CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-01161.h1 — CASE

ISCR Case 16-01161.h1denied

Case Headnote

ISCR Case No. 16-01161.h1

deniedAug 9, 2017· Hon. Shari Dam· hearing

Summary

A 39-year-old male applicant was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant had a history of alcohol-related incidents, including multiple arrests and convictions for driving under the influence. Specifically, he was convicted of three alcohol-related driving offenses.

His second conviction, following a July 2001 arrest, resulted in two years of probation. His third conviction, a felony in March 2016, led to 34 days in jail and a three-year supervised probation period extending until March 2019. His driver's license was restricted for 90 days after his first conviction in 1995, revoked for one year after the second, and revoked again for approximately six months after the third.

Despite demonstrating some abstinence and attending counseling, the clearance was denied. The denial was based on his history of multiple alcohol-related driving offenses, including a felony conviction, his ongoing probation until March 2019, and the insufficient time passed since his last alcohol-related incident to mitigate security concerns regarding his judgment and reliability.

Why the Applicant Was Denied

The applicant has a history of multiple alcohol-related driving offenses, including a felony conviction.
He remains on probation until March 2019, which raises concerns about his judgment and reliability.
Insufficient time has passed since the last alcohol-related incident to mitigate security concerns.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol
AG ¶ 30(a)raisedPattern of Minor Offenses
AG ¶ 30(c)raisedCurrently on Parole or Probation

Mitigating

AG ¶ 23(b)appliedAcknowledgment of Alcohol Problem and Actions Taken
AG ¶ 23(d)rejectedSuccessful Completion of Treatment ProgramThe applicant has not participated in a formal alcohol treatment program.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedNov 4, 2016
Answer filedNov 29, 2016
Hearing heldApr 5, 2017
Decision dateMay 5, 2017

Cite For

Denial of Security Clearance Due to Ongoing Probation for Felony Conviction
Insufficient Evidence of Rehabilitation Despite Some Abstinence
Impact of Multiple Alcohol-related Offenses on Security Eligibility

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: denied

The judge found against the applicant on all allegations related to alcohol consumption, citing a history of alcohol-related offenses and insufficient evidence of rehabilitation. The applicant's claims of abstinence and participation in counseling were noted, but did not mitigate the security concerns raised by his past behavior.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of alcohol-related incidents, including multiple arrests and convictions for driving under the influence.	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	(b) acknowledges the pattern and has established modified use or abstinence (d) completed treatment and aftercare with established abstinence/modified use	—
1.b–1.e	4 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the criminal conduct allegations, citing a history of alcohol-related offenses and ongoing probation. The applicant's criminal conduct raised significant concerns regarding his judgment and reliability, leading to a denial of security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was convicted of three alcohol-related driving offenses. He was on probation for two years after the second conviction for a July 2001 arrest. After being convicted in March 2016 for his third offense, a felony, he served 34 days in jail and was then placed on three years of supervised probation that will continue until March 2019. His driver’s license was restricted for 90 days after his first conviction in 1995; it was revoked for one year after the second conviction; and it was revoked again for about six months after the third conviction. The evidence establishes the above three disqualifying conditions.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (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: 16-01161 ) ) Applicant for Security Clearance )

For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se

08/09/2017 ______________

STATEMENT OF CASE

______________

DAM, Shari, Administrative Judge:

Applicant failed to mitigate the alcohol and criminal conduct security concerns involving four criminal charges related to the consumption of alcohol. He remains on probation until March 2019 for the last conviction. National security eligibility for access to classified information is denied.

Statement of the Case

On November 4, 2016, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under the Guideline G, Alcohol Consumption and Guideline J, Criminal Conduct. The action was taken under Executive Order (EO) 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 for Determining Eligibility for Access to Classified Information effective within the DOD on September 1, 2006. This decision applies the new Adjudicative Guidelines (AG) that came into effect on June 8, 2017.1

Applicant answered the SOR in writing (Answer) on November 29, 2016, and requested a hearing before an administrative judge. On February 15, 2017, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me. On March 9, 2017, DOHA issued a Notice of Hearing setting the case for April 5, 2017. The case proceeded as scheduled. Department Counsel offered GE 1 through 6 into evidence. Applicant and his wife testified. He offered Applicant Exhibits (AE) A through G into evidence. All exhibits were admitted without objections. DOHA received the hearing transcript (Tr.) on April 13, 2017. The record remained open until May 5, 2017, to give Applicant time to submit additional information. No other exhibits were provided.

FINDINGS OF FACT

Applicant is 39 years old and married to his second wife for seven months. He has two children from a first marriage and another child from a former relationship. He earned a bachelor’s degree and is working on a master’s degree. He has worked for his current employer since May 2010. He received a promotion in 2013 and anticipates another one in 2018. Prior to this position, he worked for another defense contractor for two years. (Tr. 19-23.) His supervisor is aware of this investigation and the underlying security concerns. (Tr. 24.)

Applicant has a history of criminal incidents involving alcohol, including five arrests and four convictions. He admitted that from 1995 to 2015, he consumed alcohol, at times to the point of excess. (Answer.)

On November 17, 1995, Applicant was arrested and cited for minor (under 21) in possession-purchase/consume/possess liquor. He was 18 years old and had consumed alcohol at a party. He was fined and paid $100. (Tr. 27-28; GE 4.)

In October 1999, Applicant was arrested and charged with driving under the influence of alcohol. His blood alcohol content (BAC) was .19%, which is over twice the legal limit. Prior to the arrest, he had been consuming alcohol at a friend’s house and then at a club. He was found guilty of driving while impaired (DWI). His driving privileges were restricted for 90 days. He subsequently decreased his drinking. (Tr. 29-31.)

On July 2001, Applicant was arrested and charged with operating under the influence (OUI) of liquor per se, a misdemeanor. He was driving home from a club when he was stopped by the police. He had consumed between four and six beers. His BAC was.12%. He was found guilty and fined $890. His driver’s license was revoked for one year. He was ordered to attend driver’s intervention and counseling. He was placed on supervised probation for two years. He was required to attend alcohol anonymous (AA) meetings twice a week and participate in substance abuse therapy while on probation. He subsequently met with a counselor for therapy sessions for a period of time. He does not recall if he received a diagnosis of alcohol abuse or alcohol dependence. Applicant abstained from consuming alcohol during the probationary period. Although his counselor recommended that he stop drinking, he resumed a few months after he completed probation in 2003. (Tr. 32-39, 56; GE 5.) He was 24 years old at the time of the arrest. (Tr. 54.)

On December 5, 2015, Applicant was arrested and charged with OWI 3rd offense, a felony, and alcohol-open container in vehicle. He had consumed five or six beers and a couple drinks over the course of the evening. His BAC was .15%. On March 10, 2016, he was found guilty of both counts and was sentenced to 35 days of jail. After completing the jail sentence on April 12, 2016, he began serving three years of supervised probation, which continues to March 2019. He was also required to serve 60 days or complete 360 hours of community service, in lieu of paying fines and costs. He was ordered to participate in counseling. (Tr. 40-41.) His driver’s license was revoked until August 2016, when it was reinstated. (Tr. 47.)

Applicant has served 39 hours of community service to date. He meets with his probationary officer once a month. He is required to abstain from alcohol and subject to random urine screenings and he calls an office every morning to learn if he is required to test that day. He submits samples once a week. (Tr. 44-45.)

Applicant started attending AA in January 2016 before his conviction. He attends AA once a week. He attended AA the day before this hearing. He does not have an AA sponsor. (Tr.47) He has participated in counseling with a psychologist, who has a specialty in addictions, for over a year. The psychologist reported that Applicant takes his drinking problems seriously and gives him an excellent prognosis. He did not provide a diagnosis. (AE E.)

The last time Applicant was intoxicated from consuming alcohol was December 5, 2015. The last time he consumed alcohol was on December 24, 2015, when he made a conscious decision to stop drinking that day. (Tr. 24-26.) He admitted that he has an alcohol problem and “hit rock bottom as I started going back through AA.” (Tr. 50, 52.) He has learned to live a better managed life. (Tr. 52.) In a letter, Applicant humbly and candidly stated that he takes full responsibility for his actions and poor decisions to consume alcohol and drive. (AE A.)

Applicant submitted character references. His direct supervisor wrote that Applicant is trustworthy and exhibits “the utmost integrity.” (AE B.) A co-worker has complete confidence in Applicant. He said Applicant is “highly respected by his colleagues and our customers.” (AE C.) Applicant’s employer is aware of his alcohol-related arrests. He has known Applicant since hiring him in 2009. He has never observed Applicant engaging in alcohol-related behaviors. He does not believe Applicant is a security risk. (AE D.) Applicant’s father wrote a strong letter in support of his son. (AE F.) His wife has known him for three years, including as a co-worker. She said he has abstained from alcohol since December 2015 and takes his commitment to sobriety seriously. She does not think he is a security risk. (AE G.)

POLICIES

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying and mitigating conditions, which are useful 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Directive ¶ E3.1.14 requires the Government to 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person applying for national security eligibility seeks to enter 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 the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Finally, Section 7 of EO 10865 provides that an adverse decision shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”

ANALYSIS

Guideline G: Alcohol Consumption

AG ¶ 21 sets out the security concerns 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 two conditions that could raise a security concern and may be disqualifying 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 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 alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.

Applicant was arrested and charged with alcohol-related driving offenses three times: in October 1999; in June 2001; and in December 2015. He was convicted of all charges, the last one being a felony. His BAC was over the legal limit each time he was arrested, documenting impaired judgment. The evidence established both disqualifying conditions.

AG ¶ 23 describes three conditions that could mitigate these security concerns raised under this guideline:

(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; 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 evidence does not establish mitigation under AG ¶ 23(a). Given his previous three alcohol-related convictions and treatment subsequent to the 2001 conviction, insufficient time has passed since the last incident in December 2015. The evidence establishes some mitigation under AG ¶ 23(b). Applicant admits that he has an alcohol problem and has demonstrated a pattern of abstinence since December 2015. AG ¶ 23(d) partially applies. Applicant has not participated in a formal alcohol treatment program, but has been in therapy with a psychologist, who has a specialty in addictions, since January 2016. The psychologist did not report a diagnosis for Applicant, but stated he has an excellent prognosis based on his participation in counseling.

Guideline J: Criminal Conduct

AG ¶ 30 sets out the security concerns 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 three conditions that could raise a security concern and may be disqualifying in this case:

(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;

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

Applicant was convicted of three alcohol-related driving offenses. He was on probation for two years after the second conviction for a July 2001 arrest. After being convicted in March 2016 for his third offense, a felony, he served 34 days in jail and was then placed on three years of supervised probation that will continue until March 2019. His driver’s license was restricted for 90 days after his first conviction in 1995; it was revoked for one year after the second conviction; and it was revoked again for about six months after the third conviction. The evidence establishes the above three disqualifying conditions.

AG ¶ 32 provides two conditions that could mitigate the above security concerns raised in this case:

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

Given the fact that he was previously convicted of two alcohol-related offences, sufficient time has not passed since Applicant’s last alcohol-related driving offense, which occurred about a year and a half ago. Although he provided documentation of his successful work performance, that evidence does not outweigh the fact that he is on supervised probation until March 2019 for a felony conviction. He remains subject to random alcohol screenings. There is insufficient evidence to establish mitigation under either of the above conditions.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances, commonly referred to as the whole-person concept. The administrative judge should also consider the following 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) 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.

According to AG ¶ 2(c) the ultimate determination of whether to grant national security eligibility must include 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 facts and circumstances surrounding this case. Applicant is a credible, intelligent, and educated 38-year-old man. He has successfully worked for defense contractors, as documented by recent letters of recommendation. He is dedicated to his current job. He testified candidly and humbly. He admitted his mistakes and takes responsibility for them. These are persuasive factors in the analysis of the whole person. However, Applicant has a history of alcohol-related driving offenses, the most recent having occurred in December 2015, and having been resulted in a felony conviction in March 2016. At this time, he has not established a sufficient history of complying with the law and avoiding alcohol-related incidents. He served 35 days in jail and is on criminal probation until March 2019, which includes reporting to a probation officer and mandatory random alcohol urine screenings. Overall, the record evidence leaves me with questions as to Applicant’s judgment, eligibility and suitability for a security clearance at this time. He did not met his burden to mitigate the security concerns arising under the guidelines for alcohol consumption and criminal conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline G: AGAINST APPLICANT

Subparagraphs 1.a through 1.e: Against Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

CONCLUSION

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

_________________ SHARI DAM Administrative Judge

FOOTNOTES

1 I considered the previous AG, effective September 1, 2006, as well as the new AG, effective June 8, 2017. My decision would be the same if the case was decided under the previous AG.