CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 02-23133.h1 — CASE

ISCR Case 02-23133.h1granted

Case Headnote

ISCR Case No. 02-23133.h1

grantedJan 5, 2004· Hon. Charles D. Ablard· hearing

Summary

This case involved a 42-year-old government contractor employee whose security clearance was initially questioned under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The Statement of Reasons cited a history of six alcohol-related offenses, five of which were over ten years old. The applicant also failed to disclose five of these offenses on his SF 86, believing only those within the last ten years needed to be reported.

However, the applicant had no alcohol-related offenses in the two years prior to the decision. He had sought and received medical treatment for alcohol dependence, including a continuing care program, and demonstrated positive behavioral changes supportive of sobriety. His last offense occurred in 2001, with no recurrence of issues since then.

The judge determined that the applicant's omission of prior offenses on his SF 86 was not deliberate. Given the demonstrated rehabilitation, sustained sobriety for over two years, and evident positive behavioral changes, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant demonstrated rehabilitation and maintained sobriety for over two years.
The applicant's omission of prior offenses was not considered deliberate or material to trustworthiness.
Positive changes in behavior supportive of sobriety were evident.

Conditions Referenced

Disqualifying

E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work
E2.A5.1.2.2raisedFalsification of SF 86

Mitigating

E2.A7.1.3.2appliedThe Problem Occurred a Number of Years Ago and There Is No Current Problem
E2.A7.1.3.3appliedPositive Changes in Behavior Supportive of Sobriety
E2.A5.1.3.1appliedInformation Was Not Pertinent to a Determination of Trustworthiness

Key Rule Quoted

“"Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security."”
— Directive, ¶ E2.2.2.

Procedural Posture

SOR issuedNov 15, 2003
Answer filedMar 4, 2003Applicant elected to decide on the written record.
Hearing held—No hearing; decided on written record.
Decision dateJan 5, 2004

Cite For

Mitigating Conditions for Alcohol-related Offenses Under Guideline G
Non-deliberate Omission of Prior Offenses on SF 86 Under Guideline E
Evidence of Rehabilitation and Lifestyle Changes 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's omission of five alcohol-related offenses from his Security Clearance Application was not deliberate, as he believed only offenses within the last ten years were required to be reported. The applicant disclosed all offenses during his security interview and has shown positive changes in behavior and sobriety. The judge concluded that granting the security clearance was consistent with national interest.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant failed to disclose five alcohol-related offenses on his Security Clearance Application (SF 86) believing that only those within the last ten years were required to be reported.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED	Criminal Conduct	Admitted	—	(a) prompt, good-faith correction before being confronted	Claimed Corrected Falsification Promptly

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: grantedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The applicant had a history of alcohol-related offenses, including six incidents, five of which were over ten years old. He has since undergone treatment for alcohol dependence and has maintained sobriety for over two years. The judge found all allegations under Guideline G to be in favor of the applicant, leading to the granting of his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of alcohol-related offenses.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.b	The applicant has six alcohol-related offenses, five of which are over ten years old.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.c	The applicant has not had any alcohol-related offenses in the past two years.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.d	The applicant received medical treatment for alcohol dependence and began a continuing care program.	For Applicant	Alcohol Related Hospitalization	Admitted	—	—	—
1.e	The applicant has made positive changes in behavior supportive of sobriety.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.f	The applicant's last alcohol-related offense occurred in 2001, and he has shown no recurrence of issues since then.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.g	The applicant's alcohol-related offenses occurred a number of years ago, and there is no indication of a recent problem.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.h	The applicant has been in the care of a physician and in an alcohol rehabilitation program.	For Applicant	Alcohol Related Hospitalization	Admitted	—	—	—

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: January 5, 2004

In Re:

-------------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 02-23133

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

SYNOPSIS

Applicant, a 42-year-old employee of a government contractor doing tunneling work used alcohol to excess on several occasions and had six alcohol related offenses five of them over ten years old. He has since been in the care of a physician and in an alcohol rehabilitation program. He has had no offenses in the past two years. He failed to report on his Security Clearance Application (SF 86) five of the six offenses believing that only those within the last ten years were required to be reported. He reported all of them to the security investigator. Clearance is granted.

STATEMENT OF CASE

On November 15, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to 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 Applicant. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated March 4, 2003, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on October 2, 2003. A complete copy of the file of relevant material (FORM) was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did so within the specified time period. The case was assigned to, and received by, me on December 2, 2003.

FINDINGS OF FACT

Applicant admitted to all of the specific allegations in the SOR but stated qualifications or mitigating facts in both his first answer and supplemental material. The admitted facts are hereby incorporated as findings of fact.

After a complete and thorough review of the information in the record, and upon due consideration of same, I make the following additional findings of fact.

Applicant, a 42-year-old employee of a government contractor, used alcohol to the point of intoxication and has six alcohol related offenses on his record . The dates of the offenses are 1985, 1987, 1989, 1990, 1992 and 2001. Two related to refusal to take alcohol tests while driving, a third was nolle prosequi, a fourth charged disorderly conduct, and the remaining two were driving under the influence. After the last offense he received medical treatment for six weeks for alcohol dependence and began a continuing care program in which he continues to participate.

Applicant was married in 1992 and assumed responsibility for his wife's 14-year-old son. They had another child in 1993.

Applicant failed to disclose the five alcohol related offenses that were over ten years old on his Security Clearance Application (SF 86) giving only his 2001 offense.

POLICIES

[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information." Id. at 527.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other 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. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating that it is clearly consistent with the national interest to grant or continue the applicant's clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b)

Under the Directive the Government has alleged a number of Disqualifying Conditions (DC) These concern alcohol related incidents away from work (E2.A7.1.2.1.), under Guideline G.Possible Mitigating Conditions (MC) include the fact that the problem occurred a number of years ago and there is no current problem. (E2.A7.1.3.2.) Also, that there have been positive changes in behavior supportive of sobriety. (E2.A7.1.3.3.)

Also alleged is falsification of his SF 86 by failing to disclose five of his six prior offenses (E2.A5.1.2.2) under Guideline E Personal Conduct. Guideline E raises an issue involving questionable judgment, unreliability and unwillingness to comply with rules and regulations including a deliberate omission of relevant and material facts from a personnel security application. The Guideline also provides for Mitigating Conditions (MC) including the fact that the information was not pertinent to a determination of trustworthiness. (E2.A5.1.3.1)

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors and conditions above, I conclude the following with respect to all allegations set forth in the SOR. With regard to Guideline G, Applicant has admitted alcohol related offenses five of them over ten years ago. With regard to the sixth, driving under the influence of alcohol, the offense occurred the last night of his employment in a Western state before he was to return home on the East Coast. He was allowed to leave the state, hired a local lawyer, was found guilty, and agreed to spend one night in jail at his home city and pay a fine. He avers that this was aberrational behavior and it is the only offense during the past ten years and there has been no recurrence during the past two years.

He subsequently entered the treatment program for alcohol dependence under the care of a doctor. He completed the course and was found to be on the road to lifestyle change and maintenance of abstinence. There is no evidence of alcohol related offenses or occurrences in over two years since he began the program. itigating Conditions are applicable in that the problem occurred a number of years ago and there is no indication of a recent problem, and that there has been positive changes in behavior supportive of sobriety.

With regard to Guideline E Applicant believed that he was required to list only those offenses occurring during the past ten years. Significantly, Applicant listed the most recent offense from 2001 that was the most potentially damaging one since it was much more recent than the others. He subsequently revealed all offenses in his security interview. His omission of the earlier offenses was not deliberate as required by the Guideline. The applicable Mitigating Condition has been met in that the information is not pertinent to a determination of judgment, trustworthiness, or reliability.

After considering all the evidence in its totality and as an integrated whole to focus on the whole person of Applicant, I conclude that it is clearly consistent with the national interest to grant clearance to Applicant.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

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

Subparagraph 1.h.: For Applicant

Paragraph 2. Guideline E: FOR APPLICANT

Subparagraph 3.a.: For Applicant

DECISION

After full consideration of all the facts and documents presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

Charles D. Ablard Administrative Judge

FOOTNOTES

02-23133.h1 FOR GOVERNMENT Kathryn A. Trowbridge, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-23133.h1.html[6/24/2021 11:04:36 AM] 02-23133.h1