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ISCR Case 02-03749.h1 — CASE

ISCR Case 02-03749.h1granted

Case Headnote

ISCR Case No. 02-03749.h1

grantedOct 7, 2003· Hon. Richard A. Cefola· hearing

Summary

A 43-year-old defense contractor with a Bachelor of Science degree was granted a security clearance despite concerns under Guideline G (Alcohol Consumption). The Statement of Reasons cited three alcohol-related arrests: one in 1988 for reckless driving, one in 1990 for Driving Under the Influence (DUI), and another DUI arrest in 1999 that was dismissed on a legal technicality.

Disqualifying condition G.1 was raised due to these incidents. However, the Administrative Judge applied mitigating conditions G.2 and G.3, noting the Applicant's significant behavioral changes. The Applicant has abstained from alcohol since April 2003 and regularly attends Alcoholics Anonymous meetings.

The decision to grant the clearance was based on the Applicant's sustained sobriety, with the last alcohol-related incident occurring more than four years prior to the review. Additionally, positive character references were provided, further supporting the Applicant's commitment to sobriety.

Why the Applicant Prevailed

The Applicant has not consumed alcohol since April 2003 and attends Alcoholics Anonymous regularly.
The last alcohol-related incident occurred more than four years ago, meeting the mitigating condition.
The Applicant provided positive character references supporting his sobriety.

Conditions Referenced

Disqualifying

G.1raisedAlcohol-related Incidents Away From Work, Such as Driving While Under the Influence.

Mitigating

G.2appliedThe Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem.
G.3appliedPositive Changes in Behavior Supportive of Sobriety.

Key Rule Quoted

“The Government must make out a case under Guideline G (Alcohol Consumption) which establishes doubt about a person's judgment, reliability and trustworthiness.”

Procedural Posture

SOR issuedDec 23, 2002
Answer filedFeb 11, 2003
Hearing heldJul 30, 2003
Decision dateOct 7, 2003

Cite For

Mitigation of Past Alcohol-related Incidents Under Guideline G
Demonstrating Positive Behavioral Changes in Sobriety
The Significance of Time Elapsed Since Last Incident 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: grantedTREATMENT COMPLETED · FAVORABLE

The Applicant had three alcohol-related arrests, with the last occurring over four years ago. Although he was never diagnosed with an alcohol problem, he has chosen to abstain from alcohol and regularly attends Alcoholics Anonymous, which the judge found to be mitigating. The judge ruled in favor of the Applicant under Guideline G, granting the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The Applicant was arrested and subsequently pled guilty to reckless driving.	For Applicant	DUI or DWI Alcohol	Admitted	—	(b) acknowledges the pattern and has established modified use or abstinence	—
1.b	The Applicant was arrested for, and subsequently pled guilty to, Driving Under the Influence (DUI).	For Applicant	DUI or DWI Alcohol	Admitted	—	(b) acknowledges the pattern and has established modified use or abstinence	—
1.c	The Applicant was arrested for DUI, which was later thrown out on a legal technicality.	For Applicant	DUI or DWI Alcohol	Admitted	—	(b) acknowledges the pattern and has established modified use or abstinence	—
1.d	The Applicant's drinking pattern changed to where he would only drink on special occasions.	For Applicant	Binge or Intoxication Pattern	Admitted	—	(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.

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: October 7, 2003 In Re: --------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-03749 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant, admittedly, has three alcohol related arrests: one in 1988, one in 1990, and the last one more than four years ago in 1999. Although he has never been diagnosed to have a problem with alcohol, the Applicant has chosen to abstain from its consumption, and attends Alcoholics Anonymous (AA) on a regular basis. Mitigation is shown. Clearance is granted.

STATEMENT OF CASE

On December 23, 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, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 February 11, 2003. The case was received by the undersigned on July 11, 2003. A notice of hearing was issued on that same date, and the case was heard on July 30, 2003. The Government submitted nine exhibits. Testimony was taken from the Applicant, who also offered eleven exhibits on his own behalf. The transcript was received on August 8, 2003. The issue raised here is whether the Applicant's past alcohol consumption militates against the granting of a security clearance. [The Applicant admits the underlying factual basis of all of the allegations.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 43 years of age, has a Bachelor of Science degree, and is employed by a defense contractor that seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact. Guideline G - Alcohol Consumption 1.a.~1.d. During the 1980's, the Applicant consumed alcohol "at least once a month on weekends" (Transcript (TR) at page 18 lines 5–24). In September of 1988, the Applicant was arrested and subsequently pled guilty to reckless driving (TR at page 18 line 25 to page 19 line 23). He had consumed "four or five beers" prior to this arrest (id). In March of 1990, the Applicant was arrested for, and subsequently pled guilty to, Driving Under the Influence (DUI) (Government Exhibits (GXs) 6 and 7). He had consumed "some beers" prior to this arrest (TR at page 20 line 20 to page 23 line 20). During the 1990's, the Applicant's drinking pattern remained much the same, beer on some weekends. In May of 1999, the Applicant was arrested for DUI (GXs 4 and 5). Although the arrest "was later thrown out" on a legal technicality, he had consumed "six or seven beers" prior to this last arrest (TR at page 23 line 21 to page 26 line 13). From May of 1999 to April of 2003, the Applicant's drinking pattern changed to where he would only drink on special occasions "two or three" times a year (TR at page 26 line 22 to page 28 line 4). Although he has never been diagnosed to have a problem with alcohol, since April of this year the Applicant has chosen to abstain from its consumption, and now attends Alcoholics Anonymous (AA) on a regular basis (TR at page 28 line 14 to page 30 at line 13, at page 33 line 16 to page 35 line 1, and at page 35 lines 16–24). Mitigation The Applicant offers the sworn declarations of eight individuals: supervisors, colleagues, and friends (Applicant's Exhibits (AppXs) A~H). All are most laudatory in their comments regarding the Applicant; and many, to include his AA sponsor, aver that he has ceased the consumption of alcohol (id).

POLICIES

Enclosure 2 and Section E.2.2. 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 from work, such as driving while under the influence . .; Conditions that could mitigate security concerns: 2. The problem occurred a number of years ago and there is no indication of a recent problem; 3. Positive changes in behavior supportive of sobriety; 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, extent, and seriousness of the conduct, and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity 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) 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. 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

The Applicant has three alcohol related arrests, the last one occurring more than four years ago in May of 1999. This is "a number of years ago"; and as such, the second mitigating condition under Alcohol Consumption is clearly applicable. There have also been "[p]ositive changes in [the Applicant's] behavior supportive of sobriety." He has ceased the consumption of alcohol, and attends AA on a regular basis. The third mitigating condition is therefore also applicable in this case. As mitigation has been shown, Guideline G is found for the Applicant. Considering all the evidence, the Applicant has rebutted the Government's case regarding his Alcohol Consumption. The Applicant has thus met the mitigating conditions of Guidelines G, and of Section E.2.2. of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guideline G.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: FOR THE APPLICANT a. For the Applicant. b. For the Applicant. c. For the Applicant. d. For 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 clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

02-03749.h1 FOR GOVERNMENT Jennifer I. Campbell, Esquire, Department Counsel FOR APPLICANT Thomas M. Abbott, Esquire, Applicant's Counsel file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-03749.h1.html[6/24/2021 10:48:25 AM] 02-03749.h1