1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 12-01128 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ________________ Decision ________________ O’BRIEN, Rita C., Administrative Judge: Based on a review of the pleadings, the Government’s File of Relevant Material (FORM), Applicant's Response, and the exhibits, I conclude that Applicant has not mitigated the security concerns raised under the guideline for alcohol consumption. His request for a security clearance is denied. Statement of the Case On June 12, 2013, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR) that detailed security concerns under Guideline G (alcohol consumption). This action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992) as amended; and the Adjudicative Guidelines (AG) implemented by the Department of Defense on September 1, 2006. The SOR lists six allegations. In his July 10, 2013 Answer to the SOR, Applicant admitted two allegations (1.d and 1.e); admitted three others with explanations (allegations 1.b, 1.c, and 1.f); and denied allegation 1.a. He also requested a decision based on the written record in lieu of a hearing. Department Counsel for the Defense Office of Hearings and Appeals (DOHA) prepared a written presentation of the Government’s case in a FORM dated July 25, 2013. On August 12, 2013, Applicant 2 received the Government’s FORM, and was given 30 days to file submit material to refute or mitigate the security concerns. Applicant timely submitted a response dated September 10, 2013. (Response) The case was assigned to me on September 24, 2013, for an administrative decision based on the record. Findings of Fact Applicant’s admissions are incorporated as findings of fact. I make the following additional findings of fact. Applicant, 56 years old, began active duty in the Navy in 1975, and was administratively discharged in 1976. His discharge was characterized as General, under Honorable Conditions.1 He completed a bachelor’s degree in 1984. Within the past eight years, he has completed professional certifications as a cost estimator, a management accountant, and a public accountant. Applicant married in 1986, and has four children ranging from 19 to 27 years of age. He has worked full-time for the same federal defense contractor since 1984. He held a secret security clearance starting in 1985, and was granted a top secret security clearance in 2004. (Items 5, 6, 11; Response) Applicant has a history of alcohol-related arrests. In his interrogatory response, he noted that he has had “multiple instances of driving with blood alcohol level above legal limit (over past 35 years).” (Item 6) As part of his first security clearance investigation, Applicant signed a sworn statement on February 1, 1985, in which he described five arrests that occurred between 1974 and 1984.2 (Item 9) Two of the alcohol-related arrests occurred while Applicant was a college student from 1980 to 1984, and appear in the SOR: 1 Applicant stated during his 2011 security interview that he received a general discharge when he decided to leave the Navy after not being granted permission to attend “C” school. (Item 6) 2 The following arrests are not included in the SOR: 1974: Disorderly Conduct; 1977 or 1978: detained but not charged with impersonating a police officer; 1979: charged with offenses involving carrying a loaded gun and spent about three months incarcerated (Items 5, 7, 9). Alcohol was involved in the 1979 arrest. Applicant also used marijuana and cocaine between 1970 and 1984, while in high school, and in the Navy. In his 1985 statement, he also discussed his three Captain’s Masts while in the Navy. (Items 7, 9) He used marijuana and cocaine between 1985 and 1991 while he held a security clearance. During his 2011 security interview, he stated he did not inform his employer at the time because he thought his drug use was legal, and that only possession and sale of such drugs were illegal. (Item 6) He has not used illegal drugs since 1991. (Item 6) In accordance with the Appeal Board’s holdings on unalleged conduct, I will consider these events only for the following limited purposes: (a) to assess Applicant's credibility; (b) to evaluate Applicant's evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether Applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines applies; or (e) to provide evidence for whole-person analysis under Directive § 6.3. See, ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006); ISCR Case No. 08-09232 at 3 (App. Bd. Sept. 9, 2010). 3 • 1982 (allegation 1.f): At the age of 25, Applicant was arrested and charged in State A with driving under the influence of intoxicating liquor (DUI). He was fined $365, and assigned to a diversion program that lasted from July 1982 to July 1983. The program required Applicant to attend the Alcohol Safety Action Program (ASAP) for four weeks, and to attend counseling at least twice per month. (Items 6 - 9) • 1984 (allegation 1.e): At the age of 27, Applicant was arrested and charged with driving while intoxicated (DWI) in State B. In his 2011 security interview, he stated the charge was dismissed. However, in his 1985 sworn statement, he said the charge was reduced, he was fined $185, and was required to attend what he described as “alcohol counseling” class. (Items 6, 9) In his 1985 sworn statement, Applicant described his alcohol use at the time as “moderate:” one to six drinks “a couple of times” per week. He said his drinking had not caused him family or financial problems, and he intended to “maintain a conservative attitude” about alcohol use in the future. In his 2013 Response, Applicant stated that he realized after his 1984 DUI that he “needed to make an adjustment, and discontinue attending the kinds of parties where ‘college-level & style drinking’ was occurring.” (Items 7, 9; Response) In 1984, after college, Applicant moved to a different city in State A (City A) and began working for his current employer. He received his first security clearance in 1985. He remained in City A until 1994. He described City A as having a “pronounced military culture. . . which included a ‘mature’ social drinking aspect, where events were frequent, and where there was considerable career pressure associated with attendance.” He also stated in his Response that in the early 1990s, “DUI enforcement efforts reached crescendo proportions in [City A] due (largely) to the MADD campaign.” Applicant admits he “was slow to accept the requirements because I saw my behavior as ‘safe’ & ‘responsible.’. . .I guess I did not agree that the change in law was rational, reasonable, fair or even socially effective.” (Item 6) According to Applicant’s Response, he was “caught so off-guard” by the changed political environment and stricter blood alcohol content (BAC) requirements that he “was able to be ticketed for two DUIs within about three years (1990 & 1993).” [Emphasis in original] (Response) While in City A from 1984 to 1994, Applicant states he behaved in a responsible manner, and that “no negative consequences impacted my life other than the two tickets that I received.” The “tickets” refer to the following alcohol-related charges: • 1990 (allegation 1.d): In State A, at the age of 33, Applicant had an argument with his wife and left the house. After consuming seven to eight beers, he hit the median during a turn. He was charged with DUI. (Items 6, 7) Although he had been charged with DUI in 1982 in State A, he was adjudged a “first offender,” and sentenced to an Accelerated Rehabilitation Diversion (ARD) Program. He was fined, ordered to attend alcohol education classes, and sentenced to 4 probation. The classes taught Applicant about the physiology involved in reaching various blood alcohol levels, and he resolved to be a safe driver, and “to keep myself below the legal limit, just in case I was randomly pulled over.” (Response, emphasis in original) • 1993 (allegation 1.c): When Applicant was 36 years old, he was charged in State A with DUI, marijuana possession, and carrying an unconcealed weapon. Applicant admits the allegation in part, and denies it in part, stating in his Answer, “I was not ‘carrying’ a weapon. A .25 caliber handgun, properly registered in my name, was stored in my vehicle for target practicing purposes, and was stored for such transportation in a manner consistent with state law.” He stated in his Answer to the SOR that he was charged with violating a local storage ordinance of which he was unaware. In his 2011 security interview, Applicant stated all charges were dismissed. However, his Federal Bureau of Investigation (FBI) arrest record shows that only the DUI and drug charges were dismissed. He was found guilty of the weapons charge, and fined $150. Applicant's FBI sheet also notes “30 days” related to the firearms conviction, but provides no further information on whether Applicant was incarcerated, or that portion of the sentence was suspended. The record includes no further information related to the DUI charge. (Items 6, 7; Answer) After the two State A DUIs in 1990 and 1993, Applicant determined that drunk driving was being pursued more aggressively, and he . . . acknowledged that my previous focus on managing my consumption merely to the point of maintaining “safe driving limits” was inadequate within this “new world” . . . [he took] action to reduce my risk by shifting the focus of my methods (armed with my improved understanding of physiology and metabolism) to keeping my BAC level below legal limits. . . (Response) Applicant made adjustments to his alcohol consumption: he decreased his alcohol “intake levels to the ’mild’ end of the ‘mild-to-moderate’ spectrum,” drank slower, paced himself, ate food with alcohol, and left social events earlier. (Response) In 1994, Applicant’s company transferred him to State C. In about 1997, his security clearance was renewed. Applicant had no alcohol-related events for 11 years, between 1994 and 2005. He stated in his Response and his interrogatory that this fact demonstrates that he was able to effectively manage his alcohol use. (Response) Subsequently, Applicant had the following alcohol-related charges: • 2005 (allegation 1.b): At a work-related social event in State C, Applicant drank four to five alcoholic drinks over a four-hour period. He felt that he was becoming intoxicated, so he left. He was stopped for driving with only his 5 parking lights on. He failed a field sobriety test, and was charged with DUI. Applicant was 49 years old. He admits the charge, noting that he “had slipped slightly over the legal limit and made the silly mistake of turning on my parking lights only . . . there was significant street lighting, so that I could not see that my headlights were not all the way on. That was the extent of my driving failure.” He was held in jail for several hours and then released. (Item 6; Response) Applicant's DUI was processed as a “first offense” in State C, and he was allowed to participate in an ARD Program, under which the DUI is dismissed if the offender successfully completes probation. He was fined, ordered to attend six weeks of alcohol education classes, and placed on probation for one year. (Item 6) The program also included what Applicant described as a state- sponsored evaluation of his alcohol use by a mental health organization. (Items 4, 6) He stated that he was not found to be alcohol-dependent, and treatment was not recommended. (Response at 18) However, the file does not contain a copy of the evaluation, or information regarding the evaluator’s credentials, the diagnosis, or a prognosis. Applicant states he successfully completed the ARD program and probation. He said in his security clearance application that “a dismissal agreement was reached” and “Ticket for DUI Dismissed, no conviction on record.” (Item 5) In his Answer, he stated that his State C record does not show a DUI. (Item 6, Answer; Response) Five years later, at 54 years of age, Applicant was again charged with DUI. • 2010 (allegation 1.a): After attending a social event, Applicant was pulled over while driving home at about 2 a.m. in State D. The threshold blood alcohol content (BAC) in State D was 0.08. At the local police station, Applicant's BAC was 0.11. He states in his Response, “I do not deny my technical guilt, and ultimate responsibility, but I was driving safely and competently. Nevertheless, I had permitted myself to slip slightly over the legal limit. . .” which he describes as “. . . not the same as being intoxicated or materially impaired . . . .” [Emphasis in original] (Response) Applicant was charged with three counts of DUI3 and failing to obey a traffic device. He denies this allegation, stating in his Answer that he had crossed the white line between lanes, which is not a “failure to obey a traffic device.” The court record of his January 13, 2011 appearance shows the following charges and dispositions: Charge 1: Driver failure to obey properly placed traffic control device instructions. Applicant pled not guilty, and the charge was nol prossed. (Item 10) 3 As Applicant correctly notes in his Answer, he was not charged with three separate DUI incidents in State D in 2010. He was charged with three counts of DUI, all of which occurred during the same incident on the same date, October 23, 2010. (Answer; Item 10) 6 Charge 2: Driving/attempting to drive vehicle while under the Influence of alcohol. Applicant pled not guilty, and the charge was nol prossed. (Item 10) Charge 3: Driving/attempting to drive vehicle while under the Influence of alcohol, per se: Applicant pled guilty, and was sentenced to probation before judgment. (Item 10) Charge 4: Driving/attempting to drive vehicle while impaired by alcohol. Applicant pled not guilty, and the charge was nol prossed. (Item 10) Applicant's DUI was considered a “first offense” in State D. Although Applicant stated in his 2011 security interview that the case was dismissed, his court record shows he pled guilty to one count of DUI per se. He was fined $300, and sentenced to probation before judgment. He notes in his interrogatory that his probation was waived and dismissal of the charge was effective immediately. (Item 6) In his security clearance application, Applicant stated that “a dismissal agreement was reached” and “the DUI was dismissed, and no conviction was entered.”4 (Items 5, 6, 10; Response) In his 2013 interrogatory response, Applicant described his 2005 and 2010 DUIs: They did not involve any aggravating circumstances, no accidents, no speeding, no reckless or dangerous driving. I was functional, poised, and in control. In short, they were borderline cases. (Item 6) In his Answer to the SOR, he states that he believes there is “no evidence of a genuine ‘drinking problem.’ ” (Item 4) In 2011, the year Applicant completed his current security clearance application, his usual alcohol intake was about three times per month, and he did not believe he had a problem with alcohol. When he completed his interrogatory in April 2013, he was drinking about one to two times per week, but he expected “to be cutting back over the near term, probably back into the 3 times per month range.” In his September 2013 Response, he stated he was drinking beer, wine, or spirits about once or twice a week, but some weeks he did not drink at all. He currently drinks at work- related social events and at “happy hours” while waiting for the rush-hour traffic to subside, before driving home. Applicant stated in his Response that it would be incorrect to infer that he is therefore driving home intoxicated, because his “. . . pattern is to drink in sufficiently small quantities, at a sufficiently slow pace, and to permit a passage of time when appropriate, so that I do not drive illegally.” The frequency of Applicant's drinking alcohol depends on the frequency of his socializing. Regardless of the type of alcoholic beverage consumed, if he is eating food, he has three or four 4 Applicant stresses in his documents that convictions in several of his cases were not entered, or that his driving record does not show convictions. However, security concerns are raised by an applicant's conduct, rather than the court’s ultimate formal disposition. As noted by the Appeal Board, “Furthermore, the fact that criminal charges against an applicant were dropped or dismissed does not preclude an Administrative Judge from finding an applicant engaged in the conduct underlying those criminal charges. See, e.g., ISCR Case No 99-0119 (September 13, 1999) at p. 2.” ISCR Case No. 02-10168 at pp. 2-3, (Aug 1, 2003). 7 drinks; if he is not eating food, he has two or three drinks. He stated he has a high tolerance for alcohol. (Item 6; Response) In discussing mitigation in his July 2013 Answer to the SOR, Applicant mentions the “presumptive bias of DUI prosecutions.” He states: While no one would suggest that receiving a DUI is something to be proud of, within the current political environment (including the .08 blood alcohol content threshold) it is exceedingly easy for even a very responsible light social drinker to be occasionally caught up in, what has become, an almost “witch–hunt” mentality dragnet, regarding DUIs, where “probable cause” for stops is routinely disputed (for good reason), where little regard is placed upon the a [sic] driver’s ability to demonstrate that he is not driving beyond his ability to be safe and responsible, and where the mere fact of blood alcohol content is all that is considered. [Emphasis in original] Applicant contributes to his community through his involvement in scouting, where he has led a cub scout pack, is on the leadership committee of a boy scout troop, and is an associate leader of a girl scout troop. He has also served as president of his homeowners’ association for seven years. (Response) Policies Each security clearance decision must be a fair and commonsense determination based on examination of all available relevant and material information, and consideration of the pertinent criteria and policy in the AG.5 Decisions must also reflect consideration of the factors listed in ¶ 2(a) of the Guidelines, commonly referred to as the “whole-person” concept. The presence or absence of a disqualifying or mitigating condition does not determine a conclusion for or against an applicant. However, specific applicable guidelines are followed when a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information. In this case, the pleadings and the information presented by the parties require consideration of the security concerns and adjudicative factors addressed under Guideline G (alcohol consumption). A security clearance decision is intended only to resolve the question of whether it is clearly consistent with the national interest6 for an applicant to either receive or continue to have access to classified information. The Government must produce admissible information on which it based the preliminary decision to deny or revoke a security clearance. Additionally, the Government must be able to prove controverted facts alleged in the SOR. If the Government meets its burden, it then falls to the 5 Directive. 6.3. 6 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 8 applicant to refute, extenuate or mitigate the Government’s case. Because no one has a “right” to a security clearance, an applicant bears a heavy burden of persuasion.7 A person who has access to classified information enters a fiduciary relationship with the Government based on trust. Therefore, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of one who will protect the national interests as her or his own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government.8 Analysis Guideline G (Alcohol Consumption) AG ¶ 21 expresses the following security concern about alcohol consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. I have considered the disqualifying conditions under AG ¶ 22, and find that the following applies: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent. Applicant began consuming alcohol when he was a teenager, and has drunk it to the point of intoxication on numerous occasions since then. Although he has not been diagnosed as an alcohol abuser or alcohol dependent, he was charged with alcohol-related driving offenses on six occasions from 1982 to 2010, between the ages of 25 and 54. Four of the six DUIs occurred while he held a security clearance, first granted in 1985. AG ¶ 22 (a) applies. I have considered the following mitigating factors under AG ¶ 23: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; 7 See Egan, 484 U.S. at 528, 531. 8 See Egan; AG ¶ 2(b). 9 (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and, (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. Applicant’s mental health evaluation in approximately 2006 did not result in a diagnosis of alcohol dependence or alcohol abuse, and he has not been counseled or treated for his alcohol use; therefore, AG ¶¶ 23(b) through (d) are not relevant. The only available mitigating condition is AG ¶ 23(a). Significant time has passed since several of Applicant's DUIs. Four of the six DUIs in the SOR occurred 20 or more years ago, between 1982 and 1993. Under other circumstances, the passage of time might have mitigated his conduct.9 Here, however, Applicant's history shows arrests and charges that occurred not only in the distant past, but more recently. Taken together, Applicant's arrests constitute a pattern of illegal alcohol-related behavior that constitutes a security concern. In analyzing a decision involving a series of criminal charges that were dropped or dismissed, the Appeal Board held: Moreover, it was reasonable for the Judge to consider the significance of Applicant’s pattern of conduct as a whole, rather than analyzing each separate criminal or personal conduct incident in a piecemeal fashion. See, e.g., ISCR Case No. 04-12648 at 3-4 (App. Bd. Oct. 20, 2006) citing Raffone v. Adams, 468 F. 2d 860 (2nd Cir. 1972) (taken together, separate events may have a significance that is missing when each event is viewed in isolation).10 9 In his Response, Applicant cites numerous decisions in which Administrative Judges granted security clearances in Guideline G cases. However, the Appeal Board has held that, “. . . decisions in other hearing-level cases are not legally binding precedent, even if an applicant can establish close factual similarities between those cases and his case. . . [citations omitted] ISCR Case No. 08-07005.a1 at 2 (App. Bd. Feb. 9, 2009). “Each case must be judged on its own merits . . .” Directive at ¶ E2.2(b). 10 ISCR Case No. 06-00520 at 2 (App. Bd. Nov. 9, 2007). 10 In spite of his earlier history of DUI arrests, Applicant continued to drink to intoxication at times, and was arrested twice for DUIs within the past eight years, in 2005 and 2010. His illegal conduct extended well into his mature years, with the last arrest only three years ago, when he was 54 years old. Applicant does not drink alcohol in unusual circumstances, but in common situations such at bars and social events with friends. He drinks frequently: two to four drinks per sitting, once or twice per week. His past decisions to drive in such situations after consuming more than the legal limit of alcohol demonstrate poor judgment and lack of reliability. Given his history, I cannot confidently conclude that such events will not recur in the future. AG ¶ 23(a) does not apply. Whole-Person Analysis Under the whole-person concept, an administrative judge must evaluate the totality of an applicant’s conduct and all the circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (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 extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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. AG ¶ 2(c) requires that the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Under the cited guideline, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. In evaluating Applicant under the whole-person concept, I considered the positive factors in his history: he is a mature adult of 54 years, who is intelligent, educated, and appears to be professionally successful. He provides service to his community through volunteer work with the scouts and has been the president of his homeowner’s association for a number of years. His commendable efforts to modify his drinking in the 1990s resulted in 11 years without incident. However, he was unable to maintain that record. Applicant's history shows his alcohol consumption over the past 30 years has led him to engage in criminal conduct, i.e., violation of the law involving driving after drinking alcohol above the legal limit. Between the ages of 25 and 54, he has been charged with DUI six times. He has been fined, sentenced to attend alcohol education 11 classes, ordered to undergo an alcohol evaluation at a mental health center, and to serve probation. He has tried to adjust his alcohol consumption: in the 1980s after two DUIs; and in the 1990s, after two more DUIs. Notwithstanding these efforts, he had two more DUI arrests in 2005 and 2010. Although he attempted to modify his drinking in the past so that he is not over the legal limit, and he plans to use that approach now, it has failed twice in the past eight years. Applicant's six arrests comprise a disturbing pattern of risky behavior that violates the law. In addition, his current 3 years without an alcohol-related arrest is a considerably shorter time span than the 11 years he apparently controlled his drinking between 1994 and 2005. It is also troubling that he continues to drink alcohol at social events and “happy hours,” before driving home, the very conduct that led to security- significant offenses in the past. Of particular concern is the fact that four of Applicant's arrests occurred while he held a security clearance. He has held a security clearance since 1985 and is familiar with the process. He has known for years that alcohol was a security concern, and discussed his DUIs and drinking habits during his 1985 and 1997 security interviews. Nevertheless, the frequency of his alcohol consumption has increased between 2011 and 2013–even though he stated in 2011 that he planned to cut back on his alcohol intake. His decision to continue to drive after drinking is not only risky behavior, but demonstrates he is willing to place his own desires ahead of the obligations he owes to the Government as a security clearance holder. Based on Applicant's history, I cannot confidently conclude he will not be involved in alcohol-related offenses in the future. A fair and commonsense assessment of the available information shows Applicant has not satisfied the doubts raised about his suitability for a security clearance. Such doubts must be resolved in favor of the national security. Formal Findings Paragraph 1, Guideline G AGAINST APPLICANT Subparagraphs 1.a – 1.f Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to allow Applicant access to classified information. Applicant’s request for a security clearance is denied. RITA C. O’BRIEN Administrative Judge