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ISCR 16-01189.h1: Guideline G security clearance hearing, denied (2017) · CASE

ISCR Case 16-01189.h1denied

Case headnote

ISCR Case No. 16-01189.h1

deniedAug 3, 2017· Hon. Elizabeth M. Matchinski· hearing

Summary

A 61-year-old maintenance supervisor was denied a security clearance under Guideline G (Alcohol Consumption) due to a persistent history of alcohol dependence and continued alcohol use. The Statement of Reasons (SOR) specifically alleged that the applicant was diagnosed as alcohol dependent in October 2014 during substance abuse treatment and continued to consume alcohol until at least July 2015.

The denial was based on several disqualifying conditions, including the applicant's ongoing alcohol consumption following multiple rehabilitation programs. The judge noted that the applicant concealed his drinking from both his spouse and counselors, which raised concerns about his honesty and commitment to recovery.

Ultimately, the applicant failed to demonstrate a sustained period of abstinence since a relapse in 2013. This pattern of continued use, coupled with the concealment of his alcohol consumption, led to the determination that he lacked the necessary reliability and trustworthiness for a security clearance.

Why the applicant was denied

The applicant continues to consume alcohol after completing rehabilitation programs for alcohol dependence.
He concealed his drinking from his spouse and counselors, indicating a lack of honesty and commitment to recovery.
The applicant has not demonstrated a sustained period of abstinence since his relapse in 2013.

Conditions referenced

Disqualifying

AG ¶ 22(c)appliedHabitual or Binge Consumption of Alcohol
AG ¶ 22(d)appliedDiagnosis by a Qualified Professional of Alcohol Use Disorder

Key rule quoted

“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.”

Procedural posture

SOR issuedNov 2, 2016
Answer filedNov 28, 2016
Hearing heldMar 28, 2017
Decision dateApr 5, 2017

Cite for

Ongoing Alcohol Consumption as a Disqualifying Factor Under Guideline G
Concealment of Alcohol Use as Indicative of Impaired Judgment
Lack of Sustained Abstinence as a Basis for Denial of Security Clearance

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 61: “Applicant is a 61-year-old maintenance supervisor, who has worked for the same defense contractor his entire career.”
Clearance at issue: Secret: “He has held security clearance eligibility since 1976 and currently has a secret clearance.”
Held a clearance before: Yes: “He has held security clearance eligibility since 1976 and currently has a secret clearance.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found against the applicant on the alcohol consumption allegations, determining that the applicant continued to consume alcohol after being diagnosed with alcohol dependence and completing rehabilitation programs. The applicant's ongoing drinking pattern and failure to maintain abstinence raised significant security concerns, leading to the denial of his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) (Redacted) ) ISCR Case No. 16-01189 ) Applicant for Security Clearance )

For Government: Carroll J. Connelley, Esq., Department Counsel For Applicant: Pro se

08/03/2017 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant continues to consume alcohol after completing alcohol rehabilitation programs for diagnosed alcohol dependence. An unacceptable security risk persists, even though he has had no adverse involvement with law enforcement or his employer because of his drinking. Clearance is denied.

Statement of the Case

On November 2, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing a security concern under Guideline G, alcohol consumption, and explaining why it was unable to find it clearly consistent with the national interest to grant or continue security clearance eligibility for him. The DOD CAF took the action 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. On November 28, 2016, Applicant answered the SOR allegation and requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On March 2, 2017, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On March 9, 2017, I scheduled a hearing for March 28, 2017.

I convened the hearing as scheduled. Four Government exhibits (GEs 1-4) were admitted into evidence without objection. Applicant testified, as reflected in a transcript (Tr.) received on April 5, 2017.

While this case was pending a decision, Security Executive Agent Directive 4 was issued establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The AG supersede the adjudicative guidelines implemented in September 2006 and are effective for any adjudication made on or after June 8, 2017. Accordingly, I have adjudicated Applicant’s security clearance eligibility under the new AG.1

FINDINGS OF FACT

The SOR alleges under Guideline G (SOR ¶ 1.a) that Applicant was diagnosed as alcohol dependent while receiving substance abuse treatment in October 2014 and that he continued to drink alcohol to at least July 2015. When he responded to the SOR, Applicant denied the inference of questionable judgment or failure to control impulses raised by excessive alcohol consumption. However, he admitted the diagnosis and continued consumption of alcohol. After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 61-year-old maintenance supervisor, who has worked for the same defense contractor his entire career. He graduated from high school in June 1974 and started with his employer in July 1974. He has held security clearance eligibility since 1976 and currently has a secret clearance. Applicant and his spouse have been married since July 1980. They have no children. (GE 1; Tr. 18-19.)

Applicant started drinking beer on weekends with friends when he was 15 years old. His drinking increased gradually over time. By his 30s, he was drinking alcohol (beer or ginger brandy) only when he was alone or at his home. In 1995, Applicant’s primary care physician referred him for outpatient substance abuse treatment. According to Applicant, he “self-described that [he] had a problem” in that he was drinking every night. After three to four days of detoxification in a hospital, he attended counseling for one month followed by self-help meetings for six or seven years, albeit with decreasing frequency as time went on. He stopped attending Alcoholics Anonymous (AA) because he had not relapsed into drinking, and he felt he could handle his recovery on his own. (GEs 2, 4; Tr. 21-25.) In approximately 2005, Applicant had an argument with a co-worker. Applicant was required by his employer to obtain counseling for anger management. He began a therapeutic relationship with a psychiatrist for treatment of depression. In recent years, the treatment has focused on medication management. (GE 2.)

In October 2013, Applicant learned that he needed surgery. One week before his November 2013 surgery, he relapsed and began drinking beer after 18 years of abstinence. During the first two months after his surgery, he consumed no alcohol. As he felt better, he returned to drinking beer initially. Within a short time, his drinking progressed to a pint of vodka per day for the next ten months. Applicant hid his drinking from his spouse by drinking alone in his basement or garage or when she was out of the house. (GEs 2, 4; Tr. 27-31.)

In September 2014, Applicant sought help for his alcohol problem from his primary care physician. At the referral of his doctor, he entered a partial-hospitalization detoxification program on September 22, 2014. On admission, he showed symptoms of moderate alcohol withdrawal from consuming alcohol the previous night. He wanted to stop drinking, but he showed “signs of active denial to his real issues.” He reported several traumatic family events by history and some struggles with anxiety since he resumed drinking. On September 25, 2014, he was assessed for mental health issues, and tested positive for moderate depression and mild anxiety. He complied with his treatment protocols during the detoxification phase and was discharged on October 5, 2014, to follow up in an intensive outpatient program. At discharge, he was diagnosed with alcohol dependence and in stable condition. (GE 4; Tr. 31-33.) Applicant self-reported his admission for alcohol abuse treatment to his supervisor while he was still in treatment. (GE 3.)

Applicant was admitted to the intensive outpatient program on October 9, 2014. He worked on developing coping skills and was attentive in individual and group sessions. He also attended AA twice a week. Applicant reported some cravings for alcohol and some “fleeting thoughts” to drink when driving by a liquor store. He was discharged to outpatient counseling on October 31, 2014. During a session with a staff psychologist on November 13, 2014, Applicant expressed confidence in his ability to remain sober. He was attending AA once a week, although he reportedly received little benefit from the meetings. By a session on December 5, 2014, he reported no AA attendance and no interest in a meditation-based 12-step group. (GE 4.) Applicant completed his outpatient counseling in March 2015. (Tr. 33.)

On March 20, 2015, Applicant completed and certified to the accuracy of a Questionnaire for National Security Positions (SF 86). He disclosed his alcohol treatment at the detoxification facility and indicated that he has had subsequent treatment from October 2014 to “Present.” (GE 1.)

In approximately May 2015, Applicant resumed drinking alcohol (beer and vodka). On July 9, 2015, Applicant was interviewed by an authorized investigator for the Office of Personnel Management (OPM). He was initially reticent to discuss his treatment for depression with a psychiatrist, claiming initially that his sessions were solely for anger management following an incident at work and that he had not seen the clinician in the past seven years. After volunteering that he was still in treatment with the psychiatrist for his depression, he admitted that his mental health issue “sometimes” made him want to drink alcohol. Applicant then discussed his drinking, including his relapse after 18 years of abstinence that led him to seek treatment in September 2014. Concerning his involvement in outpatient treatment, Applicant indicated that he attended three sessions a week for six weeks starting in October 2014 and that he followed up with AA three times a week from December 2014 to May 2015. However, he related that he had attended only two AA meetings since May 2015. When asked whether he was currently drinking alcohol, Applicant responded that he was “drinking,” “struggling,” and is “an alcoholic,” although he then indicated that he did not think he had been diagnosed as an alcoholic. About his current consumption, Applicant related that he mostly drank on the weekends, two beers and a pint of vodka at a sitting. He admitted to drinking one or two weekdays at times. Applicant denied becoming intoxicated from consuming a pint of vodka or that his drinking had any effect on his work or his finances, but he admitted it “strains the family.” As for any plans to address his drinking, Applicant responded that he needs to return to meetings and to stop drinking, but he had no plan of action at present. He expressed his dislike for AA meetings. (GE 2.)

From June to July 2016, Applicant underwent five weeks of inpatient alcohol rehabilitation treatment at an out-of-state facility. He was diagnosed as alcohol dependent and advised to abstain completely from alcohol. Discharged to continue in counseling, Applicant relapsed into drinking shortly after he returned home. (Tr. 46-47.) In response to DOHA interrogatories, Applicant indicated on August 31, 2016, that he has “a disease of alcoholism” and that he was currently getting help “through a counselor, psychiatrist and attending AA meetings.” (GE 2.)

Applicant continues to consume a few beers and a pint of vodka on the weekends and to conceal his latest relapse from his spouse because he does not want to disappoint her. He testified that he is able to conceal his drinking because he does not become intoxicated, although he considers one drink by him to be excessive. He consumed “just beer. Maybe three beers” at a sitting during the weekend of March 25-26, 2017. He does not keep alcohol in his house. He purchases it from a liquor store. (Tr. 35-37.) As to why he drinks on weekends despite his alcohol problem, Applicant testified, “I can’t help myself.” He indicated that he “just get[s] mellowed out. And that’s what [he looks] forward to.” He still has cravings to drink alcohol (Tr. 42-43.)

Applicant continued counseling through December 2016, but he concealed his drinking from his counselor. (Tr. 48-50.) In January 2017, Applicant and his spouse started marriage counseling with a psychologist because of his drinking history, although he has not been forthright during their counseling sessions about his current drinking. (Tr. 38-39, 50.) As of March 2017, Applicant was attending AA meetings with a goal of three a week, but he has not been consistent in his attendance. He does not attend AA when he does not feel like it. He had not been to AA in the two weeks preceding his hearing. He was not an active participant at the meetings and did not have a sponsor. (Tr. 37-38, 41-42.) Applicant has had no adverse involvement with law enforcement because of his alcohol use. He also has not had any alcohol-related issues at work. (Tr. 29.) He admits that alcohol has affected his health. (Tr. 40.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 required to be considered 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 overall adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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 national security eligibility will be resolved in favor of the 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant 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 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. Section 7 of EO 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

The security concern for alcohol consumption is articulated in AG ¶ 21:

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.

Applicant’s pattern of drinking led him to develop a serious alcohol problem, as evidenced by his diagnosed alcohol dependency2 and his repeated relapses after treatment. By his late 30s, he was drinking every day. Realizing that he had a problem with alcohol, he underwent detoxification treatment followed by counseling for one month. He attended AA for six or seven years. He maintained abstinence from alcohol for 18 years, only to relapse in late October 2013 for a week on learning that he had to have surgery. In the immediate recovery phase following surgery in November 2013, he avoided alcohol, but by early 2014, he was again drinking, initially beer but progressing to vodka every day. After completing detoxification and outpatient treatment programs from September 2014 to March 2015 for diagnosed alcohol dependence, he resumed drinking in May 2015. He mostly drank on the weekends, two beers and a pint of vodka at a sitting. In June 2016, he entered a five-week inpatient rehabilitation program, where he was again diagnosed with alcohol dependence. Despite reengagement in counseling after his discharge, he again relapsed and has continued to drink since August 2016. As of his hearing in March 2017, he was drinking vodka and beer on the weekends and concealing his drinking from his spouse.

Some disqualifying conditions under AG ¶ 22 are established to a greater or lesser extent. Applicant’s consumption of alcohol on a daily basis before his counseling in 1995 and his consumption of a pint of vodka and a couple of beers at a sitting, at times daily, since early 2014, is sufficiently habitual to implicate disqualifying condition AG ¶ 22(c), “habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.” Even so, it has not been shown that he becomes intoxicated. He has no alcohol-related incidents at work or away from work. He exhibits impaired judgment primarily in continuing to drink in secret against clinical advice, in concealing his drinking from his spouse and counselors, and in not following treatment advice. AG ¶ 22(d), “diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder,” is established in that Applicant was diagnosed with alcohol dependence in October 2014 while he was under the care of a staff physician in the intensive outpatient program. Applicant was apparently also diagnosed as alcohol dependent during his five-week inpatient alcohol rehabilitation from June to July 2016, although treatment records, which could confirm that diagnosis, were not submitted in evidence.

Applicant fully satisfies none of the mitigating conditions under AG ¶ 23. Applicant has not managed a sustained period of abstinence since he resumed drinking in the fall of 2013 after 18 years of sobriety. While his drinking was primarily confined to weekends as of March 2017, the quantity consumed and the circumstances were similar to his drinking before his latest rehabilitation program. His persistent pattern of maladaptive alcohol use shows the seriousness of his alcohol problem and precludes a finding that excessive consumption is unlikely to recur under AG ¶ 23(a), which provides:

(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.

Some consideration is warranted of AG ¶ 23(b) and also AG ¶ 23(d) because of his voluntary rehabilitation efforts. These mitigating conditions provide:

(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 plan of modified consumption or abstinence in accordance with treatment recommendations.

Applicant is credited with voluntarily seeking treatment when he felt his drinking was out of control. His counseling in 1995, his detoxification and outpatient treatment from September 2014 to March 2015, and his recent inpatient rehabilitation program in the summer of 2016, are actions taken to overcome his alcohol problem under AG ¶ 23(b). Medical records show that he was an active participant in his intensive outpatient treatment program. No records from his inpatient rehabilitation program were submitted for my review. While I cannot speculate about the level of his participation in the inpatient program, there is no evidence that he was discharged prematurely for noncompliance with his treatment. However, one has to question the benefit of these treatment programs for Applicant. He relapsed into drinking in May 2015 only two months after completing six months of outpatient treatment. He continued to drink alcohol after his July 2015 OPM interview, knowing that he needed to abstain for his own health and that his drinking was of concern to the DOD. His drinking led to the five-week inpatient rehabilitation in the summer of 2016, at considerable personal expense, and yet he relapsed shortly after he returned home. As of March 2017, he was drinking a pint of vodka at a sitting, usually on the weekends but at times including some weekdays. He testified that he is an alcoholic, and yet he has not been honest about his drinking with his spouse or their marriage counselor. He concealed his ongoing drinking from the counselor who treated him from approximately August 2016 to December 2016. His alcohol consumption against clinical advice to abstain reflects a lack of rehabilitation. Applicant was advised to seek the support of self-help groups. His attendance at AA has been inconsistent, and he shows little adherence to its tenets. Despite the family strain and negative health impacts caused by his drinking, he lacks a present commitment to abstinence and appears to be unwilling to put in the work necessary for recovery. Applicant’s desire to retain his longtime employment with a defense contractor has not motivated him to change his behavior to overcome his serious alcohol problem. The alcohol consumption concerns are not 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 his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(d).3 In making the overall commonsense determination required under AG ¶ 2(a), Applicant has not allowed his drinking problem to adversely affect his work. Although he presented no character reference testimony or documentation showing the quality of his work, it may reasonably be inferred from his more than 40 years with the company that his work has been acceptable to his employer. The 2005 incident at work, which led to his treatment for anger management and a therapeutic relationship with a psychiatrist for diagnosed depression, appears to have been an isolated incident not related to alcohol.

Even so, Applicant has raised considerable doubts about his judgment, reliability, and trustworthiness by not taking the steps that he needs to minimize the risks posed by his serious alcohol problem. His ongoing drinking after multiple rehabilitation efforts presents an unacceptable security risk. His concealment from his spouse of his latest serious, ongoing relapse raises concerns of possible vulnerability to undue influence, coercion, or pressure. The Appeal Board has repeatedly held that the government need not wait until an applicant mishandles or fails to safeguard classified information before denying or revoking security clearance eligibility. See, e.g., ISCR Case No. 08-09918 (App. Bd. Oct. 29, 2009, citing Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969)). 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 v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990). For the reasons discussed, Applicant has raised enough doubt in that regard to where I am unable to conclude that it is clearly consistent with the national interest to continue his security clearance eligibility.

Formal Finding

Formal finding for or against Applicant on the allegation set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, is:

Paragraph 1, Guideline G: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________ Elizabeth M. Matchinski 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. 2In 1952, the American Psychiatric Association (APA) published the first of a series of Diagnostic and Statistical Manuals of Mental Disorders (DSM). In 2000, the APA published the DSM–IV–TR, which referenced diagnostic criteria for “alcohol abuse” and “alcohol dependence.” In May 2013, the APA issued the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5). DSM–5 integrates the two DSM–IV disorders, alcohol abuse and alcohol dependence, into a single disorder called alcohol use disorder (AUD) with mild, moderate, and severe sub-classifications. See the National Institute of Health, National Institute on Alcohol Abuse and Alcoholism’s publication, Alcohol Use Disorder: A Comparison between DSM–IV and DSM–5, which may be accessed at http://pubs.niaaa.nih.gov/publications/dsmfactsheet/dsm fact.pdf. 3 The factors under AG ¶ 2(d) are as follows:

(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.