DATE: August 31, 2006
In re:
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
CHRISTOPHER GRAHAM
APPEARANCES
FOR GOVERNMENT
Jason Perry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant, a form carpenter with a federal contractor, has a history of alcohol abuse, including numerous alcohol-related arrests that resulted in several convictions for DUI. He self-admitted on three occasions for alcohol detoxification. Despite being treated for alcohol dependence, he continues to consume alcohol. He was discharged from the Army in 1972 for drug abuse. He has been arrested approximately 22 times. He falsified an answer on his security clearance application. He successfully mitigated the security concern involving drugs, but failed to mitigate the security concerns about alcohol, criminal conduct, and personal conduct. Clearance is denied.
STATEMENT OF THE CASE
On December 6, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended. The SOR alleged facts under Guideline G (alcohol consumption), Guideline H (drug involvement), Guideline J (criminal conduct), and Guideline E (personal conduct) which precluded DOHA from making a preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue Applicant's security clearance. DOHA recommended referral to an administrative judge to determine whether a clearance should be granted or denied.
On or about December 19, 2005, Applicant responded to the allegations in the SOR, and requested a decision without a hearing. Department Counsel submitted a file of relevant material (FORM) in support of the government's case, a copy of which was received by Applicant on March 21, 2006. In the FORM, the government moved to amend SOR subparagraph 4.a. by substituting a new subparagraph 4.a. in lieu thereof. Applicant offered no objection. The government's motion is sustained. Applicant was afforded the opportunity to file objections and submit material in refutation, extenuation, or mitigation by April 20, 2006. Applicant filed a response to the FORM which was received by DOHA on May 1, 2006. The case was assigned to me on May 31, 2006.
Applicant admitted the allegations in the SOR except for subparagraphs 1.a., 1.n., 2.b., 2.c., 3.g., 3.h., 3.i., 4.a., 4.b., and 4.c. His admissions are incorporated herein as findings of fact. I make the following additional findings of fact.
Applicant is a 54-year-old form carpenter with a federal contractor. (1) He is divorced. (2) He served in the United States Army from June 1970 until April 1972, (3) serving in Vietnam. (4)
Alcohol Consumption
Applicant at times consumed alcohol to excess and to the point of intoxication from approximately 1972 until February 2005. (5) On November 8, 1973, he was arrested and charged with (1) reckless driving and (2) driving while under the influence (DUI or DWI). He was fined $200 on count one, adjudication was withheld on count two, he was given six months probation, and ordered to attend a DWI school. (6) Applicant was arrested on December 5, 1973, and charged with (1) public profanity, (2) disorderly conduct, and (3) public intoxication. He was found guilty and fined $50 on count one, the sentence was deferred on count two, and count three was nolle prosequi. (7) On March 11, 1977, he was arrested and charged with (1) DUI, (2) no tag, and (3) no inspection sticker. He was found guilty on count one and fined $250 and was fined $25 on counts two and three. (8) On July 7, 1977, he was arrested and charged with (1) DUI, (2) speeding, and (3) driving while license suspended. He was found guilty of count one and sentenced to 30 days in jail. (9)
Applicant was admitted for alcohol detoxification treatment from August 4, 1986, to August 31, 1986, at a Veteran's Administration (VA) hospital. (10) On February 21, 1987, and again on July 14, 1987, he was arrested and charged with (1) DUI and (2) violation of employment purpose restriction on driving. There is no further record of these charges. (11) He was arrested and charged with (1) DUI and (2) driving while suspended on April 22, 1988. He entered a guilty plea and was sentenced to 360 days in jail on both counts, to run concurrent, and fined $1,000. (12) From September 29, 1988 to November 2, 1988, he was treated for alcohol detoxification at a VA hospital. (13)
Applicant again received treatment for alcohol detoxification at a VA hospital from March 2, 1999, to March 11, 1999. (14) From June 2001 until December 13, 2001, he was in treatment at a VA hospital for a condition diagnosed, in part, as alcohol dependence. He was required to participate in outpatient treatment. (15) He failed to meet the outpatient care requirements by consuming alcohol in ay and August 2002. (16) He has had no "drinking problems" since 2003, but he continues to drink as many as six beers per week. (17)
Drug Involvement
Applicant was awarded a general discharge under honorable conditions from the U.S. Army on April 21, 1972, for unfitness-drug abuse. On October 22, 1990, the discharge was upgraded to honorable. (18) He was arrested and charged with possession of controlled substance paraphernalia on April 6, 1998. He denied this allegation but the FBI records and sheriffs' arrest and booking sheets show he failed to appear in court, a warrant was issued, and he was subsequently arrested on November 11, 1999. Upon his plea of guilty he was sentenced to seven days in jail. (19) The government produced no evidence that Applicant used crack cocaine with varying frequency, to include daily, until June 2001.
Criminal Conduct
Applicant's history of criminal arrests, charges, and findings include the following.
Personal Conduct
Applicant prepared and submitted an electronic security clearance application which he signed on April 22, 2005. (42) The SOR paragraph 4 alleges three false answers on his security clearance application. He denied these in his answer to the SOR. Question 24 on the form asked:
24. Your Police Record - Alcohol/Drug Offenses For this item, report information regardless of whether the record in your case has been 'sealed' or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?
He answered "Yes" and listed a 1990 DUI arrest. (43)
In response to Question 27. Your Use of Illegal Drugs "Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenic (LSD, PCP, etc.), or prescription drugs?) he answered "No." The only evidence of drug use was before1973, and the government produced no evidence that Applicant used crack cocaine. (44)
In his answer to the SOR Applicant stated, "I did not list my arrests or alcohol treatment on the security paperwork because I thought it would keep me from getting a job." (45) In his response to the FORM and specifically to SOR subparagraph 4.a. he said, "I responded 'yes' to the question [24.] and listed the date of one offense that I remembered. I am not good on remembering exact dates." (46)
"[No] one has a 'right' to a security clearance." (47) 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." (48) The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential coercion, and willingness and ability to abide by regulations governing use, handling, and protection of classified information." (49) Eligibility for a security clearance may be adjudicated using the security guidelines contained in the Directive.
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 factors listed in ¶ 6.3 of the Directive: nature and seriousness of the conduct and surrounding circumstances; frequency and recency of the conduct; age of the Applicant; motivation of the applicant, and the extent to which the conduct was negligent, wilful, voluntary, or undertaken with knowledge of the consequences involved; absence or presence of rehabilitation; and probability that the circumstances or conduct will continue or recur in the future.
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. (50) 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. (51)
Once the government establishes a disqualifying condition, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. (52) An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." (53) A person who has access to classified information enters into a fiduciary relationship with the government based on trust and confidence. The government, therefore, has a compelling interest in ensuring each Applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or his 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. (54) Decisions under this Directive include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, not actual, risk of compromise of classified information.
Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism.
Having considered the evidence as a whole, I find the following guidelines most pertinent to an evaluation of the facts of this case:
Guideline G: 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
Guideline H: Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information
Guideline J: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness
Guideline E: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
Alcohol Consumption
The government established its case under Guideline G. Applicant has a history of alcohol-related incidents and arrests. The arrest records, the clinical evaluations, and Applicant's admissions support most of the SOR allegations. The following Guideline G Alcohol Consumption Disqualifying Conditions (AC DC) apply: AC DC E2.A7.1.2.1. (Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or their criminal incidents related to alcohol use) and AC DC E2.A7.1.2.5. (Habitual or binge consumption of alcohol to the point of impaired judgment.)
Applicant admitted to DUI arrests in November 1973, March 1977, July 1977, February 1987, July 1987, and April 1988. He was arrested in December 1973 for public intoxication. He admitted to receiving treatment at VA hospitals in August 1986, September 1988, and March 1999, for alcohol detoxification. From June 2001 to December 2001, he was treated at a VA hospital, in part, for alcohol dependence. He admitted relapsing in May and August 2002.
Applicant stated he hasn't had any drinking problems since 2003. He continues to drink as many as six beers per week. Alcohol Consumption Mitigating Condition (AC MC). E2.A7.1.3.2. (The problem occurred a number of years ago and there is no indication of a recent problem) and AC MC E2.A7.1.3.3. (Positive changes in behavior supportive of sobriety) do not apply in light of Applicant's record. He has a 30 year pattern of alcohol abuse and he continues to drink notwithstanding four treatments for alcohol problems, and in the face of an alcohol dependence diagnosis. Because of the extent of his conduct, sufficient time has not elapsed to conclude these mitigating factors are applicable. He has not provided proof of successful rehabilitation to include being alcohol-free for 12 months, proof of consistent attendance at AA or similar meetings, and receipt of a favorable prognosis by a credentialed medical professional or licensed clinical social worker who is a staff member of a recognized alcohol treatment program. No other mitigating conditions apply. I conclude Guideline G against Applicant.
Drug Involvement
The government established its case under Guideline H. Drug Involvement Disqualifying Condition (DI DC) E2.A8.1.2.1. (Any drug abuse) (55) and DI DC E2.A8.1.2.2. (Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution) are applicable. Applicant admitted he was discharged from the United States Army for drug abuse. He denied his April 1998 arrest for possession of controlled substances paraphernalia. However, his arrest and subsequent failure to appear in court are found in the FBI identification records and sheriffs' arrest and booking reports. SOR subparagraph 2.c. alleges Applicant's use of crack cocaine. The record is devoid of any evidence to support the allegation and I find the government did not establish its case on this point.
Drug Involvement Mitigating Condition (DI MC) E2.A8.1.3.1. (The drug involvement was not recent) applies. There are two events, 25 years apart, and nothing further in the last eight years. The latter fact makes DI MC E2.A8.1.3.3. (A demonstrated intent not to abuse any drugs in the future) applicable. Possession of drug paraphernalia is not proof of drug usage. Since there is no evidence of drug usage since 1973, I conclude Guideline H for Applicant.
Criminal Conduct
The government established its case under Guideline J. Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1. (Allegations or admissions of criminal conduct, regardless of whether the person was formally charged) applies. Applicant admitted 15 arrests between 1971 and 1995, three Article 15 while in the Army, and the four arrests he denied appearing in the FBI records and sheriff's arrest records. This pattern of offenses makes applicable CC DC E2.A10.1.2.2. (A single serious crime or multiple lesser offenses.) Additionally, there is one violation under 18 U.S.C. § 1001 for making a false answer on a security clearance application. There was no evidence of crack cocaine use by Applicant and the other two allegations under Title 18 fail because Applicant's answers were truthful to the two answers to Question 27.
Criminal Conduct Mitigating Conditions (CC MC) E2.A6.1.3.1. (The criminal behavior was not recent), CC MC E2.A10.1.3.2. (The crime was an isolated incident), and CC MC E2.A6.1.3.6. (There is clear evidence of successful rehabilitation) do not apply. While his last arrest was in 1998, he has over 20 arrests, they are not isolated or coerced, and there is no evidence of rehabilitation. One of his false answers on his security clearance application occurred in 2005, so there is a continuing pattern of criminal activity for 35 years. I conclude Guideline J against Applicant.
Personal Conduct
The government established its case under Guideline E. Personal Conduct Disqualifying Condition (PC DC) E2.A5.1.2.2. (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) applies. In his answer to the SOR Applicant stated, "I did not list my arrests or alcohol treatment on the security paperwork because I thought it would keep me from getting a job." He listed one DUI arrest in 1990. He stated that he was not good at remembering dates of arrests. With over 20 arrests, his answer that he could only remember one is not credible. He served a year in jail after one arrest. His willingness to ignore the truth for his own benefit and his failure to acknowledge his previous falsification by denying them in his answer renders him untrustworthy and a security risk. Applicant's conduct further demonstrates unreliability and questionable judgment.
But, the allegations of making false statements contained in SOR subparagraphs 4.b. and 4.c. are predicated on the use of crack cocaine as alleged in subparagraph 2.c. Having concluded that there is no evidence supporting Applicant's use of crack cocaine, the government has not established its case for SOR subparagraphs 4.b. and 4.c.
None of the mitigating conditions apply. He did not voluntarily correct the false information previously provided, there is no evidence that he received improper or inadequate information, and he admitted lying on his security clearance application to enhance his chances at getting a job. There are no reasons to apply any of the mitigating conditions. I conclude Guideline E against Applicant.
I have carefully weighed all of the evidence, and I have applied the disqualifying and mitigating conditions listed under each applicable adjudicative guideline. I have also considered the whole person concept, and have made a fair and commonsense assessment of the record. This record raises reasonable and persistent doubts about Applicant's ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. I conclude it is not clearly consistent with the national interest to grant or continue Applicant's security clearance.
Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by E3.1.25 of Enclosure 3 of the Directive, are:
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
Subparagraph 1.f. Against Applicant
Subparagraph 1.g. Against Applicant
Subparagraph 1.h. Against Applicant
Subparagraph 1.i. Against Applicant
Subparagraph 1.j. Against Applicant
Subparagraph 1.k. Against Applicant
Subparagraph 1.l. Against Applicant
Subparagraph 1.m. Against Applicant
Subparagraph 1.n. Against Applicant
Paragraph 2. Guideline H: FOR APPLICANT
Subparagraph 2.a. For Applicant
Subparagraph 2.b. For Applicant
Subparagraph 2.c. For Applicant
Paragraph 3. Guideline J: AGAINST APPLICANT
Subparagraph 3.a. Against Applicant
Subparagraph 3.b. Against Applicant
Subparagraph 3.c. Against Applicant
Subparagraph 3.d. Against Applicant
Subparagraph 3.e. Against Applicant
Subparagraph 3.f. Against Applicant
Subparagraph 3.g. Against Applicant
Subparagraph 3.h. Against Applicant
Subparagraph 3.i. Against Applicant
Subparagraph 3.j. Against Applicant
Subparagraph 3.k. Against Applicant
Subparagraph 3.l. Against Applicant
Subparagraph 3.m. Against Applicant
Subparagraph 3.n. Against Applicant
Subparagraph 3.o. Against Applicant
Subparagraph 3.p. Against Applicant
Paragraph 4. Guideline E: AGAINST APPLICANT
Subparagraph 4.a. Against Applicant
Subparagraph 4.b. For Applicant
Subparagraph 4.c. 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 Applicant's security clearance. Clearance is denied.
Christopher Graham
Administrative Judge
1. Item 4 (Security Clearance Application, dated April 22, 2005) at 1-2.
2. Id. at 5.
3. Id. at 7.
4. Item 3 (Applicant's Answer, received by DOHA on December 19, 2005) at 7-8.
5. SOR, subparagraph 1.a., admitted in Answer to SOR; Item 5 (Applicant's Statement, dated February 25, 2005) at 2.
6. SOR, subparagraph 1.b., admitted in Answer to SOR.
7. SOR, subparagraph 1.c., admitted in Answer to SOR.
8. SOR, subparagraph 1.d., admitted in Answer to SOR.
9. SOR, subparagraph 1.e., admitted in Answer to SOR.
10. SOR, subparagraph 1.f., admitted in Answer to SOR.
11. SOR, subparagraphs 1.g. and 1.h., admitted in Answer to SOR.
12. SOR, subparagraph 1.i., admitted in Answer to SOR.
13. SOR, subparagraph 1.j., admitted in Answer to SOR.
14. SOR, subparagraph 1.k., admitted in Answer to SOR.
15. SOR, subparagraph 1.l., admitted in Answer to SOR.
16. SOR, subparagraph 1.m., admitted in Answer to SOR.
17. Item 5, supra, note 5, at 2.
18. SOR, subparagraph 2.a., admitted in Answer to SOR.
19. Item 6 (Applicant's Statement, dated June 9, 2004) at 4; Item 7, Sheriff's Arrest and Booking Reports, at 1.
20. SOR, subparagraph 3.a., admitted in Answer to SOR.
21. SOR, subparagraph 3.b., admitted in Answer to SOR.
22. SOR, subparagraph 3.c., admitted in Answer to SOR.
23. SOR, subparagraph 3.d., admitted in Answer to SOR.
24. SOR, subparagraph 1.b., admitted in Answer to SOR.
25. SOR, subparagraph 1.c., admitted in Answer to SOR.
26. SOR, subparagraph 1.d., admitted in Answer to SOR.
27. SOR, subparagraph 1.e., admitted in Answer to SOR.
28. SOR, subparagraph 3.e., admitted in Answer to SOR.
29. SOR, subparagraph 3.f., admitted in Answer to SOR.
30. SOR, subparagraph 3.g., admitted in Answer to SOR.
31. SOR, subparagraph 3.h., admitted in Answer to SOR.
32. SOR, subparagraph 1.g., admitted in Answer to SOR
33. SOR, subparagraph 1.h., admitted in Answer to SOR
34. SOR, subparagraph 3.i., admitted in Answer to SOR
35. SOR, subparagraph 1.i., admitted in Answer to SOR
36. SOR, subparagraph 3.j., admitted in Answer to SOR
37. SOR, subparagraph 3.k., admitted in Answer to SOR
38. SOR, subparagraph 3.l., admitted in Answer to SOR
39. SOR, subparagraph 3.m., admitted in Answer to SOR
40. SOR, subparagraph 3.n., admitted in Answer to SOR
41. Item 4, supra, note 1, at 8; Item 5, supra, note 5, at 5.
42. Item 5, supra, note 1, at 5.
43. Item 4, supra, note 1, at 8.
44. Item 6, supra, note 19, at 1-4; Item 7, supra, note 19 at 1-19.
45. Item 5, supra, note 5, at 5.
46. Applicant's Response to the FORM, received May 1, 2006, at 1.
47. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1998).
48. Id. at 527.
49. Exec. Or. 12968, Access to Classified Information, § 3.1(b) (Aug. 4, 1995).
50. Egan, supra, at 531.
51. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).
52. See ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).
53. Id., at 3.
54. See Egan; Directive ¶ E2.2.2.
55. E2.A8.1.1.3. Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.