KEYWORD: Alcohol; Personal Conduct; Criminal Conduct
DIGEST: Eight years ago, Applicant, then a married NCO, he had a sexual relationship with an
airman in his unit for which he received non judicial punishment. Three and a half years ago, he was
arrested due to noise violation. In 2005, he was arrested for actual physical control of a motor
vehicle while under the influence of alcohol. The record evidence is sufficient to mitigate or
extenuate the negative security implications stemming Applicant’s conduct. Clearance is granted.
CASENO: 06-24473.h1
DATE: 09/26/2007
DATE:  September 26, 2007
In re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-24473
DECISION OF ADMINISTRATIVE JUDGE
CLAUDE R. HEINY
APPEARANCES
FOR GOVERNMENT
Robert E. Coacher, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Eight years ago, Applicant, then a married NCO, he had a sexual relationship with an airman
in his unit for which he received non judicial punishment. Three and a half years ago, he was
arrested due to noise violation. In 2005, he was arrested for actual physical control of a motor
Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6 (Directive),1
dated January 2, 1992, as amended.
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vehicle while under the influence of alcohol. The record evidence is sufficient to mitigate or
extenuate the negative security implications stemming Applicant’s conduct. Clearance is granted.
STATEMENT OF THE CASE
On January 30, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant stating that DOHA could not make the preliminary
affirmative finding  it is clearly consistent with the national interest to grant or continue a security1
clearance for Applicant. The SOR set forth reasons why a security clearance could not be granted
or continued due to alcohol consumption, personal conduct, and criminal conduct security concerns.
On June 16, 2007, Applicant answered the SOR and requested a hearing. On July 23, 2007,
I was assigned the case. On August 11, 2007, a Notice of Hearing was issued for the hearing held
on August 30, 2007. At the hearing, the Government presented three exhibits (Gov Ex 1-3).
Applicant testified and submitted six exhibits (App Ex A-F). On September 12, 2007, DOHA
received the transcript (Tr.). The record was kept open to allow Applicant to submit additional
documents, which were received on September 10, 2007.  Department Counsel having no objections,
the documents were admitted into evidence as App Ex G. 
FINDINGS OF FACT
The SOR alleges security concerns for alcohol consumption, personal conduct, and criminal
conduct. Applicant admitted he was arrested in October 2005 and charged with actual physical
control (ACP) of a motor vehicle while under the influence of alcohol, for which he received a two-
year deferred sentence, paid a $200 fine, and performed 20 hours of community service.  Applicant
admits he was arrested in January 2004 for noise violation and received a fine.  The admissions are
incorporated herein as findings of fact. After a thorough review of the record, I make the following
findings of fact.
Applicant is a 44-year-old lead analyst and assistant equipment control officer, who has
worked for a defense contractor since December 2005 and is seeking to obtain a security clearance.
Applicant is regarded by those who know him as a selfless, likeable person, honest, hard working,
professional, organized, efficient, competent, dependable, and security conscious. Numerous
coworkers and acquaintances mention Applicant’s dedication. (App Ex G) Applicant’s girlfriend
believes him to be honest, kind, gentle, an excellent parent, a role-model for her son, and an
honorable man. She says Applicant had made mistakes, but never denied making them. Once
mistakes were made, Applicant made the necessary changes not to compromise the positive aspects
in his life. (App Ex G) Applicant’s ex-wife states he is a hard working, good person, a great father,
and a productive member of society who has already been punished for his mistakes. 
Applicant entered the Air Force in May 1984.  In May 1999, he was a staff sergeant with 15
years in the Air Force. Applicant’s work performance was outstanding. (App Ex C)  Applicant and
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his wife were experiencing marital problems.  His wife had told him she wanted a divorce and, in
April 1999, she had returned to England, her home, taking their daughter with her. (Tr. 38)
Applicant met a 22-year-old female airman who was just arriving at her first duty assignment
and was joining Applicant’s unit. She showed him attention while he was showing her around the
base, took her to softball practice, showed her around the area, and acted in place of her sponsor.
(Tr. 39, 44) The airman was in an introductory course, but was scheduled to come to Applicant’s
shop, which would have made him her supervisor. (Tr. 65) The Air Force has rules against
unprofessional relationships.  An NCO should not have a relationship, in particular a sexual
relationship, with an airman under their supervision. 
On a Friday night two weeks after the met, in May 1999, exactly 15 years to the day on
which he had entered the service, the woman asked Applicant to come over and bring some alcohol
with him. (Tr. 45) Applicant and the woman were drinking Jack Daniels and coke and she began
drinking directly from the bottle. Applicant attempted to stop her from doing so. (Tr. 71)  The two
started to have sexual relations. She continued to drink heavily to the point she passed out.  At that
time, Applicant stopped having sex.  Applicant and the woman had had sexual relations on two prior
occasions. (Tr. 87) 
Applicant spent the night.  When they woke together the next morning, Applicant asked if
she remembered what had happened the previous night.  She said no, at which time, Applicant told
her what occurred to which she was in disbelief and stated she could not believe it had happened
again. (Tr. 46)  She expressed she had drunk too much and slept with a married captain at tech
school. The woman and Applicant then went out to breakfast. Later that day, in the afternoon, the
woman called him, and asked him to come over. When he arrived, she proceeded to take a shower.
(Tr. 88) They then talked about dinner, went to dinner, and the woman paid for dinner. The
following day, the woman accused Applicant of rape. 
In August 1999, following a three-month investigation by the Office of Special Investigation
(OSI), Applicant received punishment under Article 15 of the Uniformed Code of Military Justice
(UCMJ) not for rape, but for violation of Article 92, (failure to obey an order or regulation), and
violation of Article 134, the general article, (for acts prejudice to good order and discipline in the
armed forces and/or a breach of custom of the service).  The OSI could not state the sexual relations
were not consensual.  He was reduced in grade from E-5 to E-4 and forfeited $500 per month for
two months which was suspended.  He was also reprimanded for engaging in sexual intercourse with
someone under his direct supervision aggravated by the fact Applicant was married at the time. 
In May 2000, Applicant’s commander denied his reenlistment application. (App Ex B)  The
action was appealed and in October 2000, the Director of Personnel directed Applicant be allowed
to reenlist.  The Director had reviewed the matter and was convinced the reenlistment denial was
not warranted. (App Ex C)  Applicant stayed on active duty and in October 2002 was promoted to
E-5. (App Ex F) In April 2004, Applicant completed 20 years of service and received an honorable
discharge.  He was prevented from remaining in the Air Force longer due to his rank.  In order to
remain on active duty after 20 years an individual must be at or above the grade of E-6. 
In January 2004, Applicant was in his apartment with a friend listening to music. An off-duty
city police officer came by to tell Applicant to turn off his music.  The officer was a resident of and
employed by the apartment complex as a security officer, for which the officer received his
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apartment free of charge or at a reduced rate. (Tr. 33) Applicant and the officer got into a discussion
about whether the music should be simply turned down or turned off.  Applicant expressed his
willingness to turn down the music, but could not be required to turn off the music in his own
apartment. (Tr. 34) Applicant turned down the music in the officer’s presence and shut the patio
door, which had been opened.
A coworker, a service member, present at the time, (App Ex g) states Applicant complied
with everything asked of him by the off-duty officer except turning the music off. Five or ten
minutes later, three on-duty police officers arrived.  After being let into the apartment, the three
tackled Applicant, handcuffed him, and arrested Applicant for noise violation. (Tr.35App Ex G)
When his friend asked if throwing him to the ground and handcuffing Applicant was necessary, the
service member was told to shut up and stay out of it or he too would be arrested. Applicant spent
the remainder of the night in jail. 
Applicant has learned to do what the police say. If told by someone in authority to do
something, even if he feels the officer is in the wrong, he will comply. (Tr. 96, 97)  In the future, if
told to turn off the music he will. Applicant was scheduled to leave the Air Force and the state,
which influenced his decision to plead “no contest” to the charge. Additionally, he was told that after
six months “it would no longer exist.” (Tr. 36, Gov Ex 1) Applicant no longer lives in an apartment
complex. 
In October 2005, Applicant was working as a warehouse receiving coordinator on the 3:30
to midnight shift Monday through Friday. Occasionally, he was required to work Saturdays as well.
The previous night he left work at midnight and was back at work at 5:00 a.m.  He was able to get
three hours of sleep. After work on Saturday, he went home and tried to nap, but could not. He took
some energy pills he used when he worked out and went to a roadhouse and drank beer. Even though
he had been drinking, the energy pills gave him the misconception he was all right to drive. (Tr. 41)
When he left, he was rolling his motorcycle out of the parking lot when stopped by the police.  He
could not get the engine started. Applicant’s Blood Alcohol Content (BAC) was .22%. He was
arrested for Actual Physical Control (ACP) of a motorized vehicle while under the influence, a
misdemeanor. Applicant was never arrested for Aggravated Driving Under the Influence (DUI). 
Applicant was fined $200, sentenced to 20 hours of community service, required to undergo
alcohol assessment, and to attend a Victim Impact Panel (VIP).  His sentence was deferred for two
years. At the alcohol evaluation, the counselor said Applicant did not have an alcohol problem nor
was he an alcoholic. (Tr. 57) In March 2006, a Department of Public Safety hearing was conducted
and found there was not sufficient evidence to revoke Applicant’s driver’s license. (Tr. 37, App Ex
G)  In May 2006, Applicant completed VIP and in July 2006, he completed his required 20 hours
of community service. (App Ex G)
The deferred sentence ends in February or March 2008. (Tr. 56-57) Applicant is not on
probation nor is he seeing a probation officer. (Tr. 80) A deferred sentence is made before a
judgment or finding of guilt. The sentence is deferred for a period of time upon certain conditions
that must be satisfied.  If Applicant complies with all court orders, the court will dismiss the case
and the charge will not appear on his record.  If successfully completed, the case will be dismissed,
and the record of a plea expunged from the record. 
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Applicant acknowledged spending two days in jail was a “big wake-up call.” (Tr. 43) He
recognizes his arrest was a good thing. It caused him to consider the path he was on.  He realizes the
danger to himself and others by his actions that evening. He re-evaluated his role as a father, did not
want to be in jail again, and decided he needed to spend his free time differently.  He has since
become involved in a new relationship. He states he will not allow himself or others to be in such
a situation in the future. (Tr. 94) No recent alcohol related incidents appear in the record. 
In March 2006, Applicant completed an Electronic Questionnaires for Investigations
Processing (e-QIP).  Applicant listed his 2004 noise violation arrest and his 2005 APC arrest on his
e-QIP. However, he answered “no” to question 23 which asked if during the previous seven years
he had been subject to disciplinary proceedings under the UCMJ.  Applicant had received an Article
15 in August 1999, which was six and a half years earlier. Applicant thought the event and Article
15 had occurred more than seven years prior. He miscalculated in determining the seven-year period.
The event had occurred two months before the end of the seven-year period and the Article 15
occurred five months before the period ended.
In May 1984, Applicant first consumed alcohol. He was drinking during the incident in May
1999 resulting in the Article 15. He was drinking prior to his January 2004 and October 2005 arrests.
Applicant continues to drink and imposes a three-beer limit on himself if he is going to drive his
motorcycle or vehicle. (Tr. 61) He drinks on most, but not every weekend. (Tr.82) In the past month
he has probably had ten drinks. (Tr. 82)
POLICIES
The Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information, dated August 2006, sets forth Disqualifying Conditions (DC) and Mitigating
Conditions (MC) for each applicable guideline. Additionally, each decision must be a fair and
impartial commonsense decision based upon the relevant and material facts and circumstances, the
whole person concept, and the factors listed in Section 6.3 of the Directive. The adjudicative
guidelines are to be applied by administrative judges on a case-by-case basis with an eye toward
making determinations that are clearly consistent with the interests of national security. The
presence or absence of a particular condition or factor for or against clearance is not determinative
of a conclusion for or against an applicant.  However, the adjudicative guidelines should be followed
whenever a case can be measured against this policy guidance. Considering the evidence as a whole,
I conclude the relevant guidelines to be applied here are Guideline G, alcohol consumption,
Guideline E, personal conduct, and Guideline J, criminal conduct.
BURDEN OF PROOF
The sole purpose of a security clearance decision is to decide if it is clearly consistent with
the national interest to grant or continue a security clearance for an applicant. Initially, the
Government must establish, by substantial evidence, that conditions exist in the personal or
professional history of the applicant which disqualify, or may disqualify, an applicant from being
eligible for access to classified information. The burden of proof in a security clearance case is
something less than a preponderance of evidence, although the government is required to present
substantial evidence to meet its burden of proof.  Substantial evidence is more than a scintilla, but
 ISCR Case No. 93-1390 (January 27, 1995) at pp. 7-8; Directive, Enclosure 3, Item E3.1.152
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less than a preponderance of the evidence. All that is required is proof of facts and circumstances
which 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.  Additionally, the government must prove controverted facts alleged
in the SOR.  Once the government has met its burden, the burden shifts to an applicant to present
evidence to refute, extenuate or mitigate the government's case.  Additionally, an applicant has the
ultimate burden of persuasion to obtain a favorable clearance decision.2
As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518,
528 (1988), “no one has a ‘right’ to a security clearance.” 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. The
“clearly consistent with the national interest” standard compels resolution of any reasonable doubt
about an applicant’s suitability for access to classified information in favor of protecting national
security.  Security clearance determinations should err, if they must, on the side of denials. 
CONCLUSIONS
The Government satisfied its initial burden of proof under alcohol consumption. As stated
in paragraph 21 of the Adjudicative Guidelines the concern is that excessive alcohol consumption
often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and
can raise questions about an individual’s reliability and trustworthiness.  Disqualifying Condition
(DC) 22(a) “alcohol-related incidents away from work, such as driving while under the influence,
fighting, child or spouse abuse, disturbing the peace, or other criminal incidents of concern,
regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent” applies.
Applicant had been drinking prior to the event in May 1999 and prior to his arrest in 2004
for noise violation.  However, his drinking was not the cause of the problems.  His drinking prior
to the 2005 APC was the cause of the problem. The APC was an alcohol-related incident.  Applicant
had little sleep the night before, went out drinking, drank too much, and took some energy pills gave
him the feeling he as okay to drive.  As he was leaving, he could not get his motorcycle started and
was arrested for actual physical control. Based on his BAC at the time, it was a good thing he could
not start his motorcycle.
Even though Applicant was arrested, he believes this was for the best because it caused him
to consider the path he was on.  He realizes the danger he could have put himself or others in that
evening by his drinking and driving. He evaluated his life and decided he would never allow himself
or others to be in such a position.  The conduct has not repeated itself. Applicant’s alcohol use was
evaluated and the counselor stated he did not believe Applicant had an alcohol problem or was an
alcoholic. Mitigating Condition (MC) 23(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 good judgment” applies.
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Criminal activity creates doubt about a person's judgment, reliability and trustworthiness.
By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules
and regulations. In 1999, Applicant received an Article 15 for having sexual relations with an airman
in his unit.  In 2004, he was arrested for noise violation, and in 2005 for APC.  DC 31(a) “a single
serious crime or multiple lesser offenses” applies.  Applicant’s APC sentence was deferred and does
not end for another six months.  DC 31(d) “individual is currently on parole or probation” does not
apply because a deferred sentence is not parole or probation.  The deferred sentence is made before
a finding or judgment of guilty has been made.
Eight  years ago, Applicant and his wife were undergoing marital problems.  His wife wanted
a divorce and returned to England. A younger woman showed him attention and Applicant and the
woman had sexual relations. A man in the midst of marital problems can be affected by the attention
of a younger woman.  But when the person is a married NCO and the woman an airman in his unit,
it violates Air Force regulations and is prejudicial to good order and discipline in the armed forces.
It is their positions in the military that caused the problem.  Applicant acknowledges he should not
have had relations with this woman, even consensual relations. His conduct was a mistake, but was
not rape. A woman who is raped is unlikely to have breakfast with her rapist and then call him that
afternoon, invites him to dinner, and then pay for dinner.  She was 22 years old, drank too much and
did something she later regretted, which was unfortunate. 
Applicant acted inappropriately, was punished, and went on to complete twenty years of
honorable service.  MC 32(a) “so much time has elapsed since the criminal behavior happened, or
it happened under such unusual circumstances that it is unlikely to recur and does not case doubt on
the individual’s reliability, trustworthiness, or good judgment” applies. The incident occurred eight
years ago and Applicant was sufficiently punished for his inappropriate conduct.  Enough time has
passed that the conduct no longer cases doubt on his reliability, trustworthiness, or good judgment.
In 2004, an apartment security guard told him to turn off the music in his apartment.  Instead
of complying, Applicant discussed the difference between turning down the music and tuning it off.
A witness stated Applicant did everything to comply with the requests short of turning off the music
completely.  Shortly thereafter, three on-duty officers arrive, tackle Applicant, handcuff him, and
arrest him for noise violation. This appears to be an over reaction by the city police for the office
was having loud music and he had turned it down. This was a learning experience for Applicant.
In the future, Applicant will comply with all police directions.  This reaction by the city police does
not raise a security concern. MC 32(a) applies because it does not cause doubt on Applicant’s
reliability, trustworthiness, or good judgment. 
In 2005, Applicant was arrested for APC and his sentence deferred until early 2008.
Applicant completed his court directed alcohol evaluation, paid the fine, and completed his
community service.  He has complied with the court orders. There is no indication Applicant was
additionally ordered to obey the law. Even if he had been ordered to obey the law, this does not
impose an additional requirement for all citizens are required to obey the law and can be called to
account for their actions if they fail to do so.
Should Applicant complete the deferment period, the case and all charges will be dismissed.
Applicant’s acknowledges his actions were wrong and the conduct has not been repeated. Spending
two days in jail caused him to reevaluate his role as a father and consider the path he was on. He
does not want to return to jail again and has changed the way he spends his free time.  He realizes
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the danger to himself and other that drinking and driving poses and will not allow himself or others
to be in such a situation in the future. 
The allegation of falsification under Guideline E, personal conduct is unfounded. The
Government has shown Applicant’s answer to questions 23 on his e-QIP was incorrect, but this does
not prove the Applicant deliberately failed to disclose information about his Article 15. Deliberate
omission, concealment, or falsification of a material fact in any written document or oral statement
to the Government when applying for a security clearance is a security concern. But every inaccurate
statement is not a falsification. A falsification must be deliberate and material. It is deliberate if it
is done knowingly and willfully. 
The question asks about disciplinary proceedings under the UCMJ during the previous seven
years.  Applicant completed his e-QIP in March 2006 and reported his 2004 noise violation arrest
and his 2005 ACP arrest.  He did not report the Article 15.  The conduct resulting in the Article 15
occurred in May 1999, two months inside the seven-year window contemplated by the question.
His Article 15 was received in August 1999, five months before the period being in question was
to expire. The Applicant says he miscalculated the seven year period and denied intentional
falsification.  I found Applicant’s explanation plausible. After hearing his testimony, observing his
demeanor, and evaluating all the evidence of record, I found his testimony credible on the
falsification issue.  I am satisfied he did not intentionally falsify his SF 86.  
In reaching my conclusions, the “whole person” must be considered and the events cannot
be handled piecemeal.  Therefore, I have also considered: the nature, extent, and seriousness of the
conduct; Applicant’s age and maturity at the time of the conduct; the circumstances surrounding the
conduct; Applicant’s voluntary and knowledgeable participation; the motivation for the conduct; the
frequency and recency of the conduct; presence or absence of rehabilitation; potential for pressure,
coercion, exploitation, or duress; and the probability that the circumstance or conduct will continue
or recur in the future. 
Applicant made three serious mistakes during the last eight years, none of which are likely
to repeat themselves. Since he is no longer in the service, having sexual relations with someone
junior in grade in his unit cannot repeat itself.  He will never again be involved with a subordinate.
When directed to take action by a police officer, even an off-duty police officer, Applicant will
comply. Applicant understands the danger he put himself and other in when he attempted to drive
after drinking and will not commit that misconduct again. I find for Applicant as to alcohol
consumption, personal conduct, and criminal conduct. 
FORMAL FINDINGS
Formal Findings as required by Section 3, Paragraph 7, of Enclosure 1 of the Directive are
hereby rendered as follows:
Paragraph 1 Alcohol Consumption: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
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Paragraph 2 Personal Conduct: FOR APPLICANT
Subparagraph 2.a: For Applicant
Paragraph 3 Criminal Conduct: FOR APPLICANT
Subparagraph 3.a: For Applicant
Subparagraph 3.b: For Applicant
Subparagraph 3.c: For Applicant
DECISION
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 Applicant. Clearance is
granted.
_____________________________
Claude R. Heiny 
Administrative Judge