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ISCR Case 14-05651.h1 — CASE

ISCR Case 14-05651.h1granted

Case Headnote

ISCR Case No. 14-05651.h1

grantedMar 3, 2016· Hon. Richard A. Cefola· hearing

Summary

A 32-year-old former U.S. Navy service member was granted a security clearance despite concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The allegations stemmed from his alcohol consumption between 2005 and 2012, which included two alcohol-related arrests and a diagnosis of alcohol dependence.

Specifically, the applicant was arrested for Driving Under the Influence (DUI) in August 2005, resulting in a reduction in rank and a civilian conviction with two days in jail and a license suspension. He was also arrested in April 2006 for Driving While License Suspended/Revoked, and again for DUI in October 2012. These incidents led to his discharge from the Navy in February 2013 'Under Honorable Conditions (General),' and a January 2013 diagnosis of alcohol dependence.

The judge found that the applicant had abstained from alcohol since January 2013, demonstrating a commitment to recovery. He provided evidence of rehabilitation, including a recent evaluation showing no alcohol dependence, and was highly regarded in the workplace. These factors established a pattern of responsible behavior, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant has abstained from alcohol since January 2013, demonstrating a commitment to recovery.
He provided evidence of rehabilitation, including a recent evaluation showing no alcohol dependence.
The applicant is highly regarded in the workplace, indicating a positive change in behavior.

Conditions Referenced

Disqualifying

G.22.araisedAlcohol-related Incidents Away From Work
G.22.braisedDiagnosis of Alcohol Dependence
J.31.araisedA Single Serious Crime or Multiple Lesser Offenses
J.31.draisedCurrently on Parole or Probation

Mitigating

G.23.aappliedTime Has Passed Since the Behavior Is Unlikely to Recur
G.23.bappliedAcknowledgment of Alcoholism and Evidence of Actions Taken to Overcome It
J.32.aappliedTime Elapsed Since Criminal Behavior Unlikely to Recur
J.32.dappliedEvidence of Successful Rehabilitation

Key Rule Quoted

“The ultimate determination of whether to grant eligibility for a security clearance must be an overall common sense judgment based upon careful consideration of the guidelines and the whole-person concept.”

Procedural Posture

SOR issuedJun 24, 2015
Answer filedAug 5, 2015
Hearing heldDec 21, 2015
Decision dateMar 3, 2016

Cite For

Mitigation of Alcohol-related Incidents Under Guideline G
Successful Rehabilitation in the Context of Criminal Conduct Under Guideline J
Whole-person Concept 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.

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 in favor of the applicant on all allegations related to alcohol consumption. The applicant admitted to a history of alcohol-related incidents but demonstrated significant rehabilitation and abstinence from alcohol since January 2013, leading to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant consumed alcohol from 2005~2012, at times to excess, resulting in two alcohol related arrests (one in 2005 and one in 2012), which led to him being discharged from the Navy 'Under Honorable Conditions (General),' in February of 2013.	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—
1.b	In August of 2005, he was arrested on Base, by civilian police for Driving Under the Influence (DUI) 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	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—
1.c	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
1.d	In April of 2006, he was arrested for Driving While License Suspended/Revoked.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—
1.e	In October of 2012, he was again arrested on Base, by civilian police for DUI.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—
1.f	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
1.g	In January of 2013, Applicant was diagnosed, in part, as being Alcohol Dependent.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—

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 in favor of the applicant regarding the criminal conduct allegations. The applicant had two DUI convictions but demonstrated significant rehabilitation and abstinence from alcohol, leading to a favorable decision on the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant admits that in August of 2005, he was arrested on Base, by civilian police for Driving Under the Influence (DUI) of alcohol. (There was concurrent jurisdiction on this Naval Base; and as such, he was subject to both military and civilian courts.) As a result of an Article 15, Applicant was reduced in rank one pay grade; and as a result of a civilian conviction for the same incident, he served two days in jail and his driver’s license was suspended. (TR at page 24 line 13 to page 26 line 3, and at page 43 line 11 to page 45 line 21.)	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—

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: ) ) ) ISCR Case No. 14-05651 ) ) Applicant for Security Clearance )

For Government :Jeff Nagel, Esquire, Department Counsel For Applicant: Ryan C. Nerney, Esquire

March 3, 2016

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on February 20, 2013. On June 24, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines G and J for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the Department of Defense after September 1, 2006.

Applicant acknowledged receipt of the SOR on July 29, 2015. He answered the SOR in writing on August 5, 2015, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on November 10, 2015. DOHA issued a notice of hearing on December 2, 2015, and I convened the hearing as scheduled on December 21, 2015. The Government offered Exhibits (GXs) 1 through 4, which were received without objection. Applicant testified on his own behalf and submitted Exhibits (AppXs) A through E, which were received without objection. DOHA received the transcript of the hearing (TR) on January 4, 2016. I granted Applicant’s request to keep the record open until January 4, 2016, to submit additional matters. On January 4, 2016, he submitted Exhibit F, which was received without objection. As the undersigned was on leave on January 4 , the record closed on January 5, 2016. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

Procedural and Evidentiary Rulings

Motion to Amend SOR

Department Counsel moved to amend Subparagraph 2.(a) of the SOR by adding the words “with a General Under Honorable Conditions.” (TR at page 7 lie 9 to page 8 line 22.) There was no objection from Applicant’s Counsel; and as such, it was so amended. (Id.)

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in Subparagraphs 1.a., 1.b., 1.d., 1.e., 1.g. and 2.d. of the SOR, with explanations. He denied the factual allegations in Subparagraphs 1.c. and 1.f. of the SOR, averring they were duplicates of Subparagraphs 1.b. and 1.e., respectively.

Guideline G - Alcohol Consumption & Guideline J - Criminal Conduct

Applicant is a 32-year-old employee of a Federal Contractor, who served in the U.S. Navy for nine years. (TR at page 20 line 8 to page 22 line 23.) During his term of service, he was deployed to the Persian Gulf three times. (Id.)

1.a. Applicant admits that he consumed alcohol from 2005–2012, at times to excess, resulting in two alcohol related arrests (one in 2005 and one in 2012), which led to him being discharged from the Navy “Under Honorable Conditions (General),” in February of 2013. (TR at page 24 lines 2–12, at page 45 line 23 to page 47 line 6, and AppX F.)

1.b., 1.c. and 2.a. Applicant admits that in August of 2005, he was arrested on Base, by civilian police for Driving Under the Influence (DUI) of alcohol. (There was concurrent jurisdiction on this Naval Base; and as such, he was subject to both military and civilian courts.) As a result of an Article 15, Applicant was reduced in rank one pay grade; and as a result of a civilian conviction for the same incident, he served two days in jail and his driver’s license was suspended. (TR at page 24 line 13 to page 26 line 3, and at page 43 line 11 to page 45 line 21.) 1.d. and 2.a. Applicant admits that in April of 2006, he was arrested for Driving While License Suspended/Revoked. (TR at page 26 line 4 to page 28 line 1, and at page 50 line 12 to page 52 line 3.) He mistakenly though that the above-mentioned license suspension did not apply to his out-of-state driver’s license. (Id.) As a result, he was convicted as charged, and served ten days of community service. (TR at page 26 line 4 to page 28 line 1, and at page 50 line 12 to page 52 line 3.)

1.e., 1.f. and 2.a. Applicant admits that in October of 2012, he was again arrested on Base, by civilian police for DUI. (TR at page 28 line 2 to page 32 line 3, at page 35 line 23 to page 36 line 22, at page 48 line 3 to page 50 line 11, and at page 52 lines 4–8.) As a result of an Article 15, Applicant was reduced in rank one pay grade, was restricted to post for 45 days, and also received 45 days of extra duty. (Id.) As a result of a civilian conviction for the same incident, he was fined and placed on probation for five years. He is still on probation. (TR at page 28 line 2 to page 32 line 3, at page 35 line 23 to page 36 line 22, at page 48 line 3 to page 50 line 11, and at page 52 lines 4–8.)

1.g. In January of 2013, Applicant was diagnosed, in part, as being Alcohol Dependent. (TR at page 32 line 4 to page 35 line 22, at page 40 line 13 to page 41 line 15, and at page 52 line 9 to page 53 line 22.) He has offered a more recent evaluation from October of 2015 showing no such diagnosis (AppX A); he has abstained from the consumption of alcohol since January of 2012, and has signed a “Statement of Intent” not to consume alcohol in the future, consenting to an “automatic revocation of . . . [his] security clearance” if he consumes alcohol. (TR at page 32 lines 19–21, and AppX B.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG Paragraph 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG Paragraph 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline G -Alcohol Consumption

Paragraph 21 of the adjudicative guidelines sets out the security concern relating to Alcohol Consumption: “Excessive alcohol consumption often leads to the exercise of questionable judgment or failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.”

The adjudicative guidelines set out certain conditions that could raise security concerns. Subparagraph 22(a) is applicable and provides that “alcohol-related incidents away from work, such as driving under the influence . . . ” may be disqualifying. Applicant has two alcohol-related convictions, one in 2005 and one in 2012. Subparagraph 22(b) is also applicable as there is a “diagnosis . . . [of] alcohol dependence” by the Navy in 2013. However, these are mitigated by the countervailing mitigation conditions of Subparagraphs 23(a) and 23(b). Under 23(a) “so much time has passed [more than three years] . . . that it [the behavior] is unlikely to recur . . .” Under 23(b) “the individual acknowledges his . . . alcoholism . . ., provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence . . .” Applicant has not consumed alcohol since January of 2013, and intends no future consumption. Guideline J - Criminal Conduct

The security concern for Criminal Conduct is set out in Paragraph 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.

The adjudicative guidelines set out certain conditions that could raise security concerns. Subparagraph 31(a) provides that “a single serious crime or multiple lesser offenses” may raise security concerns. Under Subparagraph 31(d) when an “individual is currently on parole or probation” that fact may raise security concerns. Applicant has two convictions, and is still under probation as a result of his most recent conviction. I find two countervailing mitigating conditions that are applicable here. Subparagraph 32(a) requires that “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.” Applicant’s last conviction was more than three years ago. The mitigating condition under Subparagraph 32(d) requires that “there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity . . ” Applicant has ceased the consumption of alcohol, the root of his past Criminal Conduct.

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. Under AG Paragraph 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall common sense judgment based upon careful consideration of the guidelines and the whole-person concept. The Administrative Judge should also consider the nine adjudicative process factors listed at AG Paragraph 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 considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Applicant is highly regarded in the work place. (AppXs C~E.) The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has mitigated the security concerns arising from his Alcohol Consumption and related Criminal Conduct.

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: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

Subparagraph 1.e: For Applicant

Subparagraph 1.f: For Applicant

Subparagraph 1.g: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

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

Richard A. Cefola Administrative Judge