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ISCR 04-05903.h1: Guideline G security clearance hearing, granted (2005) · CASE

ISCR Case 04-05903.h1granted

Case headnote

ISCR Case No. 04-05903.h1

grantedJul 27, 2005· Hon. Michael J. Breslin· hearing

Summary

This DOHA security clearance decision concerns a 43-year-old defense contractor and former U.S. Army Master Sergeant. The Statement of Reasons raised concerns under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). These concerns stemmed from a history of criminal conduct, including multiple DUI offenses in February 1997 and November 2001, and an additional alcohol-related incident. The applicant was diagnosed as Alcohol Dependent and completed a substance abuse treatment program.

Further allegations included wrongful use of marijuana in June 2001, and wrongful use and possession of marijuana in November 2001. An arrest for damaging personal property in October 1990 was also noted, though the case was not prosecuted.

Despite these issues, the judge found that the applicant had successfully mitigated the security concerns. This was based on the completion of a two-year substance abuse treatment program and a demonstrated three-year period of responsible behavior without any recurrence of substance abuse. The applicant also received positive endorsements from supervisors regarding reliability and trustworthiness. Consequently, the security clearance was granted.

Why the applicant prevailed

Successfully completed a two-year substance abuse treatment program.
Demonstrated three years of responsible behavior without recurrence of substance abuse issues.
Received positive endorsements from supervisors regarding reliability and trustworthiness.

Conditions referenced

Disqualifying

E2.A10.1.2.1raisedCriminal Conduct
E2.A7.1.2.1raisedAlcohol Consumption
E2.A8.1.1.1raisedDrug Involvement

Mitigating

E2.A10.1.3.6appliedCriminal ConductApplicant successfully completed the substance abuse outpatient treatment program.
E2.A7.1.2.4appliedAlcohol ConsumptionCounselor indicated Applicant is in remission from alcohol dependence.

Key rule quoted

“"The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance."”
Directive, ¶ E2.2.1.

Procedural posture

SOR issuedNov 30, 2004
Answer filedDec 21, 2004
Hearing heldMar 9, 2005Conducted with concurrence of the parties.
Decision dateJul 27, 2005

Cite for

Successful Rehabilitation After Substance Abuse Treatment
Mitigation of Security Concerns Related to Past Criminal Conduct
Positive Endorsements From Supervisors as Evidence of Reliability

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 43: “Applicant is 43 years old.”
Held a clearance before: Yes: “He held a security clearance from about 1981.”
Delinquent debt cited: $525 (on a payment plan): “Under the agreement, Applicant was required, inter alia, to: pay a fee of $525.00;”

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: grantedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The judge found in favor of the applicant regarding the alcohol consumption allegations. The applicant was diagnosed with alcohol dependence but successfully completed a two-year substance abuse treatment program and demonstrated a favorable prognosis. The judge concluded that the applicant mitigated the security concerns related to his alcohol consumption.

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

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant had engaged in wrongful use of marijuana on two occasions, which raised security concerns under Guideline H. However, the applicant successfully completed a two-year substance abuse treatment program and demonstrated long-term behavioral changes, leading to a conclusion that the security concerns were mitigated. The decision granted the applicant a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding all allegations under Guideline J, Criminal Conduct. The applicant had a history of multiple instances of criminal conduct, including two DUI offenses and drug-related charges. However, the judge determined that the applicant successfully mitigated the security concerns through rehabilitation and demonstrated a commitment to abstaining from substance abuse.

¶	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

SYNOPSIS

KEYWORD: Criminal Conduct; Alcohol; Drugs

DIGEST: Applicant is a 43-year-old employee of a defense contractor who serves as a civilian trainer for a military combat vehicle system. Applicant served 22 years in the U.S. Army and successfully held a security clearance and positions of responsibility. He engaged in multiple instances of criminal conduct, including: drunk driving in February 1997; wrongful use of marijuana in June 2001; and drunk driving, speeding, and wrongful use and possession of marijuana in November 2001. Applicant was diagnosed as Alcohol Dependent. He successfully completed a two-year substance abuse treatment plan, and performed sensitive duties for three years without any recurrence of substance abuse issues. Applicant mitigated the security concerns arising from his criminal conduct, alcohol consumption, and drug involvement. Clearance is granted.

CASENO: 04-05903.h1

DATE: 07/27/2005

DATE: July 27, 2005

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-05903

DECISION OF ADMINISTRATIVE JUDGE

MICHAEL J. BRESLIN

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Esq., Department Counsel

FOR APPLICANT

Frederick R. Olmstead, Esq.

SYNOPSIS

Applicant is a 43-year-old employee of a defense contractor who serves as a civilian trainer for a military combat vehicle system. Applicant served 22 years in the U.S. Army and successfully held a security clearance and positions of responsibility. He engaged in multiple instances of criminal conduct, including: drunk driving in February 1997; wrongful use of marijuana in June 2001; and drunk driving, speeding, and wrongful use and possession of marijuana in November 2001. Applicant was diagnosed as Alcohol Dependent. He successfully completed a two-year substance abuse treatment plan, and performed sensitive duties for three years without any recurrence of substance abuse issues. Applicant mitigated the security concerns arising from his criminal conduct, alcohol consumption, and drug involvement. Clearance is granted.

STATEMENT OF CASE

On August 23, 2002, Applicant submitted an application for a security clearance. The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant under Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (the "Directive"). On November 30, 2004, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision. The SOR alleges security concerns raised under Guideline J, Criminal Conduct, Guideline G, Alcohol Consumption, and Guideline H, Drug Involvement, of the Directive.

Applicant answered the SOR by letter dated December 21, 2004. Applicant elected to have a hearing before an administrative judge.

The case was assigned to me on January 31, 2005. With the concurrence of the parties, I conducted the hearing on March 9, 2005. The department counsel introduced eight exhibits. Applicant's counsel presented documents admitted as Exhibits A through J, and the testimony of one witness. Applicant testified on his own behalf. DOHA received the transcript (Tr.) on March 18, 2005.

FINDINGS OF FACT

Applicant denied the general allegations, but admitted the factual allegations in the SOR, with explanations. Answer to SOR, dated December 21, 2004, at 1-7. Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, I make the following additional findings of fact.

Applicant is 43 years old. Ex. 5 at 1. He works for a defense contractor as a civilian trainer for a military combat vehicle system. Tr. at 31. He seeks renewal of his security clearance.

Applicant enlisted in the U.S. Army in 1980. Tr. at 32. He served in the Army for 22 years and advanced to the rank of Master Sergeant (E-8). Id. He held numerous positions during that time, including: rifleman, team leader, machine gunner, fire team leader, squad leader, platoon sergeant, platoon leader, rifle company first sergeant, operations NCO, long-range surveillance team leader, operations sergeant, rifle company first sergeant, and Operations NCO for a junior ROTC region. Tr. at 33.

During his 22 years of service, the Army randomly tested Applicant for drug use on multiple occasions, as part of the Army-wide drug-abuse random testing policy. Tr. at 33. Applicant testified that he never had a positive test result from a random urinalysis. Tr. at 35.

In October 1990, while returning from a company picnic, Applicant's wife got into a dispute with the occupants of another vehicle at a gas station. Ex.6 at 2; Ex. J; Tr. at 47-49. The other driver threw a lit cigarette into Applicant's wife's car, striking Applicant's four-year-old child. Tr. at 49. Applicant observed the incident from another vehicle behind his wife's car and confronted the other driver. Ex. J. Applicant's wife extinguished the cigarette, and threw a bottle at the other vehicle as it drove away, damaging a tail light. Ex. 6 at 2. The next day, the local sheriff arrested Applicant for damaging personal property. According to Applicant, he paid a small amount to repair the damage and was never prosecuted for the offense. Tr. at 49-50.

In early 1997, Applicant faced possible administrative discharge from the Army because of injuries received on his 199th parachute jump. Tr. at 50-51. In February 1997, he learned he had been retained in the service. Tr. at 51. Applicant went out to socialize with friends, consumed alcoholic beverages, and attempted to drive home. Tr. at 51. A police patrolman stopped to investigate Applicant's vehicle, which was pulled over by the side of the road. Ex. 1 at 10. The patrolman questioned Applicant and conducted field sobriety tests, then arrested him for driving under the influence of alcohol. Id. at 11. Subsequent tests indicated Applicant's blood-alcohol concentration was about .135%. Id. at 7. Authorities charged Applicant with driving under the influence of alcohol. Id. at 9. Applicant pled guilty to the charge. Id. at 12. The court's sentence included: confinement for 365 days, with 364 days suspended for two years on condition of no further violations; a fine of $685.00; payment of a $100.00 probation fee; suspension of driving privileges for 90 days; submitting to an alcohol assessment; and attending Alcohol Information School. Id. at 12-13.

In June 2001, Applicant was tired from working long hours and contemplated retiring from the Army. Tr. at 35. He went to a party with friends and drank alcohol. Ex. 6 at 2. He also consumed some brownies that contained marijuana. Id. The next day, the Army required Applicant to submit to a urinalysis as part of its regular drug testing program. Tr. at 36. The test showed that Applicant had ingested marijuana. Tr. at 36. Applicant's commander imposed nonjudicial punishment under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815. The punishment included a reprimand and maximum forfeiture of pay. Ex. 4 at 1. The Army indicated its intent to pursue administrative discharge action, but allowed Applicant to retire at once. Tr. at 36. Applicant went on terminal leave in about November 2001. Tr. at 37, 38.

In December 2001, shortly after leaving active duty, Applicant went out socializing with some friends. He consumed alcohol and attempted to drive to a second location. Tr. at 39. A police patrolman pulled Applicant over for driving 53 miles per hour (mph) in a 35 mph zone, and improperly crossing the centerline. Ex. 2 at 2. Applicant failed the field sobriety tests. Id. The police officer placed him under arrest for driving under the influence of alcohol and speeding. Id. at 3. Applicant volunteered that he had a .45 caliber handgun in a backpack in his car, and admitted he did not have a permit to carry a concealed weapon. Id. at 2. The police officer retrieved the handgun. While doing so, he found a plastic bag containing a green leafy substance. Id. at 4. Applicant admitted it was his, he had bought it for $20.00, and he had smoked some earlier that evening from a soda can. Id. at 3. A subsequent test revealed Applicant's blood-alcohol concentration was .123 %. Id. The police charged Applicant with driving under the influence of alcohol, speeding, and possession of marijuana. Ex. 2 at 12-14; Tr. at 39.

In about March 2002, Applicant entered into an agreement for deferred prosecution. Ex. 2 at 24; Tr. at 40. Under the agreement, Applicant was required, inter alia, to: pay a fee of $525.00; have no further violations for 60 months; attend the Victim's Panel within 90 days; submit to an alcohol assessment within 30 days; continue outpatient counseling for 24 months; have an interlock device installed on his vehicle; and attend a meeting of Alcoholics Anonymous. Ex. 2 at 25.

As part of the deferral agreement, Applicant submitted to an alcohol assessment. Ex. 3. The counselor evaluated Applicant as being Alcohol Dependent under the Diagnostic and Statistical Manual of Mental Disorders (DSM), § 303.9. Ex. 3 at 3.

Applicant also participated in the two-year outpatient treatment program. Tr. at 40. He attended counseling sessions regularly: four times a week, two hours each day, for the first nine weeks, and one hour once a week for the following 26 weeks. Id. He was also required to attend Alcoholics Anonymous meetings for two hours a week for two years. Tr. at 41. Applicant was subject to testing for substances of abuse at any time. Id.

In July 2002, while Applicant's counseling was in progress, he began working in his present position. Ex. 5 at 2. In August 2002, he completed a security clearance questionnaire. Ex. 5. Security investigators interviewed Applicant as part of their investigation of his application for a clearance. Ex. 6 at 2. Applicant provided details surrounding the incidents resulting in his arrests. Id. Concerning his possession of marijuana in November 2001, he asserted that it actually belonged to a friend and that Applicant had claimed it as his own to keep his friend out of trouble. Ex. 6 at 1. With regard to consuming the marijuana-laced brownies in June 2001, Applicant stated, "I did not care that the brownies contained marijuana as I knew that I would be retiring from the US Army in the near future." Id. at 2. Addressing his outpatient treatment for alcohol dependence, Applicant stated, "I do not intend to consume alcohol during my two year deferred sentence. After the two years, I intend to consume alcohol again. I might consume a beer with dinner. However, I do not intend to consume alcohol and drive again or drink to excess." Id.

Applicant completed the counseling program in April 2004. Tr. at 41-42; Ex. F. He abstained from alcohol throughout the two-year period. Applicant also complied with all the other requirements of the deferral agreement. Ex. 2 at 29. The deferral period expires in March 2007. Id.

In about September 2004, Applicant went abroad to visit his wife who was then stationed overseas. Tr. at 83. While traveling with his wife, Applicant consumed alcoholic beverages on one occasion. Tr .at 82-83. Applicant avers that at that point he decided not to consume alcohol in the future. Tr. at 85.

Applicant continues to work as a trainer for the defense contractor. He has held the position for over three years. His supervisors praise his duty performance, loyalty, and dedication. Exs. B, C, and I. His co-worker indicates Applicant is a consistently excellent worker, who has never showed signs of alcohol or drug abuse. Tr. at 27-28.

Applicant indicated that he continues to attend meetings of Alcoholics Anonymous about once a month. Tr. at 77; 92. He asserted that he completed the 12-step program sponsored by Alcoholics Anonymous, but could not recall the 12 steps. Tr. at 92-93. It appears Applicant had difficulty relating to the religious theme of the Alcoholics Anonymous program, but responded to the scientifically-oriented treatment program he completed. Applicant obtained a letter from his substance abuse counselor, indicating he "has been in remission from alcohol and Marijuana for many months," and that he "has resolved his substance use issues." Ex. H at 1, 2. He also provided the results from a drug test conducted on March 4, 2005, which was negative for certain illegal drugs. Ex. G.

POLICIES

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." Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). In Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), the President set out guidelines and procedures for safeguarding classified information within the executive branch.

To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. The adjudicative guidelines at issue in this case are:

Guideline J, Criminal Conduct. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive, ¶ E2.A10.1.1.

Guideline G, Alcohol Consumption. 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.

Guideline H, Drug Involvement. Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. Directive ¶ E2.A8.1.1.1.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to these adjudicative guidelines, are set forth and discussed in the conclusions below.

"The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance." Directive, ¶ E2.2.1. An administrative judge must apply the "whole person concept," and consider and carefully weigh the available, reliable information about the person. Id. An administrative judge should consider the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent behavioral changes;

(7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Id. Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to classified information. Directive, ¶ E3.1.14. Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. Directive, ¶ E3.1.15. 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 (App. Bd. Dec. 19, 2002). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2.

A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. Exec. Ord. 10865, § 7. It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.

CONCLUSION

I considered carefully all the facts in evidence and the legal standards discussed above. I reach the following conclusions regarding the allegations in the SOR.

Criminal Conduct

Under the Directive, ¶ E2.A10.1.2.1, it may be disqualifying where there are "[a]llegations or admissions of criminal conduct, regardless of whether the person was formally charged." Similarly, ¶ E2.A10.1.2.2 of the Directive provides that a "single serious crime or multiple lesser offenses" may be disqualifying. The government evidence and Applicant's admissions establish that he engaged in criminal conduct on multiple occasions, including driving under the influence of alcohol in February 1997, use of marijuana in June 2001, and driving under the influence of alcohol, speeding, and possession of marijuana in November 2001. I find the evidence raises these potentially disqualifying conditions.

The SOR, ¶ 1.d, also asserts Applicant was arrested for damaging personal property in October 1990, although the case was not prosecuted. The available evidence does not indicate Applicant engaged in criminal behavior in that instance. Security concerns raised by criminal conduct may be mitigated under certain circumstances. Under ¶ E2.A10.1.3.1 of the Directive, it may be mitigating where "[t]he criminal conduct was not recent." Applicant's first drunk driving offense in February 1997 and his wrongful use of marijuana occurred over five years ago, therefore I find they were not recent. Applicant's second incident of drunk driving, his speeding offense, and his possession of marijuana in November 2001 also occurred a number of years ago, however the charges are still pending resolution through the deferral agreement. Because these criminal charges are unresolved, and Applicant is still in a probationary status under the deferral agreement, I find this criminal conduct is recent. This mitigating condition does not apply to these crimes.

Paragraph E2.A10.1.3.2 also provides that it may be mitigating where "[t]he crime was an isolated incident." Applicant had two separate instances of driving under the influence of alcohol, and two drug-related offenses. I conclude these crimes were not isolated incidents, and this potentially mitigating condition does not apply.

Under ¶ E2.A10.1.3.6 of the Directive, it may be mitigating where "[t]here is clear evidence of successful rehabilitation." Applicant successfully completed the substance abuse outpatient treatment program. His counselor found that he was in remission and opined that he had resolved his substance abuse issues. I find this potentially mitigating condition applies.

I considered carefully all the facts and circumstances in this case in light of the "whole person" concept. Applicant is a mature individual who successfully held a position of responsibility for many years. He held a security clearance from about 1981. He had an admirable record of service in the U.S. Army including service as a first sergeant. On the other hand, while Applicant was in a special position of trust, he demonstrated a complete disregard for his responsibilities by driving under the influence of alcohol in 1997 and consuming marijuana-laced brownies in June 2001. Moreover, after avoiding administrative discharge from the Army, Appellant again drove while under the influence of alcohol and used and possessed marijuana, revealing a disturbing lack of judgment and amenability to correction. However, Applicant subsequently completed a lengthy rehabilitation program, winning a favorable prognosis from his counselor. Perhaps more significantly, he successfully held a position of trust for three years, garnering favorable endorsements from supervisors who are in the best position to judge his reliability and trustworthiness. I am persuaded Applicant has made long-term behavioral changes, and his substance abuse problems that formed the heart of his criminal conduct will not recur. I conclude Applicant has mitigated the security concerns arising from his criminal conduct.

Alcohol Consumption

Paragraph E2.A7.1.2.1 of the Directive provides that it may be a disqualifying condition if the evidence reveals "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." The evidence shows two instances where Applicant drove under the influence of alcohol away from work: one in 1997 and one in 2001. I conclude this potentially disqualifying condition applies. Under ¶ E2.A7.1.2.4 of the Directive, an "[e]valuation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program" is potentially disqualifying. The parties agreed that the evaluation completed in 2002 was done by a counselor whose qualifications are comparable to a licensed clinical social worker on the staff of a treatment center. Tr. at 112-13. The counselor diagnosed Alcohol Dependence. Ex. 3 at 3. More recently, the same counselor indicated Applicant is in remission. Ex. H at 1. I conclude the evidence is sufficient to raise this potentially disqualifying condition.

Finally, under ¶ E2.A7.1.2.6 of the Directive, it may be disqualifying where there is evidence of "[c]onsumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program." Applicant consumed alcohol on one occasion after completing the alcohol rehabilitation program in June 2004. Applicant was diagnosed as Alcohol Dependent (formerly known as alcoholism). However, the diagnosis was not made by a "credentialed medical professional," i.e. a physician, psychologist or psychiatrist, therefore this potentially disqualifying condition does not apply. Nonetheless, Applicant's willingness to abstain from alcohol use following his diagnosis as Alcohol Dependent is a factor to be considered in evaluating the "whole person"concept.

The security concerns arising from Applicant's alcohol consumption can be mitigated under certain circumstances. Under the Directive, ¶ E2.A7.1.3.1, it may be mitigating where "[t]he alcohol-related incidents do not indicate a pattern." The alcohol-related incidents in this case were separated by about four years, and reflect a pattern of drinking to excess when faced with stressful circumstances. Applicant's evidence does not persuade me that this potentially mitigating condition applies.

Under ¶ E2.A7.1.3.2 of the Directive, it may be mitigating where "[t]he problem occurred a number of years ago and there is no indication of a recent problem." Applicant's first alcohol-related incident occurred in 1997, which was a number of years ago. However, Applicant's most recent alcohol-related incident occurred in 2001 and is recent, as discussed above. This mitigating condition does not apply.

Paragraph E2.A7.1.3.3 provides that "[p]ositive changes in behavior supportive of sobriety" may also be a mitigating factor. Following his alcohol-related incident in 2001, Applicant attended court-ordered evaluation and completed an alcohol rehabilitation course. He gained increased awareness of the dangers of drinking and driving, and learned ways to relax and handle stress that did not include alcohol. I find this potentially mitigating condition applies.

Under ¶ E2.A7.1.3.4 of the Directive, it may be mitigating where,

[f]ollowing diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed inpatient or outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of Alcoholics Anonymous or a similar organization, has abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a credentialed medical professional or licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

In this case, Applicant was diagnosed as Alcohol Dependent, successfully completed outpatient rehabilitation, and abstained from alcohol for a two-year period. Applicant visits Alcoholics Anonymous meetings about once per month, although the extent of his participation in the religious-inspired program is questionable. Applicant's counselor gave him a favorable prognosis. I conclude this potentially mitigating condition applies.

I considered the potentially disqualifying and mitigating factors, as well as the "whole person" concept. I conclude Applicant has mitigated the security concerns arising from his alcohol consumption.

Drug Involvement

Under the Directive, ¶ E2.A8.1.2.1, any drug abuse could raise a security concern. The Directive defines "drug abuse" as "the illegal use of a drug." Directive, ¶ E2.A8.1.1.3. The evidence shows Applicant wrongfully consumed marijuana in June 2001. At the hearing Applicant was equivocal about whether he knew of the existence of the marijuana in the brownies due to his intoxication. Considering all the evidence, including his sworn statement to investigators (Ex. 6 at 2) that he did not care that the brownies contained marijuana, I find Applicant knowingly and wrongfully consumed the marijuana.

Applicant also wrongfully used marijuana in about November 2001. His statement about who purchased the drug and whether he used it on the evening in question, changed dramatically between the time of his arrest and the hearing. Considering all the evidence, I find Applicant's earlier, contemporaneous confession to be more believable than his subsequent exculpatory statement. I conclude this potentially disqualifying condition applies.

Paragraph E2.A8.1.2.2 of the Directive provides that "illegal drug possession" may be disqualifying. Applicant illegally possessed marijuana in November 2001, regardless of who originally obtained it. I find this potentially disqualifying condition applies.

Paragraph 3.bof the SOR alleges that Applicant used illegal drugs subsequent to being granted a security clearance. Paragraph E2.A8.1.2.5 of the Directive provides that it may be disqualifying where the evidence shows: Failure to successfully complete a drug treatment program prescribed by a credentialed medical professional. Recent drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will almost invariably result in an unfavorable determination.

The phrase "recent drug involvement" would seem to state, on its face, a separate basis for potential disqualification. However, the Appeal Board concluded that the phrase must be applied within the context set out in the first sentence of the paragraph. ISCR Case No. 02-24452 at 3 (App. Bd. Aug. 4, 2004). Thus, the Appeal Board holds that drug involvement following the grant of a security clearance only constitutes a separate disqualifying condition when it follows a failure to complete a drug treatment program. Id. There is no evidence Applicant failed to complete a drug rehabilitation program, therefore the wrongful use of drugs while holding a security clearance is not disqualifying. It may, however, be considered as a factor in the "whole person"concept.

Under the Directive, ¶ E2.A8.1.3.1, it may be mitigating where, "[t]he drug involvement was not recent." Applicant's use and possession of marijuana occurred in June and November 2001, about five years ago. Applicant's drug abuse in June 2001 was punished and resolved-that case is no longer pending. However, the charge for possession of marijuana in November 2001 has not been finally resolved, pending Applicant's successful completion of his deferral agreement. I conclude Applicant's drug involvement was recent, and this mitigating condition does not apply.

Paragraph E2.A8.1.3.2 indicates that it may be mitigating where the drug involvement "was an isolated or aberrational event." The available evidence shows Applicant abused drugs on two occasions, therefore I find this potentially mitigating condition does not apply.

"A demonstrated intent not to abuse drugs in the future" may also be mitigating. Directive, ¶ E2.A8.1.3.3. Applicant successfully completed the outpatient treatment program for substance abuse, and avows he will never abuse drugs in the future. His counselor and supervisors indicate that he has shown no sign of substance abuse for three years. I find this potentially disqualifying condition applies.

Finally, the Directive, ¶ E2.A8.1.3.4, provides that it may be mitigating where the evidence demonstrated "[s]atisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credentialed medical professional." Applicant successfully completed the required substance abuse treatment program. The evidence indicates Applicant has not abused drugs since that time. I conclude this mitigating condition applies.

I balanced the potentially disqualifying and mitigating conditions in light of the "whole person" concept. I conclude Applicant has mitigated the security concerns arising from his drug involvement.

FORMAL FINDINGS

My conclusions as to each allegation in the SOR are:

Paragraph 1, Guideline J: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

Paragraph 2, Guideline G: FOR APPLICANT

Subparagraph 2.a: For Applicant

Subparagraph 2.b: For Applicant

Paragraph 3, Guideline H: FOR APPLICANT

Subparagraph 3.a: For Applicant

Subparagraph 3.b: For Applicant

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.

Michael J. Breslin

Administrative Judge

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Case profile

Summary

Why the applicant prevailed

Conditions referenced

Key rule quoted

Procedural posture

Cite for

From the decision

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES