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ISCR Case 16-00640.h1 — CASE

ISCR Case 16-00640.h1granted

Case Headnote

ISCR Case No. 16-00640.h1

grantedJul 17, 2017· Hon. Mark W. Harvey· hearing

Summary

A 51-year-old facility security officer with 16 years of service at a defense contractor was granted a security clearance despite concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). These concerns stemmed from a May 24, 2015 arrest for driving while intoxicated (DWI). The applicant pleaded guilty to the DWI on January 21, 2016.

The disqualifying conditions raised were G-22(a), G-22(c), and J-31(b). However, the judge applied mitigating conditions G-23(a), G-23(b), J-32(a), and J-32(d). The applicant completed all court-ordered requirements, including an alcohol-education program, and ceased alcohol consumption in October 2015.

The clearance was granted because the applicant completed all court-ordered requirements, expressed remorse, accepted full responsibility for her DWI, and maintained a sustained period of abstinence from alcohol. The judge found that these actions successfully mitigated the security concerns.

Why the Applicant Prevailed

The applicant completed all court-ordered requirements related to her DWI conviction.
She expressed remorse for her actions and accepted full responsibility for her DWI.
The applicant maintained a sustained period of abstinence from alcohol consumption.

Conditions Referenced

Disqualifying

G-22(a)raisedAlcohol-related Incidents Away From Work
G-22(c)raisedHabitual or Binge Consumption of Alcohol
J-31(b)raisedEvidence of Criminal Conduct

Mitigating

G-23(a)appliedTime Has Passed or Behavior Was Infrequent
G-23(b)appliedAcknowledgment of Alcohol Use and Actions Taken to Overcome It
J-32(a)appliedTime Elapsed Since Criminal Behavior
J-32(d)appliedEvidence of Successful Rehabilitation

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 17, 2016
Answer filedJul 28, 2016
Hearing heldMar 14, 2017Applicant waived her right to 15 days of notice.
Decision dateMay 24, 2017

Cite For

Mitigation of Alcohol Consumption Concerns Under Guideline G
Mitigation of Criminal Conduct Concerns Under Guideline J
Whole-person Assessment in Security Clearance Decisions

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

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: grantedTREATMENT COMPLETED · FAVORABLE

The judge found in favor of the applicant regarding the alcohol consumption allegations. The applicant was arrested for driving while intoxicated (DWI) in May 2015, but she completed all court-ordered requirements, expressed remorse, and ended her alcohol consumption. The judge determined that the alcohol consumption security concerns were mitigated, leading to the granting of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	On May 24, 2015, Applicant was arrested for driving while intoxicated (DWI) by alcohol.	For 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	(a) so much time has passed / so infrequent that it is unlikely to recur (d) completed treatment and aftercare with established abstinence/modified use	—

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: granted

The judge found in favor of the applicant regarding the criminal conduct concerns under Guideline J. The applicant had a single misdemeanor DWI conviction, which was mitigated by her completion of court-ordered requirements, expression of remorse, and cessation of alcohol consumption.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	On May 24, 2015, Applicant was arrested for driving while intoxicated (DWI) by alcohol. On January 21, 2016, she pleaded guilty. She completed all court-ordered requirements. She ended her alcohol consumption in October 2015, expressed remorse, and completed an alcohol-education program. Alcohol consumption and criminal conduct security concerns are mitigated.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction	(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 Substance Treatment Completed 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

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-00640 ) ) Applicant for Security Clearance

For Government: Andrea M. Corrales, Esq., Department Counsel For Applicant: Dominique Sims, Esq.

07/17/2017 ___________

STATEMENT OF CASE

___________

Harvey, Mark, Administrative Judge:

On May 24, 2015, Applicant was arrested for driving while intoxicated (DWI) by alcohol. On January 21, 2016, she pleaded guilty. She completed all court-ordered requirements. She ended her alcohol consumption in October 2015, expressed remorse, and completed an alcohol-education program. Alcohol consumption and criminal conduct security concerns are mitigated. Access to classified information is granted.

Statement of the Case

On September 8, 2015, Applicant completed and signed a Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). On June 17, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, which became effective on September 1, 2006 (Sept. 1, 2006 AGs).

The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for Applicant 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 G (alcohol consumption) and J (criminal conduct).

On July 28, 2016, Applicant responded to the SOR and requested a hearing. On August 26, 2016, Department Counsel was ready to proceed. On January 10, 2017, the case was assigned to me. On February 27, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for March 14, 2017. (HE 1) Applicant waived her right to 15 days of notice of the date, time, and location of the hearing. (Transcript (Tr.) 10-11) Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered three exhibits; Applicant offered five exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Tr. 16-14, 29-32, 48, 58; Government Exhibits (GE) 1-3; Applicant Exhibits (AE) A-E) On March 22, 2017, DOHA received a copy of the transcript of the hearing. On May 24, 2017, Applicant provided one document, and it was admitted without objection. (AE F) The record closed on May 24, 2017. (Tr. 61)

While this case was pending a decision, the Director of National Intelligence issued Security Executive Agent Directive 4, establishing then National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1

FINDINGS OF FACT

In Applicant’s SOR response, she admitted the SOR allegations. She also provided extenuating and mitigating information.

Applicant is a 51-year-old facility security officer (FSO) who has worked for the same defense contractor for 16 years. (Tr. 18-19) In 1984, she graduated from high school. (GE 1) She did not attend college. She has held a security clearance for 30 years, and there is no evidence of a security violation or abuse of illegal drugs. (Tr. 20; GE 1)

Alcohol Consumption and Criminal Conduct

On May 24, 2015, Applicant drank two 24-ounce beers at her mother’s house. (Tr. 22, 40; GE 2) Then she stopped at a restaurant and drank two margaritas. (Tr. 22-24, 41) On her way home she was stopped by the police, and she was arrested for DWI. (Tr. 25) Her blood test indicated her blood alcohol content (BAC) was .15.2 (Tr. 42) The next duty day she reported the DWI to her security officer. (Tr. 26-27)

On January 21, 2016, Applicant pleaded guilty, and she was sentenced to pay a fine,3 to perform 50 hours of community service, to complete a 12-hour DWI education program, to attend a victim-impact panel, to 16 months of probation, and to maintain an alcohol-interlock device on her vehicle during her probation. (Tr. 29-38, 43-44) She completed all sentencing terms, including her probation. (Tr. 29-38, 44; AE A-AE F) She has a misdemeanor-level criminal conviction for DWI.

Before her May 24, 2015 DWI arrest, Applicant consumed alcohol once or twice a week. (Tr. 21) She usually drank about two drinks. (Tr. 27) She most recently consumed one drink of alcohol on her 50th birthday in October 2015. (Tr. 44) She was not diagnosed as alcohol dependent. (Tr. 21) Her only criminal charge is the May 24, 2015 DWI charge. (Tr. 27)

Character Evidence

Applicant was promoted in March 2016 to FSO. (Tr. 40) Her supervisor for the previous two years described Applicant as reliable, trustworthy, dedicated, dependable, and diligent. (Tr. 51-52; SOR response) Applicant reported to her supervisor the next duty day after the DWI that she was arrested for DWI, and Applicant admitted that she committed the DWI offense. (Tr. 54-55; SOR response) Applicant was disappointed in her own lack of judgment; she accepted full responsibility for her DWI; and she felt sincere remorse for her DWI. (Tr. 55-57; SOR response) Her supervisor recommended that Applicant retain her security clearance. (Tr. 56)

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.

3 Applicant said she “paid a total of $4,508 for fees, fines, probation, programs, and in total the Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the 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, “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 ¶ 22 lists two conditions that could raise a security concern and may be disqualifying in this case including:

(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder; and

(c) habitual or binge consumption of alcohol4 to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.

An Administrative “Judge must consider pertinent evidence regarding the applicant’s self-control, judgment, and other qualities essential to protecting the national secrets as well as the vulnerabilities inherent in the circumstances. The Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s security eligibility.” ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012) (citation omitted).

AG ¶¶ 22(a) and 22(c) apply. Applicant’s single alcohol-related incident involving the police and courts happened on May 24, 2015. Her BAC was .15, establishing that she engaged in binge-alcohol consumption to the extent of impaired judgment.

AG ¶ 23 details conditions that could mitigate security concerns including:

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

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations;

(c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; and

(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

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).

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).

I have carefully considered the Appeal Board’s jurisprudence on alcohol consumption and Applicant’s history of alcohol consumption. She has a sustained period of alcohol abstinence; she expressed her remorse about her poor judgment; she has a good record of employment; she received education about alcohol abuse; she successfully completed her probation; she paid a heavy penalty for DWI; and she only has one alcohol-related conviction. The evidence has resolved my doubts about Applicant’s current reliability, trustworthiness, and good judgment. Alcohol consumption security concerns are 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 lists conditions that could raise a security concern and may be disqualifying including:

(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.

AG ¶¶ 31(a) does not apply because she committed one DWI offense. AG ¶ 31(b) applies. The SOR alleges and the record establishes Applicant committed one misdemeanor-level criminal offense involving alcohol and the court. Applicant admitted the incident of criminal conduct.

AG ¶ 32 describes conditions that could mitigate security concerns including:

(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 individual 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, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

For the reasons indicated in the previous section, criminal conduct security concerns are mitigated. Her single misdemeanor-level DWI offense does not create doubt about her judgment, reliability, and trustworthiness, and raise questions about her ability or willingness to comply with laws, rules and regulations. She has ended her alcohol consumption, and there is sufficient assurance that criminal conduct is unlikely to recur.

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(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines G and J are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment.

Applicant is a 51-year-old FSO who has worked for the same defense contractor for 16 years. She has held a security clearance for 30 years, and there is no evidence of a security violation. Applicant has a sustained period of abstinence. She expressed her remorse about her DWI because it showed poor judgment. She has an excellent record of employment; she received a substantial penalty for her DWI; and she completed all court-ordered requirements. She received alcohol-related education. She has learned from her error in judgment, and I am convinced she will not repeat it.

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. Alcohol consumption and criminal conduct security concerns are 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 G: FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the interests of national security to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf. 2 Rate and magnitude of alcohol consumption, body weight, and time of testing are variables that can be used to predict blood alcohol content. See Cleveland Clinic website, http://www.clevelandclinic.org /health/interactive/alcohol calculator.asp; Nolo website, http://dui.drivinglaws.org/calc.php.

DWI has cost her about $11,000. (SOR response) 4 Although the term “binge” drinking is not defined in the Adjudicative Guidelines, the generally accepted definition of binge drinking for males is the consumption of five or more drinks in about two hours. The 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. “Binge drinking is the most common pattern of excessive alcohol use in the United States.” See the Center for Disease Control website, (stating “The National Institute on Alcohol Abuse and Alcoholism defines binge drinking as a pattern of drinking that brings a person’s blood alcohol concentration (BAC) to 0.08 grams percent or above. This typically happens when men consume 5 or more drinks, and when women consume 4 or more drinks, in about 2 hours.”), https://www.cdc.gov/alcohol/fact-sheets/binge- drinking.htm.