DATE: February 16, 2007
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SSN: --------------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JOHN GRATTAN METZ, JR
APPEARANCES
FOR GOVERNMENT
Nichole L. Noel, Esquire, Department Counsel
FOR APPLICANT
Spencer M. Hecht, Esquire
SYNOPSIS
Applicant's alcohol abuse--punctuated by alcohol-related arrests in September 1997, January 2000, and April 2004--was not mitigated because Applicant demonstrated little insight into his alcohol abuse. He resumed drinking after the alcohol counseling/treatment that was ordered following each of his arrests. Clearance denied.
STATEMENT OF THE CASE
Applicant challenges the 23 December 2005 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of alcohol consumption and criminal conduct. (1) Applicant answered the SOR 14 January 2006, and requested a hearing. DOHA assigned the case to me 2 March 2006 and I convened a hearing 25 April 2006. DOHA received the transcript 5 May 2006.
Applicant admitted the Guideline G (Alcohol) allegations of SOR, except for SOR 1.c. (he disputes the dates of treatment and SOR 1h. (he disputes the treatment diagnosis). Accordingly, I incorporate his admissions as findings of fact. He is a 33-year-old research analyst for a defense contractor seeking to retain the access to classified information he has held since May 2003.
Applicant has a history of alcohol abuse from approximately 1989 to December 2004, punctuated by three alcohol-related arrests. Applicant began drinking in high school. He did not begin to drink seriously until he entered college in 1991 (G.E. 2), and occasionally drank to the point of intoxication. After he graduated from college in 1996, (2) he drank in bars about twice per week, consuming 4-6 beers each time, then driving home (Tr. 71).
In September 1997, (3) at age 24, Applicant was arrested for DUI when he was stopped for speeding. He failed a field sobriety test (FST) and his blood alcohol content (BAC) tested .11%, after drinking five beers in three hours. In November 1997, Applicant pled not guilty, but was found guilty, and given probation before judgment. Applicant was awarded probation to November 1999, conditioned, in part, on abstaining from alcohol consumption, refraining from driving after consuming alcohol, enrolling in and completing a specified treatment program, and attending a victim impact panel in March 1998. (G.E. 4). Applicant entered the treatment program in November 1997, and completed its requirements (G.E. 5). (4) At his initial evaluation, he was given a complete alcohol and drug history, psycho-social evaluation, and the M.A.S.T. test. He was evaluated as a non-problem drinker, but completed a 12-week alcohol education program. Applicant testified (Tr. 77) that he did not drink while on probation, which was abated sometime in summer 1999 (approximately 18 months), but began drinking again shortly after his probation was abated. When Applicant resumed drinking, he said he did so minimally, which meant that about once a week he would go out with co-workers after getting off work around 10 p.m., consume 4-6 beers in two or two-and-a-half hours, and then drive home (Tr. 78-80).
In January 2000, at age 26, Applicant was again arrested for DUI, when he was found stopped at the side of the road, asleep in the driver's seat, with his engine running (G.E. 5). (5) He again failed an FST, but his time refused a BAC test, because he knew there was a distinct possibility he was over the legal limit (Tr. 141). In August 2000, Applicant pled not guilty, but was found guilty by the judge. He was awarded 60 days in jail, suspended, and 18 months probation, with special conditions, including abstaining from alcohol consumption, refraining from driving after consuming alcohol, enrolling in and successfully completing a specified 26-week treatment program, and attending Alcoholics Anonymous (AA) or other self-help group for 26 weeks (G.E. 7). (6)
In November 2000, the treatment program reported Applicant's successful completion of the 26-week program to his probation officer (G.E. 8), and his scheduled start of the 12-week aftercare program later that month. His prognosis was reported as "excellent provided he completes the 12-week Aftercare Program which he is scheduled to begin on 11/8/2000; continue regular AA/NA meeting attendance; maintain his optimistic attitude and outlook regarding personal growth and positive change, and remains committed to the self exploration/recovery process that seems to have served him so well while actively engaged in the 26-week DWI Treatment Program." (7) In December 2000, the program reported his successful completion of the 12-week aftercare program in late November 2000 (8) to his probation officer (G.E. 8), using similar language: [Applicant's] prognosis is excellent provided he continues regular AA/NA meeting attendance, and abstains from all future use of psychoactive substances." (9) (Emphasis added) Based on these assessments, Applicant's probation was abated in August 2001, fully six months before it would have otherwise expired (G.E. 7). (10)
During Applicant's background investigation for his original clearance, Applicant disclosed both his arrests and the follow-up treatment. As a result of the concerns expressed by the investigating agent, Applicant obtained a summary of his 1997 program (G.E. 4) and obtained an alcohol evaluation from a third treatment program (G.E. 11) in April 2003. (11) He was not found to exhibit any alcohol consumption of clinical concern, and was ultimately granted his clearance. (12)
Between his release from probation in 2001 and January 2004, Applicant testified that he consumed alcohol 5-6 times per year, consuming 4-6 beers each occasion (Tr. 104-106). In January 2004, at age 30, he was arrested a third time for DUI, when he was stopped for speeding, not only exceeding the posted speed limit by nearly 10 miles per hour, but failing to slow down for three police vehicles, on both shoulders of the road, with lights flashing, because of another stop the officers had just made (G.E. 9). He failed an FST, and again refused a BAC test, telling the officer he would fail. (13) Applicant pled not guilty, but was found guilty, and sentenced to a year in prison, with all but 30 days suspended. He was given two years supervised probation, conditioned on completing an alcohol-counseling program and installing an ignition interlock system on his car for two years. His 30-days in jail (reduced to 25 for good behavior), was served on work-release. He was released from probation the week before the hearing (Tr. 63, 116).
In May 2004, at the behest of his criminal attorney, Applicant was re-evaluated by the same treatment program that provided the favorable evaluation in April 2003. The same evaluation procedures were used as for the first evaluation, albeit administered by a different staff member. (14) The counselor considered Applicant guarded and minimizing of his alcohol use history, ultimately concluded that he was in early state alcoholism, and recommended that he complete the 26-week program (G.E. 11). Applicant agreed, and completed the program satisfactorily in November 2004. However, the discharge summary was not favorable, noting that Applicant was minimally compliant throughout the program, rendering a diagnostic impression of alcohol dependence in denial, and recommending abstinence and AA attendance (G.E. 8).
In March 2006, Applicant was evaluated by an expert board certified in general psychiatry, child and adolescent psychiatry, and forensic psychiatry, for the express purpose of rendering an opinion regarding Applicant's alcohol use as it relates to the disqualifying conditions (DC) and mitigating conditions (MC) under Guideline G. (15) On 18 April 2006, the expert rendered a forensic psychiatric opinion that "[Applicant]'s alcohol use is characterized by most of the mitigating conditions and few of the potentially disqualifying conditions as provided in Guideline G. . ." (A.E. G). (16) In rendering this opinion, he relied upon his interview with Applicant, (17) what appears to be all the government exhibits, the complete DSS investigation (not produced at hearing), DSS interrogatories dated April 2003 (also not in the record), and unsigned copies of Applicant's character affidavits (A.E. A-F). (18) He asked for, but did not receive from Applicant's counsel, releases of information so he could speak directly to Applicant's primary care provider and the three prior alcohol treatment centers. At hearing, the expert testified (Tr. 165-169) that to a reasonable degree of medical certainty, Applicant "does not now, and I don't believe he has in the past, met the criteria for alcohol dependence" and does not now, but might have met in the past the criteria for alcohol abuse. The expert acknowledged that Applicant showed good judgment when not intoxicated. He also acknowledged that alcohol abuse would be an appropriate diagnosis for Applicant any time within 12 months of any of his three DUIs (Tr. 186-187), and that drinking while on probation when abstinence was a condition of probation would satisfy one of the seven criteria for a diagnosis of alcohol dependence (Tr. 188). He testified that he did not have the complete treatment records from Applicant's three programs, even though he requested Applicant's attorney to provide them (Tr. 193). During his interview with Applicant, Applicant stressed the importance of getting his security clearance (Tr. 194-195). The expert does not recall specifically discussing with Applicant any issues of alcohol denial or minimization of his alcohol use. Nor did he attempt to resolve any inconsistencies between the level of use reported by Applicant and the level of use recorded on his behalf in his treatment programs (Tr. 197-198).
In the course of his testimony, Applicant challenged the credentials of the treatment program personnel who may have recorded diagnoses of his alcohol use. He also claimed to not understand the term "psychoactive substances" as used in the treatment records from his second treatment program (G.E. 8). He claimed that none of his treatment counselors ever told him to abstain from alcohol permanently, or told him that he was an alcohol abuser or alcohol dependent. He thinks the requirement for abstention was only for the period of his probations. However, he acknowledges that he consumed alcohol during his last probation, despite the judge's order that he not (Tr. 116). He testified that he under-reported his alcohol consumption to the counselors at his second treatment program (G.E. 8; Tr. 95) He stated he last drank to the point of intoxication at the 2005 Preakness. He acknowledged that the favorable information contained in G.E. 8, information that he and his attorney would rely on at sentencing to obtain a more favorable sentence, could only have come from him (Tr. 136-139). However, he also admitted that he got essentially nothing out of his attendance at AA meetings. He says he is not alcohol dependent, but admits he has abused alcohol in the past.
. In August 2000, Applicant was the object of a peace order that was dismissed amicably in September 2000. In July 2004, he was issued a citation for failing to obey a police officer. The charge was never prosecuted.
Applicant has an exemplary work record. His supervisors and coworkers highly recommend him for access to classified information. (19) He has never had a security violation, and has been trusted as a courier for classified information.
POLICIES AND BURDEN OF PROOF
The Directive, Enclosure 2 lists adjudicative guidelines to be considered in evaluating an Applicant's suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed whenever a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guideline is Guideline G (Alcohol Consumption).
Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government's case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.
Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their 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. (20)
CONCLUSIONS
The government established a case for disqualification under Guideline G DCs 1 and 5. (21) I have also considered, in part, DCs 4 and 6. (22) Applicant failed to mitigate the security concerns. In reaching this conclusion, I have examined the facts of this case under all the mitigating conditions and conclude that none apply. Mitigating condition 1 (23) does not apply as Applicant's three DUIs in just over six years (24) constitute a clear pattern of abuse. The problem is recent (MC 2), (25) with the most recent DUI just over two years ago and the most recent intoxication less than a year ago. With the exception of some increase in athletic activity and the fact that his girlfriend is less of a drinker than he, there is little evidence of a change in lifestyle (MC3). (26) Finally, setting aside the question of the credentials of the program, Applicant's most recent treatment program was not a success, he does not go to AA or similar organization, he has not abstained from alcohol for at least a year since his last treatment, and he has no current prognosis, much less a favorable one (MC 4). (27)
What mitigating evidence Applicant produced is insufficient to overcome the security concerns raised by his alcohol abuse. He has a long history of drinking to excess, with adverse consequences: three arrests between September 1997 and January 2004. While he has moderated his conduct such that he has had no alcohol-related arrests since January 2004, his resumption of alcohol consumption casts doubt on his long-range ability to avoid excessive alcohol consumption. His pattern since September 1997 has been fairly consistent: DUI, followed by participation in some kind of alcohol program to obtain a favorable judicial result, some period of abstinence, resumption of drinking to excess, new DUI. (28) Applicant cannot attribute his conduct to youthful immaturity. He was 24 at his first DUI, 30 at his most recent.
The expert testimony does little to help Applicant's cause. While I can accept his conclusion that Applicant does not currently exhibit behavior meeting the criteria for alcohol abuse or dependence, there are many reasons for discounting his testimony and report. By his own admission, he did not have access to the actual treatment records despite the fact he requested them. Thus, his assessment is based on incomplete information. He applied no critical analysis of the records he did have, blindly accepting Applicant's statements of his past alcohol consumption, and not challenging him where that information conflicted with the past alcohol consumption recorded in Applicant's treatment records. The sole exception to this was the careful deconstruction he did of the treatment records regarding the credentials of the treatment personnel. In his analysis of the Guideline G conditions carefully refers to "mitigating conditions" on one hand, but "potentially disqualifying conditions" on the other. It is difficult to imagine an assessment aimed more squarely at dictating my decision.
Applicant's behavior indicates no real acceptance of responsibility for his actions. He refused breath tests in two cases, knowing he was over the legal limit. He pled not guilty in each of his three cases. More troubling, however, is the fact that Applicant appears to have no insight into the potential problems raised by his continued consumption of alcohol, or the problems caused by his excessive consumption of alcohol. The sum total of his thoughts on why he got in trouble is that he got behind the wheel of a car after drinking. One conclusion about Applicant suggested by this record is that he would do almost anything to retain his clearance. On his first two DUIs, he appears to have done only what was required to secure a favorable sentence. Once off probation, he resumed drinking. When he perceived that those two arrests might jeopardize his clearance, he sought a favorable alcohol evaluation. He got his clearance, but continued to drink to excess, leading to another DUI. This time, he did not get a favorable evaluation. And this time, he did not even bother to remain abstinent while on probation. Instead evidence that the third DUI arrest was a watershed event for him, he submitted an eve-of- hearing report and evidence that he has re-entered the same program that gave him the negative evaluation in December 2004--with no evidence whatsoever about what the goal is, his progress toward that goal, or an assessment of his prospects. Furthermore, the state of this record is such that I would not consider retaining his clearance without professional evaluation that included not only the complete treatment records from his past alcohol programs, but the more extensive alcohol consumption of alcohol that Applicant revealed in his testimony, consumption that was not known to the treatment programs at the time or to his expert in March 2006. At a minimum, the record evidence establishes his alcohol abuse and he had the burden of establishing extenuation, mitigation, or rehabilitation to support the clearly consistent standard--a burden he did not meet. While his alcohol consumption appears under control currently, his renewed consumption after completing several alcohol treatment programs raises ongoing concerns. I cannot conclude that he is unlikely to return to abusive levels of drinking or experience more alcohol-related incidents. Accordingly, I resolve Guideline G against Applicant.
The government established a case for disqualification under Guideline J. (29) Applicant's DUIs involve criminal conduct as well as manifest poor judgment. As long as alcohol appears to be a problem for Applicant, he is still prone to criminal conduct. The two other incidents alleged contain nothing of security significance. I resolve Guideline J against Applicant.
Paragraph 1. Guideline G: AGAINST APPLICANT
Subparagraph a: Against Applicant
Subparagraph b: Against Applicant
Subparagraph c: Against Applicant
Subparagraph d: Against Applicant
Subparagraph e: Against Applicant
Subparagraph f: Against Applicant
Subparagraph g: Against Applicant
Subparagraph h: Against Applicant
Subparagraph i: Against Applicant
Paragraph 2. Guideline J: AGAINST APPLICANT
Subparagraph a: Against Applicant
Subparagraph b: For Applicant
Subparagraph c: For Applicant
DECISION
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 Applicant. Clearance denied.
1. Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended (Directive).
2. With a bachelor's of science degree in biology. During his course of study, he took courses in psychology and a course in anatomy/physiology, but none specifically dealing with medications or substance abuse (Tr. 135-136).
3. The December 1997 date alleged in SOR 1.b. is incorrect. G.E. 4 reflects that the arrest occurred in September 1997 and Applicant was tried and sentenced in November 1997.
4. G.E. 5 was procured by the Defense Security Service in May 2002, as part of Applicant's original background investigation. Although the treatment program provided a completion certificate dated arch 2000, it is likely that date is incorrect, based on the stated length of the program, the abatement of Applicant's probation, and his stated dated of his resumption of drinking.
5. He had been at a party at a friend's house, from about 10:30 p.m. until 4-5 a..m. He does not remember how many beers he had to drink, but realized after he had driven away from the house that he was too intoxicated to drive any further, and pulled off the road.
6. The conditions of probation largely follow the recommendations of the specified treatment program (G.E. 8), after the April 2000 evaluation obtained by Applicant's criminal attorney. During that evaluation, Applicant described his current alcohol consumption as 8-10 beers per sitting, three times a year. He reported four months abstinence in the last year, and the longest period of complete abstinence as four months over the last five years. He was classified as low probability of substance dependence, but recommended for treatment because the January 2000 DUI was his second DUI. Applicant began the 26-week program the end of April 2000, and would have been partially through the program at the time his sentence was awarded.
7. Applicant testified (Tr. 54) that this treatment program was merely educational, like his first program in 1997. However, the November 2000 letter belies that testimony with its description of the scope of the program. First, the program letterhead describes the program as "A Treatment for Alcoholism and Chemical Addiction," accredited by the same nationally-recognized accreditation organization that accredits hospitals and other health organizations. Second, the program cites Applicant's active participation in verbal and written group therapeutic activities, completion of five take-home writing assignments--including denial, risk factors, and relapse prevention--in full detail, regular attendance at AA meetings with positive effect on his recovery efforts, complete abstinence from psychoactive substance use confirmed by six random urinalyses and seven breathalyzer tests, all administered on different dates and all tested negative, and his positive influence on the recovery efforts of others in the program with him. Finally, the program concluded that Applicant had taken "the necessary corrective measures to optimize his potential for uninterrupted sobriety, and he consistently demonstrated a desire for personal achievement, free from the use of alcohol. He seems to be taking pride in maintaining day-to-day abstinence from psychoactive substance use, and seems willing to maintain the necessary self-exploration process will (sic) maximize his potential for uninterrupted sobriety, while simultaneously minimizing his risk for relapse. (Emphasis added)
8. Of course, it is physically impossible for Applicant to have completed 12-weeks of aftercare between early November and late November, but neither the government nor Applicant spent any time addressing this discrepancy.
9. The December 2000 letter supported this conclusion with much of the same language as the November 2000 letter, but further noted that "[Applicant] exhibits no denial of the severity of his substance abuse problem." (Emphasis added)
10. Technically, this was abatement of probation supervision which differs from early termination of probation supervision because the court retains jurisdiction over the Applicant until the expiration date of probation, and supervision can be re-imposed if the Applicant is charged with a new offense.
11. This program was certified by Applicant's state department of health and mental hygiene.
12. Applicant was given an initial interview, MAST, Johns Hopkins Twenty Questions and a psycho-social history. He disclosed his past DUIs and treatments, revealed that his second treatment had diagnosed him as an alcohol abuser, and reported his alcohol consumption since November 2001 was on "six special occasions," as few as one glass of wine to as many as 6-8 beers on New Year's Eve. Applicant described no behavior that would satisfy any criteria for alcohol dependency.
13. Applicant testified (Tr. 108-109) that he had consumed five beers at a bar after work over 2½-3½ hours.
14. Applicant reported having 2-3 drinks approximately twice per month over the last year.
15. For which purpose he had been paid $3,000 by Applicant as of the date of the hearing (Tr. 206).
16. The expert also happily provided a condition-by-condition analysis of all DCs and MCs under Guideline G.
17. Notable during the mental status, Applicant "produced goal-directed thought, the content of which was regarding his security clearance" and when asked "if he might hypothetically consider utilizing professional treatment methods to reduce his use of alcohol he replied enthusiastically. He was willing to seek individual therapy with a professional and he was also willing to ask his physician about being prescribed" medication that leads individuals to avoid alcohol. Applicant also disclosed to the expert that in January 2006, he had returned to the treatment program he last attended for a "refresher course" regarding alcohol abuse, the content of which was not described to the expert or introduced at hearing.
18. Introduced in signed form, and confirmed by the expert to be substantially identical to the unsigned ones he reviewed.
19. I note that Applicant's character references in A.E. A-F extol his virtues in virtually identical language, particularly the fact that Applicant's "alcohol treatment has become a priority" and some add "in his life."
20. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).
21. E2.A7.1.2.1. 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 abuse; E2.A7.1.2.5. Habitual or binge consumption of alcohol to the point of impaired judgment;
22. E2.A7.1.2.4. Evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; E2.A7.1.2.6. Consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program. I have considered these disqualifying conditions in part for a number of reasons. First, although the credentials of the staff at Applicant's treatment programs are not stated clearly enough to establish that any of them were licensed clinical social workers, the last two programs Applicant attended are clearly recognized treatment programs. Second, Applicant implicitly accepted the validity of these programs both when he heeded his attorney's advice to enter the programs, and when he complied with sentencing requirements to complete them. Third, Applicant admitted that he was relying on the favorable prognosis from those programs, particularly the second program, and completion of the alcohol treatment programs to influence the judges to award comparatively light sentences, and, in the case of the second program release Applicant early from supervised probation. Fourth, the judges clearly accepted the programs as recognized alcohol treatment programs in awarding comparatively light sentences, ordering Applicant to complete the programs, and in one instance releasing Applicant from supervised probation in August 2001. Finally, common sense requires that the potential consequences of renewed drinking by an individual who has Applicant's DUI history and length of alcohol treatment and AA be carefully considered regardless of the established qualifications of the program.
23. E2.A7.1.3.1. The alcohol related incidents do not indicate a pattern;
24. While I appreciate the expert's generous attempt to analyze the DCs and MCs , I must decline his help. His expertise does not lie in applying the adjudicative conditions in the clearance environment. Thus, his opinions in this area are no better than lay opinions, which I may consider, but which do not bind me. Finally, application of the adjudicative conditions is the ultimate fact to be decided, an area exclusively reserved to me.
25. E2.A7.1.3.2. The problem occurred a number of years ago and there is no indication of a recent problem;
26. E2.A7.1.3.3. Positive changes in behavior supportive of sobriety;
27. E2.A7.1.3.4. Following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed. . .outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of Alcoholics Anonymous or similar organizations, has abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a . . . licensed clinical social worker who is a staff member of a recognized alcohol treatment program.
28. Part of the difficulty in this case is the fact that Applicant undercut his credibility with such testimony as being a biology major who did not understand what "psychoactive substance" meant.
29. E2.A10.1.2.1. Allegations or admissions of criminal conduct, regardless of whether the person was formally charged; E2.A10.1.2.2. A single serious crime or multiple lesser offenses.