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ISCR Case 07-15660.h1 — CASE

ISCR Case 07-15660.h1denied

Case Headnote

ISCR Case No. 07-15660.h1

deniedNov 18, 2008· Hon. Joseph Testan· hearing

Summary

A 51-year-old defense contractor employee was denied a security clearance due to concerns under Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The applicant's history included excessive absenteeism and tardiness, leading to job terminations.

Specific issues included a November 2005 arrest and conviction for Driving Under the Influence (DUI), for which he was fined and ordered to attend alcohol counseling. Additionally, the applicant intentionally provided false material information on his e-QIP, a felony under 18 U.S.C. 1001, by failing to disclose prior drug use. This pattern of conduct, including drug abuse and alcohol-related incidents, raised significant doubts about his reliability and trustworthiness.

While some mitigating conditions were considered for drug involvement and alcohol consumption, the judge found the applicant's uncorroborated statements of reform insufficient to address the security concerns. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had a history of excessive absenteeism and tardiness, resulting in job terminations.
The applicant was convicted of DUI and failed to disclose prior drug use on his e-QIP, demonstrating dishonesty.
The applicant's statements of reform were uncorroborated and insufficient to mitigate security concerns.

Conditions Referenced

Disqualifying

J.31.araisedCriminal Conduct
J.31.craisedCriminal Conduct
H.25.araisedDrug Involvement
G.22.araisedAlcohol Consumption
E.16.araisedPersonal Conduct
E.16.craisedPersonal Conduct

Mitigating

H.26.aappliedDrug InvolvementThe applicant's cocaine use occurred over five years ago and was linked to a specific circumstance.
G.23.aappliedAlcohol ConsumptionThe applicant has not consumed alcohol excessively since his DUI in 2005.

Key Rule Quoted

“Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security.”
— Directive, Paragraph E2.2.2.

Procedural Posture

SOR issuedJun 23, 2008
Answer filedJul 16, 2008
Hearing held—Applicant represented himself.
Decision dateNov 18, 2008

Cite For

Disqualifying Conditions Related to Criminal Conduct Under Guideline J
Mitigating Conditions for Drug Involvement and Alcohol Consumption
Impact of Dishonesty on Security Clearance Eligibility Under Guideline E

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 against the applicant on the personal conduct allegations, specifically noting intentional falsification of information on the e-QIP and a pattern of questionable judgment. The applicant failed to mitigate the security concerns associated with his personal conduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant intentionally provided false material information on the e-QIP.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	—	—	—
2.b	Applicant's poor job history, use of cocaine, DUI conviction, and falsification of the e-QIP raise disqualifying conditions.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—

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 that the applicant's alcohol consumption raised security concerns, particularly due to a DUI conviction and prior alcohol abuse. Despite some mitigating factors related to the time elapsed since the incidents, the overall assessment led to a ruling against the applicant regarding alcohol consumption.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
3.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 whether the individual is diagnosed as an alcohol abuser or alcohol dependent.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
3.b–3.d	3 sub-charges — specific text not stated in this decision (rulings shown).	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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement raised significant security concerns, particularly due to his past cocaine use. Despite some mitigating factors, the overall assessment led to a decision against the applicant regarding his eligibility for a security clearance under Guideline H.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
4.a	any drug abuse	Against Applicant	Cocaine	Not Applicable	Unknown	—	—	—
4.b	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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 on the criminal conduct allegations under Guideline J, citing a DUI conviction and intentional misrepresentation on a security questionnaire as disqualifying factors. The applicant's claims of reform were not sufficiently corroborated to mitigate the security concerns raised by his criminal history.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	November 2005, applicant was arrested and charged with Driving Under the Influence of Alcohol (DUI). He was convicted of the charge, fined, and ordered to enroll in an alcohol counseling program.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	Applicant intentionally misrepresented material facts on the 2005 e-QIP (a felony under 18 U.S.C. 1001).	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (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. 07-15660 SSN:----------- ) ) Applicant for Security Clearance )

For Government: Paul M. DeLaney, Department Counsel For Applicant: Pro Se

November 18, 2008

______________

STATEMENT OF CASE

______________

TESTAN, Joseph, Administrative Judge:

On June 23, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to applicant detailing the security concerns under Guidelines J, E, G and H. The action was taken under Executive Order 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 revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant answered the SOR in writing on July 16, 2008, and requested an Administrative Determination by an Administrative Judge (AJ). Department Counsel issued a File of Relevant Material (FORM) on August 19, 2008. Applicant filed a response to the FORM on September 4, 2008. The case was assigned to me on October 21, 2008. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

Applicant is a 51 year old employee of a defense contractor.

In 1996, applicant was fired from job as a lab technician because of excessive absenteeism and tardiness.

In 2000, applicant left his employment after being warned in writing about excessive absenteeism and tardiness.

In 2001, applicant was fired from his defense contractor job, and his security clearance was revoked, after admitting during an investigation that he may have left an object inside a satellite while working on a space launch program.

In 2002, applicant went to an emergency room of a hospital complaining of depression and insomnia. He was evaluated for auditory and visual hallucinations. During his intake examination, he admitted that he had used cocaine and abused alcohol three days earlier.

In November 2005, applicant was arrested and charged with Driving Under the Influence of Alcohol (DUI). He was convicted of the charge, fined, and ordered to enroll in an alcohol counseling program. In response to interrogatories sent to him by DOHA in December 2007, applicant stated he attended six weeks of counseling and eight AA meetings as a result of the court’s order. He further stated that he was last intoxicated in November 2005, he last consumed alcohol in December 2007 at a wedding, and he does not intend to consume alcohol anymore.

Applicant completed an Electronic Questionnaire for Investigations Processing (e-QIP) in August 2005. In response to Question 24, applicant denied any illegal drug use during the previous seven years. This response was false because, as noted above, he had used cocaine in 2002.

POLICIES

The President has “the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information.” (Department of the Navy v. Egan, 484 U.S. 518,527 (1988).) In Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), the President set out guidelines and procedures for safeguarding classified information within the executive branch. The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” (Exec. Ord. 10865, Section 2.)

To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to classified information. (Directive, Paragraph E3.1.14.) Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. (Directive, Paragraph E3. 1.15.) An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” (ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).) “Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security.” (Directive, Paragraph E2.2.2.)

A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. (Exec. Ord. 10865, Section 7.) It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.

ANALYSIS

Guideline J, Criminal Conduct

The security concern for criminal conduct is set forth in Paragraph 30 of the AG, and is as follows:

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.

Paragraph 31 describes conditions that could raise a security concern and may be disqualifying: Under Paragraph 31.a., “a single serious crime or multiple lesser offenses” may be disqualifying. And, under Paragraph 31.c., an “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted,” may be disqualifying. Applicant’s DUI conviction and intentional misrepresentation of material facts on the 2005 e-QIP (a felony under 18 U.S.C. 1001) raise these two disqualifying conditions.

Paragraph 32 of the AG sets forth conditions that could mitigate security concerns. I have considered each of them and conclude none apply.

Guideline H: Drug Involvement

The security concern for drug involvement is set forth in Paragraph 24 of the AG, and is as follows:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Paragraph 25 describes conditions that could raise a security concern and may be disqualifying. Under Paragraph 25.a., “any drug abuse” may be disqualifying. Applicant’s cocaine use raises this disqualifying condition.

Paragraph 26 of the AG sets forth conditions that could mitigate security concerns. Under Paragraph 26.a., it may be mitigating if “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment.” Applicant’s isolated incident of cocaine use occurred over five years ago when he was depressed over losing his job. This mitigating condition is applicable.

Guideline G: Alcohol Consumption

The security concern for alcohol consumption is set forth in Paragraph 21 of the AG, and is as follows:

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.

The AG note several conditions that could raise a security concern. Under Paragraph 22.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 whether the individual is diagnosed as an alcohol abuser or alcohol dependent,” may be disqualifying. Applicant’s DUI conviction and abuse of alcohol immediately prior to his 2002 visit to the hospital emergency room require application of this disqualifying condition.

Paragraph 23 of the AG sets out potentially mitigating conditions. Under Paragraph 23.a., it may be mitigating if “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.” It has been over five years since the emergency room visit, and almost three years since applicant’s DUI arrest, and there is no evidence he has consumed alcohol to excess since November 2005. This mitigation condition is applicable.

Guideline E, Personal Conduct

The security concern relating to the guideline for Personal Conduct is set forth in Paragraph 15 of the AG, and is as follows:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. Paragraph16 describes conditions that could raise a security concern and may be disqualifying. Under Paragraph 16.a., the “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities,” may be disqualifying. This disqualifying condition is applicable because applicant intentionally provided false material information on the e-QIP. Under Paragraph 16.c., “credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information,” may be disqualifying. Applicant’s poor job history, use of cocaine, DUI conviction, and falsification of the e-QIP raise this disqualifying condition.

Paragraph 17 sets forth conditions that could mitigate security concerns. I considered each of them and conclude none apply.

“Whole Person” Analysis

Under the whole person concept, the AJ must evaluate an applicant’s security eligibility by considering the totality of the applicant’s conduct and all the circumstances. An AJ should consider the nine adjudicative process factors listed at AG Paragraph 2(a): “(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.” Under AG Paragraph 2c, the ultimate determination of whether to grant a security clearance must be an overall common sense 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. Applicant is a mature man with a history of employment difficulties, alcohol abuse, illegal drug use, and dishonesty. Although his statements in response to the SOR and FORM indicate that he accepts responsibility for his actions and has started to straighten out his life, these uncorroborated statements of reform cannot be given much weight in view of his intentional falsification of material facts on the e-QIP. Applicant failed to mitigate the security concerns arising from the four guidelines.

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 J: AGAINST APPLICANT Paragraph 2, Guideline E: AGAINST APPLICANT Paragraph 3, Guideline G: AGAINST APPLICANT Paragraph 4, Guideline H: AGAINST APPLICANT

CONCLUSION

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

JOSEPH TESTAN Administrative Judge