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ISCR Case 01-04038.h1 — CASE

ISCR Case 01-04038.h1denied

Case Headnote

ISCR Case No. 01-04038.h1

deniedNov 26, 2001· Hon. Richard A. Cefola· hearing

Summary

A 60-year-old defense contractor was DENIED a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a history of alcohol abuse and criminal conduct, coupled with a lack of candor on his security clearance application.

The applicant had a long history of alcohol consumption, at times to excess, from about 1960 until May 4, 2001. This included five alcohol-related arrests and four convictions for Driving Under the Influence (DUI) or Driving Under the Influence of Alcohol/Drugs, occurring in January 1971, February 1982, November 1982, May 1997, and July 1999.

Furthermore, the applicant knowingly and willfully failed to disclose three of his alcohol-related charges from the 1970s and 1980s on his July 1999 Security Clearance Application, which constituted a violation of 18 U.S.C. Section 1001. The judge found that the applicant offered little in the way of mitigation, beyond stating he had not consumed alcohol in the six months prior to the decision, and ultimately failed to rebut the government's case regarding his alcohol consumption, criminal conduct, and personal conduct.

Why the Applicant Was Denied

The applicant has a long history of alcohol abuse evidenced by five arrests and four convictions for DUI.
The applicant was less than candid in his security clearance application, failing to disclose multiple alcohol-related offenses.
The applicant did not provide sufficient evidence of rehabilitation or mitigation of his past conduct.

Conditions Referenced

Disqualifying

G2raisedA Single Serious Crime or Multiple Lesser Offenses.
E2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.
J2raisedAlcohol-related Incidents Away From Work, Such as Driving While Under the Influence.

Key Rule Quoted

“Unacceptable Personal Conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or an unwillingness to comply with rules and regulations; and Criminal Conduct also creates doubt about his judgement, reliability and trustworthiness.”

Procedural Posture

SOR issuedAug 17, 2001
Answer filedSep 12, 2001
Hearing held—Determined on a written record.
Decision dateNov 26, 2001

Cite For

History of Alcohol Abuse Leading to Multiple DUI Convictions Under Guideline G
Lack of Candor in Security Clearance Application Under Guideline E
Criminal Conduct Raising Security Concerns Under Guideline J

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 multiple allegations of personal conduct, including a lack of candor regarding past alcohol-related offenses on his security clearance application. The applicant's history of alcohol abuse and failure to disclose relevant information were significant factors in the decision to deny the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.b	In answering question 24 on his July 1999 Security Clearance Application (SCA), the Applicant knowingly and wilfully failed to disclose his three alcohol related charges of the 1970s and the 1980s (GX 4 at page 7). This lack of candor is a violation of 18 U.S.C. Section 1001.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
3.a	specific text not stated in this decision	Against Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

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 history of alcohol consumption, including multiple DUI arrests and convictions spanning nearly thirty years. The judge found against the applicant on most allegations related to alcohol consumption, concluding that the applicant's long history of alcohol abuse raises significant security concerns.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The Applicant consumed alcohol with varying frequency, at times to excess and to the point of intoxication, from about 1960 until he last consumed alcohol on May 4, 2001.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.b	In January of 1971, he was arrested, for the first time, for Driving Under the Influence (DUI).	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.c	Ten years later, in February of 1982, the Applicant was arrested for, and subsequently found guilty of, DUI.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.d	Eight months later, in November of 1982, he was arrested a third time for DUI.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.e	Some 15 years later, in May of 1997, the Applicant was arrested, and subsequently found guilty of Driving Under the Influence of Alcohol/Drugs.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.f	The Applicant was last arrested in July of 1999.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.g	The Government has not demonstrated that the Applicant was also arrested in March of 1982, in November of 1983, and in December of 1983.	Against Applicant	Unspecified Alcohol Incident	Denied	—	—	—
1.h	The Applicant offers little in the way of mitigation, except to aver that he has not consumed alcohol in the last six months.	Against Applicant	Unspecified Alcohol Incident	Denied	—	—	—
1.i	Considering all of the evidence, the Applicant has not rebutted the Government's case regarding his Alcohol Consumption.	Against Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
2.a	The Applicant knowingly and wilfully failed to disclose his three alcohol related charges of the 1970s and the 1980s.	Against Applicant	Unspecified Alcohol Incident	Denied	—	—	—
3.a	The Applicant has a history of alcohol abuse as evidenced by five alcohol related arrests and four convictions.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—

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: denied

The judge found multiple instances of criminal conduct related to the applicant's history of alcohol abuse, including several DUI convictions. The applicant's lack of candor regarding his criminal history further contributed to the decision against granting a security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The Applicant was arrested for Driving Under the Influence (DUI) in January of 1971.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	—	—	—
1.b	The Applicant was arrested for DUI in February of 1982 and subsequently found guilty.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	—	—	—
1.c	The Applicant was arrested for DUI in November of 1982.	For Applicant	DUI or DWI Criminal	Conduct No Charge	Denied	—	—	—
1.d	The Applicant was arrested for Driving Under the Influence of Alcohol/Drugs in May of 1997 and found guilty.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	—	—	—
1.e	The Applicant was last arrested in July of 1999 and pled no contest to having a Blood/Alcohol Content of .08 or more.	For Applicant	DUI or DWI Criminal	Convicted	Denied	—	—	—
1.f	The Government has not demonstrated that the Applicant was also arrested in March of 1982, in November of 1983, and in December of 1983.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
1.g	The Applicant knowingly and wilfully failed to disclose his three alcohol related charges of the 1970s and the 1980s on his July 1999 Security Clearance Application.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	—	—	—
1.h	This lack of candor is a violation of 18 U.S.C. Section 1001.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	—	—	—
1.i	The Applicant has a history of alcohol abuse as evidenced by five alcohol related arrests and four convictions.	Against Applicant	DUI or DWI Criminal	Conduct No Charge	Denied	—	—	—
2.a	The Applicant's alcohol consumption and related criminal conduct militate against the granting of a security clearance.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
3.a	The Applicant has not rebutted the Government's case regarding his Alcohol Consumption, Criminal Conduct, and Personal Conduct.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—

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

DATE: November 26, 2001 In Re: ------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 01-04038 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

STATEMENT OF CASE

On August 17, 2001, 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, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on or about September 12, 2001. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) on October 3, 2001. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on October 15, 2001, and Applicant's reply was received on November 13, 2001. The case was received by the undersigned for resolution on November 15, 2001. The issues raised here are whether the Applicant's alcohol consumption, and related criminal and personal conduct militate against the granting of a security clearance.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the File of Relevant Material and Applicant's Response. The Applicant is 60 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. Guideline G - Alcohol Consumption & Guideline J - Criminal Conduct 1.a.~1.h., and 2.a. The Applicant consumed alcohol with varying frequency, at times to excess and to the point of intoxication, from about 1960 until he last consumed alcohol on May 4, 2001 (Government Exhibit (GX) 5 at pages 2–3, and Applicant's Response). Initially, he "drank only beer, one or two cans, two or three times a week with friends" (GX 5 at page 2). In January of 1971, he was arrested, for the first time, for Driving Under the Influence (DUI) (GX 3, and Applicant's Response). Ten years later, in February of 1982, the Applicant was arrested for, and subsequently found guilty of, DUI (GXs 7 and 8). Eight months later, in November of 1982, he was arrested a third time for DUI (GX 3, and Applicant's Response). He was found guilty of the DUI, and also of a Probation Violation, as a result of the previous 1982 conviction (id). Some 15 years later, in May of 1997, the Applicant was arrested, and subsequently found guilty of Driving Under the Influence of Alcohol/Drugs (GX 5 at pages 1–2). "During the course of four to five hours," he admits to drinking "five cans of beer" (GX 5 at page 1). The Applicant was last arrested in July of 1999 (GX 5 at page 2, and GXs 6 and 9). He pled no contest to having a Blood/Alcohol Content of .08 or more (id). He admits to consuming a "large sconner(sic) (32 ounce)" of beer prior to this arrest (GX 5 at page 2). The Government has not demonstrated that the Applicant was also arrested in March of 1982, in November of 1983, and in December of 1983. Therefore, subparagraphs 1.c., 1.e. and 1.f. are found in the Applicant's favor. Guideline J - Criminal Conduct & Guideline E - Personal Conduct 2.b. and 3.a. In answering question 24 on his July 1999 Security Clearance Application (SCA), the Applicant knowingly and wilfully failed to disclose his three alcohol related charges of the 1970sand the 1980s (GX 4 at page 7). This lack of candor is a violation of 18 U.S.C. Section 1001. Mitigation The Applicant offers little in the way of mitigation, except to aver that he has not consumed alcohol in the last six months. Considering all of the evidence, and in light of the fact he was less than candid with the Government, the Applicant bears a heavy burden of persuasion in determining his suitability foe security clearance access.

POLICIES

Enclosure 2 and Section E2.2. of the 1992 Directive set forth both policy factors and conditions that could raise or mitigate a security concern, which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Alcohol Consumption Condition that could raise a security concern: 1. Alcohol-related incidents away rom work, such as driving while under the influence . .; Conditions that could mitigate security concerns: None. Criminal Conduct Condition that could raise a security concern: 2. A single serious crime or multiple lesser offenses. Conditions that could mitigate security concerns: None. Personal Conduct Condition that could raise a security concern: 2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . or similar form . . . ; Conditions that could mitigate security concerns: None. As set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature and seriousness of the conduct and surrounding circumstances. b. Frequency and recency of the conduct. c. Age of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future. The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out a case under Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct) and Guideline E (Personal Conduct), which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. Unacceptable Personal Conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or an unwillingness to comply with rules and regulations; and Criminal Conduct also creates doubt about his judgement, reliability and trustworthiness. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in his private affairs, there then exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSION

Considering first the Applicant's consumption of alcohol, he has a history of alcohol abuse as evidenced by five alcohol related arrests and four convictions. They span a period of nearly thirty years, one occurring in 1971, two in 1982, one in 1997, and most recently, another in 1999. Although the Applicant now avers that he has not consumed any alcohol in the last six months, it is too soon to say that his long history of abusive consumption is not of present security significance. This guideline is found against the Applicant. The Applicant was also less than candid with the Government as to his past criminal record on his July 1999 SCA. This wilful falsification is a violation of 18 U.S.C. Section 1001. This criminal conduct, coupled with his four other convictions, clearly shows a pattern of criminal conduct. Both Guidelines E and J are therefore found against the Applicant. Considering all the evidence, the Applicant has not rebutted the Government's case regarding his Alcohol Consumption, Criminal Conduct, and Personal Conduct. The Applicant has thus not met the mitigating conditions of Guidelines E, G and J, and of Section E2.2. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guidelines E, G and J.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. c. For the Applicant. d. Against the Applicant. e. For the Applicant. f. For the Applicant. g. Against the Applicant. h. Against the Applicant. i. Against the Applicant. Paragraph 2: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. Paragraph 3: AGAINST THE APPLICANT a. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of 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 the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

01-04038.h1 FOR GOVERNMENT Martin H. Mogul, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-04038.h1.html[7/2/2021 2:15:25 PM] 01-04038.h1