DATE: September 26, 2006

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PHILIP S. HOWE

APPEARANCES

FOR GOVERNMENT

Julie R. Edmunds, Esq., Department Counsel

FOR APPLICANT

Shawn J. Coppins, Esq.

SYNOPSIS

Applicant is 53 years old, and a technician working for a defense contractor. He was arrested in 1993 for driving while impaired with a BAC of .14%. In 2004 he was arrested for the same offense. Earlier in 2004 he was arrested for having an open container of beer in the passenger compartment of his car as he drove home after work one night. Applicant has not mitigated the alcohol consumption and criminal conduct security concerns. 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 October 20, 2005, DOHA issued a Statement of Reasons ⁽¹⁾ (SOR) detailing the basis for its decision-security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of the Directive. Applicant answered the SOR in writing on November 8, 2005, and elected to have a hearing before an administrative judge. The case was assigned to me on February 8, 2006. On April 27, 2006, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The Government and the Applicant submitted exhibits that were admitted into evidence. DOHA received the hearing transcript (Tr.) on May 9, 2006.

FINDINGS OF FACT

Applicant's admissions to the SOR allegations are incorporated here as findings of fact. After a complete and thorough review of the evidence in the record, and full consideration of that evidence, I make the following additional findings of fact:

Applicant is 53 years old, divorced, and has one child. He works for a defense contractor as a lead technician. He has worked for this employer since 1979, and now works on the second shift from 2 p.m. to 10:30 p.m. daily. Applicant likes to fish and build model boats in his spare time. (Tr. 24, 29, 32, 39, 41; Exhibits 1, 3, A)

Applicant was arrested in October 1993 for driving while impaired. His blood alcohol content (BAC) was .14%. He pled guilty, paid a $650 fine, and had his driver's license suspended for 90 days. Applicant was drinking beer when he was arrested for this incident. After this arrest, Applicant resumed his drinking pattern of a beer every day. (Tr. 19, 20, 32; Answer)

Applicant was arrested on March 26, 2004, near his home for having an open container of alcohol, a can of beer, in his car as he drove home from work about 11 p.m. He had stopped at a convenience store, purchased the 16 ounce can of beer, and opened it in the parking lot and drank from while driving home. The police stopped Applicant, gave him a citation, and dumped the beer out. Applicant pled guilty, and paid a $175 fine. (Tr. 17, 18, 32-34; Exhibit 2, Answer)

In July 2004, Applicant was arrested for driving while impaired. His BAC was .14%. He pled guilty to this charge on September 9, 2004. His sentence was 10 months of probation, required to attend Alcoholics Anonymous (AA) meetings three times a week, submit to random drug screens, serve five days of community service, pay fines and court costs, attend a victim's panel session, and outpatient counseling. He completed all these requirements in September 2005. His probation ended early in July 2005. (Tr. 14, 15, 20, 23, 34-36; Exhibit 3, Answer)

Applicant entered the outpatient treatment program in September 16, 2004, and successfully completed the program on November 10, 2004. He entered the program with a diagnosis of "Alcohol Abuse (Mild)". Further treatment was not recommended by the substance abuse therapist, who also stated "a very good prognosis is available for a future free of further alcohol related social problems." Applicant watched video cassettes in the counseling sessions, and discussed them with the therapist. The therapist did not give Applicant any recommendations for his future alcohol use. After attending AA as required by the probation program, Applicant ceased his participation in August 2005 when he went to another state on assignment for his employer. While there, he drank with his co-workers at dinner, but he also claimed "I didn't go out in" that town. When he returned home he did not resume AA. Applicant did not drink alcohol while on probation, and claims to be abstinent since January 2006. Applicant has not had any alcohol related arrests or incidents since July 2004. (Tr. 20-23, 28, 35-38, 43, 46; Exhibits 3, 4, Answer)

Applicant consumed alcohol at times to excess and to the point of intoxication from 1993 to July 2004. He started drinking when he was 21, in about 1973. On October 7, 2005, Applicant answered DOHA interrogatories by stating he currently drank alcoholic beverages, having two to three beers on weekends, and he last had a beer on October 2, 2005. Applicant answered the SOR in November 2005 stating, in part, that "he no longer drinks any alcoholic beverages." Now he claims he has not consumed alcoholic beverages since January 2006. Applicant claims he does not have any alcohol in his home now. He claims he made a conscious effort to abstain from alcohol, and only drinks water and soft drinks now. His employer does not know about his three arrests for alcohol related incidents. (Tr. 26, 29, 30, 37, 38, 42, 44; Exhibit 3, Answer)

Applicant stated at the hearing that he had never been investigated or charged with any crime or misdemeanor not discussed at the hearing. The security clearance application (SCA), completed on January 15, 2004, lists a 1976 assault that was dismissed after probation. Applicant also listed on the SCA a 1995 driving while impaired arrest, but may have meant the 1993 arrest. The March 2004 and July 2004 arrests occurred after the SCA was completed and submitted to the Government. (Tr. 23, 24, 27; Exhibit 1)

Applicant submitted a character reference letter from a supervisor at his company. Applicant is considered to have made "bountiful and unique" contributions to the company. He is regarded as having a great work ethic. His supervisor regards him as striving for excellence in his performance. Applicant has had no disciplinary problems at work. Nor has he had any work related problems from alcohol. (Tr. 25, 26; Exhibit A)

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 has 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 the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information with 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.

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline that must be carefully considered in making the overall common sense determination required.

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. Those assessments include: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, and the extent of knowledgeable participation; (3) how recent and frequent the behavior was; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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 (See Directive, Section E2.2.1. of Enclosure 2). Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single condition may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or other behavior specified in the Guidelines.

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 that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). All that is required is proof of facts and circumstances that indicate an applicant is at risk for mishandling classified information, or that an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. ISCR Case No. 00-0277, 2001 DOHA LEXIS 335 at **6-8 (App. Bd. 2001). Once the Government has established a prima facie case by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. See Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that is clearly consistent with the national interest to grant or continue his security clearance. ISCR Case No. 01-20700 at 3 (App. Bd. 2002). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Exec. Or. 12968 § 3.1(b).

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

Guideline G: Alcohol Consumption: The Concern: 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. E2.A7.1.1

Guideline J: Criminal Conduct: The Concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness. E2.A10.1.1

CONCLUSIONS

The Government established by substantial evidence and Applicant's admissions each of the allegations in the SOR. Based on my consideration of all of the evidence in the record, I make the conclusions that follow regarding both security concerns.

The alcohol consumption Disqualifying Conditions (DC) that could raise a security concern are ; DC 1 (Alcohol-related incidents away from work, such as driving while under the influence or while impaired, or other criminal incidents related to alcohol use. E2.A7.1.2.1); and DC 5 (Habitual or binge consumption of alcohol to the point of impaired judgment. E2.A7.1.2.5). He has three alcohol induced incidents since 1993. Two incidents occurred after he completed his SCA, on which he answered a question about his 1993 incident putting him on notice of the gov interest in alcohol-related incidents.

No Mitigating Conditions (MC) apply to Applicant's case. His arrests show a recent pattern of alcohol consumption and the operation of a motor vehicle. His uncorroborated statement about his current abstention is not persuasive, especially viewed in the context of his drinking history. His AA participation was motivated not by his desire to stop drinking but was compelled by court order. When he no longer was required to attend, he stopped and resumed his drinking the following month. Based on these facts, I see no positive changes or commitment to sobriety, nor an understanding of the severity of his actions in view of his drinking history. Although he submitted evidence of some form of alcohol education program participation, he has not exhibited sufficient evidence of mitigating his alcohol propensities. In view of the incidents that occurred while his security clearance was pending, his evidence is not persuasively mitigating. I was not persuaded by his inconsistent statements on when he ceased drinking in late 2005, and then at the hearing Applicant asserts he stopped drinking in January 2006. His credibility is diminished substantially by these different statements. Therefore, I conclude the alcohol consumption security concern against Applicant.

The criminal conduct security concerns are: DC 1 (Allegations or admissions of criminal conduct, regardless of whether the person was formally charged. E2.A10.1.2.1); and DC 2 (A single serious crime or multiple lesser crimes. E2.A10.1.2.2). Applicant has three alcohol related arrests, involving his automobile, two for driving while impaired with BAC of .14%, and one for drinking while driving home.

There are no MC applicable here either. Two incidents occurred after Applicant completed his SCA and therefore are recent. Three incidents are not isolated, particularly the last two. Applicant voluntarily committed all the actions, was not acquitted of any charge but pled guilty each time, and there is no clear evidence of successful rehabilitation. Therefore, I conclude this security concern against Applicant.

In addition to the enumerated disqualifying and mitigating conditions, I considered Applicant's age of 51 and maturity at the time the latest two incidents occurred, the seriousness of the alcohol offenses and their surrounding circumstances, the proximity of each incident to the other, his inclination to drink while driving after work, his credibility during the hearing, the significant BAC of .14% in the 1993 and 2004 incidents, and the likelihood that the conduct will recur in the future. I weighed this evidence in the context of the whole person concept, and found Applicant did not mitigate the security concerns. For all these reasons, I conclude the Guideline G and J security concerns 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

Paragraph 2. Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

DECISION

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 or continue a security clearance for Applicant. Clearance is denied.

Philip S. Howe

Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive).