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ISCR Case 15-02810.h1 — CASE

ISCR Case 15-02810.h1denied

Case Headnote

ISCR Case No. 15-02810.h1

deniedMay 12, 2016· Hon. Mark W. Harvey· hearing

Summary

A 48-year-old avionics installer with prior military service was denied a security clearance under Guidelines E (Personal Conduct), G (Alcohol Consumption), and J (Criminal Conduct). The denial stemmed from a history of criminal conduct and alcohol-related issues that raised concerns about his judgment and reliability.

Key issues included a 1992 DUI conviction and a 2014 incident where the applicant, with a blood-alcohol content of .139, allowed his 13-year-old son to drive his truck on the interstate. This led to a charge of child endangerment.

The judge determined that disqualifying conditions related to criminal conduct and alcohol consumption were present. Mitigating conditions were not found applicable, as the applicant had not demonstrated a sufficient period of abstinence or rehabilitation. Consequently, access to classified information was denied.

Why the Applicant Was Denied

The applicant had a history of criminal conduct, including a DUI conviction and a charge of child endangerment due to allowing his son to drive while impaired.
The applicant's alcohol consumption raised concerns about his judgment and reliability, with a BAC of .139 at the time of the 2014 incident.
Mitigating conditions for both alcohol consumption and criminal conduct were not applicable, as the applicant had not demonstrated a sufficient period of abstinence or rehabilitation.

Conditions Referenced

Disqualifying

AG ¶ 22(a)appliedAlcohol-related Incidents Away From Work
AG ¶ 22(c)appliedHabitual or Binge Consumption of Alcohol
AG ¶ 31(a)appliedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)appliedAllegation or Admission of Criminal Conduct

Key Rule Quoted

“"Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security."”
— Directive, Enclosure 2 ¶ 2(b).

Procedural Posture

SOR issuedOct 26, 2015
Answer filedNov 19, 2015
Hearing heldMay 2, 2016
Decision dateMay 12, 2016

Cite For

Denial of Security Clearance Due to Past Criminal Conduct Under Guideline J
Alcohol Consumption Concerns Impacting Security Clearance Under Guideline G
Lack of Applicable Mitigating Conditions for Criminal and Alcohol-related Incidents

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 personal conduct concerns mitigated for the applicant. The applicant's conduct was deemed acceptable, and the allegations under Guideline E were ruled in favor of the applicant, leading to a decision to deny the security clearance based on other guidelines.

¶	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	—	—	—

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 judge found against the applicant on the alcohol consumption allegations, citing two incidents of alcohol-related misconduct: a DUI conviction in 1992 and a 2014 incident where the applicant allowed his underage son to drive while he was impaired. The judge determined that the applicant's alcohol consumption raised significant security concerns that were not mitigated by any evidence of rehabilitation or favorable prognosis.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant has a history of alcohol-related incidents, including a DUI conviction in 1992 and a 2014 incident where he allowed his underage son to drive while he was impaired.	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	—	—

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 ruled against the applicant on the criminal conduct allegations, specifically citing a DUI conviction in 1992 and a 2014 incident involving child endangerment due to impaired judgment from alcohol consumption. The applicant's history of alcohol-related incidents raised significant security concerns, leading to the denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1992, Applicant was convicted of DUI.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	In 2014, Applicant allowed his 13-year-old son to drive his truck on the interstate while his blood-alcohol content was .139. Applicant was charged with child endangerment.	Against Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

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. 15-02810 ) ) Applicant for Security Clearance

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Gregory F. Greiner, Esq.

08/03/2016 ___________

STATEMENT OF CASE

___________

HARVEY, Mark, Administrative Judge:

In 1992, Applicant was convicted of DUI. In 2014, Applicant allowed his 13-year- old son to drive his truck on the interstate. Applicant rode along with his son in the truck, and Applicant’s blood-alcohol content (BAC) was .139. Applicant was charged with child endangerment. Personal conduct concerns are mitigated; however, criminal conduct and alcohol consumption security concerns are not mitigated. Access to classified information is denied.

History of the Case

On May 15, 2013, Applicant completed and signed an Electronic Questionnaires for Investigations Processing or security clearance application (SCA). (Government Exhibit (GE) 1) On October 26, 2015, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued an SOR to Applicant pursuant to Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive); and the adjudicative guidelines (AG), which became effective on September 1, 2006.

The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) Specifically, the SOR set forth security concerns arising under Guidelines J (criminal conduct), G (alcohol consumption), and E (personal conduct).

On November 19, 2015, Applicant responded to the SOR. (HE 3) On February 2, 2016, Department Counsel was ready to proceed. On March 17, 2016, the case was assigned to another administrative judge, and on April 4, 2016, the case was transferred to me. On April 4, 2016, Applicant requested a hearing on May 2, 2016. (HE 4) On April 12, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for May 2, 2016. (HE 1) Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered nine exhibits, and Applicant offered six exhibits, which were admitted into evidence without objection. (Transcript (Tr.) 12-14; Government Exhibit (GE) 1-9; Applicant Exhibit (AE) 1-6) On May 12, 2016, DOHA received a copy of the transcript of the hearing.

FINDINGS OF FACT

In Applicant’s SOR response, he admitted the SOR allegations. He also provided extenuating and mitigating information. Applicant’s admissions are accepted as findings of fact.

Applicant is a 48-year-old employee of a major defense contractor, who has worked as an avionics installer for several years. (Tr. 17, 31; GE 1) He has been employed by the same contractor for 20 years. (AE E) In 1983, Applicant graduated from high school. (Tr. 9, 37, GE 1) He was in the Navy for ten years; when he left active duty he was a petty officer second class; and he received an honorable discharge in 1995. (Tr. 15-16, 28-29; AE C) In 1996, he married, and he has two children, who are ages 11 and 16. (Tr. 18; GE 1) He has held a security clearance for 30 years, and there is no evidence of security violations.

Applicant started drinking alcohol when he was 17 years old. (GE 8) In 1992, when Applicant was 24 years old and serving in the Navy, he was stopped by the police and arrested for driving under the influence (DUI) of alcohol. (Tr. 27-28; AE A) Applicant’s blood-alcohol content was .15. (Tr. 27; GE 9) He pleaded guilty to DUI. (GE 7) He was required to attend alcohol-related counseling for three months, and two Alcoholics Anonymous (AA) meetings a week for eight weeks. (GE 9) He received probation before judgment. (Tr. 27-28) Applicant believed the case was dismissed after he successfully completed one year of probation. (Tr. 28)

Applicant has a history of letting his son drive without a driver’s license. (Tr. 21- 22, 45) In April 2014, Applicant drank six to eight, 12 ounce beers at baseball games over about five hours. (Tr. 19, 24, 41; GE 4) Applicant drove himself home after the game, and then he and his son decided to go to a Dairy Queen. (Tr. 20-21, 42; GE 4) Applicant did not believe he was intoxicated at the time he drove home from the baseball game. (Tr. 42) Applicant permitted his 13-year-old1 son to drive Applicant’s truck to the Dairy Queen and then back toward home. (Tr. 20-21, 41; GE 4) At the time he permitted his son to drive, Applicant believed he was impaired by alcohol but not drunk. (Tr. 43) On the way home, his son went outside his lane on the interstate, and they were stopped by the police. (Tr. 20, 45) His son did not have a learner’s permit or license to drive. (Tr. 21) The police officer smelled alcohol on Applicant’s breath, gave him a breathalyzer test, and arrested him. (Tr. 22) His BAC was .139. (Tr. 43; GE 3) The officer described “observations of extreme intoxication” of Applicant. (GE 3) Applicant was charged with endangering the welfare of a child and allowing an unlicensed person to operate a motor vehicle. (GE 4 at 4) Endangering the welfare of a child is a felony under state law. Applicant disclosed his arrest to his security officer. (Tr. 35) In September 2014, he pleaded guilty to a “stop sign violation with a fine of $527.50” and “improper lane change” with a fine of $527.50. (GE 4 at 5)

Applicant said his alcohol consumption before letting his son drive did not affect his decision to let his son drive. (Tr. 48) This was the first occasion he permitted his son to drive on the interstate. (Tr. 48) His son was driving at the speed limit. (Tr. 48)

The only time Applicant drove while impaired by alcohol was when he was caught back in 1992 and arrested for DUI. (Tr. 49) He never thought he had a problem with alcohol. (Tr. 49) He may occasionally consume 12 beers over a weekend. (Tr. 30, 40) His alcohol consumption is sporadic. (Tr. 30, 40) His most recent alcohol consumption was three drinks in March 2016, and he drank 12 beers over a weekend in February 2016. (Tr. 40-41)

After his arrest in 2014, Applicant completed a questionnaire supplied through his employee assistance program. (Tr. 36; AE F) Based on the questionnaire, the licensed clinical social worker who assessed Applicant advised Applicant he did not have a problem with alcohol or any alcohol-related disorders. (Tr. 36; AE F) He did not receive any alcohol-related counseling or therapy after his 2014 arrest. (Tr. 50)

Applicant does not believe he has an alcohol problem. (Tr. 31) He conceded his alcohol consumption had led to questionable judgment, and he accepted responsibility for his actions. (Tr. 32) He showed poor judgment in connection with the events of 1992 and 2014 involving the police and courts; however, he did not generally show poor judgment and especially in the realm of security. (Tr. 33) His behavior had not changed after his 2014 alcohol-related incident; however, he is more aware of alcohol in his vicinity and he attempts to avoid problems. (Tr. 34)

Character evidence

Applicant provided character references from four coworkers and supervisors.2 The general sense of the letters is that Applicant is diligent, dedicated, reliable, trustworthy, remorseful about his conduct, and rehabilitated. The character references support reinstatement of his security clearance.

Applicant received the following awards during his Navy service: National Defense Service Medal (NDSM); Southwest Asia Service Medal (SWASM) (2 awards); Good Conduct Medal (GCM) (2 awards); Navy “E” Ribbon; Sea Service Deployment Ribbon (SSDR) (2 awards); and Flag Letter of Commendation (LOC). (Tr. 29; AE C)

Applicant received several appreciation awards, performance certificates, certificates of recognition, and certificates of appreciation from his employer. (AE E) He has made important contributions to the success of his employer and the DOD. (AE E) Applicant has worked hard over his decades of service to support the DOD. (Tr. 38-39) He and his family have made sacrifices to contribute to his company and DOD. (Tr. 38- 39)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President 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.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s 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.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the revised adjudicative guidelines. These guidelines 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 overarching 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.

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 the 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. 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. Thus, nothing should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication 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

Alcohol Consumption

AG ¶ 21 articulates the Government’s concern about alcohol consumption, “[e]xcessive 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.”

Two alcohol consumption disqualifying conditions could raise a security concern and may be disqualifying in this case. AG ¶¶ 22(a) and 22(c) provide:

(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 as an alcohol abuser or alcohol dependent; and

(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(a) and 22(c) apply. Applicant’s SOR alleges two alcohol-related incidents involving the police and courts. In 1992, Applicant had a DUI with a BAC of .15; and in 2014, he was arrested and charged with endangering the welfare of a child and allowing an unlicensed person to operate a motor vehicle. His BAC when he was arrested in 2014 was .139. His BACs are high enough to conclude Applicant engaged in binge-alcohol consumption to the extent of impaired judgment.3

Four Alcohol Consumption Mitigating Conditions under AG ¶¶ 23(a)-23(d) 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 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.

The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

None of the mitigating conditions fully apply. Applicant’s SOR alleges and the record establishes two alcohol-related incidents involving the police and courts. Applicant has not attended any alcohol rehabilitation or counseling programs after his 2014 arrest. He has not provided “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” that includes an acknowledgement of Applicant’s two arrests and BACs. The checklist he provided does not include sufficient information about his alcohol-consumption history for the LCSW to make a credible diagnosis and prognosis.

Security clearance cases are difficult to compare, especially under Guideline G, because the facts, degree, and timing of the alcohol abuse and rehabilitation show many different permutations. The DOHA Appeal Board has determined in cases of substantial alcohol abuse that AG ¶ 23(b) did not mitigate security concerns unless there was a fairly lengthy period of abstaining from alcohol consumption. See ISCR Case No. 06-17541 at 3-5 (App. Bd. Jan. 14, 2008); ISCR Case No. 06-08708 at 5-7 (App. Bd. Dec. 17, 2007); ISCR Case No. 04-10799 at 2-4 (App. Bd. Nov. 9, 2007).

After careful consideration of the Appeal Board’s jurisprudence on alcohol consumption, Applicant’s history of alcohol consumption, I have continuing doubts about the risks of poor decisions after excessive alcohol consumption. It is too soon to conclude alcohol-related incidents involving the police and courts are unlikely to recur. Not enough time has elapsed without alcohol-related misconduct to eliminate doubt about Applicant’s current reliability, trustworthiness, and good judgment. Alcohol consumption concerns are not mitigated.

Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to criminal conduct, “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 two conditions that could raise a security concern and may be disqualifying in this case, “(a) a single serious crime or multiple lesser offenses,” and “(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.”

AG ¶¶ 31(a) and 31(c) apply. Applicant had a DUI conviction in 1992, and in 2014, Applicant was charged with endangering the welfare of a child and allowing an unlicensed person to operate a motor vehicle. In September 2014, he pleaded guilty to a “stop sign violation with a fine of $527.50” and “improper lane change” with a fine of $527.50. Based on his description of allowing a 13-year-old juvenile, and his .139 BAC when he authorized his son to drive on the interstate, I conclude that under state law he committed the felony of child endangerment, even though he was permitted to plead guilty to a lesser offense.

AG ¶ 32 provides four conditions that could potentially mitigate security concerns:

(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;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life;

(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.

None of the mitigating conditions fully apply for the reasons stated in the previous section. More time must elapse without criminal conduct before criminal conduct concerns will be mitigated.

Personal Conduct

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

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.

The LOR alleges three disqualifying conditions in AG ¶ 16 that are relevant in this case. AG ¶¶ 16(c), 16(d)(3) and 16(e) read:

(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 person may not properly safeguard protected information; (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information 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 person may not properly safeguard protected information. This includes but is not limited to consideration of: . . . (3) a pattern of dishonesty or rule violations; and

(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, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

AG ¶¶ 16(c) and 16(d)(3) do not apply. As indicated in the previous sections, Guidelines J and G are the appropriate guidelines for Applicant’s conduct. The previous sections indicate sufficient evidence for an adverse determination. AG ¶ 16(e) applies because his criminal conduct adversely affects his personal, professional, and community standing.

AG ¶ 17 lists three conditions, which may mitigate security concerns in this case. The three mitigating conditions are as follows:

(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; and

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

AG ¶¶ 17(c) and 17(e) apply. Applicant paid his fines and expressed remorse for his conduct. He is not on probation period. Security officials, the courts, and law enforcement are aware of his misconduct, and he is not subject to coercion. Personal conduct security concerns are mitigated.

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(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.

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 have incorporated my comments under Guidelines G, J, and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant is a 48-year-old employee of a major defense contractor, who has worked as an avionics installer for several years. He has been employed by the same contractor for 20 years. He was in the Navy for ten years; when he left active duty he was a petty officer second class; and he received an honorable discharge in 1995. Applicant received the following awards during his Navy service: NDSM; SWASM (2 awards); GCM (2 awards); Navy “E” Ribbon; SSDR (2 awards); and Flag LOC.

Four coworkers and supervisors lauded Applicant’s diligence, dedication, reliability, trustworthiness, remorse about his conduct, rehabilitation, and supported reinstatement of his security clearance. Applicant received several appreciation awards, performance certificates, certificates of recognition, and certificates of appreciation from his employer. He has made important contributions to the success of his employer and the DOD. Applicant has worked hard over his decades of service to support the DOD. He and his family have made sacrifices to contribute to his company and DOD. He has held a security clearance for 30 years, and there is no evidence of security violations.

The factors weighing against continuation of his security clearance are more substantial than the mitigating circumstances. Applicant had a DUI conviction in 1992. In 2014, Applicant was charged with endangering the welfare of a child and allowing an unlicensed person to operate a motor vehicle. His description of the events in 2014 and police report establish that he authorized his 13-year-old son to drive on the interstate while Applicant was intoxicated with a BAC of .139. His son was unable to maintain their truck in his lane, and his son was endangered as he operated the vehicle at the speed limit. Applicant said he would have still authorized his son to drive even if he had not been impaired by alcohol consumption.

It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont, 913 F. 2dat 1401. Unmitigated security concerns lead me to conclude that grant of a security clearance to Applicant is not warranted at this time. This decision should not be construed as a determination that Applicant cannot or will not attain the state of reform necessary for award of a security clearance in the future. With more time without excessive alcohol consumption and criminal conduct, he may well be able to demonstrate persuasive evidence of his security clearance worthiness.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Personal conduct security concerns are mitigated; however, alcohol consumption and criminal conduct security concerns are not mitigated.

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 J: AGAINST APPLICANT

Subparagraphs 1.a and 1.b: Against Applicant

Paragraph 2, Guideline G: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline E: FOR APPLICANT

Subparagraph 3.a: For Applicant

CONCLUSION

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

_________________________ MARK HARVEY Administrative Judge

FOOTNOTES

1 Applicant’s son was not eligible to apply for a learner’s permit until age 15. (Tr. 44)

2 The four character letters are at AE D. 3Although the term “binge” drinking is not defined in the Directive, the generally accepted The definition of binge drinking for males is the consumption of five or more drinks in about two hours. definition of binge drinking was approved by the National Institute on Alcohol Abuse and Alcoholism (NIAAA) National Advisory Council in February 2004. See U.S. Dept. of Health and Human Services, NIAAA Newsletter 3 (Winter 2004 No. 3), http://www.pubs.niaaa.nih.gov/publications/Newsletter/ winter2004/NewsletterNumber3.pdf.