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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-10959
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esquire, Department Counsel
For Applicant: Pro Se
                               
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on January 5,
2007. On November 26, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline J
for Applicant. The action was taken under Executive Order 10865, Safeguarding
Classified Information within Industry (February 20, 1960), as amended; Department of
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review
Program (January 2, 1992), as amended (Directive), and the revised adjudicative
guidelines (AG) promulgated by the President on December 29, 2005, and effective
within the Department of Defense for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on December 3, 2007. He answered
the SOR in writing on December 18, 2007, and requested a hearing before an
administrative judge. DOHA received the request, and Department Counsel was
prepared to proceed on January 23, 2008. I received the case assignment on January
28, 2008. DOHA issued a notice of hearing on February 12, 2008 and an amended
notice of hearing on March 4, 2008. I convened the hearing on March 5, 2008, the
GE 1 (Security Clearance Application, dated January 5, 2007) at 1, 8-9; Tr. 18-20, 40.1
GE 1, supra note 1, at 9-16; Tr. 19.2
GE 3 (Answers to Interrogatories, dated September 10, 2007) at 8, 16; Tr. 22-24.3
GE 2 (United States Department of Justice, Federal Bureau of Investigation, criminal record report) at 2; GE4
3, supra note 3, at 5; Tr. 24-25.
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scheduled date, but at an earlier time. The government withdrew allegation 1.g. The
government offered three exhibits (GE) 1 through 3, which were received without
objection. Applicant and four witnesses testified on his behalf. DOHA received the
transcript of the hearing (Tr.) on March 14, 2008. I held the record open for two weeks
to submit additional matters.  On March 11, 2008, Applicant submitted one exhibit (AE
1), without objection. The record closed on March 19, 2008. Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Findings of Fact
In his Answer to the SOR, dated December 18, 2007, Applicant admitted all the
factual allegations in the SOR, with explanation, including a change in some dates.
Applicant, who is 31 years old, works for a Department of Defense contractor as
a draftsman. He started working for the contractor five years ago. He completed his
security clearance application on January 5, 2007.1
Applicant dropped out of high school in the 9  grade. He obtained employment inth
the construction industry as an installer. Later, he worked as an autobody technician.2
Applicant began drinking at age 15 sporadically. He liked to party and to drink
alcohol. By age 18, he drank alcohol daily. He generally consumed beer, on average 6-
10 beers a day. Occasionally, he drank liquor. He never missed work as a result of his
alcohol consumption, but he arrived late to work occasionally. He also used marijuana.3
In 1995, the police observed him driving and noticed an air freshener on his rear
view mirror. The police stopped him and searched his car. The police found marijuana
joints in the ashtray and arrested him for possession of marijuana. He appeared in
court. The court fined him, directed he attend substance abuse classes and placed him
on probation for one year. He complied with the terms of his sentence.4
Approximately two years later, in November 1997, after a day of drinking with
friends at his house, he decided to leave his house. He drove down the road near his
house, lost control of his car and hit a tree. A friend took him home. He left the car at the
accident scene.  The police arrived at his house a short time later, escorted him back to
his car, and arrested him for driving under the influence of alcohol (DUI). The court
based his sentence on first offender status. The court fined him $1,000, suspended his
GE 2, supra note 4, at 2; GE 3, supra note 3, at 5, 17; Tr. 26-27.5
The record contains conflicting evidence about the date of Applicant’s second DUI arrest. His statement to6
the investigator contains a reference to a DUI arrest in April 2001 and another arrest in July 2001. The factual
scenario in the statement for both arrests is identical as is the charges and sentence. This factual summary
is clearly in error. The criminal records report also contains inaccurate information. Given that Applicant admits
to three DUI arrests, I find his testimony about the dates of these arrest credible. 
GE 2, supra note 4, at 2; GE 3, supra note 3, at 5; Tr. 29-30.7
GE 3, supra note 3, at 5; Tr. 29.8
GE 2, supra note 4, at 2; GE 3, supra note 3, at 5, 16-17; Tr. 30-31.9
Applicant denies being arrested for marijuana possession in June 2001 because such an arrest would have10
been his third felony arrest. Under the state’s statutes, a third felony arrest would have resulted in a  sentence
to life in prison. Tr. 34.
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drivers license for one year and directed he attend substance abuses classes. He paid
the fine and attended the classes. He, however, continued to drive, even though his
license had been suspended.5
In 1998 or 1999, but not in 2001, the police arrested him a second time for DUI.6
With his friends, he had been driving his car in mud, in an activity called rooting. On his
way home, his car transmission broke. He fell asleep in the car with the engine running
so that he had heat in the car. The police woke him and charged him with DUI. The
court sentenced him to 90 days in jail, suspending 88 days; fined him $1,000; directed
he attend additional substance abuse programs; and suspended his drivers license for
three years. Again, he complied with the terms of his sentence, except he continued to
drive his car on a suspended license.7
In April 2000, he and friends spent the afternoon drinking alcohol. He left his
friend’s house and drove into the drive through lane of a McDonald’s. He passed out in
the drive through lane. Since he was on private property, the police could not charge
him with DUI. The police arrested him for public drunkenness, took him to jail, and
impounded his car. The court fined him $50.8
One year later, on April 8, 2001, after an evening of drinking with friends,
Applicant drove home. He has little recall about the subsequent events, but testified
based on the information given him and in the police report. An off-duty police officer
observed him driving erratically and called in a report.  Another police officer stopped
him, determined that he was intoxicated and arrested him. He spend the night in jail.
The police charged him with a third DUI, a felony, and as a habitual offender, also a
felony.  The police also charged him marijuana possession. Applicant has not had an9
alcoholic beverage since this date.10
Applicant appeared in court on August 29, 2001. Pursuant to a plea agreement,
he pled guilty to both felony charges, which carried a mandatory jail time of five years
GE 3, supra note 3, at 16-17; Tr. 31, 36.11
Tr. 24, 32-33, 36-37.12
Id. at 21-22, 32. 13
Id. at 21-22, 32, 37-39.14
AE A (Recommendations from employer);Tr. 48-49, 54-55.15
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each. The court sentenced him to 10 years in jail, suspending all but 18 months. The
court also suspended his drivers license for five years and placed him on three years
probation.11
Applicant began his prison sentence on August 29, 2001. He stopped smoking
marijuana on this date. In jail, he reevaluated his life style. He enrolled in classes to
prepare him for passing his General Education (GED) examination and attended
alcoholics anonymous classes (AA). With sobriety, he realized how much a negative
effect alcohol had on his life. For him, staying out of trouble from his alcohol use was
easier than returning to jail. He decided that he preferred to move forward in his life. He
no longer drinks and goes to parties, activities which he found easy to stop. He states
that he is an alcoholic and that he does not intend to drink alcohol in the future. The
earlier alcohol programs did not work for him because he did not believe he had a
problem and did not want to be helped.  12
Applicant served 15 ½ months on his sentence. He was released on good
behavior. Initially, after his release, he returned to work in the construction industry and
continued to attend substance abuse programs. He also ran a substance abuse
program at a local church for three years.  13
Shortly after his release from jail, his uncle told him, that if he obtained his GED
and a certification for computer drafting, he would recommend Applicant to the company
where he worked. By March 2003, Applicant had completed both. Applicant’s uncle
testified to this same information, adding that he specifically requested the company not
to tell anyone that Applicant was his nephew until Applicant proved himself. To his
uncle’s knowledge, Applicant has not consumed any alcohol since leaving jail.14
Since starting his present job, Applicant has moved forward in his position. He
now supervises four individuals. His department has nominated him five times for
quality associate of the year. Applicant’s supervisor also testified. He described
Applicant as a very good employee, who is dependable, reliable and trustworthy.15
Applicant’s parents, who are divorced, also testified. His mother admitted that he
learned to drink and party from her. As a result of his incarceration, she and his step-
father stopped drinking alcohol entirely. Before he went to prison, Applicant had no
purpose in his life. He used his time in prison positively. He learned to forgive himself
Tr. 43-46.16
Tr. 58-60.17
Tr. 18, 33-3418
Id. at 21,19
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and became a responsible young man. His mother can trust him with anything now.16
His father also describes him as a changed man, who did more partying than he should
as a young man. Applicant finally realized that he was in the wrong place, a place he did
not want to be. Applicant does not use alcohol or drugs.17
Applicant married six months ago and purchased a house last summer. His wife
does not drink alcohol. He has new friends.  Since his arrest in April 2001, the police18
have not arrested him for any misconduct. He has had one parking ticket.  The state
returned his drivers license in January 2005. He now has a good driving record.19
Policies
When evaluating an Applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The administrative judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The administrative judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
At the hearing, the government withdrew allegation 1.g. because of the recent repeal of 10 U.S.C. 986. In20
light of the government’s withdrawal, I need not discuss disqualifying condition AG ¶ 31(f).
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Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the 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, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “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.”
Under AG ¶ 31, the following disqualifying condition could raise a security
concern in this case:
(a) a single serious crime or multiple lesser offenses.  20
Between 1995 and 2001, the police arrested Applicant three times for DUI, once
for public drunkenness, and twice for marijuana possession. Following his third DUI
arrest, the police also charged him as a habitual offender, a felony. He served 15 ½
months in prison after his third DUI conviction, a felony, and three years on probation.
During this six year period of time, Applicant had numerous arrests and criminal
convictions related to his alcohol consumption and marijuana use. This disqualifying
condition applies in this case.
AG ¶ 32 provides conditions that could mitigate security concerns:
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(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 cast doubt on the individual's reliability, trustworthiness, or
good judgment;
(b) the person was pressured or coerced into committing the act and those
pressures are no longer present in the person's life;
(c) evidence that the person did not commit the offense;
(d) there is evidence of successful rehabilitation; including but not limited
to the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or
constructive community involvement; and,
(e) potentially disqualifying conditions (b) and (f) above, may not be
mitigated unless, where meritorious circumstances exist, the Secretaries
of the Military Departments or designee; or the Directors of Washington
Headquarters Services (WHS), Defense Intelligence Agency (DIA),
National Security Agency (NSA), Defense Office of Hearings and Appeals
(DOHA) or designee, has granted a waiver.
Since his last DUI Arrest in April 2001, Applicant has not consumed any alcohol.
A few months later, he stopped smoking marijuana. As a result of these decisions, he
has not been arrested by the police for any criminal conduct, especially conduct
resulting from his alcohol consumption, in nearly seven years. Because he no longer
drinks and recognizes the negative impact of alcohol should he drink again, there is little
likelihood that this conduct will reoccur.  AG ¶ 32(a) applies.
While in prison, Applicant took classes to prepare for taking his GED examination
and attend AA meetings. Since his release from prison, he obtained his GED and a
certificate for computer skills. He has worked at the same job for five years, comes to
work every day, works long hours, and is highly respected by his supervisors and co-
workers. He is dependable and reliable employee. He also started a substance abuse
program at a local church which he ran for two years. He has successfully rehabilitated
his behavior and attitude towards alcohol, which ended his criminal conduct. AG ¶ 32(d)
applies. None of the other mitigating conditions are applicable in this case.
Whole Person Concept
Under the whole person concept, the administrative judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a):
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“(1) the nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable
participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) extent to which
participation is voluntary; (6) the presence or absence of rehabilitation and
other permanent behavioral changes; (7) the motivation for the conduct;
(8) the potential for pressure, coercion, exploitation, or duress; and (9) the
likelihood of continuation or recurrence.” 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. When he first started consuming
alcohol, Applicant was a 15-year-old teenager. (See AG & 2(a)(4).) He liked to party and
drink, which lead to a serious drinking problem by age 18. He continued with his daily,
excessive drinking until age 25, despite knowing the problems his drinking was causing
him. (See AG ¶¶ 2(a))1)-(3), (5)).  
Applicant quit drinking following his third DUI arrest. Until this time, he denied to
himself that he had an alcohol problem. With this arrest, he finally realized that his
drinking behavior was having a detrimental effect on his life. He made a clear decision
in April 2001 to change his attitude and behavior towards alcohol. He stopped drinking
immediately and continues not to drink. He acknowledges that he is an alcoholic and
knows the negative impact future alcohol consumption will have on his life. He served
his prison sentence without incident. During his incarceration, he took advantage of
educational opportunities and attend AA meetings, where he gained a much clearer
understanding of alcohol and its effect on his life. Since leaving prison, he has
completed his GED and attained computer skills. He has held the same work position
for five years and plans to continue working in this job. He recently married and
purchased a home. He likes his present life and has no desire to return to his previous
life style. Given his seven-year abstinence from alcohol and nearly seven-year
abstinence from using marijuana, and the knowledge of others in his life about his past
conduct, the potential for coercion, exploitation, pressure or duress for his past conduct
is unlikely. (See AG & 2(a)(6)-(9). Applicant misused alcohol as a teenage and young
adult. His incarceration caused him to seriously reevaluate his lifestyle and look at his
future. He decided to change the direction of his life and successfully did.
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from his criminal  conduct. 
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline J: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: Withdrawn
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                                              
MARY E. HENRY
Administrative Judge