1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No: 16-01390 ) ) Applicant for Security Clearance ) For Government: Andre Gregorian, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ DAM, Shari, Administrative Judge: Applicant failed to mitigate the alcohol and criminal conduct security concerns related to three arrests and convictions for driving under the influence of alcohol. Eligibility for access to classified information is denied. Statement of the Case On July 6, 2016, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under the Guideline G, Alcohol Consumption, and Guideline J, Criminal 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 for Determining Eligibility for Access to Classified 2 Information effective within the DOD on September 1, 2006. This decision applies the new Adjudicative Guidelines (AG) that came into effect on June 8, 2017.1 Applicant answered the SOR in writing (Answer) on July 22, 2016, and requested a hearing before an administrative judge. On September 28, 2016, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me. On November 15, 2016, DOHA issued a Notice of Hearing setting the case for December 6, 2016. The case proceeded as scheduled. Department Counsel offered GE 1 through 6 into evidence. Applicant testified and offered Applicant Exhibits (AE) A through G into evidence. All exhibits were admitted without objections. DOHA received the transcript of this proceeding (Tr.) on December 14, 2016. On May 15, 2017, I entered an order holding the record open until June 30, 2017, to give Applicant the opportunity to submit a copy of the final order in his pending criminal case that was set to conclude on June 15, 2017. Applicant timely submitted that information, which I marked and admitted as AE H. Findings of Fact Applicant admitted the allegation in SOR ¶ 1.a. He neither admitted nor denied the allegations in SOR ¶¶ 1.b, 1.c, and 2.a. Those responses are construed as denials. (Answer.) His admission is incorporated into these findings of fact. Applicant is 36 years old and unmarried. He enlisted in the Navy in 1998 and received an honorable discharge in 2007. He was an E-5. He has held a security clearance while in the military and for most of the time since leaving it. He earned bachelor’s degrees in 2004 and 2011. He completed a master’s degree in 2012. (Tr. 19- 22.) After leaving the Navy in 2007, Applicant began working for defense contractors. On April 13, 2015, Applicant submitted a security clearance application (SF-86) for re- investigation. He began his current position in June 2015. He takes his job seriously and continues to succeed in his work performance. (Tr. 22-24; GE 1.) In his April 2015 SF-86, Applicant disclosed two misdemeanor convictions for driving under the influence of alcohol (DUI). Both of those offenses were also disclosed in his 2011 SF-86, and during a background investigation in February 2012. (GE 1, 5.) In 2001, Applicant began consuming alcohol when he was 21 years old and in the Navy. At that time, he was drinking three to five beers once or twice a month at a bar. In 2008, while attending college and working, his consumption of alcohol decreased to three or four times a year. His drinking continued to decrease in the following years. (Tr. 44-46.) 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was decided under the previous Adjudicative Guidelines. 3 In March 2010, Applicant was arrested and charged with DUI, driving with a blood alcohol content (BAC) of .08% or higher, and failure to pay registration fees due in State 1. In October 2010, he plead guilty to the DUI charge, a misdemeanor, and was sentenced to two days in jail and placed on unsupervised probation for 36 months. He was ordered to complete a six-month alcohol education program and pay an $1,800 fine. On the night of the arrest, he had about five mixed drinks with friends at a restaurant, before driving home to meet a friend. After driving through a red light, the police stopped him. They performed a field sobriety test that he failed. His BAC was .17%, about two times the legal limit. (Tr. 26-31; GE 1.) His driver’s license was restricted to driving to work and school for a period. (Tr. 55.) In December 2010, Applicant was arrested and charged with DUI, failure obey traffic control device, and failure to change address/name on driver’s license in State 2. In July 2011, he plead guilty to the DUI, a misdemeanor. He was ordered to attend a victim impact class, to pay a $585 fine, and to compete a 30-hour online alcohol education course. He completed those requirements by the end of August 2011. (Tr. 37- 38.) His driver’s license was suspended for six months, and he was again given a provisional license. (Tr. 55-56.) On the night of his arrest, Applicant received a call from his godfather, who invited Applicant to his bachelor’s party. Applicant subsequently met his godfather and friends at a nightclub. He had a number of drinks and left the club around 2:00 a.m. Before driving, he took a nap in order to give him time to metabolize the alcohol he had consumed. After he started to drive, he ran into a sidewall on a freeway on-ramp, which caused a flat tire. He changed the tire, and then experienced trouble with the steering wheel. While calling a friend for assistance, a police officer arrived. The police officer administered a breathalyzer. Applicant’s BAC was .16%, two times the legal limit. (Tr. 32-38.) In June 2015, Applicant was arrested and charged with DUI, a misdemeanor, failure to maintain lane, and speeding in State 3. Applicant plead not guilty to all charges, on the basis that he did not believe he was over the legal limit. He challenged the manner in which the breathalyzer was administered and the recorded BAC of .13%. Applicant asserted that he had five drinks that evening with friends, but over the course of several hours and after having a meal. The case was scheduled for a bench trial on February 1, 2017, and continued to June 15, 2017. (Tr. 39-42.) On June 15, 2017, the court found Applicant guilty of the June 2015 DUI and speeding charges, both misdemeanors. He was fined $650 and ordered to perform 40 hours of community service, undergo a substance abuse evaluation, and attend a DUI Risk Reduction program and Victim Impact Panel. He was placed on mail-in probation for 12 months, and required to serve one day in jail, which was previously served. He completed a clinical substance abuse evaluation and needs assessment. The clinician did not give Applicant a substance abuse diagnosis, and did not recommend substance abuse treatment. (AE H.) 4 Applicant stopped consuming alcohol after the first DUI in March 2010, but subsequently resumed. He again stopped drinking for a period of time after his second DUI in December 2010. He testified that in 2012 he was consuming three to five beers, three or four times a year. (Tr. 44-50.) Applicant testified that he currently drinks beer two or three times a month, and occasionally consumes whiskey. He has not had any other alcohol incidents since the June 2015 arrest and has not driven after consuming alcohol since then. His girlfriend drives when they go out and he drinks. (Tr. 44-50.) Applicant has never been diagnosed as being alcohol dependent or abusing alcohol. He has never received alcohol treatment or participated in a counseling program related to his drinking. He does not believe he has an alcohol problem. He understands that the June 2015 arrest occurred while he was in the security re- investigation process, and he is embarrassed about it. (Tr. 51-53.) He admitted that he was intoxicated at the time of the March 2010 and December 2010 arrests, but he denied that he was legally intoxicated in June 2015, which was the reason he decided to go to trial on the matter. (Tr. 58.) While serving in the Navy, Applicant received two Good Conduct Medals, two or three flag letters of appreciation, and a commendation from a one-star admiral. He was a supervisor of a work center. (Tr. 23.) In November 2016, he received an instant recognition award. (AE A.) His 2015 performance evaluation gave him a composite score of 3.2 on a 5.0 rating scale. (AE C.) Two former supervisors complimented Applicant’s work and capabilities. (AE D, F.) A senior member of Applicant’s team and former naval officer highly recommended him for any position. (AE E.) 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 (AG) list potentially disqualifying and mitigating conditions, which are useful 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 AG ¶ 2(d), describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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 5 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 avoided drawing inferences grounded on mere speculation or conjecture. According to 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that an adverse decision shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Analysis Guideline G: Alcohol Consumption AG ¶ 21 sets out the security concerns 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. AG ¶ 22 describes two conditions that could raise a security concern and may be disqualifying in this case: (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 the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; and (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder. 6 Applicant was convicted of DUI three times: in October 2010 for a March 2010 arrest; in July 2011 for a December 2010 arrest; and in June 2017 for a June 2015 arrest. His BAC was over the legal limit when he was arrested for these incidents, documenting his impaired judgment. The evidence established both disqualifying conditions. AG ¶ 23 describes three conditions that could mitigate these security concerns raised under this guideline: (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 judgment; (b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations; and (d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. Applicant has a record of abusing alcohol from 2010 through 2015. In June 2017, he was convicted for a June 2015 DUI incident. The evidence does not establish mitigation under AG ¶ 23(a), as sufficient time has not passed since the last incident given his previous two alcohol-related arrests. Applicant continues to consume alcohol two or three times a month, but no longer drives after doing so. The evidence establishes minimal mitigation under AG ¶ 23(b) because he has not established a sufficient pattern of responsible consumption. Applicant completed a substance abuse evaluation June 2015. The clinician did not find a pertinent substance abuse diagnosis nor recommend that he participated in treatment. AG ¶ 23(d) is not applicable. Guideline J: Criminal Conduct AG ¶ 30 sets forth the security concerns pertaining to 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. AG ¶ 31 describes three conditions that could raise a security concern and may be disqualifying in this case: 7 (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; (b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, prosecuted, or convicted; and (c) individual is currently on parole or probation. Applicant was convicted of three misdemeanor DUI offenses. He was on probation for three years after his first conviction in October 2010. On June 15, 2017, he was placed on probation until June 14, 2018. His driver’s license was restricted after his first conviction and suspended for six months after his second conviction. The evidence establishes the above three disqualifying conditions. AG ¶ 32 provides two conditions that could mitigate the above security concerns raised in this case: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual 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, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. Sufficient time has not passed since Applicant’s last DUI, given the facts that he was previously convicted of two DUIs and, within the past month, he was convicted of the June 2015 DUI and placed on probation for one year. Although he provided evidence of successful work with his employer, that evidence does not outweigh the fact that he is still on probation for a third DUI conviction. The evidence does not establish mitigation under either of the above conditions. Whole-Person Concept AG ¶ 2(a) requires an administrative judge to evaluate an applicant’s security eligibility by considering the totality of the applicant’s conduct and all relevant circumstances, commonly referred to as the whole-person concept. Under AG ¶ 2(c) the ultimate determination of whether to grant eligibility for a security clearance must include an overall commonsense judgment based upon careful consideration of the 8 guidelines and the whole-person concept. The administrative judge should also consider the following nine adjudicative process factors listed at AG ¶ 2(d): (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) 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. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. Applicant is a credible, intelligent, and educated 38-year-old man, who honorably served in the military for almost ten years. Since 2007 he has successfully worked for defense contractors, as documented by performance evaluations and letters of recommendation. He has held a security clearance since his enlistment in 1998. He is dedicated to his current job where he continues to work with the military. He honestly disclosed his criminal history. These are persuasive factors in the analysis of the whole person. However, Applicant has a history of DUIs, the most recent having occurred in June 2015 and having been legally resolved with a conviction in June 2017. At this time he has not established a history of complying with the law and avoiding alcohol-related incidents. He is on criminal probation until June 2018. The record evidence leaves me with questions as to Applicant’s eligibility and suitability for a security clearance. Applicant failed to mitigate the security concerns arising under the guidelines for alcohol consumption and criminal conduct. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline G: AGAINST APPLICANT Subparagraphs 1.a through 1.c: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraph 2.a: Against Applicant 9 Conclusion In light of all circumstances presented by the record in this case, it is not clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Applicant’s request for access to classified information and national security eligibility is denied. _________________ SHARI DAM Administrative Judge