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ISCR 16-01362.h1: Guideline G security clearance hearing, denied (2017) · CASE

ISCR Case 16-01362.h1denied

Case headnote

ISCR Case No. 16-01362.h1

deniedAug 1, 2017· Hon. Shari Dam· hearing

Summary

A 58-year-old male applicant was denied national security eligibility under Guideline G (Alcohol Consumption) due to a long history of excessive alcohol use. The Statement of Reasons alleged a pattern of alcohol problems and abuse, including multiple DUI arrests and drinking to intoxication.

Disqualifying conditions G.21(a), G.21(c), G.21(d), and G.21(f) were raised. The denial was based on the applicant's extensive history of consuming alcohol to the point of intoxication, marked by multiple DUI arrests. Despite some reduction in intake and positive supervisor evaluations, the applicant failed to establish a clear and consistent pattern of modified consumption or abstinence, as recommended by medical evaluations.

Specifically, the applicant did not follow advice to abstain from alcohol for one year after receiving an alcohol use disorder diagnosis. This failure to demonstrate a consistent change in behavior, coupled with the long history of abuse, led to the denial of his security clearance.

Why the applicant was denied

The applicant has a long history of alcohol consumption to the point of intoxication, including multiple DUI arrests.
He failed to demonstrate a clear and established pattern of modified consumption or abstinence as recommended by medical evaluations.
The applicant did not heed advice to abstain from alcohol for one year after being diagnosed with alcohol use disorder.

Conditions referenced

Disqualifying

G.21(a)raisedAlcohol-related Incidents Away From Work
G.21(c)raisedHabitual or Binge Consumption of Alcohol
G.21(d)raisedDiagnosis of Alcohol Use Disorder
G.21(f)raisedAlcohol Consumption Not in Accordance with Treatment Recommendations

Key rule quoted

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

Procedural posture

SOR issuedAug 2, 2016
Answer filedAug 29, 2016
Hearing heldJan 19, 2017
Decision dateAug 1, 2017

Cite for

Trustworthiness Concerns Related to Alcohol Consumption Under Guideline G
Failure to Demonstrate a Consistent Pattern of Abstinence From Alcohol
Impact of a Long History of Alcohol Abuse on National Security Eligibility

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: 58: “Applicant is 58 years old and married to his second wife since 1992.”
Tenure: ~16 years: “He has worked for federal contractors since 2001.”
Clearance at issue: Secret: “He held a secret security clearance from 1994 until 1998.”
Held a clearance before: Yes: “He held a secret security clearance from 1994 until 1998.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found that the applicant failed to mitigate concerns regarding his history of excessive alcohol consumption, which included multiple DUI arrests and a long-standing pattern of drinking to intoxication. The decision ultimately denied the applicant's request for national security eligibility due to unresolved trustworthiness issues related to alcohol consumption.

¶	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: ) ) ) ADP Case No: 16-01362 ) ) Applicant for Position of Trust )

For Government: Andre Gregorian, Esq., Department Counsel For Applicant: Dana Jacobson, Esq.

08/01/2017 ______________

STATEMENT OF CASE

______________

DAM, Shari, Administrative Judge:

Applicant failed to mitigate the alcohol trustworthiness concerns related to his history of excessive consumption. National security eligibility for a position of trust is denied.

Statement of the Case

On August 2, 2016, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns under Guideline G, Alcohol Consumption. The action was taken under DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the previous Adjudicative Guidelines (AG) effective on September 1, 2006. This decision applies the new AG that were implemented on June 8, 2017.1 Applicant answered the SOR in writing (Answer) on August 29, 2016, and requested a hearing before an administrative judge. On October 31, 2016, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me. On December 21, 2016, DOHA issued a Notice of Hearing setting the case for January 19, 2017. The case proceeded as scheduled. Department Counsel offered Government Exhibits (GE) 1 and 2 into evidence. Applicant testified, called one witness, and offered Applicant Exhibits (AE) A through C into evidence. All exhibits were admitted without objections. DOHA received the hearing transcript (Tr.) on January 27, 2017.

FINDINGS OF FACT

Applicant admitted all allegations in the SOR, except SOR ¶ 1.d, which he neither admitted nor denied on the basis that he had not reviewed the information. His response is construed as a denial. (Answer.) His admissions are incorporated into these findings of fact.

Applicant is 58 years old and married to his second wife since 1992. He adopted his wife’s son. He served in the Navy from November 1976 to November 1998, when he retired and received an honorable discharge. He held a secret security clearance from 1994 until 1998. He earned an associate’s degree in 2007, a bachelor’s degree in 2010, and a master’s degree in 2014. He has worked for federal contractors since 2001. (GE 1.)

Applicant has a history of alcohol problems and abuse. He admitted that he has consumed alcohol to excess and the point of intoxication from June 1980 to October 2010. While in the Navy, he was arrested for driving under the influence (DUI) four times: twice in 1980, once in 1981, and once in 1982. After his second DUI arrest in 1980, Applicant was ordered to complete an alcohol treatment program, which he was unable to finish because of mission requirements. Before his arrest in 1981, he drank about 12 beers while driving and crashed his car. He was subsequently required to attend and complete a 30-day alcohol treatment program, which he did. Before his 1982 arrest, he drank eight to ten beers while driving and again crashed his car. He was ordered to participate in a 90-day inpatient alcohol program and required to abstain from consuming alcohol. He completed the program and did not drink for those 90 days. (Tr. 47-49.)

Applicant admitted that between 1980 and 1982 he consumed 10 to 12 beers about twice a week. He was in his early 20’s at the time. He admitted that he also blacked- out from excessive alcohol consumption at least six times, the last time occurring in 2004. Between 1983 and 1986, Applicant consumed four to six beers once a month during weekend leave while on active duty and living on a ship. From 1986 to 1992, he drank six to eight beers three or four days a week. From 1992 to 1996, he consumed eight beers at one sitting during the holidays. (Tr. 49-50, 52, 59.)

During an October 22, 2010 interview with an investigator with another federal agency Applicant said that from 1997 until October 2010 he consumed ten beers on the last working day of the week at home. He said six beers intoxicate him. He told the investigator that he was intoxicated on October 18, 2010, the last day of the previous work week. (Tr. 50-52; GE 2.) From 2010 to October 2016, Applicant stated that he reduced the number of beers he consumed once a week from ten to four or six. (AE A.)

In March 2011, Applicant was evaluated by a psychological services department for another federal agency. During the evaluation, he admitted that he had been intoxicated 52 times during the prior year (2010), essentially once a week. Since 1996 he has been intoxicated once a week. Six beers make him inebriated. The evaluation concluded that Applicant met the criteria for a diagnosis of alcohol dependence, in sustained partial remission. The evaluation recommended that Applicant abstain from alcohol for one year to demonstrate a consistent pattern of abstinence and reduce his risk for disclosing classified or sensitive information. Applicant said he has never abstained from consuming alcohol for one year. (Tr. 53; GE 2.) The agency performing the evaluation denied Applicant’s application for access to specific information. (GE 2.)

In January 2017, Applicant participated in a psychiatric evaluation with a board- certified psychiatrist, who has a specialty in addictions medicine. The psychiatrist diagnosed him with an alcohol use disorder, in sustained partial remission. He noted that Applicant has demonstrated his ability to control his drinking and that no physician ever recommended that Applicant stop consuming alcohol. He noted that for the past five or six years Applicant reduced his consumption of beer from ten beers to four or six beers one day a week. He noted that there were no instances in which Applicant appeared intoxicated at work. Applicant told the psychiatrist that he had not consumed alcohol since the last week of October 2016, at which time he was preparing for hip surgery the following week in November 2016. The psychiatrist opined that based on his observation and Applicant’s medical and alcohol treatment history while in the Navy, Applicant does not pose a significant risk to national security. (Tr. 55; AE A.)

Applicant said he has not consumed alcohol since the last week in October 2016, at which time he had four beers at home. (Tr. 60.) He has not had alcohol since then because he is taking medications and undergoing physical therapy for his hip. (Tr. 58, 60.) He does not know if he will resume drinking alcohol, but “wouldn’t rule it out.” (Tr. 59.) The last time he was intoxicated was in August or September 2016, after consuming six beers at home at the end of his working week. He does not believe he has a drinking problem because he is able to manage it by limiting the amount he drinks to six beers, once a week at home. (Tr. 61, 74.) He has not received alcohol treatment since 1982, when he participated in the Navy’s inpatient program. (Tr. 62, 74.)

Applicant’s former supervisor testified. She has known Applicant for six or seven years and was his direct supervisor for three years. She saw him every day at work and at company events. She never observed him consume alcohol. She found him to be one of the top five analysts on her team. She has had no reason to question his fitness to perform his job. (Tr. 15-26.) Another former supervisor wrote that Applicant is “hard- working, dedicated and never leaves a job unfinished.” (AE B.) Applicant’s team assistant supervisor submitted a letter of recommendation. He has known Applicant for four years. He stated that there have not been any complaints against Applicant. He has found Applicant to be punctual and responsible. (AE C.)

POLICIES

When evaluating an applicant’s 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 national security eligibility.

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(d), describing the adjudicative process. The administrative judge’s overarching 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 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.

According to 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who seeks a position of trust 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 a position of trust. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information.

ANALYSIS

Guideline G: Alcohol Consumption

AG ¶ 21 sets out the trustworthiness 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 four conditions that could raise trustworthiness concerns 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;

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

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or license clinical social worker) of alcohol use disorder; and

(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder.

While in the Navy, Applicant was arrested and convicted of DUI four times: twice in 1980, once in 1981, and once in 1982. Between 1983 and 1996, he consistently consumed between four to eight beers either once a week or once a month to the point of intoxication. From 1997 to October 2010, he admitted being intoxicated once a week after consuming 10 beers at home. From October 2010 to October 2016, he reduced his consumption to four to six beers once a week. He has had at least six blackouts in his life, the last one occurred in 2004. In March 2011, a psychological services department diagnosed Applicant with alcohol dependence, in sustained remission. It recommended that he abstain from alcohol for at least one year. In January 2017, a psychiatrist diagnosed him with alcohol use disorder, in sustained partial remission. Applicant continued to consume alcohol until the end of October 2016, at which time he was preparing for hip surgery. The evidence established the above disqualifying conditions.

AG ¶ 23 provides conditions that could mitigate the 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;

(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.

Applicant has a 37-year history of consuming alcohol to the point of intoxication, spanning from 1980 to October 2016. Insufficient time has passed to determine whether Applicant’s pattern of drinking to intoxication will recur. The evidence does not establish mitigation under AG ¶ 23(a).

Applicant does not believe that he has a problem with alcohol because he controls his consumption by limiting the number of beers he drinks and only consumes them once a week at home. Although he has decreased the number of beers he consumes since October 2010 (from ten to six), he continues to consistently drink to the point of intoxication, which is not construed as modified consumption under these guidelines. The evidence does not establish mitigation under AG ¶ 23(b).

Applicant completed a 90-day alcohol treatment program in 1982. The record does not contain any information about that program. It is unknown whether he participated in an alcohol evaluation, received a diagnosis, or was discharged with aftercare recommendations that he followed. He is not currently participating in counseling or a treatment program. There is insufficient evidence to establish mitigation under AG ¶ 23(c) or AG ¶ 23(d).

WHOLE PERSON CONCEPT

AG ¶ 2(a) requires an administrative judge to evaluate an applicant’s national security eligibility by considering the totality of the applicant’s conduct and all relevant circumstances, commonly referred to as the whole-person concept. Under AG ¶ 2(c) the ultimate determination of whether to grant eligibility for a position of trust must include an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. The administrative judge should consider the following nine adjudicative process factors listed at AG ¶ 2(d) in making that decision:

(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.

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 58-year-old man, who honorably served in the military for 22 years. Since 2004, he has successfully worked for defense contractors, as documented by his former supervisor and two letters of recommendation. These are persuasive factors in the analysis of the whole person.

However, Applicant has a long history of consuming alcohol to the point of intoxication. Although he has not been arrested for any alcohol-related crime since 1982 and asserted that his last black-out was in 2004, his consistent weekly pattern of drinking to the point of becoming intoxicated is concerning.

In March 2011, after being evaluated for alcohol issues and diagnosed with an alcohol abuse disorder, in sustained partial remission, Applicant was advised to abstain from consuming alcohol for one year, in order to reduce his risk of releasing classified or sensitive information. The agency that requested the evaluation subsequently denied him eligibility to its program as a consequence of his history of alcohol problems.

Applicant did not heed that advice and made a decision to continue consuming alcohol to the point of intoxication once a week up to the last week in October 2016. Applicant’s current psychiatric evaluation diagnosed him with an alcohol use disorder, in sustained partial remission. The psychiatrist concluded that based on Applicant’s treatment in 1982 and his ability to control his drinking when he chooses, he does not pose “a significant risk to national security.” I disagree. While Applicant may not pose a “significant risk” in handling sensitive information as a consequence of his managed drinking, the AG mandates that the standard for determining national security eligibility for a position of trust is whether it is clearly consistent with the national interest to grant a favorable decision. In this case, the answer is no. Managing one’s repeated consumption of alcohol to the point of intoxication is not an acceptable risk or in the national interest.

The record evidence leaves me with serious questions as to Applicant’s eligibility for a position of trust. He failed to mitigate the trustworthiness concerns arising under the guideline for alcohol consumption.

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.i: 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 national security eligibility. Applicant’s request for a position of trust is denied.

_________________ SHARI DAM Administrative Judge

FOOTNOTES

1 I considered the previous AG, as well as the new AG. This decision would be the same if the case was decided under the previous AG.