ISCR Case 09-01703.h1

Case Headnote

ISCR Case No. 09-01703.h1

deniedJul 1, 2009· Hon. LeRoy F. Foreman· hearing

Summary

A 51-year-old engineer technician was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The Statement of Reasons detailed a history of criminal behavior spanning from 1979 to 2009, including charges for illegal drug possession, disorderly conduct, assault, destroying property, and multiple instances of assault and battery on family members.

Additionally, the applicant faced several driving under the influence (DUI) charges, with convictions in 1988, 2006, and 2009, and a conviction for refusing a breathalyzer test in 2008. The Statement of Reasons also noted the applicant's participation in alcohol treatment programs in 2006 and 2010, but alleged continued alcohol consumption.

The judge determined that the applicant's recent criminal conduct and ongoing alcohol-related issues raised significant concerns about his judgment and reliability. Despite some evidence of rehabilitation efforts, the multiple criminal charges, including DUIs and domestic violence, coupled with recent alcohol consumption and a lack of established abstinence, led to the denial of the security clearance.

Why the Applicant Was Denied

The applicant had multiple criminal charges, including DUIs and domestic violence incidents, which raised concerns about his judgment and reliability.
The applicant's recent alcohol consumption and failure to establish a pattern of abstinence undermined claims of rehabilitation.
The applicant's admissions and the lack of sufficient time since his last offense did not mitigate the security concerns.

Conditions Referenced

Disqualifying

AG ¶ 31(a)appliedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)appliedAllegation or Admission of Criminal Conduct
AG ¶ 31(d)appliedIndividual Is Currently on Parole or Probation
AG ¶ 22(a)appliedAlcohol-related Incidents Away From Work
AG ¶ 22(c)appliedHabitual or Binge Consumption of Alcohol

Mitigating

AG ¶ 32(a)rejectedTime Elapsed Since Criminal BehaviorThe applicant's criminal conduct was recent and did not happen under unusual circumstances.
AG ¶ 32(d)rejectedEvidence of Successful RehabilitationNot enough time has elapsed to demonstrate rehabilitation.
AG ¶ 23(b)appliedAcknowledgment of Alcoholism and Actions Taken to Overcome ItThe applicant acknowledged his alcoholism and participated in AA.
AG ¶ 23(d)rejectedSuccessful Completion of Counseling or RehabilitationThe favorable recommendation was not from a qualified medical professional.

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedAug 13, 2010
Answer filedSep 30, 2010
Hearing heldJan 19, 2011
Decision dateMar 9, 2011

Cite For

Disqualifying Conditions Under Guidelines J and G Due to Criminal Conduct and Alcohol Consumption
The Importance of Demonstrating a Pattern of Abstinence for Mitigating Alcohol-related Concerns
The Impact of Recent Criminal Behavior on 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.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The SOR ¶ 2.a cross-alleges the conduct in SOR ¶¶ 1.d, 1.h, 1.i, 1.j, and 1.k under this guideline.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
2.b	The SOR alleges Applicant’s alcohol treatment in July-September 2006 (SOR ¶ 2.b).	For Applicant	Treatment Non Compliance	Admitted	—	—	—
2.c	The SOR alleges Applicant’s alcohol treatment in April-June 2010 (SOR ¶ 2.c).	For Applicant	Treatment Non Compliance	Admitted	—	—	—
2.d	The SOR alleges that he continues to drink alcohol (SOR ¶ 2.d).	Against Applicant	Continued Use After Treatment	Admitted	(c) habitual or binge consumption to the point of impaired judgment	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

The SOR ¶ 2.a cross-alleges the conduct in SOR ¶¶ 1.d, 1.h, 1.i, 1.j, and 1.k under this guideline.

Against Applicant

DUI or DWI Alcohol

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

—

2.b

The SOR alleges Applicant’s alcohol treatment in July-September 2006 (SOR ¶ 2.b).

For Applicant

Treatment Non Compliance

Admitted

—

2.c

The SOR alleges Applicant’s alcohol treatment in April-June 2010 (SOR ¶ 2.c).

For Applicant

Treatment Non Compliance

Admitted

—

2.d

The SOR alleges that he continues to drink alcohol (SOR ¶ 2.d).

Against Applicant

Continued Use After Treatment

Admitted

(c) habitual or binge consumption to the point of impaired judgment

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In June 1979, Applicant was charged with illegal drug possession. He pleaded guilty, was fined $100 (suspended), and placed on probation for three years. The charges were thereafter dismissed on motion of the district attorney.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	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	—	—
1.b	In March 1982, Applicant was arrested for disorderly conduct and fined $25.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	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	—	—
1.c	In July 1982, he was involved in a brawl. The SOR alleges that he received nonjudicial punishment (a “captain’s mast”) under Article 15, UCMJ, for assault, and using provoking speech and gestures.	Against Applicant	Assault or Battery	Conduct No Charge	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	—	—
1.d	In April 1988, Applicant was charged with driving under the influence on a Navy base. He admitted the allegation that he was punished and his driving privileges were suspended.	Against Applicant	DUI or DWI Criminal	Conduct No Charge	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	—	—
1.e	In August 1991, Applicant was charged with destroying property. He admitted this offense in his answer to the SOR, but there is no documentary evidence of it in the record.	Against Applicant	Vandalism or Property Damage	Conduct No Charge	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	—	—
1.f	In August 1997, Applicant was charged with assault and battery on a family member. The court entered a satisfaction and discharge order, dismissing the charge upon payment of court costs.	Against Applicant	Domestic Violence	Dismissed or Nolle Prossed	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	—	—
1.g	In March 2004, Applicant was charged with two counts of assault and battery as a result of a bar fight. He was convicted, appealed his conviction, and was convicted again on appeal. He was fined $250, ordered to pay court costs, and sentenced to six months in jail. The jail sentence was suspended, conditioned on good behavior for two years.	Against Applicant	Assault or Battery	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	—	—
1.h	In March 2005, Applicant was charged with assault and battery on a family member, as a result of domestic disturbance with his cohabitant. The court deferred findings, placed Applicant on probation for two years, and ordered him to complete alcohol screening and treatment if required.	Against Applicant	Domestic Violence	Diversion or Deferred	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	—	—
1.i	In February 2006, Applicant was charged with driving under the influence (DUI). He pleaded not guilty but was convicted. He was sentenced to 90 days in jail (suspended), probation for three years, suspension of his driver’s license for one year, and a $350 fine.	Against 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	—	—
1.j	In June 2008, Applicant was charged with refusing to take a breathalyzer test, DUI (2nd offense), and two counts of assault and battery on his current wife. He was convicted of refusing to take a breathalyzer test, but he was found not guilty on appeal.	Against Applicant	DUI or DWI Criminal	Acquitted or Found Not Guilty	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	—	—
1.k	In December 2009, Applicant was charged with refusing to take a breathalyzer (2nd offense), failure to obey a highway sign, and DUI (2nd offense within 5-10 years). He was convicted of DUI, and the other charges were disposed of by nolle prosequi.	Against 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	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In June 1979, Applicant was charged with illegal drug possession. He pleaded guilty, was fined $100 (suspended), and placed on probation for three years. The charges were thereafter dismissed on motion of the district attorney.

Against Applicant

Drug Related Criminal Charge

Conduct No Charge

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

—

1.b

In March 1982, Applicant was arrested for disorderly conduct and fined $25.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

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

—

1.c

In July 1982, he was involved in a brawl. The SOR alleges that he received nonjudicial punishment (a “captain’s mast”) under Article 15, UCMJ, for assault, and using provoking speech and gestures.

Against Applicant

Assault or Battery

Conduct No Charge

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

—

1.d

In April 1988, Applicant was charged with driving under the influence on a Navy base. He admitted the allegation that he was punished and his driving privileges were suspended.

Against Applicant

DUI or DWI Criminal

Conduct No Charge

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

—

1.e

In August 1991, Applicant was charged with destroying property. He admitted this offense in his answer to the SOR, but there is no documentary evidence of it in the record.

Against Applicant

Vandalism or Property Damage

Conduct No Charge

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

—

1.f

In August 1997, Applicant was charged with assault and battery on a family member. The court entered a satisfaction and discharge order, dismissing the charge upon payment of court costs.

Against Applicant

Domestic Violence

Dismissed or Nolle Prossed

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

—

1.g

In March 2004, Applicant was charged with two counts of assault and battery as a result of a bar fight. He was convicted, appealed his conviction, and was convicted again on appeal. He was fined $250, ordered to pay court costs, and sentenced to six months in jail. The jail sentence was suspended, conditioned on good behavior for two years.

Against Applicant

Assault or Battery

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

—

1.h

In March 2005, Applicant was charged with assault and battery on a family member, as a result of domestic disturbance with his cohabitant. The court deferred findings, placed Applicant on probation for two years, and ordered him to complete alcohol screening and treatment if required.

Against Applicant

Domestic Violence

Diversion or Deferred

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

—

1.i

In February 2006, Applicant was charged with driving under the influence (DUI). He pleaded not guilty but was convicted. He was sentenced to 90 days in jail (suspended), probation for three years, suspension of his driver’s license for one year, and a $350 fine.

Against 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

—

1.j

In June 2008, Applicant was charged with refusing to take a breathalyzer test, DUI (2nd offense), and two counts of assault and battery on his current wife. He was convicted of refusing to take a breathalyzer test, but he was found not guilty on appeal.

Against Applicant

DUI or DWI Criminal

Acquitted or Found Not Guilty

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

—

1.k

In December 2009, Applicant was charged with refusing to take a breathalyzer (2nd offense), failure to obey a highway sign, and DUI (2nd offense within 5-10 years). He was convicted of DUI, and the other charges were disposed of by nolle prosequi.

Against 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

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION