ISCR Case 16-00558.h1

Case Headnote

ISCR Case No. 16-00558.h1

deniedJun 6, 2017· Hon. Robert J. Kilmartin· hearing

Summary

A 28-year-old defense contractor employee was denied a security clearance due to concerns under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant had two DUI convictions, in August 2012 and January 2014, and was on probation for the latter until February 2019. Additionally, the applicant pled no contest to driving on a suspended license in December 2014 while still on probation for the second DUI, and after completing drinking-driver treatment. The applicant also had a grand theft arrest in December 2007, pleading no contest in January 2008 and serving three weeks in confinement.

Regarding drug involvement, the applicant used marijuana from August 2009 to March 2012. While the applicant successfully mitigated the drug involvement concerns, the judge found insufficient evidence to mitigate the alcohol consumption and criminal conduct issues. Specifically, the applicant failed to follow court orders regarding alcohol education, evaluation, treatment, or abstinence.

The denial was based on the applicant's history of multiple DUI offenses, which raised significant concerns about reliability and trustworthiness. Insufficient time had passed since the last alcohol-related incident to establish a pattern of responsible behavior, and the applicant's criminal conduct, including a probation violation, indicated an inability to comply with laws and regulations.

Why the Applicant Prevailed

Applicant mitigated drug involvement concerns by demonstrating a change in behavior and intent to abstain from drug use.

Conditions Referenced

Disqualifying

J.31.aappliedA Single Serious Crime or Multiple Lesser Offenses
J.31.cappliedAllegation or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted or Convicted
J.31.dappliedIndividual Is Currently on Parole or Probation
G.22.aappliedAlcohol-related Incidents Away From Work
G.22.gappliedFailure to Follow Any Court Order Regarding Alcohol Education, Evaluation, Treatment or Abstinence

Mitigating

H.26.aappliedThe Behavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to Recur
H.26.bappliedA Demonstrated Intent Not to Abuse Any Drugs in the Future

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 10, 2016
Answer filedJul 6, 2016
Hearing held—Decided on the written record.
Decision dateJun 6, 2017

Cite For

Insufficient Evidence to Mitigate Alcohol Consumption Concerns Under Guideline G
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J
Successful Mitigation of Drug Involvement Concerns Despite Past Use Under Guideline H

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has two alcohol-related incidents, the DUI arrest in August 2012 and the DUI arrest in January 2014.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (g) failure to follow a court order regarding alcohol	—	—
1.b	The applicant failed to follow any court order regarding alcohol education, evaluation, treatment or abstinence.	Against Applicant	Continued Use After Treatment	Admitted	(g) failure to follow a court order regarding alcohol	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

1.a

The applicant has two alcohol-related incidents, the DUI arrest in August 2012 and the DUI arrest in January 2014.

Against Applicant

DUI or DWI Alcohol

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(g) failure to follow a court order regarding alcohol

—

1.b

The applicant failed to follow any court order regarding alcohol education, evaluation, treatment or abstinence.

Against Applicant

Continued Use After Treatment

Admitted

(g) failure to follow a court order regarding alcohol

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Used marijuana from August 2009 to March 2012 with varying frequency.	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Credited Acknowledgment and Remorse Credited Severed Ties to Using Friends Claimed Signed Intent with Revocation Clause

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

2.a

Used marijuana from August 2009 to March 2012 with varying frequency.

For Applicant

Marijuana

Occasional

Admitted

(a) any substance misuse

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

Credited

Acknowledgment and Remorse

Credited

Severed Ties to Using Friends

Claimed

Signed Intent with Revocation Clause

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant was arrested in December 2007 for grand theft when he was with a friend who stole a purse and other contents, from an automobile parked at a mall. In January 2008, he pled no contest to the charge and was sentenced to time served, which was three weeks in confinement.	Against Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
3.b	Applicant was convicted of driving under the influence in August 2012, and again in January 2014. He is on probation until February 24, 2019 for the latter offense.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
3.c	Applicant pled no contest to a charge of driving on a suspended license in December 2014, while he was still on probation for his second DUI, and after having completed drinking-driver-treatment courses.	Against Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
3.d	Applicant has not been involved in any criminal activities since his 2014 arrest. However, insufficient evidence has been introduced to show adequate passage of time since his last offense to conclude that he is committed to following the law.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

3.a

Applicant was arrested in December 2007 for grand theft when he was with a friend who stole a purse and other contents, from an automobile parked at a mall. In January 2008, he pled no contest to the charge and was sentenced to time served, which was three weeks in confinement.

Against Applicant

Theft or Larceny

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

3.b

Applicant was convicted of driving under the influence in August 2012, and again in January 2014. He is on probation until February 24, 2019 for the latter offense.

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

3.c

Applicant pled no contest to a charge of driving on a suspended license in December 2014, while he was still on probation for his second DUI, and after having completed drinking-driver-treatment courses.

Against Applicant

Traffic Offense Pattern

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

3.d

Applicant has not been involved in any criminal activities since his 2014 arrest. However, insufficient evidence has been introduced to show adequate passage of time since his last offense to conclude that he is committed to following the law.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Unknown

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

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Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION

FOOTNOTES