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ISCR Case 08-02331.h1 — CASE

ISCR Case 08-02331.h1granted

Case Headnote

ISCR Case No. 08-02331.h1

grantedJul 1, 2008· Hon. Mary E. Henry· hearing

Summary

A 52-year-old senior field engineer was granted a security clearance despite initial concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The Statement of Reasons detailed a history of alcohol-related incidents, including multiple arrests for driving while intoxicated (DWI) and driving under the influence (DUI), a diagnosis of alcohol dependence, and past relapses. Specific allegations included habitual alcohol consumption leading to impaired judgment, non-compliance with treatment recommendations, and a lack of a clear pattern of modified consumption or abstinence.

Disqualifying conditions under Guideline G included a pattern of alcohol consumption that caused impaired judgment and a diagnosis of alcohol dependence. Under Guideline J, concerns arose from a pattern of criminal conduct and a history of alcohol-related offenses.

However, the applicant successfully mitigated these concerns. He acknowledged his alcoholism and proactively sought treatment, maintaining sobriety since December 2006. He actively participates in Alcoholics Anonymous, and witnesses provided favorable testimony regarding his reliability and improved work performance since achieving sobriety. Based on these mitigating factors, the judge granted the security clearance.

Why the Applicant Prevailed

The applicant acknowledged his alcoholism and took proactive steps to seek treatment.
He has maintained sobriety since December 2006 and actively participates in Alcoholics Anonymous.
Witnesses testified to the applicant's reliability and improved work performance since achieving sobriety.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents Away From Work
G.2.craisedHabitual or Binge Consumption of Alcohol
G.2.draisedDiagnosis of Alcohol Dependence
G.2.fraisedRelapse After Diagnosis of Alcohol Dependence
J.2.araisedMultiple Lesser Offenses
J.2.craisedAdmission of Criminal Conduct

Mitigating

G.3.bappliedAcknowledgment of Alcoholism and Pattern of Abstinence
G.3.dappliedSuccessful Completion of Treatment and Aftercare
J.3.dappliedEvidence of Successful Rehabilitation

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 8, 2008
Answer filedDec 22, 2008
Hearing heldApr 30, 2009
Decision dateJun 30, 2009

Cite For

Mitigation of Alcohol-related Security Concerns Under Guideline G
Successful Rehabilitation After Multiple Alcohol-related Offenses
Consideration of Witness Testimony in Support of an Applicant's Character and Reliability

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: grantedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The judge granted the applicant's eligibility for access to classified information, finding that the applicant had a history of alcohol-related incidents but demonstrated significant rehabilitation and abstinence since December 2006. The applicant acknowledged his alcoholism, completed treatment, and actively participated in Alcoholics Anonymous, which contributed to the favorable decision.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of alcohol-related incidents, including multiple arrests for driving while intoxicated (DWI).	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.b	The applicant has engaged in habitual or binge consumption of alcohol to the point of impaired judgment.	For Applicant	Binge or Intoxication Pattern	Admitted	(c) habitual or binge consumption to the point of impaired judgment	—	—
1.c	The applicant has been diagnosed by a duly qualified medical professional with alcohol dependence.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(d) diagnosis of alcohol use disorder by a qualified professional	—	—
1.d	The applicant has relapsed after diagnosis of alcohol dependence and completion of an alcohol rehabilitation program.	For Applicant	Continued Use After Treatment	Admitted	(f) alcohol consumption after a diagnosis, contrary to treatment	—	—
1.e	The applicant has not complied with treatment recommendations following his diagnosis of alcohol dependence.	For Applicant	Treatment Non Compliance	Admitted	—	—	—
1.f	The applicant has not demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.	For Applicant	Continued Use After Treatment	Admitted	—	—	—
1.g	The applicant has not received a favorable prognosis from a duly qualified medical professional following treatment for alcohol dependence.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—

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: granted

The judge granted the applicant's eligibility for access to classified information, finding that the applicant's past criminal conduct related to alcohol consumption was mitigated by his acknowledgment of alcoholism, successful treatment, and established pattern of abstinence. The judge ruled in favor of the applicant on the sole Guideline J allegation regarding criminal conduct.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	The applicant has a history of alcohol-related offenses, including multiple arrests for driving while intoxicated (DWI) and driving under the influence (DUI).	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	(b) pressured/coerced and unlikely to recur absent that pressure (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse Credited Rehabilitation Evidence Credited No Subsequent Offenses

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. 08-02331 SSN: ) ) Applicant for Security Clearance )

For Government: Emilio Jaksetic, Esquire, Department Counsel For Applicant: Kathleen E. Voelker, Esquire

June 15, 2009 ______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the case file, pleadings, exhibits, and testimony, I conclude that Applicant’s eligibility for access to classified information is granted.

Applicant submitted his Security Clearance Application (SF 86) on August 20, 2006. On December 8, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns under Guidelines G and J. 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 acknowledged receipt of the SOR on December 20, 2008. He answered the SOR in writing on December 22, 2008, and requested a hearing before an administrative judge. DOHA received the request on December 29, 2008. Department Counsel was prepared to proceed on February 25, 2009, and I received the case assignment on March 25, 2009. DOHA issued a notice of hearing on April 6, 2009, and I convened the hearing as scheduled on April 30, 2009. The government offered 12 exhibits (GE) 1 through 12, which were received and admitted into evidence without objection. Applicant and three witnesses testified on his behalf. He submitted three exhibits (AE) A through C, which were received and admitted into evidence without objection. The record closed on April 30, 2009. DOHA received the transcript of the hearing (Tr.) on May 18, 2009.

Procedural and Evidentiary Rulings

Notice

Applicant received the hearing notice on April 17, 2009. (Tr. 8.) I advised Applicant of his right under ¶ E3.1.8 of the Directive to 15 days notice before the hearing. After consulting with counsel, Applicant affirmatively waived his right to 15 days notice. (Tr. 8.)

Motion to Amend SOR

Department Counsel moved to amend the SOR at the end of the hearing to correct the amount of the fine in SOR ¶ 1.e. from $2,000 to $200. This request conforms with Applicant’s hearing testimony. Applicant’s counsel did not object to the motion, which I granted. SOR allegation ¶ 1.e is amended as proposed.1

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a through 1.gof the SOR, with explanations. He neither admitted nor denied the factual allegation in ¶ 2.a of the SOR.

Applicant, who is 52 years old, works as a senior field engineer for a Department of State contractor. He began working for his employer in December 1985. He has held a security clearance since 1986, without any violations of security procedures. He attended college, but has not completed his bachelor’s degree.2

Applicant began drinking alcohol at age 19. Initially, he drank socially, but later his alcohol consumption increased. The police arrested Applicant for his first driving while intoxicated (DWI) offense in December 1979. He pled guilty and paid a fine between $100 and $200. In February 1981, the police arrested Applicant for his second DWI. He pled guilty, paid a $500 fine and the court suspended his driver’s license for one year. The court also recommended he attend Alcoholics Anonymous (AA), which he did for about one year. The police again arrested Applicant for DWI in September 1982. He pled not guilty and the court appointed a lawyer to represent him. Shortly thereafter, he received a letter from the lawyer, advising that his case had been dismissed.3

As part of the security clearance process, Applicant completed two written statements in March 1986, outlining the above arrests. He twice stated that he did not believe he had an alcohol problem.

In February 1987, the police arrested Applicant a fourth time for DWI. The court ordered alcohol treatment at an inpatient facility to begin in May 1988. However, before treatment began, Applicant broke his neck in an automobile accident and his treatment was deferred. He experienced significant pain during his long recovery. He refused to take pain medication; instead, he dramatically increased his use of alcohol to manage his pain. The court outcome of this fourth arrest is unknown.

In February 1988, Applicant did seek alcohol treatment at a residential facility because he realized he was drinking much more than socially. He spent 28-30 days as an inpatient. He did not drink during his stay. Upon his discharge, this facility diagnosed Applicant with alcoholism, alcohol withdrawal and incomplete healed fracture - second cervical vertebrae. The treatment facility recommended total abstinence from “all mood- changing, mind-altering, psycho-active substances”; attend 90 AA meetings in 90 days, followed by a minimum of four AA meetings a week; obtain an AA sponsor; and attend a 22-week continuing recovery group. Applicant acknowledges that he did not comply with all these recommendations. He did participate in the recovery group for a number of months and attended AA one to two times a week for a period of time.6

Applicant remained sober for about two years. Eventually, he started drinking alcohol, at first casually. However, his alcohol consumption progressed. Because he did not believe he had a drinking problem, he did not stop drinking. He believed his alcohol consumption was under control.7

In January 1998, the police again arrested Applicant and charged him with driving under the influence of alcohol (DUI). Pursuant to a plea bargain, Applicant pled guilty to this charge. The court fined him $1,500, suspending $1,000; sentenced him to 60 days, suspending all but 48 hours; and suspended his driver’s license for one year.

Applicant married in 1998. During his marriage, Applicant decreased his alcohol consumption. Although he did not stop drinking entirely, at times he abstained from alcohol consumption for one or more months. His wife did not drink. He and his wife separated in 2004 and divorced in 2005. When his marriage ended, he saw no reason to limit his alcohol consumption.9

Again, in December 2005, the police arrested and charged Applicant with DWI and DUI. Applicant pled guilty to DWI in June 2006 and the court dismissed the DUI charge. The court fined him $300 and gave him probation before judgment. As a result of this conviction and at his own expense, the court restricted his driving by placing an alcohol interlock device (blow and go) on his car. This device prevented him from driving his car if he consumed alcohol and his breath alcohol registered .02 on the device. Applicant continued to drink after his sentence. He acknowledged that in the first months, he learned how much he could drink and when he needed to stop drinking before he drove his car with this device. Applicant has not been arrested for any criminal matter since this date.10

In December 2006, Applicant decided to check himself into an alcohol treatment facility because he believed that he would not live long if he continued to drink alcohol. His inpatient stay lasted 14 days. He actively participated in his treatment as shown by his treatment record. The facility diagnosed Applicant as alcohol dependent, but offered no opinion about his prognosis. Upon his discharge, Applicant enrolled in an intensive outpatient treatment program and returned to AA. He completed the 90 AA meetings in 90 days, obtained a temporary sponsor, and found a home group, which is a meeting he would attend regularly and participate in running.11

Applicant consumed his last alcoholic drink on December 14, 2006. He acknowledges he is an alcoholic and understands that alcoholism is a progressive disease. He believes that his sanity and spiritual condition depend upon him maintaining sobriety. He has not had any alcohol since December 2006 and has no intent to drink alcohol in the future. He is convinced that if he ever drinks again he will die. He continues to attend and participate in his home AA group and a second home AA group, each at least once a week. He lives one day at a time. He has changed his friends and his activities. He participates in more family activities. He boats, fishes, and listens to live music. His drink of choice is cranberry juice, tea or water. He keeps alcohol in his house for friends. He does not crave alcohol and has not since December 2006.12

Applicant’s program manager testified on his behalf. He has known Applicant since 1986 when they began working together. Applicant has held a security clearance since 1986 and has never been involved in any security breaches. Applicant’s alcohol consumption never interfered with his work performance. His program manager never observed Applicant consuming alcohol at work or arriving at work intoxicated. Since he stopped drinking, his manager has observed an improvement in Applicant’s attitude and work performance. His performance evaluations for the last three years support his improvement. Applicant has taken more responsibility for managing the work site. Applicant told him about his alcohol problems and arrests. Applicant has never lied to him or co-workers. He trusts Applicant and recommends him for a security clearance.13

Applicant’s fiancee testified. They met at work in February 2008. Since then, she has not observed Applicant drink alcohol and does not believe he drinks. She knows about his past alcohol problems. He attends AA at least twice a week. She acknowledges Applicant keeps alcohol in his house and states that he is comfortable with alcohol in the house. He drinks cranberry juice or unsweetened tea. She describes him as honest, trustworthy, social, gregarious, outgoing, and reliable.14

Applicant’s sister also testified. Like the other witnesses, she confirmed that Applicant is not drinking. She last saw Applicant consume alcohol in July 2006, although she believes he continued to consume alcohol after this time. They lived together from October 1993 until March 1998, when she moved into her own house. They visit with each other every weekend or every other weekend, usually at Applicant’s house near the beach. She knows Applicant entered an alcohol treatment facility 20 years ago because she visited him. He remained sober for about two years after treatment. In 1990, she observed him drinking at their other sister's wedding, which concerned her. When he entered treatment in 2006, she visited him while he was an inpatient and she participated in family treatment sessions. She noticed a significant difference between his first and second treatment. In 2006, she knew he was absolutely serious about his treatment. He told her “it was his belief that if he did not stop drinking, he was going to die.” Since completing his latest treatment, Applicant is more reliable. He makes plans for the future, has a life and has a relationship. He attends AA, even when on vacation. He has permanently changed his lifestyle. He is a much different person than when he is drinking alcohol. When he drinks alcohol, she notices a change in his personality: Applicant is not a very likable person, he acts like a know-it-all and she sees physical signs of his drinking alcohol, such as shaking, weight gain, slurred speech, and significant sweating. When he is sober, he is friendly, personable, an interesting conversationalist, and very intelligent. She considers him trustworthy and recommends him for a security clearance.15

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and common sense 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 access to classified information 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant 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 the Applicant may deliberately or inadvertently fail to protect or 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 Executive Order 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 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 conditions that could raise a security concern and the following conditions 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 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;

(d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; and

(f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program.

Applicant began consuming alcohol at age 19. His alcohol consumption led to arrest for DWI as early as 1979. Between 1979 and 1987, the police arrested him four times for DWI. In 1988, he received inpatient treatment at a substance abuse facility, which diagnosed alcoholism. For two years after his treatment, he remained sober. He began drinking again in 1990. His alcohol consumption increased and resulted in another arrest, this time for DUI. During his marriage, he controlled his alcohol consumption. When he marriage ended, his alcohol consumption resumed and increased. The police arrested him again for DUI in December 2005. Based on Applicant’s pattern of alcohol consumption, DWI or DUI arrests, 1988 diagnosis, and relapse following treatment in 1988, the above disqualifying conditions apply.

AG ¶ 23 provides conditions that could mitigate security concerns and the following may be applicable in this case:

(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); (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, such as participation in meetings of Alcoholics Anonymous or a similar organization 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.

Applicant acknowledges he is an alcoholic. He understands the dangers to him if he drinks again. He accepts responsibility for his alcohol problem. In 2006, on his own initiative, he sought treatment for his alcohol use. He actively participated in his treatment at the facility and continued with intensive followup treatment after his discharge. He still actively participates in AA on a regular basis. He has changed his lifestyle, his friends and his attitude. He enjoys his life as he realizes it is much better since he stopped drinking alcohol. His fiancee, program manager and sister confirm that he no longer drinks. He does not intend to drink in the future and works each day to achieve that goal. His treatment facility made no prognosis about his long-term sobriety, but he has remained sober for two and one-half years. He has mitigated the government’s security concerns about his alcohol consumption.

Guideline J, Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to criminal conduct, “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.”

AG ¶ 31 describes conditions that could raise a security concern and the following may be disqualifying in this case:

(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;

Applicant’s criminal conduct directly relates to his alcohol consumption. Because of his alcohol use, the police arrested him six times for either DWI or DUI. The court convicted him in all but one case. These disqualifying conditions apply.

AG ¶ 32 provides conditions that could mitigate security concerns:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement; and,

Applicant’s last arrest occurred in three and one-half years ago. His arrests did not occur under unusual circumstances, thus, mitigating condition AG ¶ 32(a) does not apply. However, Applicant has stopped drinking alcohol, the reason for his arrests. He has successfully completed treatment for alcohol dependency. He continues to participate in AA programs as he desires not to drink again. He changed his lifestyle and his friends. His work performance and attitude at work improved. He has assumed more responsibility at work. Because he is so committed to remaining sober, there is little likelihood that his criminal conduct will reoccur. He has mitigated the government’s security concerns about his criminal conduct.

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(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) 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 common sense judgment based upon careful consideration of the guidelines and the whole person concept. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant began drinking alcohol as a young adult, initially at social functions. His alcohol consumption steadily increased and resulted in four arrests for DWI in eight years. He sought alcohol treatment in 1988, but did not fully commit to total abstinence and the idea he was an alcoholic. Without this commitment, he resumed his alcohol consumption about two years after his treatment. Although he believed he controlled his alcohol consumption, he did not and was again arrested for a DUI in 1998. During his marriage, he limited his alcohol consumption, sometimes not drinking any alcohol for two or three months, but never totally abstaining. When his marriage ended, he stopped attempting to control his alcohol consumption and another DUI arrest occurred in 2005. His conduct reflects a serious, long-term problem with alcohol.

A year after his 2005 arrest, Applicant decided to seek treatment for his alcohol addiction and committed himself to conquering his abusive use of alcohol. He entered a substance abuse treatment facility and actively participated in its programs. Upon his discharge, he immediately enrolled in followup treatment programs and actively participated in these programs as he wanted to stop drinking. He acknowledges he is an alcoholic and admits he must work each day on his goal of never consuming alcohol again. He provided substantial information at the hearing indicating that he understands his alcohol use and the resulting problems. He appreciates alcohol’s negative effects on his life, and is committed to remaining sober. He incorporates the tenets of AA and lives by this philosophy. He knows he must remain sober because his sanity and spirituality depend upon it. I find his testimony about his present attitude and approach to alcohol credible.

While I recognize that Applicant relapsed within two years after his first treatment and he has been sober about two and one-half years, I give great weight to his sister’s highly credible testimony about his alcohol use and his current sobriety. She has known him all her life. She knows when he is drinking because she notices his personality changes to a person she does not like. She visited him during his first treatment program in 1988 and his second treatment program in 2006. She recognized a difference in his attitude towards treatment the second time, stating that he was “absolutely serious about this”. She clearly discussed her observations about his behavior before and after he stopped drinking. She sees a change and a commitment by him to remain sober that did not exist in 1988.

Applicant’s fiancee and program manager affirmed his current sobriety. Based on his sister’s highly persuasive testimony about his sobriety and change in attitude towards alcohol, I find that Applicant has mitigated the government’s security concerns about his alcohol consumption. Since he is not drinking, his criminal conduct is not a security concern.

Overall, the record evidence leaves me without 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 from his alcohol consumption and criminal conduct.

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

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraph 2.a: 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 eligibility for a security clearance. Eligibility for access to classified information is granted.

MARY E. HENRY Administrative Judge

FOOTNOTES

Tr. 114.

GE 1 (Applicant’s security clearance application) at 6, 10, 25-26; Tr. 25, 68-69. GE 2; GE 3; Tr. 69-70.

GE 2; GE 3.

GE 5; Tr. 72-75.

Id.

Tr. 42, 76. GE 7; Tr. 76-77.

GE 1, supra note 2, at 12-14; Tr. 77-79, 103-104.

GE 12; Tr. 79-81, 97, 100-101, 112-113.

GE 11; Tr. 81-83, 98-99, 102. GE 10; Tr. 84-96.

AE A; AE B; AE C; Tr. 22-30.

Tr. 57-66. Id. at 40-50; GE 11, supra note 11.

After any decision, the losing party has a right to appeal the case to the Defense Office of Hearings and Appeals Appeal Board. The Appeal Board’s review authority is limited to determining whether three tests are met:

E3.1.32.1. The Administrative Judge’s findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge:

E3.a.32.2. The Administrative Judge adhered to the procedures required by E.O. 10865 (enclosure 1) and this Directive: or E3.1.32.3. The Administrative Judge’s rulings or conclusions are arbitrary, capricious, or contrary to law.

The Appeal Board does not conduct a “de novo determination”, recognizing that its members have no opportunity to observe witnesses and make credibility determinations. The Supreme Court in United States v. Raddatz, 447 U.S. 667, 690 (1980) succinctly defined the phrase “de novo determination”:

[This legal term] has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy. Thus, in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23 [(1974)], the Court had occasion to define “de novo proceeding” as a review that was “unfettered by any prejudice from the [prior] agency proceeding and free from any claim that the [agency’s] determination is supported by substantial evidence.” In United States v. First City National Bank, 386 U.S. 361,368 [(1967)], this Court observed that “review de novo” means “that the court should make an independent determination of the issues” and should not give any special weight to the [prior] determination of the administrative agency.

(Internal footnotes omitted). See ISCR Case No. 07-10396 (App. Bd., Oct. 2, 2008) and ISCR Case No. 07- 07144 (App. Bd., Oct. 7, 2008). In ISCR Case No. 05-01820 (App. Bd. Dec 14, 2006), the Appeal Board criticized the administrative judge’s analysis, supporting grant of a clearance for a PRC-related Applicant, and then decided the case itself. Judge W hite’s dissenting opinion cogently explains why credibility determinations and ultimately the decision whether to grant or deny a clearance should be left to the judge who makes witness credibility determinations. Id. at 5-7. See also ISCR Case No. 04-06386 at 10-11 (App. Bd. Aug. 25, 2006)(Harvey, J., dissenting) (discussing limitations on Appeal Board’s authority to reverse hearing-level judicial decisions and recommending remand of cases to resolve material, prejudicial error) and ISCR Case No. 07-03307 (App. Bd. Sept. 29, 2008). Compliance with the Agency’s rules and regulations is required. See United States ex. rel. Acardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Lopez v. FAA, 318 F.3d 242, 247- 248 (D.C. Cir 2003); Nickelson v. United States, 284 F. Supp.2d 387, 390 (E.D. Va. 2003)(explaining standard of review).