CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-00573.h1 — CASE

ISCR Case 09-00573.h1denied

Case Headnote

ISCR Case No. 09-00573.h1

deniedSep 15, 2011· Hon. Martin H. Mogul· hearing

Summary

A 31-year-old defense contractor and former Navy service member was denied a security clearance under Guideline G (Alcohol Consumption) due to a documented history of excessive alcohol use and multiple Driving Under the Influence (DUI) arrests. The Statement of Reasons detailed that the applicant consumed alcohol to excess from approximately 1997 to at least December 2007.

Specific incidents included a November 3, 2003 arrest for DUI, resulting in a no contest plea, five years probation, a $1,700 fine, public service, and completion of a MADD program. A second DUI arrest occurred on October 31, 2004, leading to another no contest plea, five years probation, 96 days confinement, volunteer work, and a MADD program. The applicant also received alcohol abuse counseling through the U.S. Navy in January 2004. Critically, while a previous security clearance decision was pending, the applicant was arrested a third time for DUI in July 2007, pleading guilty and receiving a suspended sentence, jail time, fines, a multiple conviction program, MADD program, license suspension, and an ignition interlock device.

Despite presenting character references and completing rehabilitation programs, the Administrative Judge found insufficient evidence of rehabilitation and noted ongoing alcohol use. The applicant's assurances of future compliance were deemed not credible given the pattern of behavior, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant has a history of excessive alcohol consumption and multiple DUI arrests.
The applicant admitted to consuming alcohol even after previous rehabilitation efforts.
The applicant's assurances of future compliance with alcohol abstinence were not credible, given past behavior.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents
AG ¶ 22(c)raisedBinge Consumption of Alcohol

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 issuedNov 17, 2010
Answer filedDec 13, 2010
Hearing heldMar 30, 2011
Decision dateSep 15, 2011

Cite For

Denial of Clearance Due to Excessive Alcohol Consumption Under Guideline G
Credibility Issues Regarding Applicant's Assurances of Future Compliance with Alcohol Abstinence
Insufficient Evidence of Rehabilitation in Cases Involving Multiple Duis

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found against the applicant on all allegations related to alcohol consumption under Guideline G. The applicant had multiple DUI arrests and a diagnosis of Alcohol Abuse, which were deemed disqualifying factors, leading to the denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant has “consumed alcohol, at times to excess and to the point of intoxication, from approximately 1997 to at least December 2007.”	Against Applicant	Binge or Intoxication Pattern	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.b	On November 29, 2006, a Statement of Reasons was issued to Applicant which alleged two alcohol related incidents. A hearing was conducted, and the findings of the Administrative Judge in his decision included the following: i. Applicant “consumed alcohol, at times to excess and to the point of intoxication, from approximately 1997 to at least June 2006.” ii. On October 31, 2004, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed on five years probation, 96 days confinement, four days of volunteer work and to attend and complete a Mothers Against Drunk Driving (MADD) program. iii. On November 3, 2003, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed on five years probation, fined $1,700, ordered to participate in a public service program, complete a three month first conviction program and to finish a MADD program.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.c	During the period when the Administrative Judge was making his deliberation regarding Applicant’s case, and before a favorable decision was issued in August 2007, Applicant was arrested a third time for Driving Under the Influence of Alcohol.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.d	Applicant received alcohol related counseling on or about January 2004, at a Substance Abuse Rehabilitation Program Applicant through the United States Navy, for a condition diagnosed Alcohol Abuse.	Against Applicant	Alcohol Use Disorder Diagnosed	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.e	In July 2007, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled Guilty. The imposition of the sentence was suspended for five years. He was sentenced to jail, ordered to pay a fine and fees, ordered to complete a multiple conviction program, and attend a MADD program. Applicant’s license was suspended and an ignition interlock device was ordered for his vehicle.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—

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. 09-00573 ) ) Applicant for Security Clearance )

For Government: Jeff A. Nagel, Esquire, Department Counsel For Applicant: Pro se

September 15, 2011

______________

STATEMENT OF CASE

______________

MOGUL, Martin H., Administrative Judge:

On November 17, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline G for Applicant. 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) (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense for SORs issued after September 1, 2006.

On December 13, 2010, Applicant replied to the SOR (RSOR) in writing, and he requested a hearing before an Administrative Judge. The case was assigned to this Administrative Judge on March 2, 2011. DOHA issued a notice of hearing on March 4, 2011, and I convened the hearing as scheduled on March 30, 2011. The Government offered Exhibits 1 through 9, which were received without objection. Applicant testified on his own behalf and submitted Exhibits A through K at the time of hearing, which were also admitted without objection. I granted Applicant’s request to keep the record open until April 13, 2011, to submit a one page letter, which had been previously identified and entered into evidence without objection as Exhibit F, although it had not been physically present at the time of the hearing. DOHA received the transcript of the hearing (Tr) on April 7, 2011. Based upon a review of the pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his RSOR Applicant admitted SOR allegations 1.a. through 1.e., under Guideline G. The admitted allegations are incorporated herein as findings of fact.

After a complete and thorough review of the evidence in the record, including Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon due consideration of that evidence, I make the additional findings of fact:

Applicant is 31 years old. He is unmarried, and he has no children. He served in the United States Navy from 2000 to 2005, when he received an Honorable Discharge. Applicant is employed by a defense contractor, and he seeks a DoD security clearance in connection with his employment in the defense sector.

(Guideline G - Alcohol Consumption)

The Government alleges that Applicant is ineligible for clearance because he has engaged in excessive alcohol consumption. The following are the five allegations as they are cited in the SOR, and as reviewed above, 1. a. through 1.e. have been admitted by Applicant in his RSOR :

1.a. Applicant has “consumed alcohol, at times to excess and to the point of intoxication, from approximately 1997 to at least December 2007.”

1.b. On November 29, 2006, a Statement of Reasons was issued to Applicant which alleged two alcohol related incidents. A hearing was conducted, and the findings of the Administrative Judge in his decision included the following:

i. Applicant “consumed alcohol, at times to excess and to the point of intoxication, from approximately 1997 to at least June 2006.”

ii. On October 31, 2004, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed on five years probation, 96 days confinement, four days of volunteer work and to attend and complete a Mothers Against Drunk Driving (MADD) program.

iii. On November 3, 2003, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed on five years probation, fined $1,700, ordered to participate in a public service program, complete a three month first conviction program and to finish a MADD program. 1.c. During the period when the Administrative Judge was making his deliberation regarding Applicant’s case, and before a favorable decision was issued in August 2007, Applicant was arrested a third time for Driving Under the Influence of Alcohol.

1.d. Applicant received alcohol related counseling on or about January 2004, at a Substance Abuse Rehabilitation Program Applicant through the United States Navy, for a condition diagnosed Alcohol Abuse.

1.e. In July 2007, Applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with BAC of .08 or More. He pled Guilty. The imposition of the sentence was suspended for five years. He was sentences to jail, ordered to pay a fine and fees, ordered to complete a multiple conviction program, and attend a MADD program. Applicant’s license was suspended and an ignition interlock device was ordered for his vehicle.

Applicant testified that as a result of this conviction, he spent 45 days in a detention facility. He had been sentenced to 90 days because of time served credit and because he enrolled in a work furlough program where he was in a kind of half-way house for 23 or 24 days, when not at his employment. (Tr t 33-34.)

At the hearing, Applicant testified that he still consumes alcohol. The last time he consumed alcohol prior to the hearing was on St. Patrick’s Day, March 17, 2011, approximately one month before the hearing. He stated that at that time he drank two beers. Prior to that he estimated that he last consumed three beers on the previous New Year’s Eve. He estimated that in 2010, he drank about four times, and he had as many as four beers on at least one or two occasions. After Applicant’s arrest in 2007, he drank alcohol on one occasion before he was incarcerated, and then he abstained completely for approximately six months before he began consuming alcohol again. Since that time he estimates that he drinks about three to five times a year on special occasions. (Tr at 27-31, 52-54.) Applicant attends Alcoholics Anonymous meetings not regularly, but approximately once a month. (Tr at 36.)

Applicant testified at the current hearing that he would not get a DUI in the future. His reasoning was because he has been incarcerated and in a work furlough program, neither of which had ever happened to him before, and this would result in a different outcome. However during Applicant’s testimony, Department Counsel pointed out that Applicant had promised he would not get another DUI at his previous hearing in 2007, but despite his promise, he did receive another DUI. (Tr at 59-60.)

Mitigation

Applicant submitted a number of documents to attempt to mitigate the SOR allegations. They include but are not limited to the following: four character letters. (Exhibits C, D, and K.) The first is from his supervisor from January 2008 until the present. He wrote about Applicant, “he has not demonstrated any behavior that would indicate irresponsibility or deliberate compromise of classified information or material if granted access.” Another letter was from the site leader and program manager for the facility of Applicant’s employer. He wrote Applicant’s “dedication and efforts have resulted in both verbal and written compliments.” Exhibit E is a letter from a Brigadier General of the United States Air Force in which he congratulated Applicant for the “extraordinary support” given to United States service members.

Exhibit F is a letter from a counselor for the Employee Assistance Program for Applicant’s employer, indicating that she met with Applicant after his last DUI, and that his court ordered attendance at the Driving Under the Influence Program is appropriate and sufficient follow up care. Exhibit I is a Notice of Complection Certificate showing that Applicant finished an 18 month Driving Under the Influence Program multiple offender program. Exhibit J includes AA attendance slips establishing that Applicant attended multiple AA meetings. Exhibit K included a Letter of Commendation and two certificates for Navy and Marine Corps Achievement Medals that Applicant’s earned during his time in the Navy.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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)

Applicant's alcohol consumption has resulted in three DUI arrests and convictions, and a diagnosis of Alcohol Abuse from a substance abuse counselor.

The Government established that Applicant was involved in “alcohol-related incidents away from work,” and “binge consumption of alcohol to the point of impaired judgement.” Disqualifying Conditions AG ¶ 22(a) and (c) apply to this case.

As reviewed above, Applicant underwent a security hearing in 2007, during which he promised that he would not receive any further DUI arrests and convictions. Yet before the decision was actually issued, he received his third DUI arrest and conviction. After Applicant served his sentence in the detention facility, he abstained from consuming alcohol for about six months. Yet at the current hearing, he admitted to consuming alcohol again, and he currently drinks alcohol, usually beer, approximately four times a year, consuming as many as three or four beers at one time. This is despite the fact that Applicant has been advised not to consume any alcohol in the future at the AA meetings that he attends sporadically, and he has received a diagnosis of Alcohol Abuse. As a result of this, I do not find that any Mitigating Condition under ¶ 23 applies. Guideline G is found against Applicant.

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 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. Based on all of the reasons cited above as to why the disqualifying conditions apply and the mitigating conditions do not apply, I find that the record evidence leaves me with significant questions and doubts as to Applicant’s eligibility and suitability for a security clearance under the whole-person concept. For all these reasons, I conclude Applicant has not mitigated the security concerns.

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.- 1.e.: Against Applicant

CONCLUSION

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

Martin H. Mogul Administrative Judge