of consuming alcoholic beverages mixed with his prescription medications.

In 2007, Applicant and his second wife were celebrating her birthday. They consumed alcoholic beverages and became involved in a domestic disturbance. He was arrested and charged with Assault and Battery-Family Member. The charge was not prosecuted (nolle prosequi) because Applicant entered into a plea bargaining agreement and attended alcohol rehabilitation treatment in exchange for the dismissal of the charges and the expungement of his criminal record. His criminal record was expunged in July 2009. At his hearing, he denied he assaulted his ex-wife.

In February 2008, Applicant attempted suicide by consuming excessive amounts of his prescription drugs mixed with an excessive amount of alcohol. After his suicide attempt, Applicant underwent psychiatric counseling. He was diagnosed, in part, with: “major depressive disorder, severe, recurrent, without psychotic features, and alcohol dependence.” At the time, he was undergoing an intensive outpatient alcohol rehabilitation treatment program required as part of his plea agreement concerning the 2007 assault charge on his second wife.

In May 2008, Applicant relapsed. He attempted suicide again by consuming excessive amounts of prescription medications mixed with an excessive amount of alcohol. Hospital emergency room records state that he left a suicide note and told emergency room personnel that he just wanted to die. After his suicide attempt, Applicant underwent psychiatric counseling. He was diagnosed again with: “major depressive disorder, severe, recurrent, without psychotic features, and alcohol dependence.”

On a June 12, 2008 follow-up psychiatric consultation, Applicant disclosed that he had not been compliant with his medications after his February 2008 suicide attempt, and that he was consuming prescription drugs and alcohol. (GE 2, R. 11). He also stated that he was not attending Alcoholic Anonymous (AA) meetings; he could not quantify how much alcohol he was consuming, but it was a lot; the longest period of sobriety he had was during two months in 2007, when he was required to attend AA meetings. (Id.) Applicant’s July 2008 hospital discharge summary indicates he was diagnosed with “major depressive disorder, without psychotic features, and polysubstance dependence.” (G2, R. 5).

Applicant’s latest diagnosis is dated July 17, 2008. He was diagnosed with “Alcohol dependence; R/O Major depressive disorder; R/O PTSD; and as suffering from severe legal, occupational and social problems.” (GE 2, R. 2).

In February 2009, Applicant underwent a second neck surgery. He testified that the surgery was successful. He finally has some relief from the pain he has been suffering since 1993. He considers his current level of pain manageable. He claimed he is only taking two pain medications. At his hearing, Applicant denied he currently was having any suicidal ideations. He claimed his personal life situation is currently stable. He again has the opportunity to work with law enforcement, and he is in the process of reconciling with his first wife. Applicant claimed he has not consumed alcoholic beverages since the February 2009 neck operation. He currently does not have a need to drink alcohol or consume an excessive number of drugs to control his pain. Since his February 2009 neck operation, he has been taking only two prescription drugs a day to control his pain.

In his March 2009 security clearance application (Section 23a), Applicant was asked whether in the last seven years he had illegally used any controlled substance. He answered “No,” and failed to disclose his abuse of prescription drugs – by taking more drugs than those prescribed by his doctors and by mixing the drugs with alcohol. I consider Applicant’s failure to disclose his abuse of drugs as a negligent omission. He believed that because the drugs were legally prescribed to him, he did not have to disclose he was consuming more drugs than those prescribed and that he was mixing the prescription drugs with alcohol.

Applicant’s answers to Section 23dof his March 2009 security clearance application raise more serious concerns. Section 23dasked whether in the last seven years he received counseling or treatment as a result of his use of drugs. He answered “No,” and deliberately failed to disclose that after his February 2008 and May 2008 suicide attempts, he received medical and psychiatric treatment and counseling at the hospital and by his treating psychiatrist.

Applicant explained that he believed the treatment he received was related to his depression and his alcohol dependence. I note that in his answer to Section 24 (asking whether in the last seven years he received counseling or treatment as a result of his use of alcohol), Applicant disclosed that he received alcohol treatment from March to May 2008 (estimated). Considering the evidence as a whole, in particular Applicant’s demeanor and testimony, his explanation is not credible.

Applicant worked in law enforcement for almost 25 years. He served as a criminal investigator, conducted background investigations as an independent contractor, and is considered to be a highly competent polygraph examiner. Because of his extensive law enforcement experience, Applicant knew or should have known that he was required to disclose that he received alcohol treatment in 2007 (which he did not disclose), and that in February 2008 and May 2008, he received counseling and treatment not only because of his alcohol dependence, but more importantly, because of his two attempted suicides by consuming excessive amounts of prescription drugs and alcohol. I find that Applicant deliberately falsified his security clearance application when he failed to fully disclose his drug- and alcohol-related treatment.

POLICIES

The President of the United States has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of Defense to grant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These AGs are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable to reach his decision.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication that the Applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue [his or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline G, Alcohol Consumption

Under Guideline G the Government’s concern is that 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 ¶ 21. The Government established its case under Guideline G by showing that Applicant has consumed alcohol, at times to excess, from around 1980 until at least February 2009. Between 1993 and February 2009, Applicant exercised questionable judgment by consuming alcohol while taking prescription drugs. In 2007, Applicant consumed alcohol and was involved in a domestic disturbance with his ex-wife that led to him being charged with assault and battery on a family member. In February and May 2008, Applicant attempted suicide by consuming excessive amounts of alcoholic beverages with his prescription medications.

In 2008 and 2009, Applicant was diagnosed with alcohol dependence and depression. According to his own statements to medical providers, from 1998 to 2008, he consumed between three to five alcohol drinks every day mixed with his prescription drugs. Before February 2009, the longest period he had been abstinent was for two months while attending court-ordered alcohol rehabilitation treatment in 2007-2008. Applicant relapsed in February 2008 and June 2008, after his alcohol treatment. He has been consistently diagnosed as alcohol dependent since February 2008. Applicant continued consuming alcohol after his 2008 diagnosis of alcohol dependence. He consumed alcohol with his prescription drugs against his doctors’ advice. He claimed he has been alcohol abstinent since February 2009; however, he is not participating in recommended aftercare treatment.

Disqualifying conditions AG ¶ 22(a): “alcohol-related incidents away from work, such as . . . spouse abuse . . . ;” AG ¶ 22(c): “habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent;” AG ¶ 22(d): “diagnosis by a duly qualified medical professional of alcohol abuse or alcohol dependence;” and AG ¶ 22(f): “relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program,” apply.

There are four Alcohol Consumption Mitigating Conditions under AG ¶ 23 potentially applicable to these disqualifying conditions:

(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 good judgment;

(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and

(d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

I find that none of the Guideline G mitigating conditions apply. Applicant abused alcohol and mixed alcohol with prescription drugs from 1993 to at least February 2009. His alcohol dependence appears to be tied to his 1993 neck injury and his subsequent depression. He consumed alcohol to excess and mixed it with prescription drugs to alleviate his excruciating neck pain at least from 1998 until February 2009. His diagnosis of alcohol dependence, polysubstance dependence, and depression are recent. Applicant testified he has been abstinent since February 2009, but he is taking two prescription drugs a day for his pain. Considering his lengthy period of alcohol and prescription drug abuse, his alcohol and polysubstance dependence diagnosis, his two suicide attempts, and his continued alcohol consumption after completion of treatment and near death experiences, I find that not enough time has passed for me to conclude that his questionable behavior is unlikely to recur.

Furthermore, Applicant is not participating in a counseling or treatment program. His actions so far do not convince me that he has completely acknowledged his alcoholism. I also note that there is no evidence of a favorable prognosis. Applicant’s impressive character references and his years in law enforcement are not sufficient to show it is unlikely his questionable behavior will recur. His behavior raises questions about his reliability and judgment.

Guideline H, Drug Involvement

AG ¶ 24 articulates the security concern about drug involvement:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

AG ¶ 25 describes eight conditions related to drug involvement that could raise a security concern and may be disqualifying. Two drug involvement disqualifying conditions raise a security concern and are disqualifying in this particular case: AG ¶ 25(a): “any drug abuse;”1 and AG ¶ 25(d): “diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence.”

Applicant has been prescribed drugs to deal with his pain and depression since 1993. His consumption of alcohol mixed with prescribed drugs deviated from his doctors’ instructions. He was specifically directed by doctors and psychiatrists not to mix alcohol with the prescription drugs he was taking. The record shows that from, at least, 1998 until around February 2009, he consumed alcohol every night mixed with his prescription drugs. Moreover, Applicant twice attempted suicide by consuming excessive amounts of alcohol mixed with excessive amounts of his prescription drugs. Additionally, Applicant has been diagnosed as suffering from “polysubstance dependence.”

AG ¶ 26 provides four potentially applicable drug involvement mitigating conditions:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) a demonstrated intent not to abuse any drugs in the future, such as:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used;

(3) an appropriate period of abstinence; and

(4) a signed statement of intent with automatic revocation of clearance for any violation.

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

For the same reasons discussed previously under Guideline G, incorporated here, I find that AG ¶ 26(a) does not apply. Applicant’s abuse of prescription drugs spans a lengthy period of time and it is recent. AG ¶ 26(c) partially applies because the drugs were prescribed after his neck injury. It applies in part, and does not fully mitigate the security concerns, because his abuse ended recently and sufficient time has not passed for Applicant to establish his ability and willingness to stop consuming alcohol mixed with his prescribed medications, and to consume his medications in accordance with the doctors’ instructions.

Although Applicant completed several alcohol treatment programs, he continued to abuse alcohol and drugs after each of the programs, at least until February 2009. He is currently not attending any alcohol or drug aftercare treatment program, and there is no favorable prognosis by a duly qualified medical professional. Applicant’s favorable evidence, at this time, is not sufficient to mitigate the Guideline H security concerns.

Guideline E, Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern:

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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

Applicant willfully falsified his March 2009 security clearance application when he failed to disclose that he received treatment and counseling at hospitals and from his psychiatrist after he attempted suicide in February 2008 and in May 2008. His falsification is material and triggers the applicability of disqualifying conditions AG ¶ 16(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 of status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;” and AG ¶ 16(e): “personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing.”

Because of his extensive law enforcement experience, Applicant knew or should have known that he was required to disclose that he received alcohol treatment in 2007, and that in February 2008 and in May 2008, he received counseling and treatment not only because of his alcohol dependence, but more importantly, because of his two attempted suicides by consuming excessive amounts of prescription drugs and alcohol. I find that Applicant deliberately falsified his security clearance application when he failed to disclose the full extent of his drug- and alcohol-related treatment.

AG ¶ 17 lists seven conditions that could mitigate personal conduct security concerns:

(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 improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. 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 caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

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

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

After considering the above mitigating conditions, I find that none apply to the facts of this case. Applicant’s behavior is recent. His falsification casts doubt on his judgment, reliability, and trustworthiness.

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(a):

(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.

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. AG ¶ 2(c).

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant is a mature and educated man. He served with distinction in numerous law enforcement-related positions for approximately 25 years. He held access to classified information at the top secret level for approximately three years. There is no evidence that he has ever compromised or caused others to compromise classified information, or that he committed any security violations.

Applicant’s character references lauded his work ethic, honesty, integrity, professionalism, and high degree of competence. As a law enforcement officer he was commended with a Merit Award, a Lifesaving Award, and a Valor and Bravery Award in the line of duty. His references commented favorably on his reliability, dependability, and his performance and abilities as a leader, teacher, and mentor. All of his references trust Applicant’s ability to handle classified information and recommended without reservation that his access to classified information be granted. These factors show responsibility, good judgment, and mitigation.

Applicant developed chronic pain syndrome due to a 1993 work-related accident and a subsequent operation caused him to retire on disability. He became clinically depressed because he had to forego his law enforcement job and due to family problems that culminated in his divorce. Because of his excruciating pain and depression, he was prescribed various opioid and non-opioid medications. Applicant self-medicated himself by consuming alcoholic beverages mixed with the drugs to ease his pain. He twice attempted suicide by consuming excessive prescription drugs mixed with excessive amounts of alcohol. He was diagnosed with alcohol dependence and polysubstance dependence. He underwent alcohol rehabilitation twice in 2008, but relapsed shortly thereafter. He averred he stopped consuming alcohol in February 2009 after a successful neck operation that made his pain manageable. He has not continued to participate in alcohol and substance abuse aftercare treatment. Moreover, in March 2009, Applicant willfully falsified his security clearance application to cover the full extent of his alcohol and drug abuse treatment.

On balance, I conclude that Applicant’s favorable evidence is insufficient to mitigate the security concerns arising from his alcohol consumption, drug involvement, and personal conduct. Overall, the record evidence fails to convince me of Applicant’s eligibility and suitability for a security clearance.

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.h: Against Applicant

Subparagraph 1.e: For Applicant

Paragraph 2, Guideline H: AGAINST APPLICANT

Subparagraphs 2.a – 2.b: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT

Subparagraph 3.a: For Applicant

Subparagraph 3.b: Against Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Eligibility for a security clearance is denied.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 AG ¶ 24(b) defines “drug abuse” as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”

AG ¶ 24(a) defines “drugs” as substances that alter mood and behavior, including:

(1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances.