1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01684 ) Applicant for Security Clearance ) Appearances For Government: Chris Morin, Esq., Department Counsel For Applicant: Alan Edmunds, Esq. ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the security concerns under Guideline G, alcohol consumption and Guideline J, criminal conduct. Eligibility for a security clearance is denied. Statement of the Case On June 13, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline G, alcohol consumption, Guideline J, criminal conduct, and Guideline E, personal conduct. The action was taken under Executive Order (EO) 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 (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006. Applicant answered the SOR on July 11, 2016, and requested a hearing before an administrative judge. The case was assigned to me on January 24, 2017. The 2 Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 23, 2017. I convened the hearing as scheduled on April 18, 2017. The Government offered exhibits (GE) 1 through 5, which were admitted into evidence without objection. Applicant and three witnesses testified. Applicant offered exhibits (AE) A through I, which were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on April 26, 2017. Procedural Matters Department Counsel moved to amend the SOR by withdrawing paragraph three. The motion was granted without objection. Findings of Fact Applicant admitted all allegations in SOR ¶ 1. He did not answer the allegation in SOR ¶ 2, and it will be considered a denial. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 36 years old. He is single, never married, and has no children. He is a high school graduate and has earned college credits, but not a degree. He has worked for his present employer, a government contractor, since approximately 2006.1 Applicant was arrested for driving under the influence of alcohol (DUI) in about August 2008, when he was in his car and another car hit it. No breathalyzer was administered and the charge was dismissed. He testified that his driver’s license was suspended for a year. He was permitted to drive to and from work with a temporary license. To have his full license reinstated he was required to attend the Alcohol and Drug Safety Awareness Program (ADSAP). This was a four-week course. His license was reinstated in 2009. 2 Applicant was arrested in June 2010 and charged with DUI. He testified that he consumed six beers with a friend. He pled guilty and was convicted of this offense in 2011. He did not recall the sentence imposed, but remembered he paid a fine and was required to attend ADSAP. He also had his driver’s license suspended for a year, but was permitted to drive to and from work. He testified his license was reinstated in late 2011 or early 2012.3 The ADSAP program consisted of attending class once a week for eight weeks. Applicant was also interviewed by an alcohol counselor and received an alcohol 1 Tr. 42-43, 85. 2 Tr. 49-52, 61-63, 76-81; GE 1, 2, 3, 4, 5. The only evidence that Applicant was arrested in September 2009 for DUI was his disclosure in his 2015 security clearance application (SCA). He testified that when he completed the SCA, he did not have information readily available on the exact date of his arrest and he based it on his memory. The September 2009 date listed in the SOR was incorrect. 3 Tr. 46-49, 63, 81-82. 3 assessment. He was diagnosed with alcohol abuse. He successfully completed the program in February 2011. When asked what he learned from the program, he testified: Of course not to make the same mistake again, and try to not fall back in the same habits. It was definitely, I learned a lot in that class, probably each one of the times that I have received, or been arrested for DUI. I unfortunately, didn’t eat, which was something I learned not to do.4 Applicant completed a SCA in January 2015. He was arrested again in March 2015 and charged with DUI. He testified the incident occurred on St. Patrick’s Day. He estimated that he consumed about six beers and one to three shots of alcohol. While driving he hit a parked car. He pled guilty and was convicted in February 2016. He was sentenced to five days in jail, fined, ordered to complete ADSAP, and was placed on probation for 18 months. Applicant completed the terms of the sentence and was released early from probation in February 2017.5 Applicant testified that when he was arrested in 2010 and 2015 for DUI he was with the same friend. He no longer associates with this friend. They previously worked together, but do not any longer. He continues to consume alcohol once or twice a month. He testified that he has not been intoxicated since his last DUI arrest. After that arrest, he completed a six-month ADSAP program that required urinalysis testing twice a month and class once a week. He spoke with a counselor about every two months. His urinalysis results were negative. He was again diagnosed with alcohol abuse. His driver’s license was suspended again. He testified that he is not permitted to own a car in his name without an interlock device. The period for the license suspension has expired, but he has not paid the fee to have it reinstated. He does not presently own a car because he is waiting to see if he can afford one.6 Applicant testified that he was having personal issues at the time of the March 2015 DUI. His father was chronically ill and bedridden. He lived with his parents and helped his mother. His father passed away in May 2016. His brother passed away in April 2015. He accepted responsibility for his behavior.7 Character witnesses who have worked with Applicant for many years testified on his behalf. Applicant also provided character letters. He was described as remorseful for his conduct and has changed his life. He has matured and grown up. He is honest, reliable, trustworthy, dependable, and a great employee. His current supervisor, who is also the facility security manager, testified that Applicant is an important team member. 4 Tr. 53, 65-67; AE C. 5 Tr. 43-46, 60-61, 73-75, 86; GE 1, 4, 5; AE C, D, E. 6 Tr. 45-46, 59, 70-72, 83-85, 87, 90-91; AE C. 7 Tr. 68; AE D. 4 He was unaware of Applicant’s 2011 DUI until Applicant reported his two DUIs in 2016. He has no reservations about Applicant holding a security clearance.8 Applicant stated in a letter that he will never abuse alcohol again and consented to an automatic revocation of a security clearance should he violate his promise.9 He provided documents reflecting awards and recognitions, performance evaluations, and biographical information.10 Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have not drawn inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and has the ultimate burden of persuasion to obtain a favorable security decision.” 8 Tr. 22-41, 53-57; AE A, J. I have not considered Applicant’s failure to report his arrest to his facility security officer for disqualifying purposes, but it may be considered when making a credibility determination, in mitigation, and when analyzing the whole-person. 9 Tr. 57 68-70; AE B. 10 AE F, G, H, I, K. 5 A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline G, Alcohol Consumption AG ¶ 21 expresses the security concern pertaining to 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 all of the disqualifying conditions under AG ¶ 22. The following is potentially applicable: (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 was arrested in 2008 for DUI, and was convicted of DUIs in 2011 and 2015. AG ¶¶ 22(a) applies. I have considered all of the mitigating conditions under AG ¶ 23 and the following are potentially applicable: (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; and (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and 6 has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser”). Applicant’s first DUI arrest was in 2008. The charge was dismissed, but he went to ADSAP and his license was suspended.11 He was charged again in 2010 with a second DUI and convicted in 2011. He was ordered to attend ADSAP, pay fines, and his license was suspended. He was diagnosed with alcohol abuse. In March 2015, he hit a car after consuming alcohol and was charged with a third DUI. He was sentenced to five days in jail, fined, and again ordered to attend ADSAP. He was released early from probation in February 2017. Applicant repeatedly exercised poor judgment while consuming alcohol. He was 27 years old when he was first arrested for DUI, well beyond the period of youthful indiscretion. Although it has been two years since his last conviction, it has been less than three months since he was released from probation. Each time he was arrested or convicted he had an opportunity to learn from his mistakes, but he failed to do so. There is no indication that he is alcohol dependent, but he has been diagnosed as abusing alcohol, and he continues to consume it. His previous arrests and convictions have not been a deterrent. Applicant indicated his commitment to not abuse alcohol in the future. Considering Applicant has been arrested three times for DUI and convicted twice, attended ADSAP three times, and continues to consume alcohol, an insufficient period has passed since Applicant was released from court-ordered probation to conclude future alcohol-related issues will not recur. His behavior was not infrequent and did not occur under unique circumstances. His conduct casts doubt on his current reliability, trustworthiness, and good judgment. AG¶ 23(a) does not apply. There is no evidence that Applicant has had any alcohol-related issues since the last DUI in March 2015, and he has accepted responsibility for his conduct. However, based on Applicant’s seven-year history of situational abuse of alcohol and his continued consumption of it, I find not enough time has passed to conclude future problems will not recur. AG¶ 23(b) does not apply. Guideline J, Criminal Conduct AG ¶ 30 sets out the security concern for criminal conduct: Criminal activity creates doubt about a person=s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person=s ability or willingness to comply with laws, rules and regulations. I have considered the disqualifying conditions under criminal conduct AG ¶ 31 and the following two are potentially applicable: 11 Applicant was not convicted of DUI in 2008, but he testified that he attended ADSAP and his license was suspended. I have not considered his testimony that his license was suspended three times for disqualifying purposes, but will consider it when applying the mitigating conditions, making a credibility determination, and in analyzing the whole person. 7 (a) a single serious crime or multiple lesser offenses; and (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. Applicant was arrested three times for DUI and convicted twice. The evidence raises the above disqualifying conditions. I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32, and the following are potentially applicable: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. The same analysis under the alcohol consumption guideline applies under the criminal conduct guideline. I have considered Applicant’s good character evidence, work performance, awards, and remorsefulness. I have also considered that he failed to disclose his past DUI arrests and conviction to his employer as required until 2016. Despite some mitigation, the evidence is insufficient to overcome Applicant’s repeated criminal conduct. AG ¶ 32(a) and AG ¶ 32(d) do not apply. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The 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. 8 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines G and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant is a 36 years old. He was arrested three times and convicted twice of DUI. He was recently released from probation related to the last conviction. Applicant’s conduct raises questions about his judgment, reliability, and trustworthiness. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the alcohol consumption guideline and criminal conduct guideline security concerns. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline G: AGAINST APPLICANT Subparagraphs 1.a-1.d: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge