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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------- )       ISCR Case No. 07-08595 
SSN:------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
April 7, 2008
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Decision
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MOGUL, Martin H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on December 5,
2006. On November 19, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
G and E 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 replied to the SOR (RSOR) in writing on January 7, 2008, and
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on January 31, 2008. DOHA issued a notice of hearing on
February 7, 2008, and I convened the hearing as scheduled on March 6, 2008, in San
Diego, California. The Government offered Exhibits (Ex) 1 through 4, which were
received without objection. Applicant testified on his own behalf, and three additional
individuals testified on behalf of Applicant. He also submitted Ex A through D. I granted
Applicant’s request to keep the record open until March 14, 2008, to submit additional
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document.  On March 13, 2008, he submitted a 23 page post hearing submission, which
has been marked as Ex E, and entered into evidence without objection, and the record
closed on that date. DOHA received the transcript of the hearing (Tr) on March 14,
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 RSOR, Applicant admitted the SOR allegations 1.b, under Guideline G,
and 2.a. and 2.b., under Guideline E with explanations. He denied 1.a. under Guideline
G. The admitted allegations are incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant and the
other witnesses, and upon due consideration of that evidence, I make the additional
findings of fact: 
Applicant is 46 years old. He is married and he has one stepchild. He served for
20 years in the United States Navy, and he received an Honorable Discharge. He is
employed by a defense contractor, and he seeks a DoD security clearance in
connection with his employment in the defense sector.
Paragraph 1 (Guideline G - Alcohol Consumption) 
The Government alleges that Applicant is ineligible for clearance because he has
engaged in excessive alcohol consumption. The following are the allegations as they
are cited in the SOR:
1.a. Applicant is alleged to have consumed alcohol, at times to excess and to the
point of intoxication, from approximately 1979 to at least May 2007. Applicant testified
that he started consuming alcohol as a teenager and when he joined the military
December drank at times to excess. For the last 15 years, Applicant consumes alcohol
on a moderate level, and while he still drinks alcoholic beverages, the amount has
decreased since his 2006 arrest to no more than three beers at one time. He also
testified credibly that since the DUI, he has not driven and will never drive again after
consuming alcohol. 
 
1.b. On December 3, 2006, Applicant was arrested and charged with (1) Driving
Under the Influence of Alcohol (DUI), and (2) Driving While Having an 0.08% or Higher
Blood Alcohol Content.  He found guilty on March 2007, and he was sentenced was to
five years probation. Applicant was ordered to complete the First Conviction Program,
pay a fine, complete community service, attend a MADD Impact panel, and attend three
Alcoholics Anonymous meetings. Applicant has completed all of his requirements. 
Applicant testified that on the day of this incident, he had consumed
approximately 12 beers from noon until he drove at around five in the afternoon. He
stated that was more than he usually drank in one day, but on that day he and his wife
had an argument. When he was stopped, his blood alcohol measured .16, and he
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ended up spending the night in jail. The next day when he got out, he immediately
called his supervisor to inform him of his DUI arrest. His supervisor, during his
testimony, verified that he was phoned by Applicant on the day of his release to inform
him of Applicant’s arrest. 
Paragraph 2 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he furnished untruthful information to the Government. 
2.a. Applicant completed a signed, sworn Security Clearance Application (SCA)
on December 5, 2006 (Ex 1). He answered a series of questions under Section 23,
regarding his police record. Question C asks “Are there currently any charges pending
against you for any criminal offense?” Applicant answered “No.” The Government
alleges that Applicant’s deliberately failed to list the pending charges from his December
3, 2006 arrest as set forth in 1.b., above.
Applicant testified that he completed the SCA on December 1, 2006, and at that
time he had not yet been arrested. He submitted it to another individual within his
company, on that date and indicated to him that it was ready to be forwarded. The DUI
arrest happened on December 3, 2006.The document was submitted on December 4,
2006, by that individual who testified at the hearing. Applicant signed the document on
December 5, 2006, indicating that everything he had included on the document was true
and correct. 
The evidence is clear that Applicant did not intend to mislead the Government on
the SCA. He completed the document and submitted it to be forwarded, before he was
arrested, and he believe that it had been forwarded before his arrest. Although it
actually was submitted one day after Applicant’s arrest, I find nothing in the record to
indicate that Applicant in any way was attempting to hide his DUI arrest from the
Government or his employer. In fact, as discussed above, Applicant called his
supervisor immediately after being released from prison to inform him of his arrest for
DUI. 
2.b. During a 1987 investigation by Naval Investigative Service, Applicant initially
denied drug use after he received a positive drug screening through urinalysis, even
though he had consumed amphetamine mixed with alcohol prior to the testing. 
At the hearing, Applicant explained that during his first year in the Navy, he used
methamphetamine on one occasion after he had broken up with his girlfriend, when it
was offered to him at a party. Shortly after that, he showed positive during a random
drug test, and he conceded that at first he denied that he had used any drugs.
However, when the matter proceeded to a Captain’s Mast, Applicant did admit that he
had used drugs. He was granted a second opportunity to remain in the Navy, with the
understanding that he must never use drugs again. Applicant testified most credibly that
he very much appreciated this second chance, and since that event in 1987, he has
never used any illegal substance. 
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Mitigation
Three witnesses, who know Applicant from his present employment, testified on
his behalf. They all were extremely positive in describing Applicant as a most honest
and conscientious employee. His direct supervisor also verified that Applicant kept him
informed of his arrest, immediately upon his release from jail, and continued to inform
him as to the status of the case.  One of the other witnesses traced the timeline of
Applicant’s completion and submission of his SCA, and verified that Applicant did not
attempt to mislead the Government when he completed the SCA. 
Applicant submitted 11 character letters from individuals, who have known him in
either professional or personal status or both (Ex D). They all were quite laudatory,
describing Applicant as “honest, hard working, and very responsible.” The letters from
individuals, who have known him outside of the work environment, confirmed that they
have never seen him consume alcohol to excess. 
In his post hearing documents (Ex E) Applicant submitted his current
Performance Development Summary. His Overall Performance Rating was “Exceeds
Expectations,” which is the second from the highest rating, and he was described as “a
productive and highly valuable asset ” to his employer. He also included his Naval
Evaluation Reports and Counseling Records for years 2003 and 2004. In his most
recent evaluation, he was described as a “top notch Petty Officer who demonstrates
keen foresight and is an inspiration to all who observe him. His efforts directly contribute
to the overall success of this command and its mission.”
Finally, in Ex E, Applicant explained that his 2006 DUI conviction cost him
approximately $7,672, as well as a great deal of time and requirements. He stressed
that he would never again find himself in a position where he would drive after
consuming any alcoholic beverages.   
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.
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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
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 G - Alcohol Consumption
Applicant's alcohol consumption has resulted in one DUI arrest and
conviction, occurring in 2006.
The Government established that Applicant was involved in an
alcohol-related incident away from work, and binge alcohol consumption to the point of
impaired judgement on one occasion. Disqualifying Conditions (DC) 22. (a) and (c)
apply to this case.  
As stated above, Applicant admitted to currently drinking, but only in
moderation, and he never drives after drinking. I find that Mitigating Condition (MC) 23.
(a) applies as the behavior was so infrequent, only one DUI in his life, which he
sincerely regrets, that it is unlikely to recur and does not cast doubt on the individual’s
current reliability and trustworthiness. Paragraph 1 is found for Applicant.
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Guideline E - Personal Conduct 
With respect to Guideline E, when Applicant completed his SCA it was
true and correct. While it was forwarded to the Government one day after his arrest for
DUI, I find that Applicant did not knowingly or wilfully furnish untruthful information to the
Government. His initial denial of using drugs in 1987 was misinformation that was
submitted to a Government investigator.  
In reviewing the DC under Guideline E, I conclude that DC 16. (b) applies
because Applicant deliberately provide false and misleading information to the
Government investigator in 1987. However, MC 17. (c) applies because so much time
has passed since this offense, and the behavior occurred on only one occasion, that it is
unlikely to recur and it does not cast doubt on the individual’s reliability, trustworthiness
or good judgement.  Applicant has mitigated this allegation. I resolve Guideline E for
Applicant. 
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): “(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. Based on all of the factors
discussed above, including the positive testimony form his witnesses, the character
letters and employment reviews, plus Applicant’s credible sincere remorse, I find that
Applicant is a decent person, who will continue to control his alcohol consumption, so
that in the future, he will not find himself in the position of driving after he has consumed
alcohol. 
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:
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Paragraph 1, Guideline G FOR APPLICANT
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: For  Applicant
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a.: For Applicant
Subparagraph 2.b.: For Applicant
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.
                                             
Martin H. Mogul
Administrative Judge