ISCR Case 04-11939.h1

Case Headnote

ISCR Case No. 04-11939.h1

grantedOct 24, 2006· Hon. Barry M. Sax· hearing

Summary

A 38-year-old design engineer and U.S. Navy Reserves Lieutenant was granted a security clearance despite a history of alcohol-related issues and allegations of falsifying his security clearance application. The Statement of Reasons cited Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct).

The applicant had a history of alcohol consumption from age 15, including seven DUI offenses between 1988 and 2000, and an open container charge in 2003. He received an assessment in 2001 recommending treatment, which he initially declined. He later enrolled in an outpatient treatment program in 2003, from which he was discharged for noncompliance, but subsequently completed a different program in early 2004. He continued outpatient treatment until August 2004, successfully completing all requirements and testing negative for substances.

Allegations also included omitting multiple alcohol and drug offenses, as well as a marijuana citation, from his July 2003 security clearance application (SF 86), which was alleged to be a felony violation. Additionally, he was charged with misuse of telephone and use of slugs in January 2003, resulting in a $90 fine. However, the judge found that the applicant did not intentionally falsify his application. The clearance was granted based on the applicant's successful completion of treatment, three years of sobriety, and positive testimonials demonstrating significant rehabilitation.

Why the Applicant Prevailed

The applicant successfully completed a treatment program and maintained three years of sobriety.
Positive character references and testimonials supported the applicant's rehabilitation efforts.
The applicant's explanation for omissions on his SF 86 was deemed credible and not intentional.

Conditions Referenced

Disqualifying

E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work
E2.A7.1.2.4raisedEvaluation of Alcohol Abuse or Alcohol Dependence
E2.A10.1.2.1raisedAllegations or Admission of Criminal Conduct

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
E2.A7.1.3.4appliedSuccessfully Completed Rehabilitation and Received a Favorable Prognosis
E2.A5.1.3.2appliedFalsification Was an Isolated Incident, Not Recent, and Correct Information Was Provided Subsequently
E2.A10.1.3.1appliedThe Criminal Behavior Was Not Recent
E2.A10.1.3.2appliedThe Crime Was an Isolated Incident
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation

Key Rule Quoted

“A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence.”

Procedural Posture

SOR issuedAug 18, 2005
Answer filedSep 13, 2005Initially elected for a decision on the written record.
Hearing heldJun 2, 2006Applicant changed to a hearing after initially opting for a written decision.
Decision dateOct 24, 2006

Cite For

Successful Rehabilitation From Alcohol-related Issues
Credibility of Explanations for Omissions on Security Clearance Applications
Mitigating Factors Under Guidelines E, G, and J in Cases of Past Substance Abuse and Personal Conduct Issues.

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant falsified material facts on a security clearance application (SF 86) executed by him on July 8, 2003, in which he responded to Question "24 Your Police Record - Alcohol/Drug Offenses" [have you ever been charged or convicted of] by deliberately failing to mention the alcohol and/or drug offenses cited in 1.b., 1.c., 1.d., 1.e., 1.f., and 1.i. above and as set forth in 3.a and 3.b., below. He also omitted any mention of his being cited/warned about his possession of marijuana in early- or mid-1990s.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	(b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant falsified material facts on a security clearance application (SF 86) executed by him on July 8, 2003, in which he responded to Question "24 Your Police Record - Alcohol/Drug Offenses" [have you ever been charged or convicted of] by deliberately failing to mention the alcohol and/or drug offenses cited in 1.b., 1.c., 1.d., 1.e., 1.f., and 1.i. above and as set forth in 3.a and 3.b., below. He also omitted any mention of his being cited/warned about his possession of marijuana in early- or mid-1990s.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

—

(b) omission/refusal followed advice of counsel; later cooperated fully

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant has a history of consumption of alcohol, at times to excess and to the point of intoxication, from about 1983 (age 15) to at least July 2003;	For Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.b	November 1988 in California - Driving Under the Influence of Alcohol (DUI);	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.c	1990 in Missouri - DUI;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.d	1992 in California - DUI and DUI with .08% or higher alcohol, with prior;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.e	December 1995 in California - DUI with prior;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.f	October 1996 in California - DUI Alcohol and/or Drugs;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.g	June 2000 in California - DUI Alcohol and/or Drugs;	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
1.h	Applicant received an assessment on about May 18, 2001 at a Substance Abuse Treatment Center of Alcohol with Consequences and Dependence. He was encouraged to get involved in an alcohol treatment program and was offered a referral, which he declined.	For Applicant	Alcohol Use Disorder Diagnosed	Denied	(b) alcohol-related incident at work	—	—
1.i	Applicant was cited in or about 2003 and charged with Open Container;	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.j	Applicant received treatment from about June 2003 to August 6, 2003 at an Outpatient Treatment and Recovery Program in California (AX A). He was discharged for noncompliance with program rules for not attending on time or as scheduled and not providing verification of attending 12-Step meetings (GX 9). However, within two weeks (August 22, 2003), Applicant became enrolled in a different program, which he successfully completed in early 2004 (AX A, Tr at 94-96).	For Applicant	Treatment Non Compliance	Admitted	(b) alcohol-related incident at work	—	—
1.k	Applicant received outpatient treatment from about January 2003 to January 2004 at an Outpatient Program in California. His prognosis on January 2004 was that he had a moderate problem, some treatment required.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(b) alcohol-related incident at work	—	—
1.l	Applicant received outpatient treatment from about January 2004 to August 2004 at the same Outpatient Program in California. A letter from the treatment center, dated August 5, 2004, states that Applicant completed after care on that date, had successfully completed all requirements, and had tested negative in all urinalysis tests taken during that period (AX A).	For Applicant	Treatment Non Compliance	Admitted	—	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	Documented Substance Treatment Completed

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

1.a

Applicant has a history of consumption of alcohol, at times to excess and to the point of intoxication, from about 1983 (age 15) to at least July 2003;

For Applicant

Binge or Intoxication Pattern

Admitted

—

1.b

November 1988 in California - Driving Under the Influence of Alcohol (DUI);

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.c

1990 in Missouri - DUI;

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.d

1992 in California - DUI and DUI with .08% or higher alcohol, with prior;

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.e

December 1995 in California - DUI with prior;

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.f

October 1996 in California - DUI Alcohol and/or Drugs;

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.g

June 2000 in California - DUI Alcohol and/or Drugs;

For Applicant

DUI or DWI Alcohol

Admitted

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

—

1.h

Applicant received an assessment on about May 18, 2001 at a Substance Abuse Treatment Center of Alcohol with Consequences and Dependence. He was encouraged to get involved in an alcohol treatment program and was offered a referral, which he declined.

For Applicant

Alcohol Use Disorder Diagnosed

Denied

(b) alcohol-related incident at work

—

1.i

Applicant was cited in or about 2003 and charged with Open Container;

For Applicant

Unspecified Alcohol Incident

Admitted

—

1.j

Applicant received treatment from about June 2003 to August 6, 2003 at an Outpatient Treatment and Recovery Program in California (AX A). He was discharged for noncompliance with program rules for not attending on time or as scheduled and not providing verification of attending 12-Step meetings (GX 9). However, within two weeks (August 22, 2003), Applicant became enrolled in a different program, which he successfully completed in early 2004 (AX A, Tr at 94-96).

For Applicant

Treatment Non Compliance

Admitted

(b) alcohol-related incident at work

—

1.k

Applicant received outpatient treatment from about January 2003 to January 2004 at an Outpatient Program in California. His prognosis on January 2004 was that he had a moderate problem, some treatment required.

For Applicant

Alcohol Use Disorder Diagnosed

Admitted

(b) alcohol-related incident at work

—

1.l

Applicant received outpatient treatment from about January 2004 to August 2004 at the same Outpatient Program in California. A letter from the treatment center, dated August 5, 2004, states that Applicant completed after care on that date, had successfully completed all requirements, and had tested negative in all urinalysis tests taken during that period (AX A).

For Applicant

Treatment Non Compliance

Admitted

—

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

Documented

Substance Treatment Completed

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	The information set forth in 2.a., above, constitutes a violation of 10 U.S.C. 1001, a felony.	For Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
3.b	The SOR alleges that Applicant was cited in January 3, 2003 in State A, and charged with Misuse of Telephone, Use of Slugs. The SOR also alleges that Applicant was fined $90.00.	For Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

3.a

The information set forth in 2.a., above, constitutes a violation of 10 U.S.C. 1001, a felony.

For Applicant

Fraud or Deception Criminal

Conduct No Charge

Denied

—

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

3.b

The SOR alleges that Applicant was cited in January 3, 2003 in State A, and charged with Misuse of Telephone, Use of Slugs. The SOR also alleges that Applicant was fined $90.00.

For Applicant

Unspecified Criminal Conduct

Charged Not Convicted

Denied

—

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

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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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES