CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-00862.h1 — CASE

ISCR Case 16-00862.h1granted

Case Headnote

ISCR Case No. 16-00862.h1

grantedJun 2, 2017· Hon. Robert E. Coacher· hearing

Summary

A 32-year-old male applicant was granted a security clearance despite concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The Statement of Reasons detailed three DUI convictions: one in October 2007, another in October 2009, and a third in January 2014, for which he was on probation until October 2016. These incidents triggered disqualifying conditions related to alcohol consumption and criminal conduct.

However, the applicant successfully mitigated these concerns through demonstrated rehabilitation. Following his last DUI, he completed over 146 hours of alcohol education and therapy. He has maintained abstinence from alcohol for over three years and has not been involved in any further alcohol-related incidents.

Additionally, strong character references and positive work performance evaluations supported his reliability and trustworthiness. These mitigating factors, including his sustained sobriety and commitment to rehabilitation, led to the granting of his security clearance.

Why the Applicant Prevailed

The applicant completed over 146 hours of alcohol education and therapy after his last DUI.
He has remained abstinent from alcohol for over three years and has not had any further alcohol-related incidents.
The applicant's character references and work performance were rated highly, supporting his reliability and trustworthiness.

Conditions Referenced

Disqualifying

G-22(a)raisedAlcohol-related Incidents Away From Work
G-22(c)raisedHabitual or Binge Consumption of Alcohol
J-31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
J-31(c)raisedAllegation or Admission of Criminal Conduct
J-31(d)raisedIndividual Is Still on Probation

Mitigating

G-23(a)appliedSo Much Time Has Passed, or the Behavior Was so Infrequent
G-23(d)appliedSuccessfully Completed Counseling or Rehabilitation
J-32(a)appliedSo Much Time Has Elapsed Since the Criminal Behavior
J-32(d)appliedEvidence of Successful Rehabilitation

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJun 27, 2016
Answer filedJul 27, 2016
Hearing heldFeb 22, 2017
Decision dateMar 1, 2017

Cite For

Mitigation of Alcohol-related Incidents Under Guideline G
Successful Rehabilitation From Criminal Conduct Under Guideline J
Consideration of the Whole-person Concept 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 applicant mitigated the security concerns related to alcohol consumption under Guideline G. The judge found that the applicant's history of three DUI arrests was sufficiently mitigated by the time elapsed since the last incident, completion of treatment, and a demonstrated commitment to abstinence from alcohol. The decision was granted, indicating the applicant's current reliability and trustworthiness were no longer in doubt.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	In October 2007, being arrested, charged, and convicted of driving under the influence (DUI);	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	—	—
1.b	In October 2009, being arrested, charged, and convicted of DUI;	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	—	—
1.c	In January 2014, being arrested, charged, and convicted of DUI, and being on probation until October 2016.	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	—	—

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 that the applicant mitigated the security concerns related to criminal conduct under Guideline J. The applicant was charged and convicted of three DUI offenses but demonstrated significant rehabilitation and abstinence from alcohol, leading to a favorable decision.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was charged and convicted of three DUI offenses.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(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 No Subsequent Offenses Credited Rehabilitation Evidence

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. 16-00862 ) ) Applicant for Security Clearance )

For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Chester H. Morgan, Esq.

06/02/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant mitigated the Government’s security concerns under Guideline G, alcohol consumption, and Guideline J, criminal conduct. Applicant’s eligibility for a security clearance is granted.

Statement of the Case

On June 27, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G, and J. DOD acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the DOD on September 1, 2006. Applicant answered the SOR on July 27, 2016. He requested a hearing before an administrative judge. The case was assigned to me on October 7, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on January 17, 2017, with a hearing date of February 22, 2017. The hearing was convened as scheduled. The Government offered exhibits (GE) 1 and 2, which were admitted into evidence without objection. I marked Department Counsel’s exhibit list as hearing exhibit (HE) I. Applicant testified and offered exhibits (AE) A through C which were admitted into evidence without objection. Post-hearing, Applicant submitted AE D, which was admitted without objection. DOHA received the hearing transcript (Tr.) on March 1, 2017.

PROCEDURAL RULINGS

At the hearing, Department Counsel moved to amend the SOR to conform to the expected evidence. The specific amendment consisted of substituting the number “2014” for the number “2013” in SOR ¶ 1.c. Applicant had no objection to this amendment and the motion was granted.1

FINDINGS OF FACT

In Applicant’s answer to the SOR, he admitted all the allegations. Applicant’s admissions are incorporated into these findings of fact. After a thorough and careful review of all the evidence submitted, I make the following additional findings of fact.

Applicant is 32 years old. He is married and has two children, ages two and eight. Since June 2011, he has worked for various defense contractors. He has worked for his current employer since August 2016. He is working towards his bachelor’s degree. He served in the Marine Corps for eight years from 2003 to 2011, including two combat deployments to Iraq. He was honorably discharged in the paygrade of E-5. His wife was also a combat medic. In his first civilian contractor job, he deployed to Afghanistan for over two years (2011-2013). He held a security clearance while in the Marine Corps.2

Applicant’s SOR alleges: (1) in October 2007, being arrested, charged, and convicted of driving under the influence (DUI); (2) in October 2009, being arrested, charged, and convicted of DUI; (3) in January 2014, being arrested, charged, and convicted of DUI, and being on probation until October 2016. The above stated conduct also amounting to criminal conduct concerns.

Applicant fully admits the three DUI incidents. He did however, produce evidence that he was not the driver at the time of the 2009 arrest, but rather accepted responsibility to keep a friend out of trouble. Applicant’s first two DUIs occurred after he returned from his deployments to Iraq. His first deployment was to Ramadi and his second was to Fallujah, both those locations experienced significant combat action during his time there. Upon his return, he did not handle his personal circumstances well and drank to intoxication and then drove his vehicle. He was later diagnosed by the VA with having post-traumatic stress disorder (PTSD). He was given a 50% disability rating because of the disorder. He had not been diagnosed with PTSD at the time of his first two DUIs. He fulfilled all the court-ordered counseling and course work.3

Applicant’s third DUI occurred after he returned from a civilian deployment in late 2013. He was called home suddenly when his wife, herself a combat veteran, expressed suicidal thoughts. Once he returned and got his wife’s situation under control, he once again did not properly handle his personal issues and wound up arrested for drinking and driving a third time. Among the consequences he faced from this conviction were two months in jail (although he was permitted to leave jail during the work day to continue his job), having an interlock placed on his car for two years (since removed), being placed on probation for two years (since successfully completed), and incurring approximately $11,000 worth of fines and fees.4

Applicant credibly testified that he knew he had to make changes in his life after the third DUI. He completed over 146 hours of alcohol education and therapy. He enrolled in a VA inpatient program and successfully completed it. He was exposed to random urinalysis testing and successfully passed each test. He completed his terms of probation as acknowledged by his probation officer. He has remained abstinent from alcohol for over three years. He accepts that he cannot drink alcohol in the future. He continues to receive professional counseling for his PTSD and he voluntarily attends alcohol counseling sessions, which include random urine testing. He has not had another alcohol-related incident since the January 2014 DUI. He has a current valid driver’s license. His wife is supportive of his abstinence.5

Applicant’s past job performance, as reflected by a 2015-2016 appraisal, was ranked at the highest level, which was “exceeds expectations.” Additionally, three former coworkers described him as professional, trustworthy, and someone who demonstrated outstanding leadership.6

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain a favorable security decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to 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.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline G, Alcohol Consumption

AG ¶ 21 expresses the security concern pertaining to 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 describes conditions that could raise a security concern and may be disqualifying. Four are potentially applicable in this case:

(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.

Applicant’s drinking history, which includes three DUI arrests, meets the conditions set forth in AG ¶¶ 22(a) and (c).

I have also considered all of the mitigating conditions for alcohol consumption under AG ¶ 23 and especially considered the following:

(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; 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.

Even though he has not been diagnosed as either an alcohol abuser or as alcohol dependent, Applicant realized after his third DUI in 2014 that he needed to get help. He entered inpatient treatment and followed that up with outpatient counseling. He is also being treated by the VA for PTSD resulting from his combat experiences. He satisfied all of his probation conditions and has a valid driver’s license. He has been alcohol abstinent for three years and has not had any further alcohol-related incidents. He changed the circumstances of his life and has seen the benefit of those changes. His VA counselor deems it unlikely that he would return to using alcohol to manage his stress. His character references and his employment appraisal support that he is professional, trustworthy, and an outstanding leader. I find that sufficient time has passed since his last alcohol-related incident and the incidents no longer cast doubt on his current reliability, trustworthiness, or good judgment in view of his changed lifestyle. I find both AG ¶¶ 23(a) and (d) apply.

Guideline J, Criminal Conduct

The security concern relating to the guideline for criminal conduct is set out in AG ¶ 30:

Criminal activity creates doubt about an Applicant’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 conditions that could raise a security concern and may be disqualifying in this case. The following are potentially applicable:

(a) a single serious crime or multiple lesser offenses;

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; and

(d) individual is still on probation.

Applicant was charged and convicted of three DUI offenses. He is no longer on probation. I find that only AG ¶¶ 31(a) and 31(c) apply.

I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32 and considered the following relevant:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(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. The same rationale that supported application of mitigating factors under the alcohol consumption guideline also applies here. Both AG ¶¶ 32(a) and 32(d) apply.

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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have considered Applicant’s age, honorable combat military service, his commitment to alcohol abstinence, his treatment for PTSD, work appraisal, and his character references. I am convinced that Applicant learned his lesson from his past DUIs and is committed to abstinence in the future, which will also avoid future criminal conduct.

Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under Guideline G, alcohol consumption, and Guideline J, criminal conduct.

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 – 1.c: 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 national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 Tr. at 8. 2 Tr. at 21, 24, 33, 36, 59-60; GE 1. 3 Tr. at 21, 23, 37-40, 44-45; AE C-D; Answer. 4 Tr. at 25-27, 49-50; Answer. 5 Tr. at 27-33, 35, 23, 37-40, 44-45, 59; AE C; Answer. 6 AE A-B; Answer.