One of the more frequent issues that arises in the context of security clearance investigations involves alcohol abuse or over-consumption of alcohol by federal employees, military employees and government contractors. This is regulated by Adjudicative Guideline G for those holding or seeking a security clearance. This article discusses the issues that many individuals face with respect to alcohol and their security clearance.
Alcohol Abuse or Overconsumption by Cleared Employees or Applicants
Alcohol over-consumption and abuse can be a major factor in maintaining or obtain a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. Adjudicative Guideline G is the section of the Guidelines which involve a clearance holder or applicant’s use of alcohol and it’s impact on an individual’s ability to obtain or maintain a security clearance.
Guideline G issues usually come into play when a federal employee, military employee or government contractor have issues regarding the use of alcohol. The most obvious issue that begins this type of review is a recent alcohol-related traffic concern such as a DUI or other intoxication charge. If recent, these charges tend to require more investigation prior to the issuance of a security clearance or may require a clearance review. The clear concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information.
Security Concerns Raised by Alcohol Abuse or Consumption
When issues arise involving alcohol abuse or over-consumption, in the scope of a security clearance investigation or review, it is very important to take them seriously and to obtain legal representation experienced with these types of issues in order to minimize the potential damage to a security clearance or otherwise mitigate the security concerns. When alcohol issues are reviewed in regards to security clearances cases, they fall under Guideline G, Alcohol Consumption, SEAD 4, which reads as follows:
Guideline G: Alcohol Consumption under SEAD 4
The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.
Conditions that could raise a security concern and may be disqualifying include:
(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder;
(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder;
(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder;
(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder;
(e) the failure to follow treatment advice once diagnosed;
(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder; and
(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.
Conditions that could mitigate security concerns include:
Under Paragraph 23 of SEAD 4, there are 4 mitigating factors provided to mitigate security concerns involving alcohol abuse. These are:
23. Conditions that could mitigate security concerns include:
(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or judgment;
(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations;
(c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; and
(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.
While many of the same principles have applied to alcohol usage cases under Guideline G in the past adjudicative guidelines, SEAD 4 recently changed some of the concerns and factors slightly as of June 8, 2017, so it is important to be familiar with them. The following case is a sample of the types of decisions made by security clearance adjudicators involving alcohol from March, 2023. Sample DOHA Case (Applicant was denied a clearance where he had not acknowledged that he had an alcohol problem, and continued to consume alcohol with regularity despite being advised during his treatment in 2013 to abstain. He was also not participating in treatment or attending AA).
Case Examples Involving Guideline G Cases where Clearance Was Denied
The following are 3 examples where individuals clearances were denied and 3 examples where the individual’s clearance was granted under Guideline G.
Example A: Security clearance applicant was convicted 3 times of Driving under the Influence of Alcohol (DUI) between a period of 8 years. The last alcohol-related DUI was 2 years prior to the Statement of Reasons being issued with response to Guideline G. He had recently began to abstain from consuming alcohol, but not enough time has passed to conclude alcohol is no longer a problem. Applicant’s security clearance was denied.
Example B: Security clearance applicant had a long history of alcohol abuse from 1991 to 2012 and was diagnosed with alcohol dependence. The applicant had participated several times in both inpatient and outpatient treatment programs, but had relapsed. He was alcohol free for 14 months prior to the hearing. The Administrative Judge found that his current period of sobriety was not sufficient to mitigate the security concerns under Guideline G, alcohol consumption. Applicant’s security clearance was denied.
Example C: While security clearance applicant had no alcohol-related incidents since 2014 (and the hearing was held in May of 2016) and had remained sober for more than a year still resulted in a denial of the security clearance by the Administrative Judge. On appeal, the DOHA Appeal Board found that the recency factor alone does not compel an Administrative Judge to make a favorable clearance decision. The Appeal Board held that it has never established a “bright line” rule as to the recency of conduct raising security concerns. The extent to which security concerns have become mitigated through the passage of time or recency is instead a question that must be resolved based on the evidence as a whole. As a result of these findings, the Applicant’s security clearance was denied.
Case Examples Involving Guideline G Cases where Clearance Was Granted
Example A: Security clearance applicant was 34 years old and had a history of alcohol-related incidents before being diagnosed with alcohol dependence in 2006. Following alcohol treatment in 2006, he abstained from alcohol consumption for 5 years before resuming infrequent use. The applicant was found to have recommitted himself to total abstinence, was found to attend Alcoholics Anonymous, and had a sponsor to help him work on alcohol issues. Applicant was found to have mitigated the security concerns under Guideline G, alcohol consumption and his security clearance was granted.
Example B: Security clearance applicant was 54 years old and had 3 alcohol-related incidents from 1984 to 2000. Following that time period, he had abstained from alcohol use from 2001 to 2009, a period of about 8 years. Subsequently, he had resumed responsible alcohol use without any problems, consisting of 1-2 beers after work, but not daily. Further, there was no evidence of any alcohol-related incident for the past 15 years. The Administrative Judge found that the individual had provided sufficient evidence to mitigate the security concerns under Guideline G and granted the security clearance.
Example C: Security clearance applicant was 45 years old and had issues with alcohol dependence over his life. Applicant was found to have taken seriously the fact that he was an alcoholic and had to completely abstain from alcohol. The individual also presented evidence that he regularly attended Alcoholics Anonymous and also that he had a strong support network. The Administrative Judge found that the applicant was earnest in his efforts at recovery and had mitigated the security concerns under Guideline G, alcohol consumption and granted the individual’s security clearance.
Things to Consider for Alcohol Cases Under Guideline G
In security clearance cases involving Guideline G, Alcohol Consumption, it is very important to understand just how important it is to demonstrate that the individual understands and acknowledges (where appropriate) their alcohol issues and concerns. Denying a known alcohol problem only makes mitigation more problematic. It cannot be overstated that security clearance adjudicators take alcohol concerns seriously. Absent significant evidence of rehabilitation or other efforts, it can be hard to keep or obtain a security clearance.
14 Considerations in Alcohol Cases
Here are 14 items (not a full list, which is too long to list here) that we often consider when handling Guideline G cases:
- How long ago was the last problem with alcohol use?
- How many incidents of alcohol abuse or alcohol-related traffic incidents are there?
- Has there been medical intervention?
- Has there been any alcohol treatment given or taken? Was such treatment voluntary or mandatory (i.e. part of a court resolution).
- Is it important to get an independent review by a physician regarding the likelihood of recurrence of alcohol issues? An expert physician may be needed.
- Has their been abstinence from alcohol (and for how long)?
- Has their been a change in alcohol usage?
- Who could potentially testify positively about the applicant’s alcohol usage and changed behavior?
- What kind of documentation can be used for exhibits to show abstinence from alcohol?
- What kind of documentation can be used to show a change in behavior and more limited alcohol usage?
- What types of organizations (Alcoholics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the applicant’s case?
- What types of evidence can be used to show how serious the applicant takes the alcohol use issues? i.e. letters of support, character letters, etc.
- Is a letter of proposed revocation of a security clearance appropriate to add as an exhibit should the alcohol issues recur.
- Is there medical or treatment documentation available to potentially use as exhibits during the clearance proceedings?
Alcohol consumption security clearance cases under Guideline G can involve many differing types of variables and a number of mitigating factors specific to each case so hiring experienced counsel to represent and advise the individual involved is critical because each case is different. The key for such security clearance proceedings in this type of case is to be prepared.
Contact Us
When facing alcohol-related or other security clearance issues, it is very important to have an experienced security clearance lawyer. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com.
This article discusses the security clearance appeals process for government contractors applying for clearances (or attempting to keep them) with the Central Intelligence Agency (CIA). As we have discussed in other articles, the U.S. Government security clearance process is not 
administered by one federal agency, but individually by each one. The clearance appeals process generally falls into 2 main groups of federal agencies (with some exceptions), one run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with their own variations. The CIA is one of those federal agencies with its own, very unique, security clearance process. As noted above, in addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. NGA, DIA, DOD, NRO, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision from that particular agency. This article, as noted above, focuses on security clearance appeals for government contractors at the CIA.
The Clearance Process at the CIA for Contractors
The security clearance process at the CIA for government contractors is different than the one utilized for DoD employees, but based on many of the same underlying clearance principles and the same Executive Order (EO 12968). The following illustrate the usual steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when they are faced with security clearance concerns. The CIA security clearance process is managed by their clearance appeals office. Contractors have the right to counsel before the CIA during the different stages of the security clearance appeals process.
First Step: Notification of Security Disapproval
When a clearance holder has a security clearance issue with the CIA, they will normally receive a notification of disapproval letter, usually sent on blank letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies at this agency, so it is important to obtain as much information as possible in order to address the concerns.
Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 10 days (this is subject to change by the CIA) and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing before a panel of clearance adjudicators (or a single adjudicator). An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended in most types of cases before the CIA. When a personal appearance is requested, the contractor is placed in line for the hearing process, which can take a bit of time.
Second Step: Receipt and Review of the Investigative File
If the individual has requested the Investigative File from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many portions of the file may be redacted (in some cases there will be many redactions) but one can usually understand the issues that need to be addressed. When the Investigative File is finally received, it is important to prepare to respond with a written response and to start considering the issues for the personal appearance at the CIA as the time for the presentation occurs.
Third Step: Responding to the Security Concerns in Advance of the Personal Appearance
When the Investigative File is finally received, the individual will generally want to provide a written response in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided 2 weeks prior to the scheduled appearance. The CIA follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.2 and Security Executive Agent Directive (SEAD) 4 when reviewing security clearance matters. Generally, the focus of the appeal should be on information that disputes the events listed that existed, but was not known, at the time of the clearance denial.
Fourth Step: The Personal Appearance Meeting
The next step in the CIA security clearance appeals process is for the individual to present their response to the adjudicator(s) during their personal appearance, typically held at agency facilities. When the CIA decides to hear the personal appearance, the individual or their counsel will be contacted by a CIA attorney or other representative in advance to schedule the presentation. The personal appearance should be done with the assistance of an attorney. These types of presentations typically take about an hour in length and are usually attended by 3 adjudicators or a panel of 3 individuals, with one of these individuals serving as the adjudicator.
It is usually important to arrive early to ensure that the individual is able to make it to the meeting room in time. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators. The adjudicator(s) will introduce themselves at the start of the hearing, explain the process and then permit the individual and/or their attorney to present the personal appearance. The adjudicator(s) then take notes and makes a record of the response for the agency’s later review and consideration and for the individual’s permanent security record. It is important to make a full record in the written response and at the personal appearance for both the immediate appeal and also for future security clearance applications.
Fifth Step: Second Step Appeal
Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal an initial adverse decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance) to the next step of the clearance process. The appeal, if filed, should generally be filed within 30 days of receipt of the initial unfavorable decision. The odds on appeal are typically less than during the initial stage, so it is important to address clearance issues as early as possible.
Sixth Step: Reapplication After a Year
If a security clearance by the CIA is denied, then the individual usually has to wait a 1-year period from the final decision in which to re-apply. Not all security issues can be resolved or mitigated in a year, and can take more time, but the reapplication process can ultimately lead to obtaining a CIA security clearance if previously denied. It is important to keep in mind that an individual contractor cannot re-apply for a new security clearance with the CIA while still in the appeals process and may have to withdraw the appeal in order to re-apply. It is important to consult with counsel on this issue.
Contact Us
When an individual is facing security clearance issues at the CIA or before another federal agency it is important to obtain legal advice and potential legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
Security Clearance Representation Nationwide
Welcome to the law firm of Berry and Berry, PLLC in the Metropolitan, Washington D.C. area. We specialize in the nationwide legal representation of individuals in security clearance matters. We have represented thousands of clients across the country in their security clearance matters for over 25 years. Our goal is to work hard for our clients in attempting to help them keep or obtain their security clearances. Our firm represents security clearance holders or applicants in different areas of the country, or even internationally, to defend them. We represent security clearance applicants at all levels, including Secret, Top Secret, Sensitive Compartmented Information (SCI), Special Access Programs (SAP), Yankee White and others. We also defend these individuals in suitability or public trust appeals which are slightly different but involve many of the same principles.
Security Clearance Assistance Available
We provide legal advice and representation to federal employees, military personnel and government contractors regarding their security clearances. We represent clearance applicants and holders at all steps of the security clearance process, from legal advice prior to completing their initial clearance questionnaires (SF-86) to the final steps of the security clearance appeals process. Our lawyers represent clearance holders and applicants before all federal agencies. We also specialize in representing security clearance clients before Intelligence Community agencies. Our goal is to represent individuals vigorously before security clearance authorities. At the same time, we understand that many security clearance cases involve sensitive issues. Discussions with attorneys in the firm are privileged and confidential.
Additionally, we realize that security clearance issues can happen to anyone and treat our clients with respect no matter what the issues involve. Given the changes in technology, it is easier than ever, to represent individuals nationwide. In the past, we might have had to fly to a location across the country to represent an individual in a security clearance hearing, the Government has incorporated Microsoft Teams and Zoom for many security clearance proceedings. This has made it easier than ever to represent clients no matter where they live and work.
Types of Nationwide Security Clearance Defense Available
There are many different types of issues where we can represent security clearance clients nationwide. Some of the areas where our security clearance attorneys assist individuals include:
- Pre-application Guidance (SF-86 or electronic forms);
- Investigative Interview Guidance;
- Polygraph Considerations;
- Responses to Security Clearance Interrogatories;
- Responses to Statement of Reasons or Notices of Intent to Revoke;
- Representation in Security Clearance Written Responses; and
- Representation in Security Clearance Personal Appearances before Administrative Judges and Adjudicators.
Security Clearance Background of Firm
Our lawyers are extremely experienced in security clearance law. The law firm’s founder, John V. Berry, Esq. teaches other attorneys about the security clearance process through lawyer continuing legal education courses in multiple states. Our firm has multiple attorneys who are very experienced in representing individuals in security clearance matters. We are also members of the Security Clearance Lawyers Association. You can also visit our security clearance blog where we cover and review legal issues for clearance holders and applicants. Furthermore, please review our website resources for helpful information about the security clearance process.
Contact Us
Our security clearance lawyers represent individuals throughout the United States. We would be happy to meet and try to assist you with your security clearance matter. Please contact Berry & Berry, PLLC to schedule a consultation with a security clearance attorney. You should feel free to contact us at (703) 668-0070 or through our contact page should you wish to schedule a time to discuss your individual security clearance issues. We would be honored to go over your security clearance issues and attempt to find a solution for you.
Representing NSA Employees and Federal Contractors in NSA Security Clearance Appeals
Our security clearance lawyers represent government contractors before the National Security Agency (NSA) in security clearance matters. As those seeking cleared positions know, the NSA is an intelligence agency with its own unique security clearance process through Executive Order 12968 and Security Executive Agent Directive 4 (SEAD 4). SEAD 4 governs the general security clearance process for federal agencies. There are different procedures for security clearance appeals for every agency. Below, we discuss the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.
The Security Clearance Process at the NSA
As mentioned above, the security clearance appeals process at the NSA is similar to the process used by other federal agencies. However, the NSA security clearance process has its own unique features. The NSA clearance procedure for federal employees and government contractors with security issues usually follows the process listed below.
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NSA Issues a Clearance Decision Statement
When an individual has a security clearance or SCI access denial or revocation from the NSA (referred to as the Clearance Decision Statement), it will list the security concerns at issue. The Clearance Decision Statement will give the contractor 45 days from receipt of the letter to respond to the alleged security concerns. This is a pretty strict deadline. With the Clearance Decision Statement, the NSA will also send a copy of the Investigative File, which provides various information about the denial. The Investigative File will usually include various documents often including the clearance investigation, related documents, reports, interviews, polygraph records or other items relevant to the NSA’s security concerns.
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Contractor Response to the NSA Clearance Decision Statement
In most cases, if the individual elects to reply to the Clearance Decision Statement they will need to respond to the NSA’s security concerns in a written submission. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual. Our security clearance lawyers typically represent individuals starting with this first step. The submission can often involve submitting a 10-15 page response, plus exhibits. As a result it is important to consult with an attorney that is familiar with the NSA security clearance process.
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First Level Clearance Decision Issued by the NSA
Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review the response. They will then issue a decision as to whether or not the security concerns against the individual should be dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a decision briefly citing the reasons why the appeal was denied and informing the individual of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal. Again, these timelines are critical.
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Personal Appearance with the NSA Access Appeals Panel
If the individual has elected to present an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the individual will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 5-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing. The presentations are usually conducted at the NSA and in person.
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The NSA Access Appeals Panel Final Decision
Following the personal appearance hearing before the AAP, they will issue a decision, typically within 1-3 weeks. This makes the NSA unique among most of the intelligence community given how quickly they issue decisions. They will either grant or deny the clearance appeal. In a few cases, the AAP can seek additional information or ask for an additional response from the individual. If the AAP issues a final denial, the individual may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.
6. Other Considerations.
If an adverse clearance decision is reached by the AAP it is important to plan for the reapplication process with the NSA and also to determine any impact that a final AAP clearance denial might have on other security clearances held by the contractor. Separate security clearances may require representation before other agencies. For example, a negative NSA decision could affect an individual with a Department of Defense security clearance. In those types of circumstances, it is critical to respond to the NSA Clearance Decision Statement.
Contact Us
When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors in the security clearance process before the NSA. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
