DATE: December 29, 2006

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

KATHRYN MOEN BRAEMAN

APPEARANCES

FOR GOVERNMENT

Braden M. Murphy, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant has mitigated security concerns over his two alcohol-related arrests and problem drinking as he provided evidence that he has reformed his conduct and curtailed his drinking and has had no incidents since August 2004. He completed the alcohol education program and now has made a decision never to drink to excess. His managers all endorse him for a security clearance as he has demonstrated excellent performance on the job without any evidence of recurrence of an alcohol problem since 2004. Clearance is granted.

The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant on June 22, 2006. 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 alleged specific concerns over alcohol consumption (Guideline G) in paragraph 1. Applicant responded to these SOR allegations in an Answer notarized on July 16, 2006, where he admitted all of the allegations with explanation and requested a hearing.

Department Counsel on July 20, 2006, indicated the case was ready to proceed. The matter was assigned to me on July 25, 2006. Subsequently, a mutually convenient date for hearing was agreed to. A Notice of Hearing, issued on August 1, 2006, set the matter for August 16, 2006, at a location near where Applicant works and lives.

At the hearing the Government offered three exhibits which were admitted into evidence. (Exhibits 1-3; TR 14-17) Applicant testified, called two witnesses, and submitted Exhibits A through F. Government's counsel indicated no objection, so the documents were admitted into evidence. (TR 17-25) The transcript (TR) was received on August 28, 2006.

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, 25 years old, has worked for a defense contractor in State #1 from January 2004 to present. He completed a Security Clearance Application (SF 86) in January 2004 to obtain a Secret clearance and was granted an interim clearance. (Exhibit 1; TR 30-32, 39) He was recently promoted and now earns $59,700. (Exhibit A; TR 61)

Applicant is single and has a BS degree from a state university in State #1 in December 2003. He plans to enroll in a masters degree program. (Exhibits 1; TR 30)

Applicant began to drink when he was in high school. (TR 34) While in college Applicant would drink two to three times a week and become intoxicated one to two times a week after six to twelve beers. (TR 34) When Applicant was attending the university, the police came to a house party and did a random check of identification. He was under 21 and drinking beer, so he was handcuffed and put in a police car. He was given a citation and released; he hired a lawyer and paid a fine and received 15 to 25 hours of community service. He also received two years of probation with a condition to not have any alcohol-related violations. While he continued to drink in college, he successfully completed the terms of his probation. (Exhibits 1, 2, 3; TR 33, 35-37) (TR 34-35, 38, 55)

Again in August 2004 after he had been on a "float" trip where he had been drinking beer, more than twelve cans but less than 24, he was charged with Driving While Intoxicated (DWI) and failure to drive within a single lane. He failed a field sobriety test, was taken to the police station and booked; his breathalyzer showed .223 BAC. He knew the state legal limit was .08. He plead guilty, was convicted, fined, required to attend a substance abuse traffic offender program (a fifty hour educational program for five weeks), and required to perform community service. In December 2004 Applicant received two years probation conditioned on his not committing future alcohol offenses which was to end in December 2006. He had his license suspended for thirty days and had sixty days where he could only drive to work. In October 2004 he maintained he only drank socially on the weekends. He has not had any alcohol counseling. (Exhibit 2; TR 40-52, 57)

In March 2006 he attested that he received treatment from January to February 2005, but he continued to drink two to three times a week and on the weekend drank six to eight drinks. He intended to continue to drink socially. (Exhibit 3; TR 59-61)

In August 2006 Applicant testified since his 2004 DWI he has drunk to the point of intoxication on occasion, such as a special event. He was last intoxicated on Memorial Day in May 2006 and again in July 2006 when he had 12-18 beers. He has made changes, so that problems with alcohol would not recur. However, he intended to continue to drink on a regular basis. He did not believe he needed to stop drinking completely, but will avoid becoming intoxicated. He testified he plans to curtail his drinking and not to drink anymore to the point of intoxication. (TR 27-28; 53-55, 58; 63) He has never been diagnosed with alcohol dependence or abuse. (TR 57) Applicant is responsible financially and owns his own home. (Exhibits A, B, D)

Applicant's supervisor, a program manager who has a Top Secret clearance, has known Applicant since April 2005 on a daily basis. He has assessed him as being an excellent engineer. He has received exemplary reviews for his performance as his has excellent technical abilities and sound leadership skills. He has never had reason to question Applicant's conduct. He recommended him for a security clearance. (Exhibits C, E; TR 67-70; 70-76)

The company manager who hired Appellant in 2003 testified on his behalf. He supervises 630 engineers in the department where Applicant has worked. He assessed Applicant as a potential future leader of the company as he is a tremendous employee. He recommended Applicant for access to classified information. (TR 77-79; 79-86; 86-88)

Two other supervisors recommended Applicant via a July 21, 2006 letter where they assessed him as one of the top performers as he recently was promoted to a Grade Level 2 after only two and one-half years of service, which was an outstanding achievement. They endorsed Applicant and recommended that he be allowed to retain his security clearance as his current assignment requires a security clearance. He has demonstrated maturity on the job. (Exhibit F)

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.

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.

The Government established security concerns over Applicant's problem drinking and his two alcohol-related arrests in 2000 and in 2004. Applicant's conduct falls within DC 1 and 5 ⁽²⁾

: alcohol-related incidents away from work and habitual or binge consumption of alcohol to the point of impaired judgment as he developed a pattern of social drinking to excess. While Applicant attended a required alcohol-education program after his 2004 conviction, he has never been diagnosed with an alcohol dependence or abuse problem. He has continued to drink intermittently at times to the point of intoxication as recently as July 2006.

However, Applicant mitigated the alcohol-related security concerns as he provided evidence to demonstrate that he falls within mitigating condition (MC) 3: ⁽³⁾ positive changes in behavior supportive of sobriety. Applicant's two arrests and periods of drinking at times to excess occurred while he was in college and shortly after he graduated. He has never been diagnosed with alcohol dependence or abuse. He has in all other areas of his life shown maturity as he has performed responsibly at work and has a stable financial record. Indeed, he has received exemplary reviews for his performance as his has excellent technical abilities and sound leadership skills. His supervisors have seen no evidence of alcohol-related issues at work.

Understanding that alcohol abuse can impact on his security clearance, Applicant has confronted these alcohol concerns by making a decision to curtail his drinking and not to drink anymore to the point of intoxication. While his decision is recent, he provided evidence that alcohol does not affect his work performance and that he has otherwise demonstrated maturity. Significantly, he had an excellent record of performance on the job for the three years where he has worked for the defense contractor. To his credit Applicant is viewed by four of his supervisors as functioning at a high level. He never came to work under the influence of alcohol. Overall Applicant is viewed as an excellent employee at all times. All four of his supervisors recommended that his security clearance be retained.

Also, in evaluating the relevance of an individual's conduct, I have considered the following "whole person" factors ⁽⁴⁾: first, it is unlikely that Applicant will continue to drink after he has been advised of the security significance of drinking to excess. After he received the SOR he re-evaluated his approach to alcohol and has decided to curtail his drinking. As a young professional with a bright future, I believe he will motivated to demonstrate his maturity with respect to alcohol as he has demonstrated in other areas of his life. Given the level of confidence in him expressed by his managers who see him on a daily basis, I feel assured that the possibility of an alcohol-related incident recurring is unlikely. The circumstances of the earlier incidents are unlikely to recur as he has made a commitment to his job and to a graduate school program in order to advance professionally.

In sum, Applicant has demonstrated positive changes in behavior supportive of sobriety. After considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant on subparagraphs 1.a. though 1.d. under SOR Paragraph 1.

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: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

Subparagraph 1.d.: For Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Clearance is granted.

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. E2.A7.1.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A7.1.1.2.1. 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 use; E2.A7.1.1.2.5. Habitual or binge consumption of alcohol to the point of impaired judgment;

3. E2.A7.1.1.3. Conditions that could mitigate security concerns include: E2.A7.1.1.3.1. The alcohol related incidents do not indicate a pattern; E2.A7.1.1.3.2. The problem occurred a number of years ago and there is no indication of a recent problem; E2.A7.1.1.3.3. Positive changes in behavior supportive of sobriety; E2.A7.1.1.3.4. 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.

4. E.2.2. Adjudication Process: In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors: E.2.21.1. The nature, extent, and seriousness of the conduct;

E2.2.1.2. The circumstances surrounding the conduct, to include knowledgeable participation; E2.2.1.3. The frequency and recency of the conduct; E2.2.1.4. The individual's age and maturity at the time of the conduct;

E2.2.1.5. The voluntariness of the participation; E2.2.1.6. The presence or absence of rehabilitation and other pertinent behavioral changes; E.2.2.1.7. The motivation for the conduct; E.2.2.1.8. The potential for pressure, coercion, exploitation, or duress; and E.2.2.1.9. The likelihood of continuation or recurrence.