ISCR Case 14-02599.h1

Case Headnote

ISCR Case No. 14-02599.h1

deniedMar 18, 2016· Hon. Robert J. Tuidar· hearing

Summary

A 34-year-old refueler for a defense contractor was denied a security clearance due to concerns under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant admitted to a history of alcohol-related incidents, including a DUI conviction in October 2012, which resulted in a suspended 12-month confinement, two years of unsupervised probation, a $500 fine, and a 12-month driver's license suspension. He was also ordered to attend a ten-week alcohol safety action program.

His military record included multiple alcohol-related incidents, such as documented counseling in May 2012 after heavy drinking, non-judicial punishment in June 2012 for drunk and disorderly conduct and simple assault, and a referral to the Navy Substance Abuse Rehabilitation Program (NSARP) in 2010 following a verbal altercation. In October 2012, he was discharged from the Navy with a general under honorable conditions discharge due to alcohol rehabilitation failure. While the applicant mitigated concerns related to drug involvement and other criminal conduct, the judge found that he failed to mitigate the security concerns regarding his alcohol consumption.

The denial was based on the applicant's consistent history of alcohol-related incidents that negatively impacted his military career, his discharge from the Navy for failing alcohol rehabilitation, and his continued belief that he does not have an alcohol problem, despite past counseling and rehabilitation efforts.

Why the Applicant Was Denied

The applicant has a history of alcohol-related incidents that significantly impacted his military career.
Despite counseling and rehabilitation efforts, the applicant continues to believe he does not have a problem with alcohol.
The applicant's discharge from the Navy was due to alcohol rehabilitation failure.

Conditions Referenced

Disqualifying

AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work, Such as Driving While Under the Influence
AG ¶ 22(c)raisedHabitual or Binge Consumption of Alcohol to the Point of Impaired Judgment
AG ¶ 22(f)raisedRelapse After Diagnosis of Alcohol Abuse or Dependence and Completion of an Alcohol Rehabilitation Program
AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAllegation or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted or Convicted

Mitigating

AG ¶ 23(a)rejectedSo Much Time Has Passed, or the Behavior Was so Infrequent, or It Happened Under Such Unusual Circumstances That It Is Unlikely to Recur
AG ¶ 23(b)rejectedAcknowledges Alcoholism or Issues of Alcohol Abuse, Provides Evidence of Actions Taken to Overcome This Problem
AG ¶ 23(c)rejectedCurrent Employee Participating in a Counseling or Treatment Program
AG ¶ 23(d)rejectedSuccessfully Completed Counseling or Rehabilitation Along with Any Required Aftercare

Key Rule Quoted

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

Procedural Posture

SOR issuedMar 18, 2015
Answer filedApr 13, 2015
Hearing held—Decided on the written record.
Decision dateMar 18, 2016

Cite For

Failure to Mitigate Alcohol Consumption Concerns Under Guideline G
Impact of Alcohol-related Incidents on Security Clearance Eligibility
Consideration of Past Conduct in Assessing Current Reliability and Trustworthiness

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
1.a	In May 2012, after a day of overexposure to the sun and heavy drinking during an overseas port call, Applicant became severely sunburned and when he returned to his ship, he was in severe pain. The ship’s corpsman suspected that he may have been drugged. An investigation ensued, but Applicant does not know the outcome of the investigation. As a result of the incident, Applicant received documented counseling regarding his alcohol consumption.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.b	In June 2012, after a day of drinking during an overseas port call, Applicant was involved in a physical altercation while re-boarding his ship. He was awarded non-judicial punishment. He was found guilty of drunk and disorderly conduct and simple assault. He was reduced from pay grade E-5 to E-4, given 45 days restriction, 45 days extra duty, and ordered to attend NSARP. Applicant completed all of the program requirements.	Against Applicant	Alcohol Related Arrest	Admitted	—	—	—
1.c	In September 2012, Applicant was arrested and charged off-base with driving under the influence of alcohol (DUI). He had gone to a Japanese restaurant to pick up take-out dinner and while waiting consumed two Long Island ice tea drinks. Applicant was unable to start his car when he left the restaurant and was approached by a police officer and questioned. The officer concluded that Applicant had been drinking and ordered him to participate in a field sobriety test. When Applicant refused, he was arrested for DUI. In October 2012, he was convicted of DUI and sentenced to 12 months confinement, which was suspended, unsupervised probation for two years, a $500 fine, and his driver’s license was suspended for 12 months. He was also ordered to participate in a ten-week alcohol safety action program once a week from November 2012 to February 2013.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.d	In October 2012, Applicant was discharged from the Navy with a general under honorable conditions discharge as a result of alcohol rehabilitation failure.	Against Applicant	Treatment Non Compliance	Admitted	—	—	—
1.e	In 2010, Applicant was involved in an alcohol-related verbal altercation with another crew member witnessed by a senior officer at a bar during an overseas port call. As a result of the altercation, Applicant was referred to a one-week class at Navy Substance Abuse Rehabilitation Program (NSARP).	Against Applicant	Alcohol Related Arrest	Admitted	—	—	—
1.f	During Applicant’s March 2013 OPM PSI, Applicant stated since separating from the Navy, he has consumed a half of a bottle of wine or three beers at home on weekends. His future intent is to maintain or decrease his alcohol consumption because alcohol makes him tired. He claimed that he does not drink to the point of intoxication and does not believe that he has a problem with alcohol. Applicant acknowledged that his alcohol consumption has had a negative impact on his military career, but claims it does not affect his personal life.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

1.a

In May 2012, after a day of overexposure to the sun and heavy drinking during an overseas port call, Applicant became severely sunburned and when he returned to his ship, he was in severe pain. The ship’s corpsman suspected that he may have been drugged. An investigation ensued, but Applicant does not know the outcome of the investigation. As a result of the incident, Applicant received documented counseling regarding his alcohol consumption.

Against Applicant

Binge or Intoxication Pattern

Admitted

—

1.b

In June 2012, after a day of drinking during an overseas port call, Applicant was involved in a physical altercation while re-boarding his ship. He was awarded non-judicial punishment. He was found guilty of drunk and disorderly conduct and simple assault. He was reduced from pay grade E-5 to E-4, given 45 days restriction, 45 days extra duty, and ordered to attend NSARP. Applicant completed all of the program requirements.

Against Applicant

Alcohol Related Arrest

Admitted

—

1.c

In September 2012, Applicant was arrested and charged off-base with driving under the influence of alcohol (DUI). He had gone to a Japanese restaurant to pick up take-out dinner and while waiting consumed two Long Island ice tea drinks. Applicant was unable to start his car when he left the restaurant and was approached by a police officer and questioned. The officer concluded that Applicant had been drinking and ordered him to participate in a field sobriety test. When Applicant refused, he was arrested for DUI. In October 2012, he was convicted of DUI and sentenced to 12 months confinement, which was suspended, unsupervised probation for two years, a $500 fine, and his driver’s license was suspended for 12 months. He was also ordered to participate in a ten-week alcohol safety action program once a week from November 2012 to February 2013.

Against Applicant

DUI or DWI Alcohol

Admitted

—

1.d

In October 2012, Applicant was discharged from the Navy with a general under honorable conditions discharge as a result of alcohol rehabilitation failure.

Against Applicant

Treatment Non Compliance

Admitted

—

1.e

In 2010, Applicant was involved in an alcohol-related verbal altercation with another crew member witnessed by a senior officer at a bar during an overseas port call. As a result of the altercation, Applicant was referred to a one-week class at Navy Substance Abuse Rehabilitation Program (NSARP).

Against Applicant

Alcohol Related Arrest

Admitted

—

1.f

During Applicant’s March 2013 OPM PSI, Applicant stated since separating from the Navy, he has consumed a half of a bottle of wine or three beers at home on weekends. His future intent is to maintain or decrease his alcohol consumption because alcohol makes him tired. He claimed that he does not drink to the point of intoxication and does not believe that he has a problem with alcohol. Applicant acknowledged that his alcohol consumption has had a negative impact on his military career, but claims it does not affect his personal life.

Against Applicant

Unspecified Alcohol Incident

Admitted

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	The SOR alleges that in September 2006, Applicant was arrested and charged with possession of marijuana and possession of controlled substance paraphernalia. He purportedly pled nolo contendere and paid $190 in fines and fees. There are no primary source documents that substantiate this allegation in the FORM.	For Applicant	Marijuana	Not Applicable	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur	—
2.b	In October 1999, while still in high school, Applicant was involved in a verbal confrontation at a nightclub with his then girlfriend. His girlfriend left the nightclub and drove off in Applicant’s car without his permission. Applicant chased her to a gas station and when he caught up with her, their verbal confrontation continued. The police were summoned and they searched Applicant’s vehicle. They discovered a pipe containing marijuana. Applicant was charged with misdemeanor possession of a controlled substance and drug paraphernalia. The charges were dismissed 'because the officers illegally searched [my] vehicle.'	For Applicant	Marijuana	Not Applicable	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

2.a

The SOR alleges that in September 2006, Applicant was arrested and charged with possession of marijuana and possession of controlled substance paraphernalia. He purportedly pled nolo contendere and paid $190 in fines and fees. There are no primary source documents that substantiate this allegation in the FORM.

For Applicant

Marijuana

Not Applicable

Admitted

—

(a) behavior happened long ago / infrequent / unlikely to recur

—

2.b

In October 1999, while still in high school, Applicant was involved in a verbal confrontation at a nightclub with his then girlfriend. His girlfriend left the nightclub and drove off in Applicant’s car without his permission. Applicant chased her to a gas station and when he caught up with her, their verbal confrontation continued. The police were summoned and they searched Applicant’s vehicle. They discovered a pipe containing marijuana. Applicant was charged with misdemeanor possession of a controlled substance and drug paraphernalia. The charges were dismissed 'because the officers illegally searched [my] vehicle.'

For Applicant

Marijuana

Not Applicable

Admitted

—

(a) behavior happened long ago / infrequent / unlikely to recur

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—
3.b	In July 2008, Applicant was involved in an altercation with a shipmate who blocked his view while he was watching television in the ship’s galley. Applicant was awarded non-judicial punishment. He was found guilty of simple assault and received 30 days restriction and 30 days extra duty. (SOR ¶ 3.b; SOR answer; Items 2, 3)	For Applicant	Assault or Battery	Conduct No Charge	Admitted	—	—	—
3.c	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

3.a

specific text not stated in this decision

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

3.b

In July 2008, Applicant was involved in an altercation with a shipmate who blocked his view while he was watching television in the ship’s galley. Applicant was awarded non-judicial punishment. He was found guilty of simple assault and received 30 days restriction and 30 days extra duty. (SOR ¶ 3.b; SOR answer; Items 2, 3)

For Applicant

Assault or Battery

Conduct No Charge

Admitted

—

3.c

specific text not stated in this decision

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

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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

FOOTNOTES