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ISCR Case 08-07705.h1 — CASE

ISCR Case 08-07705.h1denied

Case Headnote

ISCR Case No. 08-07705.h1

deniedFeb 17, 2010· Hon. Shari Dam· hearing

Summary

A 49-year-old mechanic was denied a security clearance under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) due to a long history of alcohol abuse, repeated relapses, and deliberate falsification of his security clearance application. The applicant's alcohol abuse spanned over 30 years, from at least 1978 to August 2008, and included a 1978 Driving Under the Influence charge. He was diagnosed with Alcohol Dependence and had a history of treatment and relapses, but failed to provide evidence of sustained abstinence or a favorable prognosis from a qualified professional.

The applicant also deliberately falsified his e-QIP responses. He did not disclose his 1978 alcohol offense, his marijuana use up to 2007, or his use of cocaine and marijuana while holding a security clearance. These omissions were considered deliberate falsifications.

The judge found that the applicant's actions, including his admitted falsification of information and failure to demonstrate sustained rehabilitation from alcohol abuse since August 2008, raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant has a long history of alcohol abuse spanning over 30 years.
He failed to provide evidence of sustained rehabilitation or sobriety since August 2008.
Applicant admitted to falsifying information on his e-QIP regarding his alcohol and drug use.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents Away From Work
G.2.braisedAlcohol-related Incidents at Work
G.2.craisedHabitual or Binge Consumption of Alcohol
G.2.draisedDiagnosis of Alcohol Abuse or Dependence
G.2.fraisedRelapse After Diagnosis of Alcohol Abuse or Dependence
E.2.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
E.2.craisedCredible Adverse Information in Several Adjudicative Issue Areas

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJun 8, 2009
Answer filedJul 6, 2009Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on the written record.
Decision dateFeb 17, 2010

Cite For

Denial Based on Long-term Alcohol Abuse and Lack of Rehabilitation
Falsification of Information on Security Clearance Application
Consideration of Whole-person Concept in Security Clearance Decisions

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 all allegations under Guideline E, citing deliberate falsification of information on the e-QIP regarding his alcohol and drug use. The applicant admitted to the allegations, which raised significant concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The SOR alleged that Applicant deliberately falsified his answers to three questions in the e-QIP by failing to disclose certain information: (1) Section 23: Your Police Record on the e-QIP: he did not disclose his 1978 alcohol offense; (2) Section 24(a): Your Use of Illegal Drugs and Drug Activity: he did not disclose that he used marijuana up to 2007; and (3) Section 24(b): he did not disclose that he used cocaine and marijuana while holding a security clearance.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b–2.c	2 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant		—		—	—	—

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: deniedAUD DIAGNOSED

The judge found against the applicant on all allegations related to alcohol consumption, citing a long history of alcohol abuse and multiple treatment admissions without establishing a pattern of sustained rehabilitation. The applicant's admissions of past behavior and lack of evidence for ongoing sobriety contributed to the decision to deny security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	In 1978, he was charged with Driving Under the Influence.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.b	He has a long history of alcohol abuse and treatment.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.c	He was diagnosed with Alcohol Dependence by a physician in the treatment program.	Against Applicant	Alcohol Use Disorder Diagnosed	Admitted	—	—	—
1.d	He has a history of treatment and relapses, eliminating the application of AG ¶ 23(c).	Against Applicant	Treatment Non Compliance	Admitted	—	—	—
1.e	He did not provide any evidence to demonstrate a sufficient pattern of abstinence or a favorable prognosis from a duly qualified professional.	Against Applicant	Continued Use After Treatment	Admitted	—	—	—
1.f	He has a 30-year history of abusing alcohol, spanning from at least 1978 to August 2008.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.g	He continues to drink an occasional beer, but also stated that he did not intend to drink alcohol in the future.	Against Applicant	Continued Use After Treatment	Admitted	—	—	—

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. 08-07705 ) ) Applicant for Security Clearance )

For Government: James F. Duffy, Esquire, Department Counsel For Applicant: Pro Se

February 17, 2010 ______________

STATEMENT OF CASE

______________

DAM, Shari, Administrative Judge:

Based upon a review of the record evidence as a whole, eligibility for access to classified information is denied.

On December 27, 2007, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP). On June 8, 2009, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under the guidelines for alcohol consumption and personal conduct. 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. On July 6, 2009, Applicant answered the SOR in writing and elected to have the case decided on the written record in lieu of a hearing. On September 8, 2009, Department Counsel prepared a File of Relevant Material (FORM), containing twelve Items, and mailed Applicant a complete copy the following day. Applicant received the FORM on September 28, 2009, and had 30 days from its receipt to file objections and submit additional information. Applicant did not submit any additional information. On January 8, 2010, DOHA assigned the case to me.

FINDINGS OF FACT

In his Answer, Applicant admitted all factual allegations contained in the SOR. Those admissions are incorporated in the findings below.

Applicant is 49 years old. He has four adult children from a former marriage. In June 1978, he began working as a mechanic for a defense contractor. He was granted a security clearance in December 1996. (Item 5; 10.)

Applicant has a long history of alcohol abuse and treatment. He began consuming alcohol at the age of 13, with regular use beginning at age 17. (Item 9 at 132.) In 1978, he was charged with Driving Under the Influence. On August 6, 2006, he sought inpatient treatment for alcohol abuse in order to maintain his employment. (Item 5 at 50.) He stated that he was consuming 8 to 10 drinks of whiskey or beer a day. (Id.) According to a physician, he was discharged with a diagnosis of Alcohol Dependent on August 11, 2006.

Six months later, on January 7, 2008, Applicant was readmitted to the inpatient treatment program and diagnosed as Alcohol Dependent, Nicotine Dependent, and Alcohol Withdrawal Syndrome by the medical director. He was consuming “three to four drinks and six to eight beers” on a daily basis. (Id. at 132.) His blood alcohol concentration (BAC) was 0.279 on admission. He admitted that he smoked marijuana once or twice a year, and last used it in June 2007. He also noted that he had a previous history of using cocaine, with his last use of cocaine in 2002. (Id.) He was discharged on January 19, 2008. In an April 2008 interview, he noted that after he successfully completed treatment and returned to work, his employer gave him a reprimand and warned him that similar conduct should not happen again. He stated that he continues to drink an occasional beer, but also stated that he did not intend to drink alcohol in the future. (Item 7 at 4.)

Applicant readmitted himself to an inpatient alcohol treatment program on June 30, 2008, claiming he relapsed four to six weeks ago. His BAC was 0.287. During his admission intake, he could not “remember consuming more than one beer and ‘3-4’ drinks.’” (Id. at 222.) He stopped taking the medicine prescribed for him during the January 2008 admission a week after he left the program. (Id.) He was discharged on July 27, 2008. He received a diagnosis of Alcohol Dependence and General Anxiety Disorder by a physician. (Id. at 250.) On August 29, 2008, Applicant voluntarily entered the treatment facility for the fourth time with a BAC of 0.189. He stated that he “’Just started to get bad again & I didn’t want it to get as bad as it was.’” (Sic). A physician diagnosed him with Alcohol Dependence, Nicotine Dependence, and Alcohol Withdrawal Syndrome. (Item 9 at 339.) He was discharged on September 1, 2008. In November 2008, he completed a set of interrogatories. He indicated that he last consumed alcohol in August 2008 and did not intend to consume it in the future. (Item 6 at 2.) He did not submit any evidence regarding further participation in outpatient assistance programs or documentation of consistent sobriety since then.

The SOR alleged that Applicant deliberately falsified his answers to three questions in the e-QIP by failing to disclose certain information: (1) Section 23: Your Police Record on the e-QIP: he did not disclose his 1978 alcohol offense; (2) Section 24(a): Your Use of Illegal Drugs and Drug Activity: he did not disclose that he used marijuana up to 2007; and (3) Section 24(b): he did not disclose that he used cocaine and marijuana while holding a security clearance. In his Answer, he admitted all falsification allegations.

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 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 “Any 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.

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

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 an 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.

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 six conditions that could raise a security concern, five of which 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;

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, 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.

In 1978, Applicant received a DUI. In August 2006, he entered an inpatient treatment program for alcohol abuse because his job was in jeopardy. Subsequently, he voluntarily entered treatment in January 2008, June 2008, and August 2008. At the time of each admission, he had a high BAC and received a diagnosis of Alcohol Dependent from a physician in the treatment program. The evidence potentially raised all five of the above disqualifications.

After the government raised a potential disqualifying condition, the burden shifted to Applicant to rebut and prove mitigation of the resulting security concerns AG ¶ 23 provides four conditions that could mitigate security concerns raised under this guideline:

(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;

(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);

(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; and

(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.

None of the above mitigating conditions apply. Applicant has a 30-year history of abusing alcohol, spanning from at least 1978 to August 2008. Given the frequency and long history of alcohol abuse, his behavior casts doubt on his current trustworthiness and good judgment. AG ¶ 23(a) does not apply. Although Applicant recognizes his alcoholism, he has not established a pattern of sustained rehabilitation and sobriety, which is necessary to apply AG ¶ 23(b). Applicant has a history of treatment and relapses, eliminating the application of AG ¶ 23(c). He did not provide any evidence to demonstrate a sufficient pattern of abstinence or a favorable prognosis from a duly qualified professional. AG ¶ 23(d) does not apply.

Guideline E, Personal Conduct

The security concern pertaining to the guideline for personal conduct is set out in AG ¶ 15:

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.

The government alleged in ¶ 2 of the SOR that Applicant’s deliberate failure to disclose his 1978 DUI, drug abuse history, and use of illegal substances while holding a security clearance in his e-QIP may raise disqualifications under AG ¶ 15.

AG ¶ 16 sets out seven conditions that could raise security concerns and be disqualifying. Two of them may be applicable in this case:

(a) 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; and

(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 or unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information.

Applicant admitted the three falsification allegations contained in the SOR. That admission raised a potential disqualification under AG ¶ 16(a). He also acknowledged that he used illegal drugs while holding a security clearance, which is evidence of his unwillingness to comply with rules and regulations pertaining to the safeguarding of protected information and raises a potential disqualification under AG ¶ 16(c).

AG ¶ 17 includes six conditions that could mitigate security concerns arising under this guideline:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

Applicant did not provide sufficient evidence to trigger the application of any mitigating condition listed under AG ¶ 17. He did not make an attempt to disclose the information prior to being interviewed about it, as required under AG ¶ 17(a). His history of alcohol and illegal drug use is serious and not minor. It is relatively recent and long- standing. His trustworthiness and judgment are in question. Hence, AG ¶ 17(c) does not apply. Although he acknowledged the problem, he has not documented a pattern of rehabilitation sufficient to alleviate the possibility of a recurrence. AG ¶ 17(d) does not apply. There is insufficient evidence to support the application of AG ¶ 17(b) and AG ¶ 17(e). Based on the evidence, AG ¶ 17(f) and AG ¶ 17(g) are irrelevant.

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 relevant 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.

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

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant is a 49-year-old divorced man and father of four adult children. He has abused alcohol most of his adult life (30 years) and used illegal substances for a period of time up to 2007. While his candid admissions of his history of alcohol abuse are noteworthy, he failed to document his intentions not to consume alcohol since August 2008. He did not provide any independent evidence of consistent rehabilitative efforts since that time, or evidence that he has gained significant insight or personal skills that will assure future alcohol abstinence or prevent illegal drug behavior. His long-term abuse of alcohol and occasional illegal drug use raise concerns about his reliability, judgment, and ability to comply with rules and regulations. An equal security concern is Applicant’s intentional failure to divulge his drug use on the e-QIP application. He readily admitted that during his first inpatient treatment program in 2006 he was concerned that his alcoholism would affect his employment. The government imposes a special trust in one who holds a security clearance and relies on a person to be honest and truthful regardless of the consequences. His actions raise security concerns.

Overall, the record evidence leaves me with questions as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant did not mitigate the security concerns arising from his alcohol consumption and personal 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: AGAINST APPLICANT

Subparagraphs 1.a through 1.g.: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraphs 2.a through 2.c.: Against Applicant

CONCLUSION

In light of all of the circumstances presented by 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.

_________________ SHARI DAM Administrative Judge