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ISCR 02-24743.h1: Guideline G security clearance hearing, denied (2004) · CASE

ISCR Case 02-24743.h1denied

Case headnote

ISCR Case No. 02-24743.h1

deniedFeb 25, 2004· Hon. Richard A. Cefola· hearing

Summary

A 44-year-old defense contractor was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from a history of alcohol-related offenses and a failure to demonstrate rehabilitation or recognition of an ongoing alcohol problem.

Specific allegations included a July 1999 citation for an open container, a September 1999 arrest and guilty plea for Operating a Vessel Under the Influence, and a May 2000 arrest and guilty plea for DUI with a blood alcohol concentration of 0.08% or above. The applicant admitted to a past "physical and mental addiction" to alcohol but claimed to now drink only in moderation.

Despite the applicant's strong job performance, with appraisals showing he "Exceeded" or "Significantly Exceeded" all objectives, the judge found insufficient mitigation for the alcohol consumption issues. The clearance was denied because the applicant failed to recognize the seriousness of his alcohol problem and did not provide evidence of rehabilitation or positive behavioral changes.

Why the applicant was denied

The Applicant has a serious problem with alcohol consumption that he fails to recognize.
The Applicant's past criminal conduct, while dated, reflects a pattern of alcohol-related offenses.
The Applicant did not provide evidence of rehabilitation or positive behavioral changes.

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.
J.2raisedA Single Serious Crime or Multiple Lesser Offenses.

Key rule quoted

“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.”

Procedural posture

SOR issuedAug 26, 2003
Answer filedSep 23, 2003
Decision dateFeb 25, 2004

Cite for

Denial of Clearance Due to Ongoing Alcohol Consumption Despite Past Acknowledgment of Addiction
Insufficient Evidence of Rehabilitation in Alcohol-related Cases
Impact of Past Criminal Conduct on 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: deniedAUD DIAGNOSED

The judge found multiple alcohol-related incidents against the applicant, including two DUI convictions. Despite the applicant's claims of moderation in alcohol consumption, the judge determined that the applicant has a serious problem with alcohol that he fails to recognize, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to criminal conduct, citing two alcohol-related convictions and ongoing issues with alcohol consumption. Despite the applicant's claims of moderation, the judge determined that the applicant's past conduct and current behavior did not mitigate security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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: February 25, 2004 In Re: ---------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-24743 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS In 2001, the Applicant admitted he had "a physical and mental addiction" to alcohol. His alcohol abuse is evidenced by two alcohol related convictions, one in 1999 and another in 2000. He now avers he is no longer "addicted or dependent on the use of alcohol;" and as such, continues to drink "in moderation." Although the Applicant's past criminal conduct is distant enough in time so as not to be of present security significance, he has a serious problem with alcohol consumption which he fails to recognize. Mitigation is not shown. Clearance is denied.

STATEMENT OF CASE

On August 26, 2003, 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 September 23, 2003. 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 aterial (FORM) on December 8, 2003. 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 December 16, 2003, and Applicant's Response was received on February 2, 2004. The case was received by the undersigned for resolution on January 29, 2004. The issues raised here are whether the Applicant's continued alcohol consumption and past criminal conduct militate against the granting of a security clearance. [The Applicant denies that he is currently addicted to alcohol, but admits the underlying factual basis of all of the other allegations].

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 44 years of age, and is employed by a defense contractor who 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 & Guideline J - Criminal Conduct 1.a.~1.g, and 2.a. In July of 1999, the Applicant was issued a citation for having an Open Container on the Beach (Government Exhibit (GX) 5 at pages 13–14). He "was fined approximately $110 (GX 5 at page 14). Two months later, in September of 1999, the Applicant was arrested, in part, for and subsequently pled guilty to, Operating a Vessel Under the Influence (GX 5 at pages 11–13). He had consumed alcohol prior to his arrest (GX 5 at page 12). The following year, in May of 2000, the Applicant was arrested, in part, for and subsequently pled guilty to, DUI with 0.08% or above blood alcohol concentration (GX 5 at pages 8–11, and GX 6). He had consumed "about four beers over a two hour period" prior to this most recent arrest (GX 5 at page 9). In a sworn statement, executed by the Applicant on March 12, 2001, the Applicant described his alcohol consumption in the following terms: I feel that my use of alcohol is a physical and mental addiction. . . . Once I drink I want more. I drink a glass of wine and then another. This is the classic sign of a person who drinks. . . . On weekends . . . I might drink a 12 pack of beer at most in one day or a whole bottle of wine. . . . At worst when I drink too much I fall asleep or pass out. I can recall drinking to the point where I have had loss of memory. . . . Now I have come to the conclusion that I cannot drink socially. I need to quit altogether. I plan to completely quit, and this interview might also be some of the motivation I need. . . . It is making me realizing(sic) it is a problem. It is reinforcing what I have learned from AA that drinking is a problem. This interview reinforces this from an employment perspective. It gives me motivation to change. I realize it could jeopardize my security clearance and my employment. I plan to quit drinking (GX 5 at pages 2, 3, 4 and 7–8). In his September 2003 Answer to the SOR, the Applicant avers that he continues to consume alcohol, "but only in moderation" (GX 3). Mitigation The Applicant offers his most recent job performance appraisal which shows that he either "Exceeded" or "Significantly Exceeded" all of his objectives (Response at page 4).

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 Conditions that could raise a security concern: 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 judgement. 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. Condition that could mitigate security concerns: 1. The criminal behavior is not recent. 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) and under Guideline J (Criminal 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. 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 a serious problem with the consumption of alcohol, a problem he seemed to recognize when he executed his sworn statement in March of 2001. He had three alcohol related incidents, two resulting in convictions, in less than two years from July 1999 to May 2000. Although I find that his most recent criminal conduct is distant enough in time, more than 40 months ago, so as not to be of present security significance, the same can not be said for his continued consumption of the intoxicant. He recognizes he has a problem but is ignoring it. He avers consistently that he must cease consuming alcohol, but discounts his own advice. He is an admitted alcoholic, despite his recent attempt to recant this self-realization, with no positive changes in his behavior supportive of sobriety. Guideline G is therefore found against the Applicant. Considering all the evidence, the Applicant has not rebutted the Government's case regarding his Alcohol Consumption. The Applicant has thus not met the mitigating conditions of Guideline G, and of Section E.2.2. of the Directive. Accordingly, he has not 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: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. c. Against the Applicant. d. Against the Applicant. e. Against the Applicant. f. Against the Applicant. g. Against the Applicant. Paragraph 2: FOR THE APPLICANT a. 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 not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

02-24743.h1 FOR GOVERNMENT Edward W. Loughran, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-24743.h1.html[6/24/2021 11:08:21 AM] 02-24743.h1