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ISCR Case 08-03924.h1 — CASE

ISCR Case 08-03924.h1denied

Case Headnote

ISCR Case No. 08-03924.h1

deniedFeb 3, 2010· Hon. Elizabeth M. Matchinski· hearing

Summary

A 33-year-old electrical engineer was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol-related incidents and a failure to demonstrate sufficient rehabilitation. The Statement of Reasons detailed three specific allegations: a July 2006 citation for transporting alcohol and operating a vehicle without a valid license, a March 2006 charge for driving under the influence that resulted in a conviction for 'wet reckless' with associated fines, probation, and an alcohol education program, and a May 2003 conviction for operating a vehicle under the influence.

The judge identified disqualifying conditions G.2.a and G.2.c, which relate to alcohol-related incidents and a pattern of irresponsible alcohol use. While mitigating conditions G.3.a and G.3.b, concerning the passage of time and positive changes in behavior, were considered, they were ultimately not sufficient to overcome the security concerns.

The denial was based on the applicant's minimization of his alcohol consumption history and the judge's finding that he had not adequately demonstrated that his alcohol abuse issues were safely in the past. His continued alcohol consumption after his offenses further indicated a lack of sufficient rehabilitation.

Why the Applicant Was Denied

The applicant minimized his history of alcohol consumption and did not demonstrate that issues of alcohol abuse were safely in the past.
The applicant's continued alcohol consumption after his offenses indicated a lack of sufficient rehabilitation.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
G.2.craisedHabitual or Binge Drinking

Mitigating

G.3.arejectedThe Applicant Has Acknowledged His Alcohol-related Issues and Has Taken Some Steps to Address Them.The applicant's acknowledgment was not sufficient to mitigate the concerns due to ongoing alcohol consumption.
G.3.brejectedThe Applicant Has Completed an Alcohol Education Program.Completion of the program did not demonstrate a change in behavior or sufficient rehabilitation.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”
— AG ¶ 2(b)

Procedural Posture

SOR issuedDec 16, 2008
Answer filedApr 3, 2009
Hearing heldOct 28, 2009
Decision dateFeb 3, 2010

Cite For

Denial of Clearance Due to Ongoing Alcohol Consumption Issues
Insufficient Rehabilitation Efforts in the Context of Alcohol-related Offenses
The Importance of Acknowledging and Addressing Past Alcohol Abuse for Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to alcohol consumption, including multiple drunk driving offenses and an open container violation. The applicant's history of alcohol-related incidents and his minimization of his drinking behavior contributed to the decision to deny his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant was cited in July 2006 for transporting alcohol, for which he was required to undergo an alcohol assessment, and for operating a vehicle without a valid license.	Against Applicant	Alcohol Related Arrest	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.b	The applicant was charged in March 2006 with driving under the influence (DUI) but convicted of a lesser charge of 'wet reckless' for which he paid fines and costs of $1,800, was placed on three years probation, and ordered to complete an alcohol education program.	Against Applicant	DUI or DWI Alcohol	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.c	The applicant had been convicted previously of a May 2003 operating a vehicle under the influence (OUI) offense.	Against Applicant	DUI or DWI Alcohol	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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. 08-03924 SSN: -------------------- ) ) Applicant for Security Clearance )

For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Jeffrey A. Denner, Esquire

February 3, 2010 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Alcohol consumption concerns raised by Applicant’s drunk driving offenses in May 2003 and March 2006, and by his July 2006 open container violation are not mitigated. He continues to minimize his drinking history to where it cannot be concluded that issues of alcohol abuse are safely in the past. Clearance is denied.

Statement of the Case

Applicant submitted an Electronic Questionnaire for Investigations Processing (e- QIP) on November 20, 2006. On December 16, 2008, the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a statement of reasons (SOR) detailing the security concerns under Guideline G, alcohol consumption, that provided the basis for its preliminary decision to deny him a security clearance and refer the matter to an administrative judge. 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) effective within the Department of Defense as of September 1, 2006. On April 3, 2009, Applicant answered the SOR and he requested a hearing if his response did not lead to a favorable resolution. The case was assigned to me on May 15, 2009, to decide whether it is clearly consistent to grant or continue a security clearance for Applicant. Scheduling the hearing was delayed on Applicant’s representation that he planned to retain legal counsel. Having received no entry of appearance from his attorney by August 11, 2009, I issued a notice of hearing to Applicant scheduling his hearing for September 2, 2009.

On August 20, 2009, counsel for Applicant entered his appearance and moved for a continuance, citing his unavailability on September 2, 2009, due to prior commitments, and needing time to prepare because he had just been retained. The government objected, citing Applicant’s failure to exercise due diligence in seeking counsel. While Applicant was shown to have failed to retain counsel in a timely manner, I granted a brief continuance due to his legal counsel’s unavailability on September 2, 2009. On September 1, 2009, I rescheduled the hearing for October 28, 2009.

I convened the hearing on October 28, 2009, as rescheduled. The government submitted 11 exhibits (Ex. 1-11), which were admitted without any objections. Applicant and three witnesses testified on his behalf, as reflected in a transcript (Tr.) received on November 9, 2009.

FINDINGS OF FACT

DOHA alleged under Guideline G, alcohol consumption, that Applicant was cited in July 2006 for transporting alcohol, for which he was required to undergo an alcohol assessment, and for operating a vehicle without a valid license, for which he was fined (SOR 1.a); that he was charged in March 2006 with driving under the influence (DUI) but convicted of a lesser charge of “wet reckless” for which he paid fines and costs of $1,800, was placed on three years probation, and ordered to complete an alcohol education program (SOR 1.b); and that he had been convicted previously of a May 2003 operating a vehicle under the influence (OUI) offense (SOR 1.c). Applicant denied he was convicted of the 2003 OUI but he admitted the other offenses. After considering the pleadings, transcript, and exhibits, I make the following findings of fact.

Applicant is a 33-year-old electrical engineer, who has worked for his present defense contractor employer since about October 2008 (Tr. 32). He was granted a secret clearance in October 2003 for his work with a previous employer, which included classified work and access to special programs (Ex. 3, Tr. 28-29).

Applicant began drinking alcohol in 1996 or 1997, when he was a 19-year-old college student. He consumed alcohol on weekends, and at parties (Ex. 2, Tr. 39). Applicant worked full-time while pursuing his undergraduate degree at night, initially in the stock room, then in assembly, and eventually as a network administrator with a local technology company (Ex. 2, Tr. 22, 25). Before his final semester, he started working for a defense contractor in June 1999, and he was granted a secret-level security clearance. In January 2000, he was awarded his bachelor of science degree in electrical engineering (Ex. 1). Applicant continued working for the same company, where he applied for a security clearance. However, he left the job in the fall of 2000 before a final decision on his clearance eligibility, for a new job in state X with a start-up company (Tr. 27). Applicant worked there until mid-November 2001, when the commute became too much for him (Tr. 27). Excepting a two-week span in May 2002, Applicant was unemployed until August 2002, when he commenced employment as an engineer with a defense contractor in adjacent state Y (Ex. 1, Tr. 28).

While working for the defense contractor, Applicant’s alcohol consumption averaged one or two drinks, sometimes three drinks, at the end of the day or with dinner (Ex. 2). In May 2003, Applicant consumed at least two mixed drinks while out with a girlfriend and coworkers at a restaurant. He and his now former girlfriend were en route home in her vehicle when he was stopped for speeding. The officer detected signs of alcohol on Applicant, and Applicant told the officer that he had consumed “‘a couple of beers.’” After he failed field sobriety tests, Applicant was arrested for OUI-alcohol or drugs. He submitted to two breathalyzers at the station, which registered .10% and .12% blood alcohol levels. Applicant was charged with OUI, speeding, and marked lanes violation (Ex. 1, 2, 9, 11). While those charges were pending, Applicant was cited in late May 2003 for operating a vehicle with his license suspended, for no inspection sticker, and for failing to wear his seatbelt (Ex. 9). He appeared in court on all the charges in September 2003, pleading guilty to, or admitting sufficient facts for the OUI and operating while license suspended charges, which were continued without a guilty finding for one year. He was ordered for the OUI to complete a 24-day alcohol and drug education program, to pay a $250 surfine, and he lost his operator’s license for 45 days (Exs. 1, 2, 10). The remaining charges were filed (Ex. 10). Applicant attended an alcohol education program as mandated by the court. The program consisted of a class once weekly where he watched movies (Tr. 63). On October 9, 2003, Applicant was granted a secret-level clearance for his duties with the defense contractor (Ex. 3).

In March 2006, while on temporary duty for his employer for over a month of flight testing in a distant state (state Z) (Tr. 40), Applicant went skiing with a coworker on the weekend. After skiing but before leaving the mountain, Applicant consumed at least two alcoholic beverages. His coworker, who felt incapable of driving, asked Applicant to operate the vehicle the coworker had rented. Applicant did not feel intoxicated so he agreed. They stopped for gasoline en route to their hotel, and Applicant’s companion bought a six-pack of beer. Applicant consumed at least one of those beers before he was pulled over for speeding in excess of 85 miles per hour and for reckless driving. He was cooperative with the state highway patrolman, but he displayed objective indicators of intoxication (eyes red and watery, speech slow and slurred). Applicant was arrested for DUI after he failed field sobriety tests. Applicant submitted to two preliminary alcohol screens with the results .119% and .118% blood alcohol concentrations. Almost 1.5 hours later, Applicant submitted to chemical testing at a county jail with a .09% blood alcohol reading. He was booked into the county jail and charged with two misdemeanors, DUI and DUI .08% or greater. In September 2006, a stipulated no contest plea was entered on Applicant’s behalf to misdemeanor reckless driving involving alcohol, a lesser included charge of DUI. Applicant was placed on summary probation for 36 months, conditioned on him paying fines and fees totaling $2,045 at $65 monthly commencing on October 12, 2006, completing a first offender DUI program, refraining from driving with any alcohol in his blood, submitting to any alcohol testing at the request of any peace officer, and abiding by all laws and ordinances (Exs. 1, 2, 4, 5). Following the incident, Applicant’s assignment to special access programs at work was limited (Ex. 3).

In early July 2006, Applicant was stopped en route to a friend’s house because police check of his registration showed that his license had expired. In addition to three unopened beers in a bag, Applicant had a partially consumed opened beer, which he denies drinking (“I had opened the beer and I said I’m not driving with alcohol on my breath.” Tr. 45). The officer found it wedged under the front of his driver’s seat in plain view. The officer noticed the open container, and he cited Applicant for transporting an open container of alcohol and for operating on an expired driver’s license (Exs. 1, 2, 6, 7). Applicant agreed to plead nolo contendere to the charge of operating without a valid license, for which he was fined. The transportation of alcohol charge was continued for 12 months, on good behavior and completion of an evaluation with a licensed alcohol and drug counselor within 90 days (Ex. 8, Tr. 47-48). Applicant continued to consume alcohol after the July 2006 incident (Ex. 2, Tr. 45, 75).

In December 2006, Applicant attended twice weekly alcohol education sessions with counselors in state Y to satisfy the alcohol program ordered by state Z (Tr. 63). He now claims that he went to Alcoholics Anonymous (AA) meetings beyond the three required to reinforce for himself that he had made poor decisions. Applicant maintains that AA members eventually asked him to stop coming to meetings “because [he] was making other people who have problems feel awkward” (Tr. 66). He was unable to relate to the issues of other AA attendees (Tr. 81), but he came to realize that he could not drive after drinking because of his body weight (Tr. 61).

In March 2007, Applicant was evaluated by a licensed alcohol and drug counselor (LADC), who recommended that he obtain counseling or attend self-help classes. Contrary to his recent claims that he attended about ten additional AA meetings (Tr. 67), Applicant told a government investigator in May 2007 that he did not follow the LADC’s recommendations because he was not required to do so (Ex. 2). He believed his problem was not with alcohol but rather with “growing up and making the right decisions” (Tr. 65).

Applicant, who had disclosed his alcohol-related offenses on his November 2006 e-QIP (Ex. 1), was interviewed about his alcohol consumption by a government investigator on May 14, 2007. Applicant indicated he was drinking once a week, hard liquor or beer, while out to dinner or at the homes of family or friends. Applicant did not think he had a problem with alcohol, but he admitted he had a problem not caring about the consequences of his drinking. He was no longer getting behind the wheel of a car after drinking any alcohol, and was limiting his consumption to two drinks. Applicant expressed his intent to maintain his current usage, and not revert to his previous behavior (Ex. 2).

In October 2008, Applicant went to work as a systems engineer for his current employer. Applicant was actively recruited for his position by a former coworker, who had made the switch to the company about six months before him (Tr. 32, 34, 86, 103). Applicant’s work for his new employer has continued to take him to different military bases (Tr. 34). While on a temporary duty assignment from which he returned in October 2009, Applicant had to be escorted to restricted areas, which served as a reminder to him of his past immature behavior (Tr. 35).

At his hearing, Applicant was asked to detail his alcohol consumption since the July 2006 incident. He responded that he went out drinking once a month, one or two drinks at dinner, until January 2009 when he received the SOR (Tr. 75-76). He consumed alcohol on about eight occasions in social contexts thereafter, no more than two beers per occasion (Tr. 78). He denied any driving after drinking alcohol (Tr. 69, 80).

Applicant owns the home that he shares with his girlfriend in state Y (Tr. 50-51). He purchased the home in about May 2004 (Ex. 1). He hopes to marry his girlfriend in 2010 (Tr. 24).

At his present employment, Applicant’s work is directly supervised by the vice president of advanced development programs. Applicant was hired to develop wireless technology for the U.S. military, and he performed very well in his first year on the job (Tr. 87). Applicant’s supervisor was unaware of Applicant’s alcohol offenses when he hired him. He learned of those issues about ten days before Applicant’s hearing on his clearance eligibility (Tr. 90), and has no reservations about his decision to hire Applicant. Applicant has shown himself to be passionate about his work and he has not exhibited any behavior at work that would lead this supervisor to consider him a liability to the company or to the war fighter that they serve (Tr. 87-89). He has never seen Applicant consume any alcohol (Tr. 95).

The employee who brought Applicant into the company has had a professional relationship with Applicant since 2002 from their previous employment (Tr. 109). They have also had a personal relationship since about 2004 (Tr. 110). Applicant informed his coworker of the alcohol incidents shortly after they happened in 2006 (Tr. 105). This coworker was surprised because the incidents were “out of character” from his experience with Applicant since 2002 (Tr. 117). In this coworker’s opinion, Applicant has continued to be technically competent, very reliable, and willing to work extra hours in his new job (Tr. 105-08). Every couple of months, this coworker and his wife get together with Applicant and his girlfriend for dinner at a restaurant. Through December 2008, this coworker had seen Applicant drink one beer or glass of wine, “maybe two,” but nothing more than that. Over the last six months, they have gotten together mostly in the mornings for breakfast. This coworker has not observed Applicant drink any alcohol in the past six months (Tr. 112). Applicant spends time with this coworker’s family. This coworker trusts Applicant with his children (Tr. 108).

A senior engineer, with 30 years at Applicant’s prior employment, supervised Applicant on two different projects from 2002 until Applicant left the company in 2008. They have had a social relationship since about 2007. This supervisor learned of the 2006 incident from Applicant shortly after it occurred. Applicant also told him that he had notified security personnel at work. Applicant’s use of alcohol never affected his work. He considers Applicant to be a social drinker and he would rehire him (Tr. 122-28). He last observed Applicant drinking at Applicant’s house in the summer of 2008 (Tr. 128).

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 required to be considered 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 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 that 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

The security concern for alcohol consumption is set out in AG ¶ 21: “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 untrustworthiness.” AG ¶ 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,” is implicated. While the May 2003 OUI charge was continued without a finding for one year, Applicant admitted to sufficient facts to sustain a finding that he drove a vehicle while under the influence of alcohol. His blood alcohol level was over the legal limit. So too with the March 2006 DUI, the objective evidence indicates he was impaired by alcohol, notwithstanding his plea to a lesser included charge of reckless driving with alcohol. Applicant failed field sobriety tests, and his blood alcohol level registered at .09% about 1.5 hours after his arrest. The evidence does not show that Applicant was impaired by alcohol when he was cited for the July 2006 open container offense, although there is some evidence to suggest that he may have consumed some of the alcohol. The police found the container partially consumed and located under the driver’s seat. Even assuming he did not drink any alcohol in the car, he exercised extremely poor judgment by transporting an open container only months after his second drunk driving offense that was still pending disposition.

Despite the passage of more than three years since any evidence of abusive drinking by Applicant, the recidivism of his drunk driving behavior, with the second DUI occurring almost three years after his first offense, makes it difficult to mitigate the alcohol consumption concerns under AG ¶ 23(a) (stating, “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”).

AG ¶ 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)” applies to some extent in that Applicant acknowledges that driving after drinking as few as two drinks was a problem for him. There is no evidence that he has been diagnosed as alcohol dependent or as an alcohol abuser, or that he engaged in habitual or binge drinking. But police observations of Applicant’s demeanor when he was arrested for drunk driving, his failed field sobriety tests, and chemical test results, along with the discrepant accounts of what and how much he drank (e.g., whether he consumed Long Island Ice Tea or two beers after skiing and whether he consumed the “third beer” before his arrest in 2006, whether he drank weekly or monthly between July 2006 and January 2009) show some minimization by Applicant about his drinking. Despite the absence of any objective indicators of any difficulties controlling his alcohol consumption since 2006, I am unable to conclude that his abusive drinking is safely in the past. The LADC who evaluated Applicant in March 2007 recommended that he obtain counseling or at least attend self-help meetings. Applicant told a government investigator in May 2007 that he did not comply with those recommendations. Even assuming he attended about 13 AA meetings as he now claims, the benefit of that association is unclear, given he was told not to return. In May 2007, he indicated that he was drinking once a week, hard liquor or beer. When asked at his hearing to detail his consumption since July 2006, Applicant testified he drank only once a month. I cannot make a reasonable assessment of his current drinking habits because his conflicting accounts would render any such assessment unreliable and speculative.

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 conduct and all the circumstances in light of 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.

Applicant allowed alcohol to impair his judgment and reliability. He was operating at excessively high rates of speed, and was clearly under the influence of alcohol, when he was arrested in May 2003 and March 2006. He put not only himself and his passenger, but also others on the roadway, at serious risk to life and limb. He maintains that he no longer drives after consuming alcohol, and there is no evidence to the contrary. His past and present supervisors, and the business manager who recruited him for his current employment, have witnessed nothing about his behavior, on or off the job, that would suggest Applicant is other than a social drinker who has made some poor decisions in the past that he does not intend to repeat. But Applicant fails to present a convincing case for why he should be granted a security clearance notwithstanding these serious drunk driving offenses. While I do not doubt the importance of his job to him, his expressed commitment to his duties and protecting the war fighter did not prevent him from abusing alcohol when he was in state Z for work in March 2006. He testified that as a sign of his maturity, he bought a home. Yet the record evidence shows that he purchased that home in 2004, before his second drunk driving offense. His relationship with his present girlfriend may provide the support he needs, but he displayed immaturity by putting his personal interest in maintaining his job before his obligation to provide a consistent, credible account of his drinking habits. Under ¶ 6.2 of the Directive, Applicant is required to give full, frank, and truthful answers to inquiries that are relevant and material to a clearance decision. Concerns about his drinking, his maturity, and his judgment lead me to conclude that it is not clearly consistent with the national interest to grant Applicant a security clearance at this time.

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: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant

CONCLUSION

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

Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

Applicant told the arresting officer that he had consumed “two beers” at an establishment named “Margaritas” (Ex. 9). W hen he completed his e-QIP in November 2006, Applicant stated that he consumed “three drinks” while out to a restaurant named “Margaritas” with his then girlfriend (Ex. 1). The government investigator who interviewed him in May 2007 reported that Applicant had consumed two “Margarita” mixed drinks when out at a restaurant with his girlfriend and some coworkers (Ex. 2). At his hearing, Applicant testified that he went to “Margaritas” next door to his work with some coworkers for dinner and he consumed two drinks (Tr. 36). W hether he consumed Margarita drinks or different mixed drinks, his testimony (two drinks) varies from his e-QIP representations of having consumed three drinks.

The officer who arrested Applicant in May 2003 reported that Applicant was operating at “an extremely high rate of speed” (Ex. 9).

There are discrepancies in the record concerning the quantity of alcohol Applicant consumed before this arrest as well. Applicant told the police when he was stopped that he had consumed two beers (Ex. 4). Applicant indicated on his e-QIP completed in November 2006 that he drank two beers at the mountain, and a third beer as he headed back on the road after stopping for gasoline. Yet, he also stated that he was pulled over shortly after opening the container (Ex. 1). W hen detailing the incident to the government investigator in May 2007, Applicant reportedly indicated that he had consumed “2 Long Island Iced Tea mixed drinks” before his arrest (Ex. 2). In June 2008, Applicant affirmed that the investigator’s report was accurate. At his hearing, Applicant testified that he had “two drinks” (Tr. 60). Given his reckless driving and obvious signs of impairment (red and watery eyes, slurred speech, failed field sobriety tests, blood alcohol content over the legal limit about 1.5 hours after his arrest), it is simply not credible that he drank only two beers.

Applicant told the responding officer that he had consumed two beers (Ex.4). On his e-QIP, Applicant rd indicated, in part, “W e headed back on the road in the desert and I drank my 3 beer. Shortly after opening the container I was pulled over” (Ex. 1). His appearance when he was stopped, his inability to pass the field sobriety test, and the results of the chemical test would tend to indicate that he drank at least one of the beers purchased by his companion, or he had consumed more alcohol before he started driving.

Applicant has consistently referred to the charge as “wet reckless.” Applicant denies he was legally impaired by alcohol, although he does not dispute the chemical test result (Tr. 43).

Section 23152(a) of state Z’s vehicle code makes it unlawful for any person under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle. Section 23152(b) specifically states that it is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood, to drive a vehicle. Section 23103(a) provides that a person is guilty of reckless driving if he or she drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property. Under Section 23103.5, when the prosecution agrees to a plea of guilty or nolo contendere to a violation of Section 23103 (reckless driving) in satisfaction of, or as a substitute for, an original charge of driving under the influence in violation in Section 23152, the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether any consumption of alcohol or administration of any drug was involved. Applicant told the government investigator in May 2007 that he had placed the opened beer in his vehicle cupholder (Ex. 2), which is discrepant with the location of the open container as reported by the officer on the scene (Ex. 6).

Applicant explained at his hearing that as a first time driver in state Y, his license was valid for only one year and he had not realized that his license had expired (Tr. 46).

Concerning his attendance at AA, Applicant testified that he attended around ten additional meetings, “either once a week or once a month” depending on his travel schedule (Tr. 67). W hen asked specifically what it was about his participation in AA that made others so uncomfortable to tell him to not return, Applicant responded, “It was just over many, many classes, as they came to find, you know, know me, you know, and it was just more, you know, they just asked me, you know, the lady, you know–“ (Tr. 80). Applicant provided no records of his counseling or his AA attendance. Applicant told the investigator in May 2007 that he had attended three AA meetings in December 2006. He did not discuss any additional meetings. To the contrary, he told the investigator that the LADC recommended in March 2007 that he attend counseling with an LADC or self-help classes, which he did not attend (Ex. 2). His recent testimony is discrepant with his admission during his May 2008 interview when he indicated he was drinking once a week.