DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 06-15166 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Fahryn E. Hoffman, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
Between 1987 and 2005, Applicant was convicted three times for Driving Under 
the Influence and once for public intoxication. Following his 2003 arrest, Applicant 
received counseling and stopped drinking. However, he drank again in May 2005, which 
resulted in the public intoxication conviction. With this arrest it was clear to Applicant 
that he should never again drink. He has not drunk alcohol since 2005.  
 
After a thorough review of the case file, pleadings, exhibits, and evidence, I 
conclude Applicant has rebutted or mitigated the government’s security concerns under 
Guideline J, criminal conduct, and Guideline G, alcohol consumption. Based upon a 
review of the case file, pleadings, exhibits, and testimony, eligibility for access to 
classified information is granted. 
 
Statement of the Case 
 
 Applicant contests the Defense Department’s intent to deny or revoke his 
eligibility for an industrial security clearance. Acting under the relevant Executive Order 
 
 
 
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and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a 
Statement of Reasons (SOR) on October 28, 2007, detailing security concerns under 
criminal conduct and alcohol consumption.  
  
 On November 16, 2007, Applicant answered the SOR, and requested a hearing 
before an administrative judge. On January 16, 2008, I was assigned the case. On 
March 12, 2008, DOHA issued a notice of hearing scheduling the hearing held on 
March 26, 2008. The government offered Exhibits (Ex.) 1 through 4, which were 
admitted into evidence. Applicant testified on his own behalf. The record was kept open 
to allow Applicant to submit additional matters. On March 26, 2008, two additional 
documents were received. There being no objection, the documents were admitted into 
evidence as Exs. A and B. On April 10, 2008, the transcript (Tr.) was received.  
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant admits the factual allegations in SOR ¶ 1 
and neither admitted nor denied the allegations in SOR ¶ 2, which relate to SOR ¶ 1, 
allegations which he admitted. In 1987, 1995, and 2003, Applicant was arrested and 
convicted for Driving Under the Influence of alcohol (DUI). 
 
 Applicant is a 41-year-old lead technician who has worked for a defense 
contractor since June 2003, and is seeking to obtain a security clearance. (Tr. 41-42) 
Applicant worked for the same company for a couple of years before leaving and then 
returning. (Tr. 24)  
 
 Applicant grew up in the mid-West. Applicant began drinking in 1987 at age 19. 
Also in 1987, his parents divorced, which occurred when he was away at school. His 
parents sold their house and moved while he was away at school. (Tr. 83) His mother 
and sister moved to California and his father stayed in the mid-West. (Tr. 27, 39) 
Following the divorce, Applicant was a bitter person who getting along with was difficult.  
 
In May 1987, Applicant, then age 20, was arrested for DUI. (Tr. 71) He had been 
at a bar drinking with friends. (Tr. 68) He spent the weekend in jail. Following his 
conviction for DUI, Applicant was sentenced to 30 days in jail, a $310 fine, and he 
received six months probation.  
 
 In February 1994, Applicant obtained his associate’s degree in electronics and 
received training in computer technologies. (Tr. 23, 30) He was working as an electronic 
technician in California. In 1998, he returned to the mid-West. (Tr. 33) In 1999, he 
moved to California to start his own business. (Tr. 33) The business was underfinanced 
and folded. (Tr. 28, 38) Applicant moved back to the mid-West. (Tr. 34) In June 2001 
following a few months of unemployment, he moved to California and attended school. 
1 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. 
 
 
 
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Applicant received additional computer and network certifications. (Tr. 31) In June 2003, 
he moved back to the mid-West and started working for his current employer. (Tr. 34) 
 
New Year’s Eve 1995, Applicant was arrested for speeding and DUI. Following 
conviction for DUI, his driver’s license was suspended for 30 days, he paid a $500 fine, 
attended an alcohol awareness class and victim impact education, and was in a 
diversion program from six to twelve months. (Ex. 3, Tr. 65) In October 2000, he got his 
vehicle stuck following a rain. The police officer smelled alcohol and charged him with 
DUI. He was found not guilty of the charge. 
 
In 2001, he was arrested and charged with DUI and refusing to submit to a 
preliminary breathalyzer test (PBT). The DUI charge was dismissed, but his driver’s 
license was suspended for one year having been found guilty of refusing to submit to a 
PBT. Applicant attended 90 days recovery treatment. (Ex. A) In November 2003, he 
was charged with DUI and failure to maintain a single lane of traffic. He spent the 
weekend in jail. The failure to maintain a single lane of traffic charge was dismissed but 
he was found guilty of the DUI. He paid a $500 fine, was required to attend Alcoholics 
Anonymous (AA) meetings for two months, received one year probation, and his driver’s 
license was suspended for a year. (Tr. 54) When his license was reinstated, Applicant 
was required to put a breath analyzer device in his car for an additional year. (Tr. 60) 
 
 Applicant’s father is in the chronic stages of alcohol dependency and is in the 
process of needing emergency acute care. (Ex. A) Applicant is at risk for biological 
dependence due to his father’s chronic stage of alcoholism. (Ex. A) Applicant has 
watched his father, who is a heavy alcoholic, deteriorate and disintegrate. This has 
increased Applicant’s motivation to quit drinking. (Tr. 108-109) 
 
From late 2003 until the summer of 2004, Applicant attended intensive weekly 
counseling with a certified alcohol drug abuse counselor. (Ex. A, Tr. 54) It was 
determined he was not chemically dependant on alcohol. He was diagnosed with 
“nondependent alcohol abuse unspecified drinking behavior.” (Ex. A, page 3, Tr. 56) 
During treatment, he took a hard look at this background and family issues and why 
things were happening to him. (Tr. 54) The counseling looked at his childhood, family 
issues, and his parent’s problems. Applicant came to realize he was harboring 
resentment against his parents for their divorce. (Tr. 82) He realized he had to accept 
things and move on. He chose to no longer blame himself and realized there were 
events and things he had no control over and for which he was not responsible. (Tr. 
107) Following treatment, he describes himself as more honest, open minded, and 
having learned to live with facts as they are. (Tr. 108) He is physically in better shape. 
 
 In treatment, he was exceptionally motivated, wanted to do well, believed he had 
a problem and was willing to put forth the effort to change. He did not blame others for 
his problems. In May 2004, at the conclusion of treatment, Applicant continued to show 
improvement and a willingness to maintain abstinence. He was remorseful over his 
conduct. In treatment he came to believe “he can not drink without consequences.” (Ex. 
A) Applicant made a decision to never again drive after having anything to drink. (Tr. 61) 
 
 
 
 
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 After completing counseling, Applicant stopped drinking. (Tr. 77) The next time 
he drank was in May 2005, when he was out with friends at a bar. When he left the bar, 
he tripped over a parking stop and was arrested for public intoxication. Applicant was in 
total disbelief because he was shocked by his ill fortune in that the one night he drank 
he was arrested. (Tr. 109) This was the last time Applicant drank alcohol. (Tr. 45) He 
was found guilty of public intoxication and sentenced to five days in jail (suspended), 
fined $75 and he paid $55 in court costs. (Tr. 48-49) It was a clear sign to him that he 
should not drink again. (Tr. 77-78) 
 
Applicant has dissociated himself from the friends who consumed alcohol with 
him. (Tr. 75) He last saw them in 2005. His friends did not take it well when he 
explained he could no longer associate with them. (Tr. 75) He told them he could not 
afford to get into any more trouble and it was easier if he was with them when they were 
drinking. His own abstinence was easier if he did not go out with them. (Tr. 75)  
 
 Applicant’s family is his support system. They see him as a different person now 
that he has stopped drinking. (Tr. 82) He now spends time with friends who do not drink. 
(Tr. 76) He spends his time snow skiing, biking, traveling, going to movies, working on 
cars, and going to car shows. He decided to stop drinking because whenever he drank 
trouble followed him. He understands nothing good happens when he drinks and he 
believes it is better to abstain from drinking. (Ex. A, Tr. 74)  
 
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. 
 
 
 
 
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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 
 
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.” AG ¶ 31 describes conditions that could raise a security concern 
and may be disqualifying. AG ¶ 31(a) “a single serious crime or multiple lesser 
offenses,“ and AG ¶ 31(c) “allegation or admission of criminal conduct, regardless of 
whether the person was formally charged, formally prosecuted or convicted,” apply. 
Between 1987 and May 2005, Applicant was arrested a number of times, convicted 
three times of DUI, and once for public intoxication.  
 
 Applicant has a serious drinking problem, which is in remission. Although not 
chemically dependent on alcohol, he was diagnosed with nondependent alcohol abuse. 
In 1987, at age 20, Applicant was first arrested and convicted of DUI. He was also 
arrested and convicted of DUI in 1995 and November 2003. In May 2005 he was 
convicted of public intoxication. 
 
Following his November 2003 arrest, Applicant attended seven months of 
intensive counseling. During treatment, he was exceptionally motivated, believed he 
had an alcohol problem, and was willing to put forth the effort to change. Applicant 
realizes there are events, people, and things over which he had no control or 
responsibility. In treatment he came to believe “he can not drink without consequences.” 
 
 
 
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His father’s problem with alcohol was a motivating factor. He recognized that alcohol 
had devastated his father, and he did not want to suffer the same fate.  
 
After completing counseling, Applicant stopped drinking. The next time he drank, 
he was again arrested. Applicant was in shock and disbelief for the one night that he 
chose to drink he was arrest for public intoxication. This was the last time Applicant 
drank alcohol. He has dissociated himself from his drinking buddies. He last saw them 
in 2005.  
 
Not all of his arrests resulted in convictions. AG ¶ 32(c) “evidence that the person 
did not commit the offense,” applies to those incidents.  
 
It has been three years since his last arrest. Applicant has a good employment 
record, has expressed remorse, has changed his friends, and no longer goes to the city 
where the majority of his arrests occurred. AG ¶ 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 cast doubt on the individual's reliability, 
trustworthiness, or good judgment,” applies as does AG ¶ 32(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.”  
 
Alcohol Consumption 
 
AG ¶ 21 expresses the security concern pertaining to alcohol consumption, 
“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.” Applicant was arrested and convicted four times for alcohol 
related incidents. AG ¶ 22(a) Aalcohol-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,@ and AG ¶ 22(c) “habitual or binge consumption of 
alcohol to the point of impaired judgment, regardless of whether the individual is 
diagnosed as an alcohol abuser or alcohol dependent,” apply. 
 
Applicant was diagnosed with nondependent alcohol abuse by a certified alcohol 
drug abuse counselor. The record does not contain the exact nature of Applicant’s 
counseling, nor is it established the counseling was part of an “alcohol rehabilitation 
program.” Therefore, even though a certified alcohol drug abuse counselor made the 
evaluation and Applicant relapsed following his counseling, AG ¶ 22(e) “evaluation of 
alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff 
member of a recognized alcohol treatment program,” and AG ¶ 22(f) “relapse after 
diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation 
program, “do not apply. The counselor does not meet the criteria of a licensed clinical 
social worker under AG ¶ 22(e) and is not a medical professional under AG ¶ 22(d). 
 
 
 
 
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 AG ¶ 22(b) “the individual acknowledges his or her alcoholism or issues of 
alcohol abuse, provides evidence of actions taken to overcome this problem, and has 
established a pattern of abstinence (if alcohol dependent) or responsible use (if an 
alcohol abuser),” applies. His counseling was an action to overcome his problem. 
Starting in 2003, Applicant sought counseling, was exceptionally motivated, believed he 
had a problem and was will to put forth the effort to change. Even though abstinence is 
required only for those alcohol dependent, Applicant has established a pattern of 
abstinence. In the four and a half years his November 2003 arrest, Applicant has 
refrained from drinking except for a single night. It has been three years since his last 
drink. He is committed to maintaining abstinence. He has changed his friends.  
 
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. Applicant was an alcohol abuser. 
During the seventeen year period between 1987 and May 2005, he was arrested eight 
times. Following his November 2003 DUI arrest, Applicant stopped drinking. However, it 
was his one day return to drinking that resulted in his most recent arrest in 2005 and 
reinforced his belief he should not drink again. He no longer associates with his drinking 
friends. He spends time with people who do not drink. He no longer frequents the city 
were the majority of arrests occurred. In the vernacular of AA, he has changed has 
“playmates” and “playpens.” 
 
Applicant is motivated to refrain from all use of alcohol. He has come to believe 
nothing good happens when he drinks and believes it is better to abstain from drinking. 
His May 2005 arrest, following a year and a half of abstinence assisted in his motivation 
to stop using as did his father’s problems with alcohol. His father is in the chronic stages 
of alcohol dependency. His father’s deterioration and disintegration has strengthened 
Applicant’s resolve to remain alcohol free.  
 
 
 
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His counseling not only addressed his drinking, but also his problems with his 
family. The counseling gave him insight into how he was leading his life. Applicant has 
made permanent behavioral changes. It has been three years since his last drink which 
supports the likelihood Applicant will remain alcohol free and have no additional adverse 
alcohol incidents.  
 
Even with his numerous alcohol related arrests during the 17 year period ending 
in May 2003, overall, the record evidence, including his counseling and three year 
abstinence from alcohol, 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 criminal conduct and alcohol consumption security concerns. 
 
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:  For Applicant 
 
 Paragraph 2, Guideline G:  FOR APPLICANT 
 
  Subparagraph 2.a:  For Applicant 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is granted.  
 
 
_________________ 
CLAUDE R. HEINY II 
Administrative Judge