DATE: January 17, 2006

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

APPEARANCES

FOR GOVERNMENT

Robert E. Coacher, Esq., Department Counsel

FOR APPLICANT

Jerry L. Wood, Esq.

SYNOPSIS

Applicant has a history of alcohol-related incidents from 1992-2003. He fails to recognize he has an alcohol problem and continues to become intoxicated approximately twice each year. Clearance is denied.

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 8 March 2005, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision ⁽¹⁾-security concerns raised under Guideline G (Alcohol Consumption) of the Directive. Applicant answered the SOR in writing on 1 April 2005 and elected to have a hearing before an administrative judge. The case was assigned to me on 27 July 2005. On 2 November 2005, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 17 November 2005.

FINDINGS OF FACT

Applicant is a 48-year-old senior buyer for a defense contractor. Applicant has consumed alcohol to the point of intoxication, on occasion, for the past 30 years and continues to do so. He began drinking alcoholic beverages when he was 18 years old. He drank to the point of intoxication approximately once every month or every other month. After he was married in 1980, his drinking decreased and he became intoxicated only about twice a year. He divorced in 1981.

In 1992, he consumed alcoholic beverages at a Christmas party for the company where his girlfriend worked. He was arrested for public intoxication after intervening with police who were trying to arrest another man for indecent exposure. Ex. 3 at 7.

In January 2000, Applicant was arrested for driving while intoxicated (DWI). He was stopped by a law enforcement officer who observed Applicant's vehicle traveling 82 mph in a 60 mph zone and leaving the pavement twice. Applicant admitted he had consumed four to five beers that evening. The arresting officer reported Applicant had blood-shot eyes, had a strong odor of alcoholic beverages, spoke with slurred speech, failed several field sobriety tests, and appeared extremely intoxicated. Ex.6 at 4, 6-7. Applicant refused a different officer's request he take an intoxilyzer test. That officer noted applicant had bloodshot, watery eyes and had a strong odor of alcoholic beverages. Id. at 8. Applicant was charged with DWI, but was convicted, on his plea of guilty, of obstructing a highway passageway. ⁽²⁾ He was sentenced to a fine and 30 days in jail. Id. at 1.

In July 2002, Applicant was arrested for DWI. He was stopped by police because the car was weaving in and out of the lane. One of Applicant's passengers had asked him to stop and let her drive, but he had kept driving. Ex. 5 at 4. After he was stopped by police, Applicant refused to provide a breath specimen for testing. At trial in November 2002, Applicant pled not guilty, but was found guilty by a jury. The court sentenced him to 30 days in jail, a fine and court costs, and suspension of his driver's license for 12 months. Ex. 5. Applicant asserts that, as a result of this conviction, he was also ordered to attend two Alcoholics Anonymous (AA) classes. When he was interviewed by a Defense Security Service (DSS) agent in May 2003, Applicant still had not attended the classes. He did not plan to attend until December 2003, more than 16 months after his arrest and 13 months after the court ordered him to do so. He did not continue the program after completing the required two classes. Applicant claims he only had three beers before he was arrested. He seems to blame his conviction on two of his coworkers who refused to testify for him. Ex. 3 at 7.

In November 2003, Applicant was driving his motor vehicle when he was pulled over by police because the light over his license plate was out. He was arrested for DWI. Applicant pled not guilty and was acquitted of the offense. Ex. 4. In January 2005, Applicant had the record of his arrest and trial expunged from state records. Ex. A. At the hearing, Applicant insisted he only had one beer that evening. Tr. 17, 22. Yet in a statement accompanying his interrogatories, Applicant admitted having three beers that evening. Ex. 3 at 7.

Applicant does not believe he has an alcohol problem and has never sought any treatment for such a condition. He continues to become intoxicated approximately two times a year. Tr. 27.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

CONCLUSIONS

In the SOR, DOHA alleged Applicant consumed alcohol to the point of intoxication from age 18 until at least April 2004 (¶ 1.a); was arrested in November 2003 for DWI, but was acquitted (¶ 1.b); was arrested for DWI in July 2002 and convicted (¶ 1.c); was arrested for DWI in January 2000 and convicted of the offense (¶ 1.d); and was arrested in December 1991 for public intoxication (¶ 1.e). Applicant admitted the allegations in ¶¶ 1.c and 1.e, but denied the other allegations. 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. Directive ¶ E2.A7.1.1.

The Government's evidence established potentially disqualifying conditions under Guideline G. Applicant was involved in four alcohol-related incidents away from work. DC E2.A7.1.2.1. None of the mitigating conditions apply.

Applicant asserts his alcohol-related incidents do not indicate a pattern (MC E2.A7.1.3.1) and his 1991 arrest is mitigated by the passage of time (see MC E2.A7.1.3.2). I disagree. Applicant was arrested on four different occasions for alcohol-related incidents within 13 years of his hearing. Although his 1991 incident occurred some 14 years ago, it is relevant to Applicant's security worthiness as it is part of a pattern of alcohol-related incidents showing poor judgment and an inability to learn that alcohol is a problem in his life.

In 2000, Applicant pled guilty to obstruction of a passageway, not DWI. In 2003, Applicant was acquitted of DWI. Nevertheless, both of these incidents were alcohol-related such as to be cognizable under Guideline G.

I have considered Applicant's contention that his former girlfriend, with whom he broke up in October 1999, has tried to have him arrested numerous times without cause. Ex. 3 at 7. After observing his demeanor and listening carefully to his testimony, I find his testimony is not credible.

Applicant does not have an appreciation for the problems his consumption of alcohol has caused him and refuses to take responsibility for his drinking. After considering all of the circumstances of the case, the disqualifying and mitigating conditions, and the adjudicative process factors of the Directive ¶ 6.3, I find against Applicant.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline G: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant

DECISION

In light of all of the circumstances in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

James A. Young

Administrative Judge

1. As required by Exec. Or. 10865 (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended and modified (Directive).

2. The SOR ¶ 1.d incorrectly alleges Applicant pled guilty to DWI.