DATE: January 22, 1998

SSN:

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

BARRY M. SAX

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Department Counsel

FOR APPLICANT

Leonard A. Nahajski, Esquire

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended by Change 3, issued a Statement of Reasons (SOR), dated May 19, 1997, to the Applicant that detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, denied or revoked.

A copy of the SOR is attached to this decision and is included herein by reference.

On June 13, 1997, Applicant responded to the allegations set forth in the SOR and requested a hearing before a DOHA Administrative Judge. This case was assigned to me on August 13, 1997. A Notice of Hearing was issued on September 18, 1997, scheduling the hearing for October 7, 1997, on which date the hearing was conducted. The Government called Applicant as part of the Government's case, but presented no other witnesses. The Government offered 17 exhibits into evidence, by stipulation with Applicant's counsel. Applicant testified on his own behalf, but presented no other witnesses. Applicant submitted four exhibits at the hearing (A-D), and one other exhibit, after the hearing, pursuant to a stipulation between the parties (Ex E).⁽¹⁾ I received the transcript on October 20, 1997.

FINDINGS OF FACT

After a thorough review of all of the evidence in this case, including Applicant's responses to the SOR, and upon due consideration of all of the evidence in the case record, this Administrative Judge makes the following findings of fact as to the Criterion G (Alcohol Consumption), and Criterion J (Criminal Conduct) allegations in the SOR:

* Applicant is 35 years old and is employed as an Electronics Technician by a defense contractor.

* Applicant consumed alcohol from about 1975 to at least September 1996. At times, during the cited period, he consumed alcohol to excess and to the point of intoxication.

* Applicant was arrested on January 29, 1983, in state A, and charged with Driving While Intoxicated (DWI). He pleaded guilty and was sentenced to pay a fine of $375.50, serve one year in jail, with 364 days suspended and ordered to attend Alcohol Information School for one night per week for four weeks.

* Applicant was arrested on November 21, 1987, in state A, and charged with (1) Driving While Under The Influence, (2) Hit and Run Unattended, and (3) Simple Assault. Count (1) was amended to allege Negligent Driving, to which Applicant pleaded guilty, and was fined $128. Count (2) was dismissed. On Count (3), Applicant was given a 12-month deferred sentence and ordered to pay $250 in costs, and to complete an Anger Management Program. On March 6, 1989, Applicant was found to have failed the Anger Management Program and was found in violation of his deferred sentence. He was then given a suspended sentence of 24 months, 90 days in jail suspended, and a $250 fine.

* Applicant was cited on June 25, 1989, in state A, for "Alcohol in Park." He had been drinking beer with a friend in a public park, and had more beer in a bag when approached by the police.

* Applicant received treatment, from December 1, 1993 to December 23, 1993, at a clinic in state B, in an inpatient Alcohol Program. Upon discharge, Applicant was referred to a "Recovery Center" in state A for continuing care services for his alcoholism. He was first seen at the "Recovery Center" on December 28, 1993.

* Applicant was arrested on May 31, 1996, in state A, for (1) Assault Fourth Degree - Domestic, and (2) Harassment - Domestic Violence. On June 5, 1996, Count (3) Malicious Mischief was added. Applicant was found guilty of Counts (1) and (2) and was sentenced to serve 365 days in jail, with 305 days suspended, to pay a $300 fine, to complete two years probation, to serve 60 days in jail with home detention authorized, and to complete alcohol treatment and domestic violence treatments programs. Applicant told his probation officer on October 3, 1996, that he had been drinking alcohol prior to the incident that resulted in his arrest.

* Applicant was cited on September 17, 1996, in state A, for "Aiming or Discharging a Firearm in a Public Place." He was granted two years deferred prosecution, and was ordered to complete an alcohol treatment program. Applicant told his probation officer on October 3, 1996, that every time Applicant had been involved with law enforcement, he had been drinking alcohol.

* Applicant received treatment from September 21, 1996 to September 23, 1996, at a hospital in state A, for Alcohol Detoxification. The diagnosis was, in part, Alcohol Dependency and Alcohol Liver Disease. Applicant was released directly into the alcohol/drug recovery center at the hospital and was discharged from there on October 4, 1996.

* Applicant was referred back to the same "Recovery Center" in state A where he had been treated in December 1993, for continuation of an "intensive outpatient program and relapse prevention program." Applicant then entered a two-year chemical dependency program on July 3, 1996. Applicant entered Phase II of the program on November 4, 1996, and has continued in treatment

* Applicant was arrested on March 18, 1989, in state A, and charged with Possession of marijuana. He was found guilty, given a three-month deferred sentence, and was fined $75. On September 15, 1989, a bench warrant was issued due to Applicant's failure to pay the fine. Applicant thereafter paid the fine plus additional fees totaling $150.

* Applicant was arrested on January 5, 1990, in state A, for "Assault 4^th Degree. He was found guilty, and was sentenced to serve 30 days in jail, suspended, to pay a fine of $1,000 with $300 suspended, and was awarded two years probation.

POLICIES

General Policy Factors (Whole Person Concept)

The adjudication process established by DOD Directive 5220.6 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 to the Directive sets forth adjudicative guidelines that must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the seriousness, recency, frequency and motivation for an Applicant's conduct; the circumstances or consequences involved; the age of the Applicant; the presence or absence of rehabilitation; the potential for coercion or duress; and the probability that the conduct will or will not recur in the future. (Directive 5220.6, Section F.3., as expanded in Enclosure 2, at page 2-1). I have considered and assessed each of the above factors in my overall evaluation of Applicant's security clearance suitability.

Each security clearance case presents its own 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. Even though adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of poor judgment, irresponsibility or emotionally unstable behavior.

Specific Criterion Factors

In addition to the General Guidance discussed above, an Administrative Judge must also evaluate the evidence under the specific Additional Procedural Guidance found at Enclosure 2 of the Directive (in this case, Criteria G and J). Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

Alcohol Consumption (Criterion 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.

Conditions that could raise a security concern and may be disqualifying include:

(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;

(3) diagnosis by a credentialed medical professional of alcohol abuse or alcohol dependence;

(4) habitual or binge consumption of alcohol to the point of impaired judgment; and

(5) consumption of alcohol subsequent to a diagnosis of alcoholism by a credentialed medical professional, and following completion of an alcohol rehabilitation program.

Conditions that could mitigate security concerns include:

(3) positive changes in behavior supportive of sobriety;

(4) following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed inpatient or outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of AA or a similar organization, abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a credentialed medical professional.

Criminal Conduct (Criterion J)

A history or pattern of criminal activity creates doubts about a person's judgment, reliability, and trustworthiness.

Conditions that could raise a security concern and may be disqualifying include:

(1) any criminal conduct, regardless of whether the person was formally charged;

(2) a single serious crime or multiple lesser offense.

Conditions that could mitigate security concerns include:

(5) there is clear evidence of successful rehabilitation.

In addition, under the provisions of Executive Order 10865 and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required by the Directive, the Administrative Judge can only draw those inferences and conclusions that have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

A person who seeks access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. When the facts proven by the Government raise doubts about an Applicant's judgment, reliability, or trustworthiness, the Applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands the Court's rationale, doubts are to be resolved against the Applicant.