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ISCR Case 10-01952.h1 — CASE

ISCR Case 10-01952.h1granted

Case Headnote

ISCR Case No. 10-01952.h1

grantedDec 7, 2012· Hon. LeRoy F. Foreman· hearing

Summary

A 54-year-old interoperability training representative with military service was granted a security clearance despite concerns under Guidelines E (Personal Conduct), G (Alcohol Consumption), and J (Criminal Conduct). The Statement of Reasons detailed multiple alcohol-related incidents and criminal conduct spanning from 1983 to 2008.

These incidents included arrests for public drunkenness in April 1983, driving under the influence (DUI) in May and December 1988, and another DUI in September 2008, which resulted in a $1,925 fine, 40 hours of community service, and mandatory alcohol classes or counseling. Additionally, the applicant received non-judicial punishments for alcohol-related unauthorized absence, missing his ship’s movement, dereliction of duty, and drunk driving between 1985 and 1988. He completed a command-ordered alcohol rehabilitation program and aftercare in December 1988.

The judge found that the applicant successfully mitigated the concerns under Guidelines G and J, and refuted the allegations under Guideline E. This decision was based on a significant period without alcohol-related incidents following rehabilitation, a demonstrated pattern of responsible drinking, expressed remorse for past conduct, and witness testimony supporting his reputation for honesty and integrity.

Why the Applicant Prevailed

The applicant demonstrated a significant period of time without alcohol-related incidents after completing a rehabilitation program.
He established a pattern of responsible drinking and expressed remorse for past conduct.
The applicant's reputation for honesty and integrity was supported by witness testimony.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 22(b)raisedAlcohol-related Incidents at Work
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol

Mitigating

AG ¶ 23(a)appliedTime Passed or Infrequent Behavior Unlikely to Recur
AG ¶ 23(b)appliedAcknowledgment of Alcohol Issues and Responsible Use

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”
— Executive Order 10865

Procedural Posture

SOR issuedMay 23, 2012
Answer filedJun 18, 2012
Hearing heldOct 24, 2012Rescheduled from 08/21/2012.
Decision dateDec 7, 2012

Cite For

Mitigation of Alcohol-related Incidents Under Guideline G
Refutation of Allegations Under Guideline E
Consideration of Long-term Behavior 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: granted

The judge found that the applicant's personal conduct concerns were mitigated. The applicant denied the allegations under Guideline E, and the judge ruled in favor of the applicant on the personal conduct issue.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Denied	—	—	—

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: grantedTREATMENT COMPLETED · FAVORABLE

The judge found all allegations under Guideline G concerning alcohol consumption to be for the applicant. The applicant had multiple alcohol-related incidents in the past, including arrests for public drunkenness and DUI, but successfully completed treatment and demonstrated a long period of responsible alcohol use. The judge determined that the applicant's past behavior does not cast doubt on his current reliability and trustworthiness, leading to a granted security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	arrested in April 1983 for public drunkenness	For Applicant	Public Intoxication	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
1.b	received non-judicial punishment in June 1988 for an alcohol-related unauthorized absence and missing his ship’s movement	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
1.c	received non-judicial punishment in July 1985 for alcohol-related dereliction of duty	For Applicant	Alcohol Related Arrest	Denied	—	—	—
1.d	received non-judicial punishment in August 1986 for drunk driving	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
1.e	arrested in May 1988 for driving under the influence (DUI), driving on a suspended license, and illegal possession of alcohol	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
1.f	arrested in December 1988 for DUI and driving with a suspended license	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
1.g	completed a command-ordered alcohol rehabilitation program and its aftercare requirements in December 1988	For Applicant	Treatment Non Compliance	Admitted	—	—	—
1.h	arrested for DUI in September 2008, fined $1,925, and ordered to perform 40 hours of community service and attend alcohol classes or counseling	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—

Descriptive standardized rendering of a decided public case (Guideline G). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the security concerns under Guideline J (Criminal Conduct) were mitigated and ruled in favor of the applicant. The applicant had multiple alcohol-related incidents in the past, but the judge determined that these issues did not cast doubt on the applicant's current reliability and trustworthiness.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) [Redacted]1 ) ISCR Case No. 10-01952 ) Applicant for Security Clearance )

For Government: Stephanie C. Hess, Esq., Department Counsel For Applicant: Richard L. Morris, Esq.

12/07/2012 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guidelines G (Alcohol Consumption), J (Criminal Conduct), and E (Personal Conduct). The security concerns under Guidelines G and J are mitigated, and Applicant refuted the allegation under Guideline E. Eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application (SCA) on November 17, 2009. On May 23, 2012, the Defense Office of Hearings and Appeals (DOHA) notified him that it was unable to find that it was clearly consistent with the national interest to continue his eligibility for access to classified information, and it recommended that his case be submitted to an administrative judge for a determination whether to continue or revoke his clearance. DOHA set forth the basis for its action in a Statement of Reasons (SOR), citing security concerns under Guidelines G, J, and E. DOHA acted 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 adjudicative guidelines (AG) implemented by the Department of Defense on September 1, 2006.

Applicant received the SOR on June 1, 2012; answered it on June 18, 2012; and requested a hearing before an administrative judge. DOHA received the request on June 20, 2012. Department Counsel was ready to proceed on July 25, 2012, and the case was assigned to me on June 30, 2012. DOHA issued a notice of hearing on July 30, 2012, scheduling it for August 21, 2012. I convened the hearing as scheduled. At the beginning of the hearing, Applicant requested a continuance to obtain counsel, and I granted his request.

DOHA issued a second notice of hearing on October 1, 2012, rescheduling the hearing for October 24, 2012. I convened the hearing as rescheduled. Government Exhibits (GX) 1 through 5 were admitted in evidence without objection. Applicant testified, presented the testimony of four witnesses, and submitted Applicant’s Exhibits (AX) A through C, which were admitted without objection. DOHA received the transcript (Tr.) on November 5, 2012.2

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a-1.h. He did not respond to the allegation in SOR ¶ 2.a, which cross-alleges the allegations in SOR ¶ 1.a-1.fand 1.h. He denied the allegations in SOR ¶ 3.a. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 54-year-old interoperability training representative employed by a defense contractor since December 2008. He served on active duty in the U.S. Navy from August 1981 until February 2009. During his Navy career, he deployed 13 times for periods of at least six months. (Tr. 69.) He retired from the Navy as a master chief petty officer, the highest enlisted rate in the Navy. He held a security clearance during all of his Navy service. He began working for his current employer while on terminal leave before his retirement from the Navy.

Applicant married before he enlisted in the Navy and divorced in 1979. One child was born during this marriage. He married again in April 1985 and left on a seven- month deployment two weeks after the marriage. When he returned from deployment, his wife had left him, and they had no further contact. No children were born during this marriage. He divorced his second wife and married his current wife in November 1991. (GX 2 at 3; Tr. 54.) He has a 34-year-old daughter, a 20-year-old daughter, and a 16- year-old son. (Tr. 54; GX 1 at 26-27.)

Early in his Navy career, Applicant had several alcohol-related incidents. In April 1983, he was arrested by civilian authorities for public drunkenness and held in jail overnight. In June 1983, he received non-judicial punishment for an alcohol-related unauthorized absence and missing his ship’s movement. In July 1985, he received non- judicial punishment for dereliction of duty. The SOR alleged that his dereliction was alcohol-related, but he denied that alcohol was involved. In August 1986, he received non-judicial punishment for drunk driving. In May 1988, he was arrested by civilian authorities for driving under the influence (DUI), driving on a suspended license, and illegal possession of alcohol. In July 1988, he was arrested by civilian authorities for DUI and driving on a suspended license.

Applicant testified that after his non-judicial punishments for alcohol-related misconduct, he was required to meet with a drug and alcohol counselor. (Tr. 85.) After his July 1988 DUI arrest by civilian authorities, he sought assistance from a Navy drug and alcohol program advisor. He completed a 30-day inpatient treatment program at a Navy hospital in December 1988. He completed the aftercare requirements, which included periodic counseling, weekly Alcoholics Anonymous meetings, and sobriety for one year. (Tr. 85-86.) He had no further alcohol-related problems for more than 20 years. He testified that he has never been diagnosed as alcohol dependent. (Tr. 72.)

In September 2008, Applicant was arrested by civilian authorities for DUI. He pleaded guilty, and he was fined about $1,925 and ordered to perform 40 hours of community service. He was not required to obtain treatment or counseling. (GX 2 at 4; Tr. 77.)

In a personal subject interview (PSI) with a security investigator in December 2009 and at the hearing, Applicant explained that the September 2008 DUI occurred after he attended a social event in connection with a conference, consumed three or four cups of beer, and returned to his hotel room. He testified that he was at the social event for “an hour or so” and that he had dinner and some finger foods in addition to beer. His next memory was being stopped by the highway patrol while driving away from his hotel, failing a field sobriety test, and being arrested. He testified that he was given a breathalyzer test, which registered high enough to cause the police to arrest him for DUI. He testified that he did not know the blood-alcohol level that was registered on the breathalyzer.3 He was given a blood test because he was wearing a bracelet identifying him as a diabetic. He was hospitalized overnight because his blood-sugar level was over 500. He was released the next morning, and he reported his arrest to his commanding officer. He testified that when his blood-sugar level is too high, he becomes lethargic, confused, and lackadaisical. (GX 2 at 3-4; Tr. 70-71, 97.) In February 2009, he received an automatic insulin pump because his pancreas had stopped functioning. (Tr. 93.)

Applicant monitors his use of alcohol because of his diabetes, which was first diagnosed in 2007. (Tr. 56, 93.) He testified that he was not advised by medical personnel to abstain from alcohol, but he was advised to avoid excessive use of alcohol. (Tr. 93-94.) He consumes two or three beers at social occasions with friends two or three times a month. In his December 2009 PSI, he admitted that he “might” drink to the point of intoxication (five or six beers) once or twice a year. (GX 2 at 4.)

When Applicant submitted his SCA in November 2009, he answered “Yes” to Question 22.e (“Have you EVER been charged with an offense(s) related to alcohol or drugs?”) (Emphasis in original.), and he disclosed the September 2008 DUI. He did not disclose his civilian arrests in in April 1983, May 1988, and July 1988, nor did he disclose his non-judicial punishment for the alcohol-related misconduct in June 1983 and August 1986.

In his April 2011 response to DOHA interrogatories, Applicant described his alcohol consumption as 3-4 beers on weekends. He stated that alcohol makes him talkative. He answered “No” to the question, “Have you ever received any medical treatment, counseling, or supportive treatment from a drug or alcoholic rehabilitation center or any other organization due to the use of alcohol?” (Emphasis in original.) (GX 5 at 3-5.) He did not disclose the alcohol-related treatment that he received in 1988.

In Applicant’s December 2009 PSI, answers to DOHA interrogatories, response to the SOR, and hearing testimony, he stated that he believed that he was not required to list incidents that were more than 10 years old. He denied intentionally attempting to conceal the incidents. He testified that he had disclosed the earlier alcohol-related incidents in previous SCAs. (GX 4 at 8; Tr. 73-75.) His earlier SCAs were not offered as evidence by either side.

In addition to Applicant’s failure to list his 1983-1988 alcohol-related incidents on his SCA, he omitted college courses that he completed in 1997 and 1998, and in his PSI he told the investigator that he did not list them because they were more than 10 years old. (GX 1 at 12; GX 2 at 2.) He erroneously listed his Navy service when asked to list additional periods of employment with his current employer. (GX 1 at 14.) He answered “No” to the question, “Have you EVER served in the U.S. military or the U.S. Merchant Marine?” However, he listed his Navy service elsewhere in the SCA. (GX 1 at 17-18.) He failed to list his first marriage and divorce. (GX 1 at 20-23.) He incorrectly listed the date of his current marriage as November 1993 instead of November 1991. (GX 1 at 21.)

Applicant’s performance evaluations as a master chief petty officer from April 2002 to April 2005 rated him as either “above standards” or “greatly exceeds standards” (the highest rating) in all performance traits. His performance evaluations from April 2006 to April 2008 rated him as “greatly exceeds standards” in all performance traits. (AX A.) He received the Meritorious Service Medal upon his retirement, four awards of the Navy and Marine Corps Commendation Medal, three awards of the Navy Achievement Medal, four awards of the Good Conduct Medal, and numerous certificates of appreciation. (AX B.)

Applicant’s 20-year-old daughter testified that Applicant is very honest, loyal, a person of high integrity, law-abiding, and devoted to her one-year-old son. She testified that Applicant consumes alcohol occasionally. She has never seem him intoxicated, but he becomes “a little bit tipsy” after a couple of drinks. When asked to define “tipsy,” she testified that Applicant becomes more talkative, but he does not have slurred speech, stumble, or appear to be uncoordinated. (Tr. 25-32.)

Applicant’s wife of 21 years testified that he is very honest, his integrity is “awesome,” he meticulously follows the rules, and he always puts everything and everyone above himself. She described Applicant as an occasional social drinker. She testified that Applicant attributed his voluntary in-patient treatment and counseling in December 1988 to a concerned chief petty officer who helped him do what was necessary to prevent further problems with alcohol. (Tr. 54-55, 61.)

A coworker who served with Applicant on active duty has known him since about 2002. He considers Applicant to be honest, trustworthy, meticulous, and a “straight- laced guy.” Whenever he works on a project, he wants it to be perfect. He has high integrity and it would be inconsistent with his character to “cut corners.” (Tr. 33-43.)

An active-duty senior chief petty officer who has known Applicant for about ten years regards Applicant as a close friend. He has “utmost respect” for Applicant’s honesty, integrity, and trustworthiness. He trusts Applicant to watch over his family and his home whenever he deploys. He testified that when they socialize, Applicant will drink “two or three beers, tops” and then “call it a night.” (Tr. 45-49.)

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline G, Alcohol Consumption

The SOR alleges that Applicant was arrested in April 1983 for public drunkenness (SOR ¶ 1.a); received non-judicial punishment in June 1988 for an alcohol-related unauthorized absence and missing his ship’s movement (SOR ¶ 1.b); received non-judicial punishment in July 1985 for alcohol-related dereliction of duty (SOR ¶ 1.c); received non-judicial punishment in August 1986 for drunk driving (SOR ¶ 1.d); was arrested in May 1988 for driving under the influence (DUI), driving with a suspended license, and illegal possession of liquor (SOR ¶ 1.e); was arrested in December 1988 for DUI and driving with a suspended license (SOR ¶ 1.f); completed a command-ordered alcohol rehabilitation program and its aftercare requirements in December 1988 (SOR ¶ 1.g); and was arrested for DUI in September 2008, fined $1,925, and ordered to perform 40 hours of community service and attend alcohol classes or counseling (SOR ¶ 1.h).

The concern under this guideline 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 trustworthiness.” The following disqualifying conditions under this guideline are potentially relevant:

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;

AG ¶ 22(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;

AG ¶ 22(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;

AG ¶ 22(d): diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;

AG ¶ 22(e): evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; and

AG ¶ 22(f): relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program.

Applicant denied that his dereliction of duty in July 1985 involved alcohol, and Department Counsel presented no evidence that it was alcohol-related. I conclude that Applicant has refuted the allegation that his dereliction of duty was alcohol-related. Applicant also denied that his alcohol treatment and counseling at the Navy hospital in December 1988 was directed by his Navy superiors. I found his testimony that he voluntarily sought treatment credible, and I conclude that he has refuted the allegation that his treatment was directed by his superiors. Nevertheless, AG ¶¶ 22(a) and 22(c) are established by Applicant’s multiple civilian arrests and military punishments for alcohol-related misconduct. AG ¶ 22(b) is established by Applicant’s record of military punishment for unauthorized absence and missing the movement of his ship due to intoxication. AG ¶¶ 22(d), 22(e), and 22(f) are not established, because there is no evidence that Applicant has ever been diagnosed with alcohol abuse or alcohol dependence.

Security concerns under this guideline may be mitigated by any of the following mitigating conditions:

AG ¶ 23(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;

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);

AG ¶ 23(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; or

AG ¶ 23(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.

The first prong of AG ¶ 23(a) (“so much time has passed”) focuses on whether the conduct was recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The determination must be based on a careful evaluation of the totality of the evidence. If the evidence shows Aa significant period of time has passed without any evidence of misconduct,@ then an administrative judge must determine whether that period of time demonstrates Achanged circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@ ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).

I conclude that AG ¶¶ 23(a) and 23(b) are established. Twenty years passed after Applicant acknowledged that he needed help and completed the Navy rehabilitation program. More than four years have passed since Applicant’s most recent DUI. He has established a pattern of responsible drinking. He enjoys a reputation for honesty, trustworthiness, integrity, and adherence to the rules. He has expressed remorse and embarrassment for the September 2008 DUI.

Applicant’s testimony raised the question whether his diabetes may have contributed to his intoxication in September 2008. If so, the combination of a spike in his blood-sugar level and his consumption of alcohol might qualify as an unusual circumstance under AG ¶ 23(a). However, no medical evidence was presented on this issue by either party. Thus, I have not speculated about the possible interaction between his alcohol consumption and his diabetes.

Guideline J, Criminal Conduct

The SOR cross-alleges the conduct alleged in SOR ¶ 1.a-1.fand 1.hunder this guideline. The concern raised by criminal conduct is set out in AG ¶ 30: “Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.”

Disqualifying conditions under this guideline include “a single serious crime or multiple lesser offenses” and “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted.” AG ¶¶ 31(a) and 31(c). The evidence of Applicant’s multiple instances of alcohol-related criminal conduct establishes these two disqualifying conditions.

Two mitigating conditions under this guideline are potentially relevant:

AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

AG ¶ 32(d): there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

For the reasons set out in the above discussion of AG ¶¶ 23(a) and 23(b), I conclude the AG ¶¶ 32(a) and 32(d) are established.

Guideline E, Personal Conduct

The SOR alleges that Applicant falsified his SCA by failing to disclose the alcohol-related conduct alleged in SOR ¶ 1.a-1.f. The concern under this guideline is set out in AG ¶ 15 as follows: 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 relevant disqualifying condition is “deliberate omission . . . of relevant facts from any personnel security questionnaire . . . .” AG ¶ 16(a). When a falsification allegation is controverted, as in this case, the Government has the burden of proving it. An omission, standing alone, does not prove falsification. An administrative judge must consider the record evidence as a whole to determine an applicant’s state of mind at the time of the omission. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004). An applicant’s level of education and business experience are relevant to determining whether a failure to disclose relevant information on an SCA was deliberate. ISCR Case No. 08-05637 (App. Bd. Sep. 9, 2010).

Applicant has extensive experience with the security clearance process. His embarrassment by his September 2008 DUI certainly provided motivation to minimize his history of alcohol-related incidents. His explanation for omitting his criminal and disciplinary record from 1983 to 1988 is that his mindset while completing his SCA was focused on a ten-year window. Consistent with this mindset, he omitted mention of college courses outside the ten-year window. He adhered to this ten-year mindset when he answered “No” to a DOHA interrogatory about previous treatment for alcohol problems.

Other irregularities on Applicant’s SCA, such as omission of his first marriage and divorce, answering “No” to a question whether he had ever served in the U.S. military, and listing his Navy service as a previous period of service with his current employer, suggest carelessness and inattention to detail. Such carelessness could explain his failure to notice the word “ever” in the DOHA interrogatory or the SCA. While such carelessness falls short of the expected behavior of a retired master chief petty officer, it does not necessarily equate to intentional falsification.

In addition to his distinguished military service, Applicant also has gained a reputation for honesty, integrity, trustworthiness, and adherence to rules and regulations in his civilian career. He has candid, sincere, and credible at the hearing. He testified that he disclosed his earlier alcohol-related problems on previous SCAs, and his testimony is not contradicted by any evidence in the record.

After considering all the evidence, including Applicant’s testimony and demeanor at the hearing, and his reputation for honesty and integrity, I conclude that he did not intentionally falsify his SCA. Accordingly, I conclude that no disqualifying conditions under this guideline are established.

WHOLE PERSON CONCEPT

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. In applying the whole- person concept, an 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. An 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.

I have incorporated my comments under Guidelines G, J, and E in my whole- person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant served in the U.S. Navy with distinction for 27 years, and he has continued his service as a contractor employee for the last four years. He has held a security clearance for almost all of his professional life. He is devoted to his family. He is respected by his peers, his former shipmates, and his neighbors. He was candid, sincere, remorseful, and credible at the personal appearance. His concern about the adverse consequences of excessive alcohol use on his diabetic condition makes recurrence unlikely.

After weighing the disqualifying and mitigating conditions under Guidelines G, J, and E, evaluating all the evidence in the context of the whole person, and mindful of my obligation to resolve close cases in favor of national security, I conclude Applicant has mitigated the security concerns based on alcohol consumption and criminal conduct, and he has refuted the allegation that he falsified his SCA. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national interest to continue his eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline G (Alcohol Consumption): FOR APPLICANT

Subparagraphs 1.a-1.h: For Applicant Paragraph 2, Guideline J (Criminal Conduct): FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline E (Personal Conduct): FOR APPLICANT

Subparagraph 3.a: For Applicant

CONCLUSION

I conclude that it is clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

LeRoy F. Foreman Administrative Judge

FOOTNOTES

1 On my own motion, without objection from either party, I corrected the Statement of Reasons to conform to the investigative file by reflecting Applicant’s middle initial. (Tr. 4-5.) 2 DOHA received the transcript of the August 21, 2012 session on August 29, 2012. All references to a transcript in this decision pertain to the transcript of the October 24, 2012 hearing. 3 Department Counsel argued that the court record of Applicant’s arrest included in GX 4 reflected a blood-alcohol level of .19. (Tr. 100.) The copy of the court record introduced in evidence is illegible, and I have not speculated on what a more legible copy might reflect.