DATE: April 25, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
KATHRYN MOEN BRAEMAN
APPEARANCES
FOR GOVERNMENT
Marc Curry, Esquire, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's treatment and alcohol-related arrest in 1998 and his subsequent diagnoses of alcohol abuse and/or dependence raise security concerns that have not been mitigated. While Applicant has shown some positive changes, he has ignored the diagnoses in 1998 and again in 2002 by credentialed medical professionals of alcohol abuse and has continued to consume alcohol. While his isolated alcohol incident does not show a pattern (but was the basis for discharge from the military), he has yet to make a decision not to drink again; thus, doubt remains as to whether he is fully rehabilitated. Clearance is denied.
The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant on August 27, 2002. The SOR detailed reasons why the Government could not make the preliminary positive finding that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. (1) The SOR alleges specific concerns over Alcohol Consumption (Guideline G) and personal conduct (Guideline E). Applicant responded to these SOR allegations in an Answer notarized on September 16, 2002 where he admitted allegations 1.a., 1.b., 1.c. but denied 1.d and 2.a. and requested a hearing. The case was assigned to Department Counsel who said it was ready to proceed on October 25, 2002.
On October 28, 2002, the case was assigned to Administrative Judge Joseph Testan who set the case for hearing on December 12, 2002. On December 4, 2002, he cancelled that hearing; on December 13, 2002, the case was reassigned to me. Subsequently, we agreed to a mutually convenient date for hearing; and a Notice of Hearing issued on December 23, 2002, set the matter for January 22, 2003. At the hearing the Government introduced eight exhibits which were admitted into evidence (Exhibits 1-8); Applicant represented himself; he testified and offered 13 exhibits (Exhibits A through M) which were admitted into evidence as I over-ruled Department Counsel's objection to Exhibit A, an expert opinion without the expert's credentials. (TR 25-28) Subsequently, Department Counsel supplemented Exhibit A with additional pages that had been sent directly to him as the Government's representative. (TR 95-96) As Applicant did not have the expert credentials to attach to Exhibit A to qualify it as an expert opinion, I allowed him a week to submit them by January 29, 2003; then Department Counsel had a week to respond until February 7, 2003. (TR 28-29, 97-98) On January 28, 2003, Applicant submitted Exhibit N; Department Counsel submitted his response on January 30, 2003; his response was a closing argument, not a specific objection to Exhibit N or the expert credentials. Exhibit N was admitted into evidence; and I accepted his doctor as an expert; the record closed on January 30, 2003. The transcript (TR) was received on January 31, 2003.
After a complete and thorough review of the evidence in the record, and upon due consideration of that evidence, I make the following Findings of Fact:
Applicant, 36 years old, was an employee of Defense Contractor #1 from May 2000 to January 2003. Previous he worked for Defense Contractor #2 from June 1999 to May 2000. In June 1999 and again in May 2000 he applied for a security clearance by completing Questionnaires for National Security Positions (Standard Form 86) (SF 86). Previously, he served in the U.S. Army from June 1984 to June 1998 and received an honorable discharge. (TR 30, 44-46; 73-77; 89; Exhibits 1, 2; Exhibits B, C, D, M) He has traveled all over the country as a military contractor in 2002; and he expected to be deployed overseas in 2003. (TR 34-38; Exhibit H, I) In January 2003 he was offered a new position with defense contractor #3 which he accepted. (TR 41-46, 61-62; Exhibit M)
Applicant has two years of college at a community college. (Exhibit A) In Spring 2001 he was given a Certificate of Distinction for his superior academic achievement. (TR 39-40, 59; Exhibit K)
Applicant was married to Wife #1 when he was 19 and had one child. He married Wife #2 when he was 24 in1990 and was divorced in March 1999; they had three children born in 1987, 1990 and 1993. He married Wife #3 in June 1999. (TR 64; Exhibit 1; Exhibit A) He continues to see his children on a daily basis. (TR 85)
Applicant has a long history of drinking since the age of 14 and continues to drink to the present. Alcohol became a problem when he was 23. In January 1988 he began to drink heavily, five beers a day and two or three rum and cokes per day; he had some blackouts. At the time of the Driving under the Influence (DUI) arrest in March 1998 Applicant had seven or eight rum and cokes over a three hour period. Subsequently, Applicant has continued to drink as follows:
(TR 50, 52-53, 63-64; 65-66, 72-73, 86, 89-93; Exhibits 5, 6, 7; Exhibit A)
Applicant had a DUI incident in March 1998 on a military installation: when he stopped to receive a visitor's pass, the guard smelled a strong order of an alcoholic beverage and asked him to exit the vehicle; he was unsteady on his feet. The two intoxilyzer tests had results of .22 and .23 Blood Alcohol Content (BAC). A U.S. Magistrate Court found him guilty and ordered him to pay a $650 fine, to serve six months probation, and to attend DUI school. Earlier he enrolled in a military alcohol-related treatment program from February to June 1998 where he attended a weekly group. In February 2001 Mr. S, the professional completing a Medical Information Questionnaire, concluded that if he was actively drinking that Applicant's condition could cause a significant defect in his judgment or reliability. (Exhibits 1, 2, 3, 4, 7; TR 48-51; 67-70)
The military treatment records reported that Applicant was under stress in February 1998 as his wife moved out and took the kids; after the DUI incident in arch 1998 he requested Antabuse; he wanted to stop drinking alcohol as he had three children that needed him. He was diagnosed as Alcohol Dependent in arch 1998 and urged to attend AA. In April 1998 he was assessed a rehabilitation failure because of his DUI after he started the treatment program. In May 1998 he was disenrolled by his commander, but continued to attend the group. Subsequently, he was discharged from the military because of the alcohol and drug treatment failure. (TR 87-88; Exhibits 5, 6; Exhibit A) While the Army treatment program recommended he attend AA, Applicant chose not do so. (TR 70-71; 88-89)
In April 2002 Applicant agreed to be evaluated by a military substance abuse program. A Certified Alcohol Counselor (CAC) and medical doctor (MD) assessed him with alcohol dependency by history in partial remission and gave a fair prognosis. At the time of the assessment Applicant was having two drinks per day. Applicant has had no documented reports of substance abuse incidents since 1998 and has made positive changes in his life. The experts who assessed him in 2002 also recommended total abstinence from alcohol. (Exhibit 8)
Applicant sought another opinion in December 2002 from another MD, who is board certified in adult psychiatry with added qualifications in Addiction Psychiatry. Dr. R is accepted as an expert based on her educational and experience. She diagnosed Applicant with Alcohol Abuse, not Alcohol Dependence. She assessed him as having no current psychiatric or substance abuse disorder as in the past five years he has had no alcohol-related incidents; while she observed that he had returned to drinking "a small amount (usually 2 beers most nights of the week)", she did not explain how she reached her conclusion that this pattern "in itself speaks again the diagnosis of alcohol dependence." In here attached Initial Assessment, she clarified somewhat by stating that "he would not be able to drink for any extended period of time if he truly had been alcohol dependent." She commented that she would need "collateral information" from his wife to affirm her impression; there is no evidence that this information was provided to her. While Dr. R recommended him for a security clearance, there is no evidence that she understands or was shown what the Government's standards are for evaluation in this area. (TR 25-26, 62-63; 78-82; Exhibits A and N) Applicant's expert did not testify at the hearing, so I ascribe less weight to her opinion as she was not subject to the Government's cross-examination for the basis of her opinion.
Applicant does not believe he has to attend AA to make his life better. (TR 63)
In his June 1999 SF 86 he reported several delinquencies due to his divorce. In his May 2000 SF 86 he reported a April 2000 Chapter 7 Bankruptcy filing and child support owed of $6,000. (Exhibits 1, 2) When interviewed by the Defense Security Service (DSS) in February 2001, he fully discussed his financial situation and bankruptcy. (Exhibit 6; TR 94)
Several people provided letters of recommendation recommending Applicant for a security clearance. (TR 60-61; Exhibit L)
In February 2002 a vice present and general manager of his division provided a letter of commendation of his "outstanding efforts" that led to a significant success in an important program. (TR 56-57; Exhibit F)
His evaluations in 2001 and in 2002 noted he completed all tasks in "an outstanding fashion." (TR 58; Exhibit G) He has also received commendations for his excellent work. (TR 58-59; Exhibit J)
While in the military Applicant attended school in 1991 and was the distinguished graduate; he also received several awards. (TR 53-55; Exhibit B, D)
The NCO Evaluation Reports from 1996 to March 1997 were favorable. (TR 54-55; Exhibit C)
In February 2002 Applicant's Facility Security Officer provided a Letter of Compelling Need. (Exhibit E)
Enclosure 2 of the Directive sets forth adjudicative guidelines to consider in evaluating an individual's security eligibility. They are divided into conditions that could raise a security concern and may be disqualifying and conditions that could mitigate security concerns in deciding whether to grant or continue an individual's access to classified information. But the mere presence or absence of any given adjudication policy condition is not decisive. Based on a consideration of the evidence as a whole in evaluating this case, I weighed relevant Adjudication Guidelines as set forth below :
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.
Conditions that could raise a security concern and may be disqualifying include:
(1) 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;
(3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;
(6) Consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program.
Conditions that could mitigate security concerns include:
(3) Positive changes in behavior supportive of sobriety;
Conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
Conditions that could raise a security concern and may be disqualifying also include:
(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;
Conditions that could mitigate security concerns include:
(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;
(3) The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts;
(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided.
The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information. Then the Applicant presents evidence to refute, explain, extenuate, or mitigate in order to overcome the doubts raised by the Government, and to demonstrate persuasively that it is clearly consistent with the national interest to grant or continue the clearance. Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's security clearance may be made only after an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination, the Administrative Judge may draw only those inferences and conclusions that have a reasonable and logical basis in the evidence of record.
CONCLUSIONS
The Government has security concerns over Applicant's alcohol-related arrest in 1998, his subsequent diagnosis of Alcohol Dependence, and his continuing to drink alcohol. Conditions that could raise a security concern and may be disqualifying include: (1) Alcohol-related incidents away from work, such as driving while under the influence; (3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; and (6) Consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program.
Both the 1998 and the 2002 diagnoses of alcohol dependence were by military credentialed medical professionals. While his isolated DUI incident does not show a pattern, it was the basis for his discharge from the Army under honorable conditions. Despite these diagnoses of alcohol dependence while he was in the military in 1998 and again in 2002 after a alcohol evaluation and despite their recommendations for total abstinence from alcohol, Applicant has continued to drink, has not attended AA, and has not yet made a decision not to drink again; thus, doubt remains as to whether he is fully rehabilitated based on his incomplete 1998 treatment and failure to follow these experts recommendations.
Certainly, it was to his credit that Applicant voluntarily sought alcohol treatment while he was in the military in 1998; however, he did not complete it due to his discharge and has not subsequently sought any treatment nor involvement in AA. While he did detail positive changes in his behavior since the 1998 DUI, those changes alone are not sufficient to mitigate an alcohol concern after a diagnosis of either alcohol abuse (offered by his expert) or alcohol dependence (offered by the military experts). While his expert assessed him with only alcohol abuse, not dependence, he still has to meet a very high standard subsequent to this diagnosis to mitigate these concerns. Further, Applicant, despite the concerns raised by the Government, has made no affirmation that he would want to continue counseling, to regularly attend AA, or to achieve sobriety. Instead, he has consistently reported his plan to continue to drink and to avoid AA or any similar program. While he has an impressive work record and references, that alone is insufficient to mitigate under this guideline. Following diagnosis of alcohol abuse or alcohol dependence, an individual has to have successfully completed inpatient or outpatient rehabilitation along with after-care requirements, participate frequently in meetings of Alcoholics Anonymous or a similar organization, abstain 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 Thus, he fails to meet all conditions that mitigate (2) security concerns over his alcohol abuse/dependence diagnosis. His positive changes in behavior since 1998 do mitigate the isolated 1998 DUI conviction, but not the other security concerns raised by the consistent 1998 and 2002 diagnoses; while his expert diagnosed him with alcohol abuse, that diagnosis nevertheless requires also a high standard to mitigate which he has not met. After considering the Appendix I Adjudicative Process factors and the Adjudicative Guidelines, I rule against Applicant on subparagraphs1.c., and 1.d. under SOR Paragraph 1, but for him under 1.a. and 1.b.
While failures to disclose all of his financial difficulties on a 1999 SF 86 led the Government to raise security concerns over personal conduct issues, at the hearing the Department Counsel conceded that Applicant had mitigated (3) this concern. Both in a subsequent SF 86 and in the DSS statement, Applicant made prompt, good-faith efforts to correct the falsifications before being confronted with the facts. Hence, after considering the Appendix I Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant on subparagraph 2.a. under SOR Paragraph 2.
After reviewing the allegations of the SOR in the context of the Adjudicative Guidelines in Enclosure 2 and the factors set forth under the Adjudicative Process section, I make the following formal findings:
Paragraph 1. Guideline G: AGAINST APPLICANT
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: For Applicant
Subparagraph 1.c.: Against Applicant
Subparagraph 1.d.: Against Applicant
Paragraph 2. Guideline E: FOR APPLICANT
Subparagraph 2.a.: For Applicant
In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant.
1. This procedure is required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992 (Directive), as amended by Change 4, April 20, 1999.
2. Conditions that could mitigate security concerns include:
1.The alcohol related incidents do not indicate a pattern; 2. The problem occurred a number of years ago and there is no indication of a recent problem; 3. Positive changes in behavior supportive of sobriety; 4. Following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed inpatient or outpatient rehabilitation along with after-care 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.
3. Conditions that could mitigate security concerns include:
1. The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability; 2. The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily; 3. The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts; 4. Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided; 5. The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress; 6. A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information; 7. Association with persons involved in criminal activities has ceased.