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ISCR 11-10861.h1: Guideline G security clearance hearing, granted (2013) · CASE

ISCR Case 11-10861.h1granted

Case headnote

ISCR Case No. 11-10861.h1

grantedOct 31, 2013· Hon. Robert J. Tuidar· hearing

Summary

A 50-year-old director of business operations for a defense contractor was granted a security clearance despite concerns under Guideline G (Alcohol Consumption). The Statement of Reasons cited a DUI arrest in April 2005, diagnoses of alcohol dependence in June 2006 and September 2012, and a history of consuming alcohol to the point of intoxication from approximately 1980 to at least September 2012. These allegations raised disqualifying conditions G.1 and G.2.

However, the applicant successfully mitigated these concerns. He completed all court-ordered requirements stemming from his DUI arrest. Furthermore, expert testimony was presented which disputed the alcohol dependence diagnoses, indicating the applicant did not meet the criteria for such a condition.

Character witnesses also attested to the applicant's reliability and responsible behavior concerning alcohol consumption. Applying mitigating conditions G.3 and G.4, the administrative judge found that granting the security clearance was consistent with the national interest.

Why the applicant prevailed

The applicant successfully completed all court-ordered requirements following his DUI arrest.
Expert testimony indicated that the applicant was misdiagnosed with alcohol dependence and did not meet the criteria for such a diagnosis.
Character witnesses attested to the applicant's reliability and responsible behavior regarding alcohol consumption.

Conditions referenced

Disqualifying

G.1raisedAlcohol Consumption
G.2raisedAlcohol Dependence

Mitigating

G.3appliedPositive Evidence of Rehabilitation
G.4appliedNo Evidence of Current Alcohol Dependence

Key rule quoted

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

Procedural posture

SOR issuedJan 24, 2013
Answer filedFeb 23, 2013
Hearing heldJul 31, 2013
Decision dateOct 31, 2013

Cite for

Mitigation of Alcohol-related Security Concerns Under Guideline G
Importance of Expert Testimony in Challenging Diagnoses of Alcohol Dependence
Character Evidence as a Factor in Security Clearance Determinations

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 50: “Applicant is a 50-year-old director of business operations for a defense contractor.”
Tenure: ~28 years: “He has continuously worked for that company or a derivative of that company since July 1985.”
Clearance at issue: Top Secret: “He seeks a top secret clearance to comply with work-related project requirements.”
Held a clearance before: Yes: “He has successfully held a secret security clearance “over 20 years” and currently holds an interim top secret clearance.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: grantedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The judge found that the applicant mitigated security concerns related to alcohol consumption under Guideline G. All allegations regarding the applicant's alcohol-related incidents were ruled in favor of the applicant, leading to the granting of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) XXXXXXXXXX, XXXXX ) ISCR Case No. 11-10861 ) Applicant for Security Clearance )

For Government: Fahryn Hoffman, Esq., Department Counsel For Applicant: Brian E. Kaveney, Esq.

10/31/2013 ______________

STATEMENT OF CASE

______________

TUIDER, Robert J., Administrative Judge:

Applicant has mitigated security concerns pertaining to Guideline G (alcohol consumption). Clearance is granted.

Statement of the Case

On March 24, 2011, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP). On January 24, 2013, the Department of Defense (DOD) issued a statement of reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, as amended (Directive), dated January 2, 1992, amended; and the adjudicative guidelines (AG) promulgated by the President on December 29, 2005.

The SOR alleged security concerns under Guideline G (alcohol consumption). The SOR detailed reasons why DOD was unable to find that it is clearly consistent with the national interest to continue a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be continued or revoked. On February 23, 2013, Applicant responded to the SOR. On June 7, 2013, Department Counsel indicated she was ready to proceed on Applicant’s case. On June 21, 2013, the case was assigned to me. On July 9, 2013, DOHA issued a hearing notice, setting the hearing for July 31, 2013. The hearing was convened as scheduled.

The Government offered Government Exhibits (GE) 1 through 10, which were admitted without objection, except for GE 9. GE 9 was admitted despite objection by Applicant’s counsel. (Tr. 18-20.) Applicant offered Applicant Exhibits (AE) A through R, which were admitted without objection, except for AE N. AE N was admitted despite objection by Department Counsel. (Tr. 27-30, 33-36, 169.) Applicant called three witnesses and he testified on his behalf. I held the record open until August 8, 2013, to afford Applicant the opportunity to submit additional documents. He did not submit any additional documents. DOHA received the hearing transcript (Tr.) on August 12, 2013.

FINDINGS OF FACT

Applicant admitted in part and denied in part SOR ¶¶ 1.a through 1.cwith explanations. He denied SOR ¶ 1.dwith explanations. After a thorough review of the record, I make the following findings of fact.1

Background Information

Applicant is a 50-year-old director of business operations for a defense contractor. He has continuously worked for that company or a derivative of that company since July 1985. Applicant began his employment as an entry-level college employee and worked his way up to senior management. (Tr. 38-39, GE 1, AE A.) He has successfully held a secret security clearance “over 20 years” and currently holds an interim top secret clearance. (Tr. 51, 77.)

There is no evidence to suggest, and the Government does not allege, that Applicant has ever compromised or caused others to compromise classified information. Nor does the record evidence show that Applicant has ever failed to follow the rules and regulations required to protect classified information. He seeks a top secret clearance to comply with work-related project requirements. If he fails to obtain a top secret clearance, he will be unable to continue working in his current capacity. (GE 1, Tr. 77, 82, 162-163, 166.)

Applicant was awarded a bachelor of science degree in 1984, and a master of science degree in business in 1991. (GE 1, AE A, Tr. 83.) He has also completed numerous professional and work-related courses. He married in June 1989, and has two sons ages, 16 and 14. (GE 1, Tr. 50.) Alcohol Consumption

Applicant’s problems with alcohol stem from an April 2005 driving while under the influence (DUI) arrest that occurred on a company-sponsored trip. After attending happy hour, dinner, and a show, Applicant was returning to his hotel in a rental car when he was pulled over and arrested for DUI. Applicant was charged with (1) DUI extreme or more .15 blood alcohol content (BAC) or more; (2) DUI liquor; and (3) DUI BAC .8 or more. He retained counsel and pled guilty to misdemeanor DUI. He was sentenced to 12 months of unsupervised probation, 10 days of jail, with 9 days jail suspended upon successful completion of alcohol evaluation and treatment, and attendance at a Mother’s Against Drunk Driving (MADD)-certified victim impact panel. Applicant successfully completed all of his court-ordered requirements. (Tr. 51-53, 84-91, SOR ¶ 1.a, SOR answer, AE R.)

Applicant attended a treatment center (TC) where he completed his alcohol evaluation and treatment. The TC prepared a June 2006 substance abuse evaluation, as well as a discharge summary in September 2006. Those reports formed part of the basis of SOR ¶ 1.b, which alleged that Applicant was diagnosed with alcohol dependence by a licensed clinical social worker, an employee of that TC. The allegation stated that “[Applicant was] recommended to abstain from alcohol consumption and to continue to attend weekly self-help meetings.” The SOR allegation further stated that from June 2006 to September 2006, Applicant attended outpatient alcohol treatment at the TC. In his SOR answer, Applicant concurred with the allegation that he was evaluated at the TC. He added that he was provided a certificate of completion, having successfully completed the program, but nothing else was provided to him by the TC. He claims he was not advised to abstain from alcohol consumption for the rest of his life or to continue weekly meetings. (SOR ¶ 1.b, SOR answer, GE 9, AE R.)

Applicant’s counsel challenged the accuracy and sufficiency of SOR ¶ 1.bon two grounds. First, that the June 2006 TC diagnosis was rendered by a registered clinical social worker (LCSW) intern (emphasis added) versus a registered clinical social worker as required by the Directive; and second, that Applicant was not advised by the TC as alleged to abstain from alcohol consumption for the rest of his life or advised to continue weekly self-help meetings. Applicant’s counsel further noted that when the LCSW was asked in September 2012 whether Applicant has a condition that could impair his judgment, reliability, or ability to properly safeguard classified national security information, she responded, “I don’t feel comfortable enough making a recommendation as to his ability to properly safeguard classified national security information.” See GE 4, SF-86-2 dated September 25, 2012. (Tr. 12-15, 19-23, 26-27, 36, GE 4, GE 9, AE R.)

The September 2006 discharge summary bears the sole signature of the registered clinical social worker intern, as noted by Applicant’s counsel. However, the June 2006 substance abuse evaluation bears the signature of the intern (emphasis added) and the signature of a primary counselor and evaluator with a master of social work degree (MSW). It is unclear from the documents how significant of a role the MSW played in evaluating the Applicant. (GE 9, AE R.) Applicant testified that the first time he saw his September 2006 discharge summary was in February 2013. Unable to recall receiving or being able to locate a copy of the discharge summary, Applicant contacted the attorney who represented him for his April 2005 DUI. That summary mirrors the language alleged in the SOR -- a discharge diagnosis of alcohol dependence - 303.90 in remission; with a fair prognosis, as long as he followed the aftercare recommendations; and a recommendation to continue to abstain from all mind-altering substances, continue to attend weekly self- help meetings, and return to group as needed or desired. (Tr. 55-57.)

Applicant’s DUI attorney provided a February 2013 affidavit stating that Applicant’s only court-ordered requirement was to successfully complete his treatment program, which he did. In no way was Applicant required to maintain a lifetime abstinence of alcohol nor was such a requirement part of his probation. Applicant’s attorney stated that had Applicant asked him if he was obligated to follow that “recommendation,” he would have advised him no. Applicant’s attorney added that the TC’s discharge summary was provided directly to him and Applicant was not listed as a recipient of the document. In 25 years of practicing law and DUI defense, Applicant’s attorney had never heard of anyone being required to abstain from alcohol for life. Applicant testified that he was never told by the LCSW that he was alcohol dependent or that he was to abstain from alcohol. Applicant’s DUI attorney corroborated Applicant’s assertion advising that the first time Applicant would have seen TC’s report was in February 2013. (Tr. 57-64, 92-98, GE 9, AE D, AE R.)

The third SOR allegation states that Applicant received an alcohol evaluation in September 2012 from the same LCSW, who evaluated him in 2006. Applicant was again diagnosed with alcohol dependence. The LCSW recommended that he attend outpatient alcohol treatment, and gave him a poor prognosis without attending an outpatient treatment program. Applicant responded in his SOR answer that he agreed that he received an alcohol evaluation, but had no idea why he was diagnosed as alcohol dependent. (SOR ¶ 1.c, SOR answer, GE 5.)

Applicant sought the 2012 alcohol evaluation at the Government’s request to upgrade or renew his security clearance. Based on what he believed was a positive experience with TC’s 2006 treatment program, pressed for time, and unaware of the previous adverse LCSW report, he requested an alcohol evaluation from the same LCSW. At the beginning of his interview with LCSW, she asked Applicant if he had a drink since 2006 and he said he had. She immediately informed him that he “failed” for having had any alcohol since his treatment program. LCSW did not provide Applicant with a diagnosis at the conclusion of that session nor did she provide him with a follow- up report as he requested. LCSW is the chief executive officer of the TC. (Tr. 64-69, 98- 106, GE 5.)

When Applicant completed an October 2012 DOHA interrogatory, he certified that his April 2011 Office of Personnel Management (OPM) summary of interview was accurate. The interview states, “He is intoxicated 1 time a year.” Applicant defined intoxication as “. . . when he is slurring his speech.” He testified that he maybe drinks a couple of times during the week and maybe on weekends, but never exceeds one to two glasses of wine. His reference to being intoxicated once a year referred to his annual 4th of July party at his house. However, he clarified that statement in his October 2012 interrogatories stating, “It has been 3 or 4 years since intoxication.” Applicant testified that he has not driven while intoxicated since his April 2005 DUI, and to be more specific, he does not drink and drive under any circumstances since his DUI. He fully understands and appreciates the Government’s concerns regarding the abuse of alcohol as it pertains to maintaining a security clearance. (Tr. 69-79, 88-89.)

The last SOR allegation states that Applicant consumed alcohol, at times to the point of intoxication, from about 1980 to at least September 2012. As noted, Applicant credibly testified that he was never informed of a requirement to abstain from alcohol. Applicant denied consuming alcohol to the point of intoxication as alleged. He admitted consuming a glass of wine, but not to the point of intoxication. He described the night of his 2005 DUI as an unusual event, the only one of its kind in his lifetime. Applicant added that the LCSW would have no way of knowing the last time he was intoxicated because the subject was not part of his limited evaluation during his September 2012 alcohol evaluation. (SOR ¶ 1.d, SOR answer, 61-63, 106-108.)

Applicant’s counsel called as an expert witness the medical director (MD) of a clinic, who is a board certified physician in the field of addiction medicine. MD submitted a six-page resume that documented her extensive education, experience, writings, accomplishments, and awards. Without objection, I determined that MD was qualified to testify as an expert witness in the field of addiction medicine. MD’s clinic has over 22 sites in four counties and as medical director, MD, supervises all of the physicians, nurse practitioners, physician assistants, nurses, and support staff. (Tr. 118-123, AE K, AE M.)

MD performed a comprehensive substance use evaluation on Applicant in March 2013. As part of her evaluation, she reviewed LCSW’s 2006 and 2012 evaluations. MD explained that to meet the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) criteria for alcohol dependence, three diagnostic criteria must be met. MD noted that LCSW only referred to one of those criteria – interferes with social or occupational functions. In MD’s opinion, Applicant’s DUI did not meet the DSM IV criteria, but even if it did, the DSM IV requires more than one criterion to meet the diagnosis of alcohol dependence. Multiple factors are involved and the factors identified by LCSW in her 2006 evaluation do not alone qualify for a diagnosis of alcohol dependence. (Tr. 123- 126, GE 9.)

MD noted that LCSW was an intern at the time she made her diagnosis and questioned her credentials and experience to make such a diagnosis at that point in her career. MD stated that LCSW did not have enough criteria to render a diagnosis of alcohol dependent. She quoted the DSM IV in her testimony and provided persuasive testimony that Applicant was not alcohol dependent and that he had been misdiagnosed by LCSW. MD found it “very puzzling” that LCSW would not “feel comfortable” making a recommendation as to Applicant’s ability to properly safeguard classified information. She stated that if she had diagnosed a patient two times as being alcohol dependent, she would have answered the question in the affirmative. MD stated that an isolated incident of a seven-year old DUI with no other alcohol-related incidents while drinking should have resulted in an amended diagnosis, not a second diagnosis of alcohol dependence. MD concluded that LCSW’s diagnosis that Applicant was alcohol dependent was not supported by the information in her report. MD thoroughly explained her findings and opinions during her testimony, as well as in a March 2013 Comprehensive Substance Use Evaluation. She stated that Applicant is capable of not drinking and had he had been told that he could not drink in 2006, he would have stopped drinking. (Tr. 126-140, GE 4, GE 9, AE L.)

MD stated that Applicant’s alcohol consumption is within normal limits and that he does not have a condition that could impair his judgment, reliability or ability to properly safeguard classified information. Department Counsel cross-examined MD regarding her opinions and conclusions, but nothing was developed that undercut her testimony during direct examination. (Tr. 140-154.)

A clinical psychologist (Ph.D.), with extensive qualifications and experience in the area of drug and alcohol abuse, also submitted a thorough report on Applicant’s behalf. He concurred with MD’s testimony regarding LCSW’s 2006 and 2012 evaluations. Ph.D. stated that LCSW’s opinions that Applicant’s alcohol use interfered with his social or occupational functioning, that Applicant was alcohol dependent, and that Applicant’s prognosis was poor without further treatment for alcohol dependence were not supported by the data. (AE N.)

Character Evidence

Applicant called two witnesses, who testified to his character and job performance as well his on and off-duty conduct. The first witness (W1) holds a senior management position in the area of facilities management within Applicant’s company and has held a security clearance for 20 years. W1 has known Applicant “nearly 20 years” as a neighbor and fellow employee. Their families socialized frequently throughout the years and W1’s daughter babysat for the Applicant’s two sons. In W1’s years of observing Applicant in social settings, he has only seen him consume “one or two glasses of wine or beer, nothing more.” W1 has never seen Applicant “tipsy from alcohol, let alone anything related to (being) intoxicated.” W1 has never observed Applicant engaged in behavior that would impair his judgment, reliability, or ability to safeguard classified information. W1 also submitted a favorable reference letter on Applicant’s behalf. He strongly recommended Applicant for continued access to classified information. (Tr. 109-117, AE I.)

The second witness (W2) also holds a senior management position as director of security services within Applicant’s company. As such, he is in charge of investigations, counterintelligence, and workplace violations involving 15,000 security clearances and 120 classified programs in 50 worldwide locations. W2 has worked for the company 29 years and holds a top secret clearance with SCI access. During his tenure, his company has won 15 high-level and coveted DOD awards for sustained excellence and achievement for their security program. W2 has worked with Applicant for at “least 10 years” and found him to be a strong supporter of funding security programs within the company. Applicant is one of the top performers within the company’s senior leadership and is held in the highest regard. W2 sees Applicant daily and has never observed or noted any indicators that would suggest that he has a problem with alcohol. Since Applicant self-reported his April 2005 DUI, that DUI has been favorably adjudicated nine times in subsequent security clearance background checks. W2 strongly recommended Applicant for continued access to classified information. (Tr. 155-168, AE P.)

Applicant documented 28 years of sustained superior performance through his performance reviews. He has also been the recipient of numerous work-related awards and is actively involved in his sons’ sports and scouting activities. In addition to the character witnesses who testified on his behalf, Applicant also submitted several compelling and favorable reference letters. (AE B - AE C, AE E – AE H, AE Q.)

Having observed Applicant’s demeanor closely, I found his testimony to be credible. At his hearing, Applicant promptly answered all the questions asked. He was frank, candid, and forthcoming in his answers and explained his answers without hesitation. He readily admitted his April 2005 lapse in judgment in getting a DUI and expressed sincere remorse.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 applicant’s 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 adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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, 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 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 “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. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It 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. 95-0611 at 2 (App. Bd. May 2, 1996).

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 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). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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

Alcohol Consumption

Under Guideline G (alcohol consumption), the Government’s concern is that 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 ¶ 21.

The Government established its case, in part, under Guideline G through Applicant’s limited admissions and evidence presented. Applicant had one alcohol- related arrest in 2005. However, as noted, his 2006 and 2002 alcohol evaluations proved to be problematic as well as the allegation that he drank to the point of intoxication from 1980 to 2012. A review of the evidence supports application of one alcohol consumption disqualifying conditions. AG ¶ 22(a): “alcohol-related incidents away from work, such as driving while under the influence,” applies as a result of Applicant’s 2005 alcohol-related arrest. Based on the other problematic SOR allegations, two other potential alcohol consumption disqualifying conditions were raised: 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;” and AG ¶ 22(e): “evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is staff member of a recognized alcohol treatment program.” For reasons discussed below, these latter two disqualifying conditions do not apply because the proffered evidence does not support the underlying factual allegations. Applicant successfully refuted the underlying facts that gave rise to his being diagnosed as alcohol dependent in 2006 and 2012 as well as consuming alcohol to the point of intoxication from 1980 to 2012. Accordingly, no further discussion is warranted for SOR ¶¶ 1.bthrough 1.d.

Considering the totality of the circumstances in this case, I find application of two alcohol consumption mitigating conditions is appropriate with regard to Applicant’s 2005 DUI charge:

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; and

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; apply.

Applicant was misdiagnosed by LCSW in 2006 and 2012 as being alcohol dependent. He fully embraced and cooperated with his 2006 treatment plan and provided documentation of successful completion of the program. After his 2005 DUI arrest, he has not driven a vehicle after consuming alcohol, and has demonstrated responsible alcohol consumption. I accept as persuasive MD’s expert testimony and evaluation as well as the evaluation provided by Ph.D. Applicant’s most recent alcohol- related arrest was eight years ago. Furthermore, there are no documented alcohol- related incidents of any sort for the past eight years.

Applicant presented credible evidence of actions taken to overcome his 2005 DUI, has established that he is not alcohol dependent, and during the infrequent times he consumes alcohol, he does so responsibly. He is remorseful for his behavior and has initiated changes in his lifestyle. His performance appraisals, certificates of achievement, awards, and the statements from senior company representatives show Applicant’s work behavior has not been indicative of his having an alcohol problem. He is a valuable employee, who is reliable, dependable, and professional. His sobriety and responsible use of alcohol is supported by senior company officials, who know him personally and professionally, and by his own credible testimony and evidence presented. At his hearing, Applicant acknowledged the problems misuse of alcohol has caused him, demonstrated remorse, and a steadfast commitment to continue lifestyle changes consistent with responsible use of alcohol.

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) 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 am incorporating the comments under alcohol consumption. However, several additional comments are appropriate. I was particularly impressed with Applicant’s demeanor during his hearing and the apparent affect this process has had on him. Applicant has been willing to do whatever is necessary to recover from his 2005 DUI arrest. The process has been costly for him, not only financially, but also personally and professionally. Applicant has dedicated his entire adult working life, 28 years, to the defense industry. He has risen from the ranks of an entry-level employee to senior management with extensive responsibility. He demonstrated the correct attitude and commitment to responsible alcohol consumption. In sum, I find Applicant has presented sufficient evidence of rehabilitation.

Also noteworthy is Applicant’s past behavior, which serves as a reliable indicator of future behavior. In particular, he has successfully held a security clearance for the past 28 years. He has not had an alcohol-related incident for eight years. He has been cooperative throughout this process and recognizes the gravity of these proceedings. He is married, an involved father with his two sons, a home owner, a responsible and contributing citizen, and a very valued and trusted employee.

To conclude, Applicant presented sufficient evidence to explain, extenuate, or mitigate the security concerns raised. Applicant met his ultimate burden of persuasion to obtain a favorable clearance decision. I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my “careful consideration of the whole-person factors” and supporting evidence, my application of the pertinent factors under the Adjudicative Process, and my interpretation of my responsibilities under the Guidelines. For the reasons stated, I conclude he is eligible for access to classified information.

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: FOR APPLICANT

Subparagraph 1.a – 1.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________ ROBERT J. TUIDER Administrative Judge

FOOTNOTES

1 Applicant’s counsel noted that page 2 of the SOR contained a sentence fragment that was identical to language contained in SOR ¶ 1.c. I view this as a typographical error with no security significance as it pertains to the Applicant. (Tr. 61-62.)