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ISCR Case 03-05134.h1 — CASE

ISCR Case 03-05134.h1granted

Case Headnote

ISCR Case No. 03-05134.h1

grantedMar 21, 2005· Hon. Robert J. Tuider· hearing

Summary

A 43-year-old electrical engineering assistant was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The Statement of Reasons detailed multiple alcohol-related incidents, including charges for underage drinking, being under the influence, disorderly conduct, public drunkenness, and several arrests for driving under the influence or while intoxicated. Additionally, he was involved in domestic disturbances where alcohol was consumed, and faced charges for simple assault, harassment, resisting arrest, and terroristic threats on a military installation.

Disqualifying conditions related to personal conduct and alcohol consumption were raised. However, the decision applied mitigating conditions, acknowledging the applicant's significant positive changes.

The clearance was granted because the applicant has maintained complete abstinence from alcohol since January 2004, demonstrating sustained positive behavioral changes supportive of sobriety. Furthermore, he possesses a long-standing, exemplary work record free of any security violations.

Why the Applicant Prevailed

The applicant has maintained total abstinence from alcohol since January 2004.
He demonstrated positive behavior changes supportive of sobriety.
The applicant has a long-standing, exemplary work record without security violations.

Conditions Referenced

Disqualifying

E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work
E2.A8.1.2.5raisedHabitual or Binge Consumption of Alcohol

Mitigating

E2.A7.1.3.2appliedThe Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem
E2.A7.1.3.3appliedPositive Changes in Behavior Supportive of Sobriety

Key Rule Quoted

“An applicant 'has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.'”
— ISCR Case No. 01-20700 at 3.

Procedural Posture

SOR issuedDec 15, 2003
Answer filedJan 23, 2004
Hearing heldApr 30, 2004
Decision dateMar 21, 2005

Cite For

Demonstrating Positive Behavior Changes After a History of Alcohol-related Incidents
Successful Mitigation of Alcohol Consumption Concerns Under Guideline G
The Importance of Abstinence in Security Clearance Evaluations

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 allegations under Guideline E were withdrawn, indicating no personal conduct concerns were substantiated. As a result, the applicant's security clearance was granted without any findings against him under this guideline.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	Unknown	Unspecified Personal Conduct	—	Unknown	—	—	—

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: granted

The applicant had a history of alcohol consumption concerns due to multiple alcohol-related incidents in the 1980s and 1990s. However, he demonstrated significant positive changes, including complete abstinence from alcohol since January 2004, which led to the judge finding in favor of the applicant on all relevant allegations under Guideline G. The security clearance was granted based on the applicant's successful mitigation of past alcohol-related issues.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant was charged with underage drinking and leaving the scene of an accident.	For Applicant	Underage Drinking	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.b	The applicant was arrested and charged for being under the influence of alcohol or drugs.	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.c	specific text not stated in this decision	Withdrawn	Unspecified Alcohol Incident	Unknown	—	—	—
1.d	The applicant was cited for disorderly conduct after he had been drinking.	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.e	specific text not stated in this decision	Withdrawn	Unspecified Alcohol Incident	Unknown	—	—	—
1.f	The applicant was arrested and charged for driving under the influence.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.g	specific text not stated in this decision	Withdrawn	Unspecified Alcohol Incident	Unknown	—	—	—
1.h	The applicant was cited for disorderly conduct and public drunkenness.	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.i	The applicant was arrested for public drunkenness in lieu of driving under the influence.	For Applicant	Public Intoxication	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.j	The applicant was involved in a domestic disturbance where alcohol was consumed.	For Applicant	Alcohol Related Arrest	Admitted	—	—	—
1.k	The applicant was arrested for driving while intoxicated.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.l	The applicant was arrested for simple assault and harassment during a domestic disturbance.	For Applicant	Alcohol Related Arrest	Admitted	—	—	—
1.m	The applicant was arrested on a military installation and charged with disorderly conduct, harassment, resisting arrest, and terroristic threats.	For Applicant	Alcohol Related Arrest	Admitted	—	—	—
1.n	The applicant has a history of alcohol consumption concerns due to multiple incidents.	For Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.o	The applicant has demonstrated positive changes in behavior supportive of sobriety.	For Applicant	Binge or Intoxication Pattern	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: March 21, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-05134

DECISION OF ADMINISTRATIVE JUDGE

ROBERT J. TUIDER

SYNOPSIS

Applicant has a history of alcohol consumption concerns as a result of seven alcohol-related incidents in the 1980sand four alcohol-related incidents in the 1990s. Beginning in 1995, Applicant began tapering his drinking down until he reached total abstinence in January 2004. Additionally, he has undergone positive behavior changes supportive of sobriety. Applicant has successfully mitigated the security concerns as a result of past alcohol-related incidents. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On December 15, 2003, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline G (Alcohol Consumption), and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on January 23, 2004, and elected to have a hearing before an administrative judge. The case was assigned to me March 22, 2004. On April 30, 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

The government withdrew SOR ¶¶ 1.c., 1.e., 1.g., 2. and 2.a. The government offered 11 documents, which were admitted without objection as Government Exhibits (GE) 1 through 11. The Applicant offered three documents, which were admitted without objection as Applicant Exhibits (AE) A through C. DOHA received the transcript on May 11, 2004.

FINDINGS OF FACT

Applicant's partial admissions to the SOR allegations are incorporated herein. In addition, after a thorough review of the pleadings, exhibits, and testimony, I make the following findings of fact: Applicant is a 43-year-old unmarried man, who lives with his girlfriend, girlfriend's 14-year-old daughter, and their one- year-old son. Applicant provides total support for his girlfriend's daughter and their son.

Applicant is employed as an electrical engineering assistant for a defense contractor. He has been with the same employer since August 1982, approximately 23 years as a technical specialist. He seeks to renew his security clearance as a requirement for employment. He has held a secret security clearance since September 1982.

On September 28, 1980, Applicant was charged with underage drinking and leaving the scene of an accident. He paid a fine for both charges.

On April 22, 1981, Applicant was arrested and charged for being under the influence of alcohol or drugs. The charges were amended to disorderly conduct and he paid a fine.

In July 1983, Applicant was cited for disorderly conduct after he had been drinking.

On June 30, 1984, Applicant was cited for disorderly conduct. Applicant advised the reporting officer that he was "drunk." GE 11.

On October 14, 1985, Applicant was arrested and charged for driving under the influence. The case was nolle processed. GE 10.

On April 8, 1989, Applicant was cited for disorderly conduct and public drunkenness. He pled guilty to both offenses and paid a fine. GE 9.

In October 1989, Applicant was arrested for public drunkenness in lieu of driving under the influence. He paid a fine as a result of this incident.

On April 30, 1991, the police responded to a domestic disturbance involving Applicant and his girlfriend. Applicant and his girlfriend had been drinking. Applicant was neither arrested nor charged as a result of this incident. GE 8, GE 2.

On September 6, 1993, Applicant was arrested for driving while intoxicated. Applicant pled guilty and was sentenced to undergo imprisonment for not less than 48 hours nor more than 12 months to perform litter pickup, to pay costs of prosecution and a fine of $300.00, to obtain an alcohol evaluation and treatment if recommended, and attend safe driving school. GE 6, GE 2.

On December 5, 1996, Applicant was arrested for simple assault and harassment during a domestic disturbance involving his girlfriend. All of the subjects involved were intoxicated. The charges were dismissed based on the victim's failure to appear. GE 5, GE 2.

On October 16, 1999, Applicant was arrested on a military installation and charged with disorderly conduct, harassment, resisting arrest, and terroristic threats. On January 6, 2000, he was found guilty of resisting arrest and ordered to pay a fine and special assessment totaling $1010.00. Applicant was intoxicated when arrested. GE 4, GE 2.

During the 1980s, Applicant drank heavily on weekends and occasionally during the week. Alcohol was involved in all of the incidents discussed above. From 1995 to 2002, Applicant drank primarily on weekends, and occasionally during the week, limiting his drinking to beer or wine supplemented with occasional hard liquor. From 2002 to 2004, Applicant primarily drank beer on weekends.

Since January 11, 2004, Applicant has abstained from drinking completely. He realized the adverse impact alcohol was having on his life. This realization came after a heated argument with his father. Additionally, the responsibility of becoming a father weighed on him causing him to modify his lifestyle.

Upon the advice of counsel, Applicant consulted a health care professional after his October 1999 incident, discussed above. He "went in for a couple sessions." Applicant has not been diagnosed as an alcoholic or as alcohol dependent. Applicant has a superb work record. His supervisor testified, "[Applicant's] work is viewed very highly in the company. He is ranked as one of the top two people in the company . . . in his particular peer group." Tr. 22. A former supervisor testified Applicant was "one of the best technicians" he ever worked with. Tr. 36.

Applicant's girlfriend testified to his good character, his being a model parent to their one-year-old son and stepdaughter, and verified he has not had a drink since January 2004. She further confirmed that before he quit drinking, his drinking was moderate and limited to weekends.

Applicant submitted three exhibits attesting to his honesty, work ethic and overall good character. AE A through C.

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. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure (2) of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

CONCLUSION

Guideline G - Alcohol Consumption

In the SOR, DOHA alleged Applicant had a number of alcohol-related incidents (¶¶ 1.a. through 1.o.) to include six arrests and five incidents not resulting in an arrest. Three alcohol-related SOR allegations (¶¶ 1.c., 1.e., 1.g.) were withdrawn by the government.

The Concern: Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness. Directive ¶ E2.A7.1.1.

The Government established its case in part by Applicant's admissions and evidence submitted for each of the remaining allegations contained in the SOR. There is no doubt that Applicant's use of alcohol has caused him considerable problems in the past. The 1980swere a particularly troublesome time for him with a total of seven alcohol-related incidents followed by four alcohol-related incidents in the 1990s. Fortunately, none of the reported alcohol-related incidents or conduct carried over to Applicant's work place. Applicant has held a clearance since 1982 and renewed it in 1992. Such conduct gives rise to Alcohol Consumption Disqualifying Condition (AC DC) ¶ E2.A7.1.2.1. (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 use);and AC DC ¶ E2.A8.1.2.5. (Habitual or binge consumption of alcohol to the point of impaired judgment).

Applicant began tapering his drinking down starting in 1995 until he finally stopped drinking in January 2004. There is no evidence in the record to suggest Applicant is an alcoholic or alcohol dependent. Applicant's past problems with alcohol appear to be behind him. Weighing heavy on his mind are his new responsibilities at home and the jeopardy his conduct has placed him with his employer. Applicant has demonstrated that he has been a dedicated employee for 23 years without any security violations. He has not had any alcohol-related incidents at work and is a valued and trust employee. He is a homeowner, in a steady relationship, and a new father and stepfather. Applicant's turnaround behavior triggered Alcohol Consumption Mitigating Condition (AC MC) ¶ E2.A7.1.3.2. (The problem occurred a number of years ago and there is no indication of a recent problem) and AC MC ¶ E2.A7.1.3.3. (Positive changes in behavior supportive of sobriety).

Based on the totality of the circumstances to include his documented actions coupled with his credible testimony, I find for Applicant on SOR ¶ 1 and ¶¶ 1.a. and 1.b., 1.d., 1.f., and 1.h. through 1.o. ¶¶ 1.c., 1.e., 1.g., 2. and 2.a. were withdraw by the government.

FORMAL FINDINGS

Formal findings regarding each SOR allegation as required by Directive Section 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.: Withdrawn

Subparagraph 1.d.: For Applicant

Subparagraph 1.e.: Withdrawn

Subparagraph 1.f.: For Applicant

Subparagraph 1.g.: Withdrawn

Subparagraph 1.h.: For Applicant

Subparagraph 1.i.: For Applicant

Subparagraph 1.j.: For Applicant

Subparagraph 1.k.: For Applicant

Subparagraph 1.l.: For Applicant

Subparagraph 1.m.: For Applicant

Subparagraph 1.n.: For Applicant

Subparagraph 1.o.: For Applicant

Paragraph 2. Guideline E: WITHDRAWN

Subparagraph 2.a.: Withdrawn

DECISION

In light of all 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 Applicant. Clearance is granted.

Robert J. Tuider Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.

FOOTNOTES

03-05134.h1 FOR GOVERNMENT Marc Curry, Esq., Department Counsel FOR APPLICANT Thomas Wolpert, Esq. file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-05134.h1.html[6/24/2021 3:12:01 PM] 03-05134.h1