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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------, -------- --------- )       ISCR Case No. 07-11018
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: David B. Gates, Esquire
______________
Decision
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WHITE, David M., Administrative Judge:
Applicant committed a DUI in 2002, and was convicted of a lesser offense after
completing a pretrial diversion agreement and alcohol treatment. He falsely reported
identity theft in 2005 to avoid a phone bill, and ran away from the scene of a minor
accident in 2006. He deliberately omitted being charged with the false reporting offense
on his clearance application. He mitigated alcohol security concerns, but not those
arising from his criminal and personal conduct. Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
denied. 
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on May 10, 2006. On January 25, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines E, G, and 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
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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 February 6, 2008. He answered
the SOR in writing (Answer) on March 15, 2008, and requested a hearing before an
Administrative Judge. Department Counsel was prepared to proceed on April 16, 2008,
and the case was assigned to me on April 25, 2008. DOHA issued a notice of hearing
on May 6, 2008, and I convened the hearing as scheduled on May 29, 2008. The
Government offered exhibits (GE) 1 through 3, which were admitted without objection.
Applicant testified on his own behalf, and submitted exhibits (AE) A and B, which were
admitted without objection. DOHA received the transcript of the hearing (Tr.) on June 5,
2008.
Findings of Fact
In his answer to the SOR, Applicant admitted the truth of all of the factual
allegations set forth in the SOR. Applicant’s admissions, including those contained in his
response to DOHA Interrogatories (GE 3), are incorporated in the following findings.
Applicant is a 37-year-old employee of a defense contractor. He has worked as a
mechanic with a security clearance for about ten years. He served on active duty in the
Navy for nine years before that. He is divorced with two sons, who live with his former
wife. He currently resides with his girlfriend and her teenage daughter. He has been
screened and approved to help coach that daughter’s recreational softball team.
On October 5, 2002, Applicant was arrested and charged with driving under the
influence (DUI), after he drove his truck off a road and down an embankment. SOR ¶
1.c incorrectly identifies the name of the county in which this took place, but is otherwise
accurate. He initially testified during the hearing that he was arrested while walking
several blocks away from his vehicle, and that some other person had been the one
driving it after they left the casino where they had been drinking. He said he pled guilty
to get the charge reduced as part of a pretrial diversion agreement, and that he was
only arrested because the vehicle was registered to him. He further stated that he could
not recall his blood alcohol content (BAC), but that the .08% BAC level stated in the
SOR was “fairly accurate.” (Tr. at 53-55, 63-66.) In later testimony, Applicant admitted
that he had been the driver when the truck left the road shortly before he was arrested,
and his BAC was .145% when tested after his arrest. He explained his earlier version of
events was given because he did not understand Department Counsel’s questions. (Tr.
at 78-80; GE 3 at 97-99.)
Applicant successfully completed the pretrial diversion agreement, resulting in
the DUI charge being reduced to first degree negligent driving. He was convicted of this
lesser offense, and sentenced to 90 days in jail and a $1,000 fine, both of which were
suspended, and two years of unsupervised probation on February 23, 2005. (GE 3 at
83-96.) As part of his diversion agreement, he underwent an alcohol assessment and
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treatment program. On June 3, 2004, the social worker/chemical dependency
professional who evaluated him found sufficient evidence to establish a DSM IV
diagnosis of 305.00, Alcohol Abuse, that by Applicant’s self-report appeared to be in
remission. Applicant successfully completed the prescribed four-point outpatient
treatment plan on October 6, 2004. (AE A; GE 3 at 105-111.) He abstained from
drinking during the treatment program, but resumed drinking in moderate amounts
thereafter and stated that he planned to continue to drink socially in the future. (Tr. at
46, 56-59; GE 3 at 5-6.)
Applicant and his wife went through a bitter separation and divorce from early
2004 until March 2005. During this time, his wife filed many complaints against
Applicant, none of which was sufficiently substantiated to support prosecution after
investigation. As alleged in SOR ¶ 2.c, she did obtain an ex parte temporary restraining
order against him that was dismissed once he was able to respond to the allegations at
a hearing on whether the order should be continued. Her allegations were not
substantiated on this occasion either. (GE 1 at 16; GE 3; Tr. at 42-45.)
In late November 2004, Applicant was contacted by a collection agency
regarding a past due $274.50 account with a cell phone company. He claimed that he
had never had service with that company, and filed an identity theft complaint with the
police. In connection with the investigation, his wife provided the police with copies of
account statements related to this telephone account which Applicant had opened in
2000, maintained at two addresses where they had lived, and subsequently closed. She
also reported that he had cashed a $150 rebate check from the company. When
confronted with this information by the investigator, Applicant reportedly insisted it was a
“refund” vice “rebate” check, a distinction he repeated during the hearing for some
undetermined reason. (GE 3 at 45; Tr. at 82.) The investigator explained to Applicant
that he was going to charge him with false reporting, and Applicant reportedly
understood that. This criminal complaint was filed on May 10, 2005. On September 1,
2005, the district court judge dismissed the charge without prejudice on motion of the
prosecution due to insufficient evidence. (GE 3 at 32-50.) 
On February 23, 2007, Applicant was asked about this false reporting charge in a
personal subject interview by an OPM investigator.  On October 19, 2007, in his sworn
response to written interrogatories, he attested to the accuracy of the information
contained in this interview report. He told the investigator that his wife had obtained the
cell phone in his name without his knowledge or permission. He acknowledged
receiving notice of the pending charges in the mail from the court. He stated that he
appeared in the district court, told his side of the story, his wife was not present, and the
charge was dismissed by the court due to lack of evidence. He stated that he did not list
this charge on his e-QIP in response to question 23f because it had been dismissed and
he misunderstood the question asking whether he had been arrested for, charged with,
or convicted of any offenses in the past seven years. During the hearing, Applicant
testified that he never knew he was charged with any offense in connection with this
false report, but got notification by mail that it was dismissed. (GE 1 at 24; GE 3 at 10-
11, 112-114; Tr. at 33-36, 50-53, 82-84.) 
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On August 6, 2006, Applicant was driving his SUV out of the parking lot after
another night at the casino. He ran into the rear of a car in front of him at a stop sign.
His girlfriend was in the front passenger seat and two very intoxicated friends were
riding in the rear passenger seat. Applicant’s version of subsequent events differs in
some particulars from those of the other participants, as recorded in the police report he
provided. It is not disputed, however, that he fled the scene on foot, crossed a major
road into a wooded area, and was later found by police lying with his head atop and
body stretched down the embankment at the shoulder of the road. He was apprehended
and hand-cuffed. (The findings concerning this incident are based on GE 3 at 13-23,
112-113, and Tr. at 32-33, 49-50, 73-78, and 80-81.)
Applicant’s girlfriend was apprehended by a responding police unit as she drove
the SUV some distance away from the casino. She and one of the other passengers
both reported that Applicant was driving at the time of the collision, then got out of the
SUV and told the girlfriend to take the car and leave. The girlfriend reported seeing
Applicant go into the casino before she left. The occupants of the other car also
reported that he first ran into the casino, then ran back out and crossed the road into the
woods. Applicant testified at the hearing that he did not go into the casino, but ran
directly across the road and into the woods because four guys jumped out of the back
seat of the other car, tried to attack him and chased him across the road. The police
report documents that the car held three men, one of whom was driving, and three
women. In his subsequently adopted OPM interview, Applicant stated that he had
consumed one alcoholic drink between 8:30 and 9:00 that evening, but nothing else
between then and the 1:30 a.m. accident because he was the designated driver. (GE 3
at 112.) During the hearing, he testified that he had been at the casino dancing, not
drinking or gambling. “No. I did not have anything to drink that night, sir.” (Tr. at 50, 78.)
The police officer who arrested Applicant and held him in custody until the following
morning reported that, after being informed that he was under arrest, Applicant “stated
he didn’t do anything wrong and seemed to be intoxicated.” (GE 3 at 21.) 
Applicant provided a copy of the formal charging document filed against him in
district court on November 2, 2006. (GE 3 at 13, 14, 16.) He told the OPM interviewer
and testified during the hearing that the charges were dropped after he and his
insurance company paid for the damages to the other car. Unlike the documents
provided relating to other criminal complaints against him, however, he provided no
documentation corroborating his assertion that the charges were dropped. (Tr. at 74.)
Applicant provided evidence showing that his supervisors delegate him authority
to serve as the maintenance building day-shift hourly group lead during temporary
absences of his group’s regular supervisor. He also provided performance reviews and
letters of recommendation from supervisors and co-workers documenting his good work
performance, integrity, trustworthiness and loyalty. There is no evidence of any security
problem or violation involving Applicant during the period he held a clearance. (AE B; Tr.
at 31-32, 39-41, 66-67.) Based on the inconsistencies noted above, some apparent
evasions of direct questions, and observation of his demeanor during the hearing,
Applicant’s testimony was less than credible. 
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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(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant shall be a determination in terms of the national interest and shall in no
sense be a determination as to the loyalty of the applicant concerned.” 
A person applying for access to classified information seeks to enter 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.
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Procedural Issues
On motion of Department Counsel, and without objection by Applicant or his
counsel, the SOR was amended to insert ¶ 2.d, “That information set forth in paragraph
1.c above.” This amendment incorporated the 2002 DUI incident under the Guideline G,
alcohol consumption, allegations in addition to its original allegation under Guideline J
for criminal conduct. Applicant’s counsel stated they had sufficient notice of both the
criminal and alcohol-related nature of this incident. (Tr. at 70-72.) 
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.” AG ¶ 31 describes conditions that could raise a security concern
and may be disqualifying. Disqualifying conditions asserted by the Government were:
“(a) a single serious crime or multiple lesser offenses;” and “(c) allegation or admission
of criminal conduct, regardless of whether the person was formally charged, formally
prosecuted or convicted.” (Tr. at 89.) Applicant admitted that he committed DUI in 2002
with a BAC of .145, resulting in his eventual conviction of first degree negligent driving.
He also admitted to his 2006 hit and run offense, in which he fled the scene to hide in
the woods after rear-ending another car at a stop sign. He denied being intoxicated at
the time, despite the arresting officer’s report to the contrary. His conduct on this
occasion, even if not alcohol-related, supports significant concerns about his judgment,
reliability and willingness to comply with laws and rules. Although the prosecution
moved for and was granted dismissal of the false reporting charge without prejudice,
substantial evidence establishes that Applicant did commit this offense as well,
attempting to evade a legitimate financial obligation through false accusations of
wrongdoing by others. These offenses, individually and collectively, raise security
concerns under the aforementioned disqualifying conditions.
AG ¶ 32 provides conditions that could mitigate criminal conduct security
concerns. Applicant’s completion of an outpatient alcohol treatment program,
community involvement and good work performance were offered to establish some
mitigation under two of them: “(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;” and “(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.”
Applicant’s DUI offense occurred almost six years ago, but his criminal history
must be evaluated as a whole, not piece by piece. His attempt to establish mitigation
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under ¶ 32(c), “evidence that the person did not commit the offense,” with respect to the
false reporting offense was not persuasive. Although his criminal actions in 2005 and
2006 are not considered individually to be serious offenses, the pattern precludes
reaching a conclusion that “such conduct is unlikely to recur and does not cast doubt on
Applicant’s current reliability or good judgment.” He has pursued constructive
community involvement in youth sports, and performed well at work. However, barely
two years have passed since his last criminal offense, which actually occurred after he
submitted the security clearance application under present adjudication.
Guideline G, 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.” AG ¶ 22 describes conditions that could raise a security concern
and may be disqualifying. The disqualifying conditions asserted by the Government in
this case are: “(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 whether the individual is diagnosed as an alcohol abuser or
alcohol dependent;” “(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;” and “(e) evaluation of alcohol abuse or dependence by a
licensed clinical social worker who is a staff member of a recognized alcohol treatment
program.”
Applicant admitted to consuming alcohol, at times to excess and to the point of
intoxication, from approximately 1986 until at least October 2007, and that he continues
to consume alcohol in his answer to the SOR. The clinical social worker in his court-
ordered alcohol treatment program diagnosed him with alcohol abuse. Although his
spouse obtained a temporary protection order based on allegations of threatening and
violent behavior toward her when Applicant consumed alcohol, those accusations were
never substantiated. He committed a DUI offense, with a BAC reading of .145, in
October 2002. The Government has established security concerns under this guideline,
shifting the burden of proof to Applicant to mitigate those concerns.
AG ¶ 23 provides conditions that could mitigate security concerns:
(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;
(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);
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(c) the individual is a current employee who is participating in a counseling
or treatment program, has no history of previous treatment and relapse,
and is making satisfactory progress; and
(d) the individual has successfully completed inpatient or outpatient
counseling or rehabilitation along with any required aftercare, has
demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations, such as
participation in meetings of Alcoholics Anonymous or a similar
organization and has received a favorable prognosis by a duly qualified
medical professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.
Applicant established mitigation under ¶ 23(a) with respect to his single 2002 DUI
incident. His 2006 hit and run was not processed as an alcohol-related incident despite
the arresting officer’s report that Applicant appeared intoxicated. He acknowledged his
alcohol abuse diagnosis and successfully completed the prescribed treatment program
in 2004, without further documented alcohol-related incidents. There is no evidence of
anything other than moderate and responsible alcohol use since he completed that
program, and the program completion report contained a generally favorable prognosis.
These matters generate further mitigation of alcohol consumption security concerns
under ¶¶ 23(b) and 23(d). The allegation in SOR ¶ 2.c, although admitted, does not
support alcohol consumption security concerns because the reported accusations were
not substantiated. 
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. The disqualifying condition alleged in the SOR and raised by the evidence
in this case is:
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
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Applicant omitted responsive information about his 2005 false reporting charge,
in response to question 23 on his May 2006 e-QIP. He certified the completeness and
accuracy of his answers, acknowledging the obligation to be truthful. He provided
documentation showing that he was formally charged with this offense, and the police
investigator who brought the charge informed him in person that he intended to do so.
His rationale during his hearing for failing to report this charge differed markedly from
the one he gave to the OPM investigator and later ratified as being true in his
interrogatory response. Neither attempted justification for the omission was persuasive.
The final court action on this charge, to which he had to respond and which he seemed
to consider unjust, occurred just over eight months before he certified the accuracy of
his e-QIP. The weight of evidence in this record leads to the conclusion that his
omission of relevant information concerning this criminal charge in response to question
23 was deliberate. 
Applicant did not disclose any information about this criminal charge until he was
asked about it by the OPM investigator during his February 23, 2007 personal subject
interview. This does not establish the personal conduct mitigating condition set forth in
AG ¶ 17(a): “the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts.” His conflicting
statements about why he omitted this information significantly undermine the credibility
of his assertion that he did not intend to mislead the Government about the existence of
this charge and his underlying actions that gave rise to it. He neither asserted nor
established any other personal conduct mitigating condition with respect to this
omission.
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 established by the record evidence. 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) the 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.  
  
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I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant’s conduct of potential
concern involved a relatively serious DUI offense in 2002, when he drove his truck off
the road and down a steep embankment with passengers involved. Fortunately, no
injuries were reported, but his BAC at the time was .145%, almost twice the legal limit of
.08%. Neither of his subsequent criminal offenses was particularly serious, but both
involved intentional wrongful conduct in attempts to avoid fulfilling his legal
responsibilities. The most recent of these incidents was only two years ago, and
occurred after submission of the clearance application that is under present
consideration. All of these incidents took place while Applicant was fully mature and
accountable for his choices. He demonstrated alcohol rehabilitation through successful
completion of a treatment program, and responsible use subsequent to his diagnosis of
alcohol abuse. However, he did not establish either rehabilitation or permanent
behavioral changes with respect to his pattern of criminal violations or the falsification of
his security clearance application. In fact, he presented less than credible testimony
concerning several aspects of these incidents during the hearing. This record
demonstrates Applicant’s susceptibility to choosing to violate laws and rules when
pressured to do so in his own self-interest, and he did not establish that recurrence of
such behavior is unlikely. His good work performance, community involvement, and
absence of past security violations are commendable, but are not sufficient to outweigh
the security concerns established by his admissions and the evidence as a whole. 
Overall, the record evidence leaves me with substantial doubt as to Applicant’s
eligibility and suitability for a security clearance. For all these reasons, I conclude
Applicant has not mitigated the security concerns arising from his criminal conduct and
personal conduct. 
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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Paragraph 2, Guideline G: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: For Applicant
Subparagraph 2.d: For Applicant
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Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is denied.
                                             
DAVID M. WHITE
Administrative Judge