ISCR Case 02-29035.h1

Case Headnote

ISCR Case No. 02-29035.h1

grantedFeb 28, 2005· Hon. Barry M. Sax· hearing

Summary

This case involves a 34-year-old defense contractor technician whose security clearance was granted despite concerns under Guideline D (Sexual Behavior), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The applicant had a history of four alcohol-related arrests between 1991 and 1999, including two for Driving While Impaired (DWI) and one for Driving While License Revoked, resulting in fines, community service, and probation. His employment at Laboratory X was terminated in November 1999 due to alcohol consumption during working hours. An evaluation in April 1999 diagnosed him with Alcohol Dependence.

Additionally, the applicant was cited in April 2002 for Disorderly Conduct and Lewd Acts in a Public Place, stemming from an incident where he masturbated in public. He also admitted to similar acts on at least 20 occasions between May 2000 and April 2002.

However, the judge found significant mitigation. The applicant underwent counseling for his alcohol issues and demonstrated a change in behavior, now limiting his drinking to occasional beers and not driving after consumption. The public masturbation incident was explained as a misguided attempt to increase fertility, rather than having a sexual aspect. The applicant showed significant behavioral changes and maturity since the incidents, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant underwent counseling for alcohol-related issues and has not returned to old habits.
The public masturbation incident was explained as a misguided attempt to increase fertility, lacking a sexual aspect.
The applicant demonstrated significant behavioral changes and maturity since the incidents.

Conditions Referenced

Disqualifying

DC 1raisedCriminal Conduct
DC 2raisedMultiple Lesser Offenses
DC 1raisedAlcohol-related Incidents Away From Work
DC 2raisedAlcohol-related Incidents at Work
DC 4raisedHabitual or Binge Consumption of Alcohol

Mitigating

MC 1appliedNot Recent Criminal Behavior
MC 5appliedEvidence of Successful Rehabilitation
MC 2appliedNo Recent Alcohol-related Problems
MC 3appliedPositive Changes in Behavior

Key Rule Quoted

“"Sexual Behavior becomes a security concern when it involves a criminal offense, indicates a personal or emotional disorder, subjects the individual to undue influence or coercion, or reflects a lack of judgment or discretion."”

Procedural Posture

SOR issuedMay 26, 2004
Answer filedJul 23, 2004
Hearing heldDec 2, 2004
Decision dateFeb 28, 2005

Cite For

Mitigation of Alcohol-related Conduct Under Guideline G
Lack of Sexual Aspect in Public Behavior Under Guideline D
Successful Rehabilitation After a History of Criminal Conduct 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.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
3.a	Applicant was cited and charged on April 11, 2002 in State B with Disorderly Conduct, Lewd Acts in a Public Place, as alleged in SOR 1.e., above;	For Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
3.b	Applicant masturbated in a public place, but unseen, on at least 20 occasions between May 2000 and April 9, 2002.	For Applicant	Unspecified Sexual Behavior	Admitted	—	—	—

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

3.a

Applicant was cited and charged on April 11, 2002 in State B with Disorderly Conduct, Lewd Acts in a Public Place, as alleged in SOR 1.e., above;

For Applicant

Unspecified Sexual Behavior

Admitted

—

3.b

Applicant masturbated in a public place, but unseen, on at least 20 occasions between May 2000 and April 9, 2002.

For Applicant

Unspecified Sexual Behavior

Admitted

—

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	Applicant consumed alcohol, at times to excess and to the point of intoxication, from about 1987 to the present, when his drinking is limited to occasional beers and he does not drive after drinking (Tr at 50).	For Applicant	Binge or Intoxication Pattern	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work (d) diagnosis of alcohol use disorder by a qualified professional	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
2.b	the alcohol-related arrests cited in SOR 1.a. (1991) and 1.b. (April 1999), above;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
2.c	Applicant's employment at Laboratory X was terminated in November 1999 for consuming alcohol during working hours. His wife says Applicant was stopped by the police on his way home from work and an open container was found in his car (Tr at 54). However, I accept Applicant's testimony that he had been driving around in a company vehicle picking up samples and opened the container as he was returning to the company laboratory (Tr at 60-64). I accept Applicant's testimony that he had an "alcohol reading" of .12% (Tr at 67). Applicant had previously been talked to by company officials because a customer reported smelling alcohol on his breath during business hours (Tr at 63);	For Applicant	Intoxication at Work or Duty	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
2.d	As a result of the April 16, 1999 arrest for DWI, Applicant was evaluated on or about April 20, 1999 in State A for a condition diagnosed as Alcohol Dependence (GX 6).	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
2.e	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

Applicant consumed alcohol, at times to excess and to the point of intoxication, from about 1987 to the present, when his drinking is limited to occasional beers and he does not drive after drinking (Tr at 50).

For Applicant

Binge or Intoxication Pattern

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(b) alcohol-related incident at work

(d) diagnosis of alcohol use disorder by a qualified professional

(c) participating in counseling/treatment with satisfactory progress, no prior relapse

—

2.b

the alcohol-related arrests cited in SOR 1.a. (1991) and 1.b. (April 1999), above;

For Applicant

DUI or DWI Alcohol

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(b) alcohol-related incident at work

(c) participating in counseling/treatment with satisfactory progress, no prior relapse

—

2.c

Applicant's employment at Laboratory X was terminated in November 1999 for consuming alcohol during working hours. His wife says Applicant was stopped by the police on his way home from work and an open container was found in his car (Tr at 54). However, I accept Applicant's testimony that he had been driving around in a company vehicle picking up samples and opened the container as he was returning to the company laboratory (Tr at 60-64). I accept Applicant's testimony that he had an "alcohol reading" of .12% (Tr at 67). Applicant had previously been talked to by company officials because a customer reported smelling alcohol on his breath during business hours (Tr at 63);

For Applicant

Intoxication at Work or Duty

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(b) alcohol-related incident at work

(c) participating in counseling/treatment with satisfactory progress, no prior relapse

—

2.d

As a result of the April 16, 1999 arrest for DWI, Applicant was evaluated on or about April 20, 1999 in State A for a condition diagnosed as Alcohol Dependence (GX 6).

For Applicant

Alcohol Use Disorder Diagnosed

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

—

2.e

specific text not stated in this decision

For Applicant

Unspecified Alcohol Incident

Unknown

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	May 27, 1991 in State A for Driving While Impaired (DWI). He was found guilty of the lesser included offense of Reckless Driving to Endanger and was ordered to pay approximately $205.00 in fines and costs.	For Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.b	April 16, 1999 in State A for (1) Speeding and (2) DWI. He pleaded guilty to Count 2, was sentenced to 30 days in jail, suspended, and was ordered to comply with an alcohol treatment program, to surrender his license, to not operate a motor vehicle until his license is restored by the Department of Motor Vehicles, and to complete 24 hours of community service.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.c	October 2, 1999 in State A for Possession of Alcohol in a State Park, a misdemeanor. He pleaded guilty and paid approximately $110.00 in fines and costs.	For Applicant	Unspecified Criminal Conduct	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.d	October 3, 1999 in State A for Driving While License Revoked. He pleaded guilty and was sentenced to 45 days in jail, suspended, and 18 months probation.	For Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.e	April 11, 2002 in State B cited and charged with Disorderly Conduct, Lewd Acts in a Public Place, as alleged in SOR 3.a., below.	For Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

May 27, 1991 in State A for Driving While Impaired (DWI). He was found guilty of the lesser included offense of Reckless Driving to Endanger and was ordered to pay approximately $205.00 in fines and costs.

For Applicant

Traffic Offense Pattern

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.b

April 16, 1999 in State A for (1) Speeding and (2) DWI. He pleaded guilty to Count 2, was sentenced to 30 days in jail, suspended, and was ordered to comply with an alcohol treatment program, to surrender his license, to not operate a motor vehicle until his license is restored by the Department of Motor Vehicles, and to complete 24 hours of community service.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.c

October 2, 1999 in State A for Possession of Alcohol in a State Park, a misdemeanor. He pleaded guilty and paid approximately $110.00 in fines and costs.

For Applicant

Unspecified Criminal Conduct

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.d

October 3, 1999 in State A for Driving While License Revoked. He pleaded guilty and was sentenced to 45 days in jail, suspended, and 18 months probation.

For Applicant

Traffic Offense Pattern

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.e

April 11, 2002 in State B cited and charged with Disorderly Conduct, Lewd Acts in a Public Place, as alleged in SOR 3.a., below.

For Applicant

Unspecified Criminal Conduct

Charged Not Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

Loading case…

Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES