ISCR Case 03-12681.h1

Case Headnote

ISCR Case No. 03-12681.h1

grantedJun 30, 2005· Hon. Joseph Testan· hearing

Summary

A 31-year-old defense contractor employee was granted a security clearance despite concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The Statement of Reasons cited a 1992 theft conviction, a 2000 altercation, and a 2002 DUI arrest that resulted in a "Wet Reckless" plea.

The 1992 incident involved the applicant using a customer's credit card, leading to a nolo contendere plea to two misdemeanor burglary charges, a 45-day jail sentence, and two years of probation. In 2000, an alcohol-fueled altercation resulted in a nolo contendere plea to Disturbing the Peace, a $400 fine, and a $680 state penalty. The 2002 DUI arrest, following a traffic accident, led to a no contest plea to a misdemeanor Wet Reckless charge, a $1,060 fine, three years of probation, and mandatory completion of an alcohol and drug education program.

The judge ultimately granted the clearance, finding no established pattern of alcohol abuse and noting the applicant's positive behavioral changes. Specifically, the applicant completed the required alcohol education program, and there was no evidence of a current alcohol problem. The prior criminal conduct was deemed isolated and occurred over a decade prior to the decision.

Why the Applicant Prevailed

The applicant demonstrated positive changes in behavior after completing an alcohol education program.
There was no evidence of a current alcohol problem or pattern of alcohol-related misconduct.
The applicant's prior criminal conduct was isolated and occurred over a decade ago.

Conditions Referenced

Disqualifying

E2.A10.1.2.2raisedCriminal Conduct - A Single Serious Crime or Multiple Lesser Offenses
E2.A7.1.2.1raisedAlcohol Consumption - Alcohol-related Incidents Away From Work

Mitigating

E2.A7.1.3.1appliedAlcohol Consumption - the Alcohol-related Incidents Do Not Indicate a Pattern
E2.A7.1.3.2appliedAlcohol Consumption - the Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem
E2.A7.1.3.3appliedAlcohol Consumption - Positive Changes in Behavior Supportive of Sobriety
E2.A10.1.3.1appliedCriminal Conduct - the Criminal Behavior Was Not Recent
E2.A10.1.3.6appliedCriminal Conduct - There Is Clear Evidence of Successful Rehabilitation

Key Rule Quoted

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

Procedural Posture

SOR issuedJul 22, 2004
Answer filedAug 18, 2004
Hearing heldFeb 17, 2005Applicant submitted a post-hearing letter.
Decision dateJun 30, 2005

Cite For

Mitigating Conditions for Alcohol-related Incidents Under Guideline G
Disqualifying Conditions for Criminal Conduct Under Guideline J
Successful Rehabilitation and Positive Behavior Changes in Security Clearance Cases.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of alcohol-related incidents.	For Applicant	Unspecified Alcohol Incident	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence (c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.b	The applicant was arrested for Driving Under the Influence (DUI) in October 2002.	For Applicant	DUI or DWI Alcohol	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence (c) participating in counseling/treatment with satisfactory progress, no prior relapse	—
1.c	The applicant has been involved in other alcohol-related incidents.	For Applicant	Unspecified Alcohol Incident	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence (c) participating in counseling/treatment with satisfactory progress, no prior relapse	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

1.a

The applicant has a history of alcohol-related incidents.

For Applicant

Unspecified Alcohol Incident

Denied

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

(b) alcohol-related incident at work

(a) so much time has passed / so infrequent that it is unlikely to recur

(b) acknowledges the pattern and has established modified use or abstinence

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

—

1.b

The applicant was arrested for Driving Under the Influence (DUI) in October 2002.

For Applicant

DUI or DWI Alcohol

Denied

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

(b) alcohol-related incident at work

(a) so much time has passed / so infrequent that it is unlikely to recur

(b) acknowledges the pattern and has established modified use or abstinence

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

—

1.c

The applicant has been involved in other alcohol-related incidents.

For Applicant

Unspecified Alcohol Incident

Denied

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

(b) alcohol-related incident at work

(a) so much time has passed / so infrequent that it is unlikely to recur

(b) acknowledges the pattern and has established modified use or abstinence

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

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1992, while applicant was working as a waiter, a customer left a credit card at the restaurant. Applicant found the card, and rather than returning it to the owner, he decided to use it "as [he] heard that other persons did the same thing and got away with it". He successfully used it at one store, but was caught trying to use it at a second store. He was arrested and charged with two counts of Burglary, Theft, and Forgery. He pleaded nolo contendere to the Burglary charges (misdemeanors), and the other two charges were dismissed. He was sentenced to 45 days in jail, and placed on probation for two years.	For Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—
1.b	In December 2000, applicant and two friends went to a club to celebrate applicant's upcoming wedding. While at the club, applicant consumed three or four beers. As they were leaving the club and walking to their car, applicant became involved in an altercation with another individual. Passing firemen tried unsuccessfully to break up the fight, and one of them sustained injuries. Applicant and the other combatant were arrested. Applicant was charged with Battery Against an Officer, Unlawful Obstruction of a Peace officer, and Disturbing the Peace, all misdemeanors. In February 2001, he pleaded nolo contendere to Disturbing the Peace, and the other two charges were dismissed. He was fined $400.00 and ordered to pay a $680.00 state penalty fund assessment.	For Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—
1.c	In October 2002, applicant was involved in a traffic accident. When one of the responding police officers arrived on the scene to investigate, he "detected an odor of alcohol emitting from [applicant's] breath and person and [he] noticed that [applicant's] eyes were red and watery and [applicant's] speech was thick." Based on applicant's "objective signs of alcohol intoxication and poor performance on [field sobriety tests]," this officer formed the opinion that applicant was under the influence of alcohol and was unable to safely operate a motor vehicle. He then placed applicant under arrest for Driving Under the Influence of Alcohol or Drugs (DUI). Applicant ended up pleading no contest to a misdemeanor Wet Reckless charge, and the DUI charge was dismissed. He was fined $1,060.00, and ordered to enroll in and complete an alcohol and drug education program. He was also placed on probation for three years. Applicant completed the program.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In 1992, while applicant was working as a waiter, a customer left a credit card at the restaurant. Applicant found the card, and rather than returning it to the owner, he decided to use it "as [he] heard that other persons did the same thing and got away with it". He successfully used it at one store, but was caught trying to use it at a second store. He was arrested and charged with two counts of Burglary, Theft, and Forgery. He pleaded nolo contendere to the Burglary charges (misdemeanors), and the other two charges were dismissed. He was sentenced to 45 days in jail, and placed on probation for two years.

For Applicant

Theft or Larceny

Convicted

Admitted

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

1.b

In December 2000, applicant and two friends went to a club to celebrate applicant's upcoming wedding. While at the club, applicant consumed three or four beers. As they were leaving the club and walking to their car, applicant became involved in an altercation with another individual. Passing firemen tried unsuccessfully to break up the fight, and one of them sustained injuries. Applicant and the other combatant were arrested. Applicant was charged with Battery Against an Officer, Unlawful Obstruction of a Peace officer, and Disturbing the Peace, all misdemeanors. In February 2001, he pleaded nolo contendere to Disturbing the Peace, and the other two charges were dismissed. He was fined $400.00 and ordered to pay a $680.00 state penalty fund assessment.

For Applicant

Assault or Battery

Convicted

Admitted

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

1.c

In October 2002, applicant was involved in a traffic accident. When one of the responding police officers arrived on the scene to investigate, he "detected an odor of alcohol emitting from [applicant's] breath and person and [he] noticed that [applicant's] eyes were red and watery and [applicant's] speech was thick." Based on applicant's "objective signs of alcohol intoxication and poor performance on [field sobriety tests]," this officer formed the opinion that applicant was under the influence of alcohol and was unable to safely operate a motor vehicle. He then placed applicant under arrest for Driving Under the Influence of Alcohol or Drugs (DUI). Applicant ended up pleading no contest to a misdemeanor Wet Reckless charge, and the DUI charge was dismissed. He was fined $1,060.00, and ordered to enroll in and complete an alcohol and drug education program. He was also placed on probation for three years. Applicant completed the program.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

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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

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES