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ISCR Case 16-01397.h1 — CASE

ISCR Case 16-01397.h1denied

Case Headnote

ISCR Case No. 16-01397.h1

deniedOct 11, 2017· Hon. Michael H. Leonard· hearing

Summary

A 57-year-old assembly technician was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a long history of alcohol-related incidents, specifically multiple arrests and charges for driving under the influence (DUI) between 1979 and 2015.

The Statement of Reasons detailed six DUI arrests and charges in 1979, 1989, 1992, 2000, 2014, and 2015. Additionally, the applicant failed to disclose these multiple DUI arrests and charges on his September 2015 security clearance application and was non-compliant with a court mandate following his 2015 DUI conviction.

Despite admitting to most allegations, the applicant did not provide reliable evidence of reform or rehabilitation regarding his alcohol use. The decision concluded that no mitigating conditions were applicable due to an ingrained pattern of behavior, and the lack of evidence of reform raised serious doubts about his judgment and trustworthiness, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant has a long history of alcohol-related incidents, including multiple DUIs over 30 years.
No mitigating conditions were applicable due to the ingrained pattern of behavior.
Lack of reliable evidence of reform or rehabilitation raised serious doubts about his judgment and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol
AG ¶ 31(a)raisedPattern of Minor Offenses
AG ¶ 31(b)raisedEvidence of Criminal Conduct
AG ¶ 31(c)raisedCurrently on Parole or Probation

Key Rule Quoted

“the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedJun 29, 2016
Answer filedAug 2, 2016Applicant requested a decision based on the written record.
Hearing held—No hearing; decision based on written record.
Decision dateOct 11, 2017

Cite For

Denial Based on Long-standing Alcohol-related Incidents Under Guideline G
Lack of Mitigating Conditions Due to Ingrained Patterns of Behavior
Importance of Demonstrating Rehabilitation for Security Clearance 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant did not intentionally falsify his security clearance application regarding his history of DUI arrests. The judge ruled in favor of the applicant on the personal conduct allegations, specifically finding that the applicant's failure to disclose his DUI history was not deliberate. However, one allegation was withdrawn, and the overall decision was against the applicant due to other guidelines.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant failed to disclose his multiple DUI arrests and charges on his September 2015 security clearance application.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	—	—
3.b	specific text not stated in this decision	Withdrawn	Unspecified Personal Conduct	—	Unknown	—	—	—

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

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 long history of DUI arrests from 1979 to 2015. The applicant's pattern of behavior raised significant concerns regarding his reliability and trustworthiness, leading to a denial of his security clearance application.

¶	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 charges for driving under the influence (DUI) from 1979 to 2015.	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	—	—
1.b	The applicant was arrested and charged with DUI in 1979, 1989, 1992, 2000, 2014, and 2015.	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	—	—
1.c	The applicant was non-compliant with a court mandate following his 2015 DUI conviction.	Against Applicant	Treatment Non Compliance	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.d	specific text not stated in this decision	Withdrawn	Unspecified Alcohol Incident	Unknown	—	—	—
1.e	The applicant has not provided reliable evidence of reform and rehabilitation regarding his alcohol use.	Against Applicant	Unspecified Alcohol Incident	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.f–1.i	4 sub-charges — specific text not stated in this decision (against the applicant). (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 ruled against the applicant regarding criminal conduct concerns, specifically citing a pattern of multiple DUI arrests from 1979 to 2015. The applicant failed to provide sufficient evidence to mitigate the security concerns stemming from this ingrained pattern of behavior.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	The applicant has a history of alcohol-related incidents from 1979 to 2015; namely, arrests and charges for DUI.	Against Applicant	DUI or DWI Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

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. 16-01397 ) ) Applicant for Security Clearance

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se

10/11/2017 ______________

STATEMENT OF CASE

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny or revoke his eligibility for access to classified information. He did not present sufficient evidence to explain, extenuate, or mitigate the security concern stemming from an ingrained pattern of failure to conform his behavior to the law, as shown by multiple arrests and charges for driving under the influence of alcohol (DUI) from 1979 to 2015. Accordingly, this case is decided against Applicant.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on September 16, 2015.1 This document is commonly known as a security clearance application. Thereafter, on June 29, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information. The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guidelines known as Guideline G for alcohol consumption, Guideline J for criminal conduct, and Guideline E for personal conduct.

Applicant answered the SOR on August 2, 2016. He requested a decision based on the written record in lieu of a hearing. His response consisted of handwritten responses on a copy of the SOR in which he admitted most of the allegations and several enclosures.

On September 22, 2016, Department Counsel submitted all relevant and material information that could be adduced at a hearing. The file of relevant material (FORM) consists of Department Counsel’s written brief and supporting documentation, some of which are identified as evidentiary exhibits in this decision. The FORM was mailed to Applicant, who received it January 12, 2017. He did not reply to the FORM within 30 days of receipt of the FORM. The case was assigned to me October 1, 2017.

PROCEDURAL MATTERS

In the FORM, Department Counsel withdrew the allegations found at SOR ¶¶ 1.d (concerning a 1993 DUI arrest and charge) and 3.b (concerning a false statement during a December 2015 background investigation). Those allegations will be decided accordingly.

Department Counsel’s FORM includes Exhibit 6, which are reports of investigation (ROI) summarizing Applicant’s interviews that took place during background investigations in August 2010, November 2010, and December 2015. The ROI are not authenticated by a witness, as required under ¶ E3.1.20 of the Directive.2 Likewise, Section 5(a) of Executive Order 10865 prohibits receipt and consideration of “investigative reports” without authenticating witnesses. The Directive provides no exception to the authentication requirement. Indeed, the authentication requirement is the exception to the general rule that prohibits consideration of an ROI.

Department Counsel’s written brief includes a footnote advising Applicant that the ROI was not authenticated and that failure to object may constitute a “waiver” of the authentication requirement. In my view, Department Counsel is conflating or confusing the terms waiver and forfeiture.3 In the law of evidence, errors are preserved by timely objections, and relief on appeal is granted from a preserved error unless it is harmless (the harmless-error doctrine). Waiver is the voluntary relinquishment or abandonment of a legal right or advantage. With a waiver, there is no error to correct on appeal and no relief to grant. On the other hand, failure to make a timely objection usually forfeits any error, and relief on appeal is appropriate from a forfeited error only upon a showing that the error was plain, obvious, and prejudicial (the plain-error doctrine).

The written record does not demonstrate that Applicant, who has not replied to the FORM, understood the concepts of authentication, waiver, and admissibility. It also does not demonstrate that he understood the implications of waiving an objection. Accordingly, given the lack of an authenticating witness, I have not considered the ROI in reaching my decision.

FINDINGS OF FACT

Applicant is a 57-year-old employee who requires a security clearance for his job as an assembly technician for a federal contractor. He has been so employed since November 2000. His educational background includes associate’s degrees awarded in 2006 and 2009. He is twice divorced and has an adult son.

The SOR alleges and Applicant admits a history of alcohol-related incidents from 1979 to 2015; namely, arrests and charges for DUI. He admits, or the written record establishes, arrests and charges for DUI in 1979, 1989, 1992, and 2000. In 2003, another administrative judge made an unfavorable clearance decision against Applicant, and that decision was affirmed in 2004 by the Appeal Board.4 The unfavorable decision was based on four arrests between 1989 and 2000, three for alcohol-related offenses; the use and purchase of cocaine during 1994-1998; a $36,000 child-support arrearage; and the deliberate falsification of answers to four questions on his April 2000 security clearance application.

Applicant was also arrested and charged with DUI in 2014 and 2015. For the 2015 incident, court records show that in August 2015 he pleaded no contest to driving under the influence while his blood alcohol level was 0.08% or more while the actual DUI offense was dismissed via a plea negotiation; he received a conditional sentence for a term of three years, 90 days jail, was ordered to attend and complete a three- month level 1 alcohol program; and was ordered to pay $853 in fees and costs.5 Court records also indicate that that he was non-compliant with a court mandate in October 2015 following the conviction.6

In Applicant’s September 2015 security clearance application, he answered “No” to a question about his police record as follows: “Have you ever been charged with any offense(s) related to drugs and alcohol. In his answer to the SOR, he explained that he did not disclose his multiple DUI arrests and charges because he had notified his employer’s security office of those matters, and he knew that the Defense Department had access to such information. After considering all the evidence, including his previous unfavorable clearance decision, I find insufficient evidence for a determination that Applicant intentionally falsified his September 2015 security clearance application when he failed to disclose his history of DUI arrests and charges. Accordingly, given that finding, the falsification allegation under Guideline E is not discussed further herein.

Law and Policies

This case is adjudicated under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), effective June 8, 2017.7

It is well-established law that no one has a right to a security clearance.8 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”9 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security. In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.10 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.11

A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.12 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.13 There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.14 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.15 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.16 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.17

DISCUSSION

The alcohol consumption and criminal conduct matters are discussed together because they based largely on the same set of facts and circumstances. In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions as most pertinent under Guidelines G and J, respectively:

AG ¶ 22(a) alcohol-related incidents away from work, such as driving 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;

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;

AG ¶ 31(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness;

AG ¶ 31(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted; and

AG ¶ 31(c) the individual is currently on parole or probation.

The evidence supports a conclusion that Applicant has a history of alcohol- related incidents away from work ending with criminal arrests and charges. His history includes multiple incidents dating back to 1979 and as recent as 2015, a period of more than 30 years. He is currently under a conditional sentence for three years until August 2018 for his 2015 alcohol-related conviction. Taken together, his history of alcohol- related incidents constitutes an ingrained pattern of failure to conform his behavior to the law, which suggests he is not a good candidate for eligibility for access to classified information.

Turning next to mitigation, I recited no mitigating conditions above because none are applicable. Applicant has a serious problem with alcohol. This is readily established by his multiple arrests and charges for DUI over a period of many years. In other words, this was not an isolated incident, and this wasn’t a problem for a limited period of time. Moreover, what is missing here is reliable evidence of reform and rehabilitation. Without such evidence, I can only presume that Applicant will continue to drink and drive, resulting in yet another arrest and charge for DUI or some other alcohol-related offense.

Applicant’s long-standing history of alcohol-related incidents away from work creates serious doubt about his reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also considered the whole-person concept. Accordingly, I conclude that he did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant his eligibility for access to classified information.

FORMAL FINDINGS

The formal findings on the SOR allegations are:

Paragraph 1, Guideline G: Against Applicant Subparagraphs 1.a-1.c: Against Applicant Subparagraph 1.d: Withdrawn Subparagraphs 1.e-1.i: Against Applicant

Paragraph 2, Guideline J: Against Applicant Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline E For Applicant Subparagraph 3.a: For Applicant Subparagraph 3.b: Withdrawn

CONCLUSION

In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information.

Michael H. Leonard Administrative Judge

FOOTNOTES

1 Exhibit 3. 2 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan notes the historical concern about reports of investigation in that they were considered by some to present a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.). 3 See United States v. Olano, 507 U.S. 725 (1993) (in this opinion, the Supreme Court distinguishes between forfeiture and waiver). 4 Exhibits 12 and 13. 5 Exhibit 9. A conditional sentence means “[a] sentence of confinement if the convicted criminal fails to perform the conditions of probation.” Black’s Law Dictionary 1485 (Bryan A. Garner ed., 9th ed., West 2009). 6 Exhibit 10. 7 The 2017 AG are available at http://ogc.osd.mil/doha. 8 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 9 484 U.S. at 531. 10 484 U.S. at 531. 11 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 12 Directive, ¶ 3.2. 13 Directive, ¶ 3.2. 14 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 15 Directive, Enclosure 3, ¶ E3.1.14. 16 Directive, Enclosure 3, ¶ E3.1.15. 17 Directive, Enclosure 3, ¶ E3.1.15.