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ISCR Case 03-07874.h1 — CASE

ISCR Case 03-07874.h1granted

Case Headnote

ISCR Case No. 03-07874.h1

grantedDec 8, 2004· Hon. Joseph Testan· hearing

Summary

A 27-year-old engineer's security clearance was initially questioned under Guideline G (Alcohol Consumption) due to a history of alcohol-related incidents. Specifically, the applicant had two DUI arrests: one in 1998, resulting in a conviction, a jail sentence, a fine, and mandatory education; and another in August 2002, where he was arrested for DUI after field sobriety tests registered above the legal limit. He subsequently pleaded nolo contendere to reckless driving, received probation, a fine, and was ordered to complete an alcohol and drug education program, which he finished in June 2003.

While the applicant admitted to still consuming alcohol, occasionally to the point of intoxication (defined as exceeding the legal driving limit), he demonstrated a significant reduction in his overall consumption. Following his last arrest, he committed to not driving after consuming alcohol.

The judge ultimately granted the security clearance, finding that the applicant's current alcohol use is not excessive and is unlikely to become so. The decision highlighted his commitment to not driving after drinking and the positive behavioral changes he exhibited, concluding that he could be relied upon to safeguard classified information.

Why the Applicant Prevailed

The applicant made a commitment not to drive after consuming any alcohol following his last DUI arrest.
His current alcohol consumption is not excessive and unlikely to become excessive in the future.
He demonstrated positive changes in behavior supportive of sobriety.

Conditions Referenced

Disqualifying

E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work

Mitigating

E2.A7.1.3.2appliedThe Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem
E2.A7.1.3.1appliedPositive Changes in Behavior Supportive of Sobriety

Key Rule Quoted

“It is clearly consistent with the national interest to grant or continue a security clearance for applicant.”

Procedural Posture

SOR issuedJun 4, 2004
Answer filedJun 29, 2004
Hearing heldNov 8, 2004
Decision dateDec 8, 2004

Cite For

Commitment to Sobriety After Alcohol-related Incidents
Reliability in Safeguarding Classified Information Despite Past Alcohol Issues
Mitigating Conditions Related to Past Alcohol Abuse and Positive Behavioral Changes

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 two DUI arrests, which raised security concerns regarding his alcohol consumption. However, he demonstrated positive changes in behavior, including a commitment not to drive after consuming alcohol and a reduction in overall consumption. The judge found that the applicant could be relied upon to safeguard classified information, resulting in a granted security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	In 1998, he was arrested and charged with Driving Under the Influence (DUI). He was convicted of the charge, sentenced to one day in jail, fined approximately $400.00, ordered to attend eight hours of drug and alcohol education, and ordered to attend a Mothers Against Drunk Driving meeting. Applicant complied with all court orders.	For Applicant	DUI or DWI Alcohol	Admitted	(e) failure to follow treatment advice once diagnosed	(b) acknowledges the pattern and has established modified use or abstinence	—
1.b	In August 2002, applicant was stopped by the police because his vehicle lacked a left side mirror. The police officer thought applicant might be intoxicated so he had him take two field sobriety tests, which registered .13% and .136%. As a result, he was arrested for DUI. He pleaded nolo contendere to an amended charge of Reckless Driving, and was sentenced to two years of summary probation, fined $1,450.00, and ordered to attend a 12 hour alcohol and drug education program. Applicant completed the alcohol and drug education program in June 2003.	For Applicant	DUI or DWI Alcohol	Admitted	(e) failure to follow treatment advice once diagnosed	(b) acknowledges the pattern and has established modified use or abstinence	—
1.c	Although applicant has significantly reduced his alcohol consumption, he still consumes it, occasionally to the point of intoxication, which he defined as exceeding the legal limit to drive.	For Applicant	Binge or Intoxication Pattern	Admitted	(e) failure to follow treatment advice once diagnosed	—	—
1.d	Applicant's alcohol consumption became a security concern because it led to two DUI arrests in the last six years.	For Applicant	DUI or DWI Alcohol	Admitted	(e) failure to follow treatment advice once diagnosed	—	—
1.e–1.g	3 sub-charges — specific text not stated in this decision (rulings shown).	Mixed			—	—	—

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: December 8, 2004

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-07874

ECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

Applicant's alcohol consumption became a security concern after it led to two DUI arrests. Following his last DUI arrest in 2002, he made the decision not to drive after consuming any amount of alcohol. Given this fact, the fact his current alcohol consumption is not excessive, and the fact his alcohol consumption is unlikely to become excessive in the future, he has established that he can now be relied upon to safeguard classified information. Clearance is granted.

STATEMENT OF CASE

On June 4, 2004, 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 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 and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on June 29, 2004. The case was assigned to me on August 12, 2004. A Notice of Hearing was issued on October 6, 2004, and the hearing was held on November 8, 2004. The transcript was received on November 23, 2004.

FINDINGS OF FACT

Applicant is a 27 year old engineer.

With his parents knowledge and consent, applicant began consuming alcohol when he was a child. He began consuming alcohol outside the presence of his parents when he was 15 or 16 years old. At that time he would consume as many as five to six drinks at a time. His alcohol consumption has resulted his four citations/arrests.

In 1996, he received a citation for Minor in Possession of Alcohol. He was found guilty of the charge and fined approximately $157.00.

In 1997, he received a citation for Underage Consumption of Alcohol. He was found guilty of the charge, fined approximately $240.00, and ordered to attend an alcohol addiction treatment program. Applicant attended the alcohol program, which consisted of an eight hour group session, as ordered (Exhibit F).

In 1998, he was arrested and charged with Driving Under the Influence (DUI). He was convicted of the charge, sentenced to one day in jail, fined approximately $400.00, ordered to attend eight hours of drug and alcohol education, and ordered to attend a Mothers Against Drunk Driving meeting. Applicant complied with all court orders. Applicant testified credibly that on this occasion, the alcohol education had quite an impact on him because following this class, he would not drive if he believed his alcohol consumption left him over the legal limit to drive (TR at 30-31).

In August 2002, applicant was stopped by the police because his vehicle lacked a left side mirror. The police officer thought applicant might be intoxicated so he had him take two field sobriety tests, which registered .13% and .136% (Exhibits 2 and 3). As a result, he was arrested for DUI. He pleaded nolo contendere to an amended charge of Reckless Driving, and was sentenced to two years of summary probation, fined $1,450.00, and ordered to attend a 12 hour alcohol and drug education program. Applicant completed the alcohol and drug education program in June 2003 (Exhibit A). He will be on probation until January 2005. Applicant testified that on the evening in question he had been counting his drinks to make sure he was not over the legal limit to drive, but miscalculated because he had not had anything to eat that evening (TR at 32-33, 49). This DUI incident made him rethink his drinking habits (Exhibit 2), and "opened [his] eyes" to the fact alcohol-related problems can occur even when you are trying to do the right thing (TR at 49-50). As a result of this incident, and to make sure there are no future alcohol-related driving offenses, applicant no longer drives after drinking any amount of alcohol. Instead, he takes a taxi (TR at 38, 50-53).

Although applicant has significantly reduced his alcohol consumption, he still consumes it, occasionally to the point of intoxication, which he defined as exceeding the legal limit to drive (TR at 39). However, there is no evidence that his alcohol consumption during the past several years ever reached the point that it would have adversely affected his ability to safeguard classified information. He testified credibly that he has never had a blackout, and has never passed out, from drinking (TR at 37).

A letter from applicant's girlfriend was admitted into evidence (Exhibit C). The girlfriend states that applicant is "extremely trustworthy, competent, and upstanding person."

CONCLUSION

The evidence establishes that applicant has been convicted of four alcohol-related offenses. Although the 1996 and 1997 are too old and too minor to have much security significance, his two DUI arrests are significant. These 1998 and 2002 incidents reflect adversely on his judgment, reliability and trustworthiness, and require application of Disqualifying Condition E2.A7.1.2.1 (alcohol-related incidents away from work).

Applicant testified credibly that his last DUI arrest in 2002 opened his eyes to the dangers of alcohol abuse. It made him rethink his drinking habits, which led him to the decision not to drive after consuming any alcohol. Although he continues to consume alcohol, it has been years since he consumed it to excess (i.e., to the point his ability to safeguard classified information would be adversely affected).

Applicant's alcohol consumption became a security concern because it led to two DUI arrests in the last six years. The fact he no longer drives after consuming alcohol ensures there will be no additional alcohol-related driving incidents, thus eliminating this security concern. Given this fact, the fact his current alcohol consumption is not excessive, and the fact his alcohol consumption is unlikely to become excessive in the future, I conclude that applicant can now be relied upon to safeguard classified information. Applicant qualifies for Mitigating Conditions E2.A7.1.3.2 (the problem occurred a number of years ago and there is no indication of a recent problem) and E2.A7.1.3.1 (positive changes in behavior supportive of sobriety). Based on the foregoing, Guideline G is found for applicant.

FORMAL FINDINGS

PARAGRAPH 1: FOR THE APPLICANT

DECISION

In light of all 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.

Joseph Testan

Administrative Judge

FOOTNOTES

FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se SYNOPSIS