ISCR Case No. 01-16547.h1

DATE: March 17, 2003 In Re: --------------------------- SSN: ------------------ Applicant for Security Clearance ISCR Case No. 01-16547 DECISION OF ADMINISTRATIVE JUDGE WILFORD H. ROSS

SYNOPSIS The Applicant has been arrested four times for driving under the influence, the last in 2000. He has received alcohol treatment as late as 2001, but continues to drink as of March 2002. Allegations of falsification were not proven. Adverse inference is not overcome. Clearance is denied.

On May 17, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended) 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. The Applicant responded to the SOR in writing on June 13, 2002, and requested that the case be decided without a hearing. The Government submitted its File of Relevant Material (FORM) to the Applicant on September 3, 2002. The Applicant was given 30 days from receipt of the FORM to submit any documents in rebuttal, extenuation or mitigation. The Applicant received the FORM on September 9, 2002, and did not submit a reply. The case was received by the undersigned on October 22, 2002.

The Applicant is 46 and single. He is employed by a defense contractor, and he seeks to obtain a DoD security clearance in connection with his employment in the defense sector. The Government opposes the Applicant's request for a security clearance, based upon the allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR. They are based on the Applicant's Answer to the SOR and the exhibits. Paragraph 1 (Guideline G - Alcohol consumption). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he uses intoxicants to excess. The Applicant has been arrested four times for operating a motor vehicle while intoxicated. The arrests were in August 1974, September 1984, December 1992 and October 2000. For his last arrest the Applicant served 20 days in jail and his driver's license was suspended for 180 days. As part of the sentences for the 1992 and 2000 arrests, the Applicant was required to complete an Alcohol Countermeasures Program. During these programs, the Applicant was evaluated and it was determined that he had a chemical dependency on alcohol. The evaluations resulted in the Applicant being required to attend alcohol treatment programs from March to August 1993 and November 2000 to March 2001. The Applicant was sent a series of interrogatories concerning alcohol use in early 2002. In his written answers, dated March 4, 2002, the Applicant admitted that he still drinks. Specifically, the Applicant stated that he drinks 4 to 5 beers once or twice a week. (Exhibit 5, page 1, question1.b.(2).) He further states that he attended alcohol treatment from February to April 2001. (Exhibit 5, page 2, question 2.) I am assuming that there is a confusion of dates between this treatment and that from November 2000 to March 2001 discussed immediately above. Paragraph 2 (Guideline E - Personal conduct). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process. Subparagraphs 2.a. and 2.b. of the Statement of Reasons state that the Applicant falsified a Questionnaire for National Security Positions dated October 7, 1999. The Applicant denied the allegations. The FORM does not contain a Questionnaire with this date. Exhibit 4 is an electronic Security Clearance Application with a date of January 24, 2000. It does not contain a signature block of the Applicant, or a certification of truth of the entries in it. Accordingly, I find that the Government has not met its burden with regard to these allegations since the available evidence does not comport with the allegations. Paragraph 2 and its subparagraphs are found for the Applicant. Paragraph 3 (Guideline J - Criminal conduct). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has engaged in criminal acts. The driving under the influence arrests described in Paragraph 1 all were violations of state law. Accordingly, those acts set forth under Paragraph 1, above, will also be considered under this guideline. As found above, the Government failed to show that the Applicant knowingly and willfully provided false material information to DoD during the clearance screening process. Subparagraph 3.b. is found for the Applicant.

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive, has set forth policy factors which must be given "binding" consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent guideline. However, the factors are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense, as well as his knowledge of the law, human nature and the ways of the world, in making a reasoned decision. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are: Guideline G (Alcohol consumption) Condition that could raise a security concern: (1) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol abuse; Conditions that could mitigate security concerns: (None of the stated conditions have application in this case.) Guideline E (Personal conduct) Conditions that could raise a security concern: (None of the stated conditions have application in this case.) Conditions that could mitigate security concerns: (None of the stated conditions have application in this case.) Guideline J (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 of the stated conditions have application in this case.) In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, "In evaluating the relevance of an individual's conduct, the [Administrative Judge] should consider the following factors [General Factors]: a. The nature, extent and seriousness of the conduct b. The circumstances surrounding the conduct, to include knowledgeable participation c. The frequency and recency of the conduct d. The individual's age and maturity at the time of the conduct e. The voluntariness of participation f. The presence or absence of rehabilitation and other pertinent behavior changes g. The motivation for the conduct h. The potential for pressure, coercion, exploitation or duress i. The likelihood of continuation or recurrence." The eligibility guidelines established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information. In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours a day. The Government is therefore appropriately concerned where available information indicates that an Applicant for clearance may be involved in criminal acts and have an alcohol dependence problem that demonstrates poor judgement, untrustworthiness or unreliability on the Applicant's part. The DoD Directive states, "Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable, with particular emphasis placed on the seriousness, recency, frequency, and motivation for the individual's conduct; the extent to which conduct was negligent, willful, voluntary, or undertaken with the knowledge of the circumstances or consequences involved; and, to the extent that it can be estimated, the probability that conduct will or will not continue in the future." The Administrative Judge 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. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order...shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned."

It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the granting of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him or her a security clearance. In this case the Government has met its initial burden of proving by substantial evidence that the Applicant has an alcohol abuse problem (Guideline G); and that he has been involved in four alcohol related criminal acts between 1974 and 2000 (Guidelines G and J). The Applicant, on the other hand, has not introduced persuasive evidence in rebuttal, explanation or mitigation which is sufficient to overcome the Government's case against him, except in part. Paragraph 2 (Guideline E) and subparagraph 3.b. (Guideline J) are found for the Applicant because of a lack of evidence. The evidence is clear that the Applicant has had a severe alcohol problem for almost 20 years. His use of alcohol to excess has resulted in four arrests for driving under the influence of alcohol. He continues to drink four to five beers once or twice a week despite receiving treatment twice for alcohol dependence, the last in 2001. Virtually no mitigation has been shown concerning his alcohol abuse or his criminal conduct. Paragraph 1(Guideline G) and Paragraph 3 (Guideline J) are found against the Applicant. On balance, it is concluded that the Applicant has failed to overcome the Government's information opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the conclusionary allegations expressed in Paragraphs 1and 3 of the Government's Statement of Reasons. As set forth above, Paragraph 2 is found for the Applicant.

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive, are: Paragraph 1: 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. Subparagraph 1.g.: Against the Applicant. Paragraph 2: For the Applicant. Subparagraph 2.a.: For the Applicant. Subparagraph 2.b.: For the Applicant. Paragraph 3: Against the Applicant. Subparagraph 3.a.: Against the Applicant. Subparagraph 3.b.: For the Applicant.

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 the Applicant. Wilford H. Ross Administrative Judge

01-16547.h1 FOR GOVERNMENT Kathryn D. MacKinnon, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-16547.h1.html[7/2/2021 2:23:28 PM] 01-16547.h1