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ISCR Case 01-00818.h1 — CASE

ISCR Case 01-00818.h1denied

Case Headnote

ISCR Case No. 01-00818.h1

deniedNov 13, 2002· Hon. Barry M. Sax· hearing

Summary

A 54-year-old construction supervisor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed from a history of alcohol-related offenses and the falsification of information on his security clearance application.

The applicant's alcohol consumption history included arrests for Driving Under the Influence (DUI) in 1975 and 1988, Driving While Intoxicated (DWI) in 1981, and Negligent Homicide While Under the Influence of Alcohol in 1982, for which he pleaded guilty and served one day in jail. Despite these incidents, he continued to consume alcohol regularly.

Additionally, the applicant falsified his August 5, 1999, and August 6, 1999, security clearance applications (SF 86s). He falsely answered "No" to a felony conviction question, and, while acknowledging some alcohol-related arrests, he failed to disclose the 1982 negligent homicide arrest. The judge concluded that the applicant's actions raised significant concerns regarding his judgment and reliability, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant has a long history of alcohol-related arrests and convictions, including negligent homicide.
He continues to consume alcohol regularly, indicating a lack of understanding of the risks associated with his drinking.
The applicant knowingly falsified information on his security clearance application, undermining his credibility.

Conditions Referenced

Disqualifying

G.1raisedAlcohol-related Incidents Away From Work, Such as Driving While Under the Influence.
G.5raisedHabitual or Binge Consumption of Alcohol to the Point of Impaired Judgment.
E.2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.

Key Rule Quoted

“"any doubt as to whether access to classified information is clearly consistent with the interests of national security will be resolved in favor of the nation's security."”
— DoD Directive 5220.6, as amended, at E2.2.2.

Procedural Posture

SOR issuedMay 20, 2002
Answer filedJun 10, 2002
Hearing heldOct 2, 2002
Decision dateNov 13, 2002

Cite For

Denial Based on Ongoing Alcohol Consumption Despite Past Offenses
Falsification of Security Clearance Application as a Significant Disqualifier
Lack of Mitigating Factors in Cases Involving Personal Conduct and Alcohol Issues.

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: denied

The judge found against the applicant on both allegations under Guideline E, citing falsifications on the security questionnaire regarding past alcohol-related arrests. The applicant's explanations for these falsifications were deemed unpersuasive, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant falsified his August 5, 1999 Questionnaire for National Security Positions (SF 86) (GX 4), when he answered "No" to Item 23a., "Have you ever been charged with or convicted of a felony," when he knew he had been convicted of the felony cited in SOR 1.d., above.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
2.b	Applicant falsified his August 6, 199 SF 86 (GX 1), when he answered "Yes" to Item 24d. "Have you ever been charged with or convicted of any offense related to alcohol or drugs," but cited only the 1988 and 1975 arrested cited in SOR 1.b. and 1.e., above, but failed to mention the alcohol-related arrest cited in SOR 1.d., above.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal 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: denied

The applicant has a long history of alcohol consumption, including multiple arrests for DUI and related offenses. The judge found that the applicant's continued alcohol use and past incidents raised significant security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant has consumed alcohol, on occasion to excess and to the point of intoxication, from 1975 to the present.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.b	Applicant was arrested in 1975 and charged with Driving Under the Influence of an Alcoholic Beverage (DUI).	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.c	Applicant was arrested on September 16, 1981 and charged with Driving While Intoxicated (DWI).	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.d	Applicant was arrested on October 19, 1982 and charged with Negligent Homicide While Under the Influence of Alcohol (blood alcohol content of .19). He pleaded guilty and was sentenced to serve one day in jail.	Against Applicant	DUI or DWI Alcohol	Denied	—	—	—
1.e	Applicant was arrested in 1988 and charged with DUI.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.f	Applicant continued to use alcohol, notwithstanding the four alcohol-related arrests cited above.	Against Applicant	Continued Use After Treatment	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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

DATE: November 13, 2002 In Re: ------------------------- SSN: ----------------- Applicant for Security Clearance ISCR Case No. 01-00818 DECISION OF ADMINISTRATIVE JUDGE BARRY M. SAX

SYNOPSIS This 54-year-old construction supervisor has been consuming alcohol since at least 1975, and had alcohol-related arrests and/or convictions in 1975, 1981, 1982 (negligent homicide), and 1988. He is still consuming two or three beers at a time, up to twice a week. In August 1999, he knowingly falsified his answers to two questions relating to his arrests. Neither his drinking nor the falsifications have been mitigated. Clearance denied.

STATEMENT OF CASE

On May 20, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended, issued a Statement of Reasons (SOR) to the Applicant. The SOR detailed reasons why DOHA could not make the preliminary affirmative finding required under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. The SOR recommended referral to an Administrative Judge to conduct proceedings and determine whether a clearance should be granted, denied or revoked. On June 10, 2002, Applicant responded to the allegations set forth in the SOR, and elected to have a decision made after a hearing before a DOHA Administrative Judge. The matter was assigned to me for resolution on August 19, 2002. A Notice of Hearing was issued on September 12, 2002, setting the matter for October 2, 2002. At the hearing, Applicant testified on his own behalf, and called two additional witnesses, but did not offer any exhibits. The Government did not call any witnesses, but offered five exhibits, which were marked as Government Exhibits (GX) 1 - 5, to which Applicant did not object. All exhibits were admitted as marked. The transcript (Tr) was received at DOHA on October 9, 2002.

FINDINGS OF FACT

Applicant is a 54-year-old construction superintendent, employed by a defense contractor. His employer is seeking a security clearance for Applicant in connection with his employment. In his response to the SOR, Appellant admitted allegations 1.b., 1.c., and 1.e, and denied allegations 1.a., 1.e., and 1.f., under Guideline G (Alcohol). He denied both allegations under Guideline E (Personal Conduct). After considering the totality of the evidence derived from Applicant's response to the SOR, her testimony and that of her witnesses, and the Government's exhibits, I make the following FINDINGS OF FACT as to each SOR allegation: GUIDELINE G (Alcohol) 1.a. - Applicant has consumed alcohol, on occasion to excess and to the point of intoxication, from 1975 to the present. 1.b. - Applicant was arrested in 1975 and charged with Driving Under the Influence of an Alcoholic Beverage (DUI). 1.c. - Applicant was arrested on September 16, 1981 and charged with Driving While Intoxicated (DWI). 1.d. - Applicant was arrested on October 19, 1982 and charged with Negligent Homicide While Under the Influence of Alcohol (blood alcohol content of .19). He pleaded guilty and was sentenced to serve on day in jail. 1.e. - Applicant was arrested in 1988 and charged with DUI. 1.f. - Applicant continued to use alcohol, notwithstanding the four alcohol-related arrests cited above. Guideline E (Personal Conduct) 2.a. - Applicant falsified his August 5, 1999 Questionnaire for National Security Positions (SF 86) (GX 4), when he answered "No" to Item 23a., "Have you ever been charged with or convicted of a felony," when he knew he had been convicted of the felony cited in SOR 1.d., above. 2.b. - Applicant falsified his August 6, 199 SF 86 (GX 1), when he answered "Yes" to Item 24d. "Have you ever been charged with or convicted of any offense related to alcohol or drugs," but cited only the 1988 and 1975 arrested cited in SOR 1.b. and 1.e., above, but failed to mention the alcohol-related arrest cited in SOR 1.d., above. In his first sworn statement to an agent of the Defense Security Service (DSS) (GX 1), Applicant discussed his 1975 and 1988 alcohol-related arrests and his 1982 arrest and conviction for alcohol-related negligent homicide. He denied any other alcohol-related arrests (Tr at 24). In his second sworn statement to DSS, dated March 28, 2000, he explained that he had not mentioned this conviction on his SF 86 because he had tried to blank this incident out of [his] life," did not feel "he was really guilty of a felony," and that the arrest was more than seven years in the past and "may not be required" to be reported (GX 2). Of the four alcohol-related arrests and/or convictions cited above, only the 1975 arrest for DUI is not cited in the "FBI Identification Record" (GX 3), but it is admitted by Applicant in his sworn statement to DSS (GX 1) and in his Response to the SOR. As to the 1982 conviction for negligent homicide, while Applicant denies the allegation and adds that it is not factual," the substance of the allegation is clearly supported by the official record (GX 5), and Applicant admitted the substance of the offense (Tr at 28). Applicant's explanations for his false and/or incomplete answers are that (1) a company employee told him he was required to report only arrests that had occurred withing the previous seven years (Attachment to Response to SOR and Tr at 41 - 43); (2) that he had "blanked this incident [the negligent homicide] out of [his] life" (GX 2); (3) that "decided to wait until [his] arrest [for negligent homicide] was discovered and then, if necessary, [he] would provide the details" (Id.); and that (4) he "didn't think of it [the negligent homicide] as a felony offense," referring to Item 23a on the SF 86 (Tr at 31). The offense is a felony under the cited state law (Tr at 39, 40 and Official Notice document 1). As to why he didn't mention the alcohol-related negligent homicide arrest and conviction under Item 23d (any alcohol-related arrest), Applicant admitted he didn't "have a good answer for that" (Id.) and he "guess[es he] was in denial" (Tr at 38). As of the hearing date, October 2, 2002, Applicant continued to consume alcohol, at the rate of about "three or four beers . . . once or twice a week" (Tr at 35, 36). Applicant's witness, a co-worker who works under Applicant, sees him as a "good supervisor" and having "excellent" work habits (Tr at 46).

POLICIES

Considering the evidence as a whole, I find the following specific adjudicative guidelines to be most pertinent to this case: GUIDELINE G (Alcohol Consumption) The Concern: Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness. Conditions that could raise security concerns and may be disqualifying include: 1. Alcohol-related incidents away from work, such as driving while under the influence. 5. Habitual or binge consumption of alcohol to the point of impaired judgment. Conditions that could mitigate security concerns include: None that are applicable under the facts and circumstances of this case. (1) GUIDELINE E (Personal Conduct) The Concern: Conduct involving questionable judgment, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. Condition that could raise security concerns and may be disqualifying includes: 2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire. Condition that could mitigate security concerns includes: None that are applicable under the facts and circumstances of this case. I have also evaluated the totality of the evidence under both the specific additional guidance found in Enclosure 3 to the Directive and the nine general guidelines found in Section E2.2.1. of Enclosure 2 to the Directive.

CONCLUSION

Paragraph 1 - Guideline G (Alcohol Consumption) Applicant has been a consumer of alcohol since at least 1975, when he was 27. In 1975, 1981, 1982, and 1988, he had four separate alcohol-related arrests and/or convictions, one of which involved negligent homicide. Despite this history, Applicant continues to drink several times a week on average, consuming two to three beers on each occasion. Despite the passage of 14 years since his last arrest, it is difficult to avoid the conclusion that the lack of recent arrests is due more to luck than to any basic change in Applicant's drinking patterns. There clearly is no indication that he understands the risks he is creating by his continued drinking. Since that risk continues to the present day, I cannot conclude that the 1975 - 1988 arrests have no current security significance. Indeed, I conclude that they do continue to have such significance. Paragraph 2 - Guideline E (Personal Conduct) Applicant explanations for his material falsification of his answers to Items 23a and 23don his SF 86 are not persuasive. Answering "no" to a question that asks "have you ever," because someone told him only arrest within the previous seven years had to be reported is not something a reasonable man seeking a security clearance would do. His explanation that he would wait to see if the 1982 conviction were noticed by DSS before he said anything about it is not indicative of good judgment, reliability, or candor. Both his conduct and his explanations concerning his answers to Items 23a and 23don his SF 86 raise more questions and doubts than they satisfy. Under each and both of the Guidelines, the totality of the evidence supports the Government's concerns and establishes a nexus or connection between the conduct proven by the evidence and Applicant's suitability to hold a security clearance. At the same time, Applicant has not demonstrated the applicability of any of the possible mitigating conditions. His explanations are not supported by any other evidence and, on their face, are neither consistent nor entitled to any substantial weight in my evaluation of the record. A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. As required by DoD Directive 5220.6, as amended, at E2.2.2., "any doubt as to whether access to classified information is clearly consistent with the interests of national security will be resolved in favor of the nation's security." After considering all the evidence in this case and determining which Disqualifying and Mitigating Conditions are applicable under the facts of record, I conclude that such doubts do exist in the present case. Applicant has not demonstrated he possesses the requisite judgment, reliability, and trustworthiness required of anyone seeking access to the nation's secrets.

FORMAL FINDINGS

Formal Findings as required by Section 3, Paragraph 7 of Enclosure 1 of the Directive are hereby rendered as follows: Paragraph 1 Guideline G (Alcohol Consumption) Against the Applicant Subparagraph 1.a. Against the Applicant Subparagraph 1.b. Against the Applicant Subparagraph 1.c. Against the Applicant Subparagraph 1.d. Against the Applicant Subparagraph 1.e. Against the Applicant Subparagraph 1.f. Against the Applicant Paragraph 2 Guideline E (Personal Conduct) For the Applicant Subparagraph 2.a. Against the Applicant Subparagraph 2.b. Against the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. BARRY M. SAX ADMINISTRATIVE JUDGE 1. The alcohol-related incidents do indicate a pattern (MC 1); while the arrests occurred some years ago, the drinking continues at a level that does not support allow a conclusion that there is no indication of a recent problem (MC 2); and the record does not establish "positive changes in behavior supportive of sobriety" (MC 3).

FOOTNOTES

01-00818.h1 FOR GOVERNMENT Melvin A. Howry, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-00818.h1.html[7/2/2021 2:13:09 PM] 01-00818.h1