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ISCR 16-01427.h1: Guideline G security clearance hearing, granted (2017) · CASE

ISCR Case 16-01427.h1granted

Case headnote

ISCR Case No. 16-01427.h1

grantedAug 15, 2017· Hon. Carol G. Ricciardello· hearing

Summary

A 41-year-old federal contractor was granted a security clearance despite concerns under Guideline G (Alcohol Consumption). The Statement of Reasons cited two public intoxication citations: one in August 2011 and another in March 2016. These incidents raised disqualifying conditions G.22(a) and G.22(c).

However, the applicant demonstrated significant mitigating factors. He acknowledged past alcohol abuse and showed a substantial reduction in his alcohol consumption since the first incident. Furthermore, he complied with all legal requirements following both citations.

The judge found no evidence to contradict the applicant's claims of modified behavior and reduced consumption. Based on the demonstrated changes and compliance, mitigating conditions G.23(a) and G.23(b) were applied, leading to the granting of the security clearance.

Why the applicant prevailed

The applicant reduced his alcohol consumption significantly since the first incident.
He acknowledged past alcohol abuse and complied with legal requirements following his citations.
The judge found no contradictory evidence to the applicant's claims of modified behavior.

Conditions referenced

Disqualifying

G.22(a)raisedAlcohol-related Incidents Away From Work
G.22(c)raisedHabitual or Binge Consumption of Alcohol

Mitigating

G.23(a)appliedBehavior Infrequent or Unlikely to Recur
G.23(b)appliedAcknowledgment of Alcohol Use and Evidence of Modified Consumption

Key rule quoted

“The ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.”

Procedural posture

SOR issuedJun 28, 2016
Answer filedJul 14, 2016
Hearing held—Decided on the written record.
Decision dateAug 15, 2017

Cite for

Mitigation of Alcohol-related Security Concerns Under Guideline G
Consideration of the Whole-person Concept in Security Clearance Decisions
Impact of Reduced Alcohol Consumption on Eligibility for 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: 41: “Applicant is 41 years old.”
Tenure: ~8 years: “He has worked for his present employer, a federal contractor, since 2009.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: grantedTREATMENT COMPLETED · FAVORABLE

The judge found that the applicant mitigated the security concerns related to alcohol consumption under Guideline G. The applicant had two instances of public intoxication but demonstrated a significant reduction in alcohol consumption since those incidents, leading to a favorable decision.

¶	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: ) ) ) ISCR Case No. 16-01427 ) ) Applicant for Security Clearance

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

08/15/2017 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant mitigated the security concerns under Guideline G, alcohol consumption. Eligibility for access to classified information is granted.

Statement of the Case

On June 28, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G, alcohol consumption. 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 (AG) effective within the DOD on September 1, 2006. On June 8, 2017, new AG were implemented and are effective for decisions issued after that date.1 Applicant answered the SOR on July 14, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s file of relevant material (FORM). Applicant received it on September 27, 2016. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. The Government’s evidence is identified as Items 1 through 4. Applicant responded to the FORM and provided a document that is marked Applicant Exhibit (AE) A. There were no objections by either side and all evidence was admitted. The case was assigned to me on June 3, 2017.

FINDINGS OF FACT

Applicant admitted both allegations in the SOR. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact.

Applicant is 41 years old. He received a bachelor’s degree in 2008. He is not married. He has worked for his present employer, a federal contractor, since 2009.2

Applicant disclosed on his February 2014 security clearance application that he was arrested in August 2011 and received a citation for public intoxication. During his March 2014 interview with a government investigator, Applicant explained that he had consumed alcohol at a bar with friends. He left the bar between midnight and 2:00 a.m., when he was asked by a police officer if had been drinking. He said yes and was arrested for public intoxication. He spent the night in jail and went before a judge in the morning, pleaded guilty, was ordered to pay a fine, which he did, and the matter was resolved. He reported this incident to his security manager.3

Applicant told the investigator that he consumes alcohol about two to three times a week, with friends at home, alone, or with friends going out. Depending upon the occasion, he will consume between 2 and 10 drinks, and he estimated he was intoxicated once every two to three months. He has never undergone alcohol-related treatment and did not consider himself to be dependent on alcohol. Since this arrest, he intended to lower the number of drinks he consumed.4

Applicant was arrested in about March 2016 and received another citation for public intoxication. Applicant notified his security manager of the arrest. The court fined him and entered a deferred disposition regarding the offense. He was advised that if he stayed out of trouble for 90 days, the charge would be dismissed and removed from his criminal record. Applicant complied with the terms of the disposition.5 In his response to the FORM, Applicant said since his interview in 2014 he has reduced the amount of alcohol he consumed weekly. He typically drinks one to two times a week. He said that the only time he had been intoxicated since his 2014 citation was when he received the March 2016 citation. He admitted that there were some instances of alcohol abuse in his past, but they have been infrequent, and he has significantly reduced his consumption since the first incident.6

POLICIES

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

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

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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

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

Section 7 of 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

AG ¶ 21 expresses the security concern for alcohol consumption:

Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.

AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying. I find the following to be potentially applicable:

(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 received citations in 2014 and 2016 for public intoxication. The above disqualifying conditions apply.

The guideline also includes conditions that could mitigate security concerns arising from alcohol consumption. I have considered the following mitigating conditions under AG ¶ 23:

(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; and (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.

Applicant received citations in 2014 and 2016 for public intoxication. After the first incident, he stated he reduced his alcohol consumption, and the only time since then that he was intoxicated was two years later when he received the second citation. There is no contradictory evidence. Applicant acknowledged that there were instances of alcohol abuse in his past, but that he has significantly reduced his consumption. I find his behavior was infrequent, and at this time, does not rise to the level of raising a security concern. AG ¶¶ 23(a) and 23(b) apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(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) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline G in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but some warrant additional comment.

Applicant is 41 years old and has worked for a federal contractor since 2009. He received two citations for public intoxication, once in 2014 and once in 2016. He acknowledged that in the past he abused alcohol, but has reduced his consumption since 2014. However, it is apparent that Applicant makes poor decisions when he consumes alcohol, and is on notice that future misconduct involving alcohol may raise additional questions about his reliability, trustworthiness, and judgment. The record evidence leaves me with no questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under Guideline G, alcohol consumption.

FORMAL FINDINGS

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

Paragraph 1, Guideline G: FOR APPLICANT

Subparagraphs 1.a-1.b: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

_____________________________ Carol G. Ricciardello 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 considered under the previous AG. 2 Item 2. 3 Items 1, 2, 3, 4. 4 Item 3. 5 AE A. 6 AE A.