CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 08-02233.h1 — CASE

ISCR Case 08-02233.h1denied

Case Headnote

ISCR Case No. 08-02233.h1

deniedSep 26, 2008· Hon. John Grattan Metz, Jr.· hearing

Summary

This case concerns a 23-year-old systems administrator whose security clearance was denied due to concerns under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant had a history of excessive alcohol consumption and drug use, with specific allegations including three alcohol-related incidents between October 2003 and October 2007. The most recent incident was an October 2007 DUI arrest, which was resolved in June 2008.

The applicant was diagnosed with alcohol abuse in January 2008. While mitigating conditions were applied for drug involvement, the applicant failed to mitigate the security concerns related to his alcohol abuse. The decision noted a lack of a program, track record, or prognosis to demonstrate that his alcohol problems were resolved.

Ultimately, the security clearance was DENIED. The denial was based on the applicant's history of excessive alcohol consumption, including multiple DUI incidents, and his failure to demonstrate a pattern of abstinence or responsible alcohol use. The resolution of his most recent alcohol-related charges shortly before the hearing was also a factor.

Why the Applicant Was Denied

The applicant has a history of excessive alcohol consumption, including multiple DUI incidents.
The applicant failed to demonstrate a pattern of abstinence or responsible use of alcohol.
The applicant's most recent alcohol-related charges were resolved shortly before the hearing.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents Away From Work
G.2.craisedHabitual or Binge Consumption of Alcohol
H.2.araisedAny Drug Abuse
J.2.araisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

H.2.bappliedDemonstrated Intent Not to Abuse Drugs in the Future

Key Rule Quoted

“The government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedJun 17, 2008
Answer filedJul 7, 2008
Hearing heldAug 26, 2008
Decision dateSep 26, 2008

Cite For

Disqualification Due to Recent and Frequent Alcohol-related Incidents Under Guideline G
Mitigating Factors for Drug Use Under Guideline H
The Government's Compelling Interest in Ensuring Applicant Reliability and Trustworthiness

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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found multiple alcohol-related incidents in the applicant's history, including DUIs and public intoxication, which raised significant security concerns. The applicant's failure to demonstrate a pattern of responsible alcohol use or successful treatment led to a ruling against him under Guideline G.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of excessive alcohol consumption, punctuated by three alcohol-related incidents between October 2003 and October 2007.	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 most recent incident, an October 2007 DUI (.10 % B.A.C.) arrest that was still pending when the SOR was drafted, was resolved 27 June 2008.	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	Applicant has a history of alcohol abuse, and was diagnosed with alcohol abuse in January 2008.	Against Applicant	Alcohol Use Disorder Diagnosed	Admitted	(e) failure to follow treatment advice once diagnosed	—	—
1.d	Applicant failed to mitigate the security concerns related to his alcohol abuse.	Against Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
1.e	Applicant lacks the kind of program, track record, and prognosis that would demonstrate that his alcohol problems are behind him.	Against Applicant	Unspecified Alcohol Incident	Unknown	—	—	—

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 had a history of drug abuse, specifically frequent marijuana use and occasional use of prescription painkillers. However, the applicant demonstrated a two-year period of abstinence from drug use, which mitigated the security concerns. The judge concluded that the applicant is unlikely to use illegal drugs in the future, resulting in a favorable decision under Guideline H.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a–2.c	3 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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 found that the government established a case for disqualification under Guideline J due to the applicant's alcohol-related criminal conduct and illegal drug use. However, the judge ultimately resolved Guideline J in favor of the applicant, indicating that the criminal nature of his conduct did not significantly impact his fitness for access to classified information.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

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. 08-02233 ) SSN: ) Applicant for Security Clearance )

For Government: John B. Glendon, Esquire, Department Counsel For Applicant: Pro se

September 26, 2008 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

On 17 June 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines G, H, and J. Applicant answered the SOR 7 July 2008, and requested a hearing. DOHA assigned the case to me 28 July 2008, and I convened a hearing 26 August 2008. DOHA received the transcript (Tr.) 4 September 2008.

FINDINGS OF FACT

Applicant admitted the SOR allegations, except for SOR 1.b. He is a 23-year-old systems administrator employed by a defense contractor since July 2008. He has not previously held a clearance.

Applicant has a history of excessive alcohol consumption, punctuated by three alcohol-related incidents between October 2003 and October 2007. The most recent incident, an October 2007 DUI (.10 % B.A.C.) arrest that was still pending when the SOR was drafted, was resolved 27 June 2008. Two charges of DUI were dismissed before trial. A third DUI charge and an unsafe lane change charge were nolle prossed the day of trial. Applicant pleaded to, and was found guilty of, negligent driving. He paid fines and court costs of $160. The judge’s findings of fact specifically found Applicant to have not refused a proffered blood alcohol content test. A breathalyzer test given at the scene of the accident caused by Applicant registered .10 % B.A.C. He was observed by witnesses in the other two cars involved in the accident to be throwing beer cans out of his car before the police arrived.

Applicant’s other alcohol incidents include an October 2003 (age 18) drunk in public/underage possession of alcohol offense in which he had a .16 % B.A.C., and a June 2006 DUI offense in which he tested .15 % and .16 % B.A.C. The pertinent portion of this latter offense was a period of alcohol abstention and probation that expired in August 2007.

As a result of his October 2007 arrest, in early January 2008, Applicant was evaluated at a recognized alcohol treatment program recommended to him by his attorney. He was diagnosed with alcohol abuse, and recommended to attend a 48-week aftercare program, two AA/NA meetings per week, and obtain a sponsor and homegroup within 90 days. Later in January 2008, he was evaluated at a recognized alcohol treatment program closer to where he lived, and again diagnosed with alcohol abuse. However, he was not recommended for further counseling as the counselor was satisfied that he had learned his lesson about drinking and driving. Applicant claims that he now drinks 1-3 drinks at a sitting no more than five times per month. He never drinks and drives.

Applicant also has a history of drug abuse. He use marijuana frequently from January 2000 to June 2006, and used prescription painkillers about ten times between January 2000 and May 2004. After his drunk in public arrest in October 2003, a body search produced a marijuana pipe and a container with marijuana residue. Applicant’s drug abuse occurred while he was at college. He stopped using marijuana in June 2006 because he knew that he would eventually want to apply for a security clearance.

Applicant’s employer considers him an honest, hard worker, and he has good work evaluations. He has not been observed to be under the influence of alcohol or drugs at work. He is engaged to be married, and he and his fiancé are trying to buy a home.

POLICIES

The Revised Adjudicative Guidelines (RAG) list factors to be considered in evaluating an Applicant’s suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in RAG ¶ 2(a). The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed where a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant’s security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government’s case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.2

ANALYSIS

The government established a case for disqualification under Guideline G, by demonstrating Applicant’s history of alcohol abuse, punctuated by three alcohol-related arrests between October 2003 and October 2007, and his subsequent diagnoses with alcohol abuse in January 2008. Applicant failed to mitigate the security concerns. Applicant meets none of the mitigating conditions under Guideline G. His alcohol abuse was recent, frequent, and not under unusual circumstances. Beyond the vaguest acknowledgment of past mistakes with alcohol, Applicant has not acknowledged his obvious alcohol abuse. Although he was not recommended for further counseling, Applicant is unable to point to any other actions taken to overcome the problem. On this record, Applicant is unable to establish either a pattern of abstinence or responsible use given that his most recent charges were only resolved in June 2008. Without some kind of program, he cannot demonstrate progress in ensuring responsible drinking in the future. Finally, Applicant lacks the kind of program, track record, and prognosis that would demonstrate that his alcohol problems are behind him. It is too early to conclude Applicant is unlikely to abuse alcohol in the future. Accordingly, I resolve Guideline G against Applicant.

The government established a case for disqualification under Guideline H.8 However, Applicant mitigated the security concerns. Although Applicant’s drug abuse was frequent during the periods he used drugs, the circumstances of that use and his two years abstinence from drug use, suggest he is unlikely to use drugs in the future.9 With no indication of any psychological or physical dependence on drugs, his two year abstinence from drug use is adequate to demonstrate an intent to refrain from drug use in the future. I conclude Applicant is unlikely to use illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant. The government established a case for disqualification under Guideline J by establishing Applicant’s alcohol-related criminal conduct and his illegal use of drugs.11 However, the gravamen of the security concerns in this case revolve around Applicant’s alcohol abuse issues. Separate allegation of the criminal nature of his conduct, whether alcohol abuse or drug abuse, adds nothing of substance to the analysis of Applicant’s fitness for access to classified information. I resolve Guideline J for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline G: AGAINST APPLICANT

Subparagraph a: Against Applicant Subparagraph b: Against Applicant Subparagraph c: Against Applicant Subparagraph d: Against Applicant Subparagraph e: Against Applicant

Paragraph 2. Guideline H: FOR APPLICANT

Subparagraph a: For Applicant Subparagraph b: For Applicant Subparagraph c: For Applicant

Paragraph 3. Guideline J: FOR APPLICANT

Subparagraph a: For Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance denied.

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

DOHA acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), 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 (RAG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶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; . . . (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; ¶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 good judgment;

¶23.(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser);

¶23.(c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress;

¶23.(d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, . . . and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

¶25.(a) any drug abuse. . .; (c) illegal drug possession, including. . . purchase. . . ;

¶26.(a) 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;

¶26.(b). a demonstrated intent not to abuse any drugs in the future, such as; . . . (3) an appropriate period of abstinence; ¶31.(a) a single serious crime or multiple lesser offenses; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;