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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-14509
SSN: ----------------
)
Applicant for Security Clearance )
Appearances
For Government: Stephanie Hess, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on September 1,
2004. On September 10, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
F, 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 requested a hearing before an Administrative Judge. I received the
case assignment on December 5, 2008. DOHA issued a notice of hearing on January
13, 2009, and I convened the hearing as scheduled on February 4, 2009. The
Government offered Exhibits (GE 1-18), which were received without objection.
Applicant testified on his own behalf. He did not submit any Exhibits at the hearing. I
held the record open until February 13, 2009, so that Applicant could submit
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documents. The submissions were timely received, marked as (AE A-C) and entered
into the record. Department Counsel did not object to the documents. DOHA received
the transcript on February 13, 2009. Based upon a review of the record, eligibility for
access to classified information is denied.
Findings of Fact
In his Answer to the SOR, dated September 20, 2008, Applicant admitted the
factual allegations in ¶¶ 2.b. and 2.c. of the SOR. He denied the other allegations,
including ¶¶ 1.a-1.c. and ¶¶ 3a.-3.d of the SOR. He provided additional information to
support his request for eligibility for a security clearance. 
Applicant is a 31-year-old employee of a defense contractor. He graduated from
high school in June 1995. He served in the United States Army (USA) from 1995 until
2005. He has worked for his current employer since 2005 (GE 1). Applicant is currently
attending college classes toward his degree. Applicant held a security clearance during
his military career (Tr. 23).
In 1997, Applicant received an Article 15 for a false report on a sensitive item
(GE 14). The sensitive item was his protective mask in his carrier. He received a call
from his warrant officer early in the day. Applicant believed he had his protective mask
in his case. However, when an inspection was made in a few hours, the mask was not
in the carrier (Tr. 26). The officer told him that he lied but Applicant denied lying.
Applicant also reported that they did not get along (Tr. 26). The report reflects that no
adverse action was recommended by the commander (GE 13). Applicant does not deny
receiving the Article 15 but denies that he intentionally gave false information to his
warrant officer. 
In 1999, Applicant married. He and his wife separated shortly thereafter and they
divorced in 2005. He is currently single and has no children (Tr. 22). 
In September 2001, Applicant was issued an Article 15 and received
administrative punishment, which included 45 days restriction and extra duty for 45 days
(GE 11). This followed his arrest for a charge of indecent assault. Applicant explained
that he denied this allegation for indecent assault because he believes the investigation
was terminated because the victim had accused six other individuals of the same
incident (Tr. 27). He stated he received this administrative punishment for disrespect.
He claimed the FBI report was incorrect (GE 11). He believes the investigation was
terminated (GE 12). He also understood that the case was dismissed (Tr. 27).
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The SOR alleges three delinquent debts, including a vehicle repossession. The
total amount of debt that Applicant owes is approximately $16,000 (GE 3 and GE 4).
The largest debt ($10,743) is a vehicle repossession that occurred when Applicant was
barred from the base for 10 months. He was not working and could not pay the car loan
(Tr. 28).
 
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Applicant initially denied owing the debts listed in the SOR. At the hearing,
Applicant admitted the delinquent debt. Applicant has paid one account through debt
consolidation ¶ 1.b (AE B). The other debts have not been paid. 
Applicant obtained the services of a debt consolidation program last year for his
other debts not included in the SOR. He paid $535 each month (Tr. 29). He completed
that plan (AE B). The debt in the SOR for the vehicle repossession is still unpaid (Tr.
31). Applicant thought that the debt consolidators tried to locate the account but the
repossessors would not work with them (Tr. 30). He is trying to track down the debt in
1.a for $5,319 which has been sold several times. This account has been delinquent
since 1998. 
Applicant earns a good salary in his present position. He has discretionary
income after his expenses. He is paying on his current car loan.
In April 2004, Applicant was arrested and charged with DUI. He was found guilty,
sentenced to 10 days in jail (9 days suspended pending completion of DUI counseling,
etc) and fined $1,197. On or about November 4, 2004, the Court issued a warrant for
his arrest and failure to appear with proof of completion of DUI counseling, and ordered
him to serve an additional 9 days in jail (GE 6).
Applicant denied this allegation in his answer to the SOR, but at the hearing he
admitted to the arrest and charge for DUI. He insisted that he did not know about the
failure to appear. He claimed he did not receive anything that instructed him to report
back. He completed the DUI counseling and believed that the certificate of completion
was mailed to the correct party (Tr. 33). Applicant emphasized that his was a mistake in
judgment by driving (GE 2).
On July 2, 2004, Applicant was arrested and charged with DUI and Reckless
Driving. On October 13, 2004, he was found guilty of Reckless Driving, sentenced to 10
days in jail (10 days suspended), fined $455, and placed on 12 months unsupervised
probation (GE 7 and GE 8). 
Applicant admitted that he was arrested, but denied that he was intoxicated (Tr.
33).  He explained that the officer did not show him the Breathalyzer report. The police
officer had stopped his vehicle because it was drifting from the lane delineation line and
the bike lane to the road edge. Applicant admitted that he had two beers earlier in the
evening (Tr. 36). He is still adamant that he was wrongfully accused of the DUI because
he was seen leaving a bar after picking up some coworkers (GE 2).
On May 19, 2005, Applicant was arrested and charged with DUI. On August 17,
2005, he was found guilty of DUI, sentenced to 10 days in jail (9 days suspended) and
fined $1,272 (GE 10). Applicant admitted this allegation. He explained that he went to a
bar after a day of being “belittled at work.” He reported that the bartender gave him
more alcohol than he realized. He explained that the alcohol (2 drinks) contained the
alcohol of six or seven drinks (GE 2).
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On or about June 30, 2005, Applicant was discharged from the Army due to
misconduct (the basis was the 2005 DUI). He received a discharge under other than
honorable conditions (GE 15 and GE 16). Applicant denied this allegation in the SOR
but admitted at the hearing. He was successful in having his discharge upgraded. The
discharge was changed on April 2008 after an application, dated March 2007. Applicant
now has a discharge “Under Honorable Conditions” (General) AE A).
Applicant completed interrogatories in April 2008. He admits to currently drinking
but rarely (Tr. 37). He estimates that he drinks two beers a month. The alcohol makes
him drowsy (GE 2). He does not drink to the point of intoxication and he does not drink
alcohol prior to or during work hours. He still disputes that he was intoxicated on July 2,
2004. There are inconsistencies in Applicant’s description of events and the officer’s
reports. 
Applicant is a team player in his current position. He has shown dedication and
professionalism in the workplace. He is punctual and works very hard. He is highly
recommended for a security clearance by his manager. His manager knows about
Applicant’s history and believes there is no reason he should not have a security
clearance (AE C). 
Applicant’s evaluations rate him as “far exceeds” or “exceeds most” in all
categories. He contributes to a high customer satisfaction and effective team
performance. He has an in-depth knowledge of the mission and technical performance.
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,
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
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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 F, Financial Considerations
The security concern relating to the guideline for Financial Considerations is set
out in AG & 18:      
Failure or inability to live within one=s means, satisfy debts, and meet
financial obligations may indicate poor self-control, lack of judgment, or
unwillingness to abide by rules and regulations, all of which can raise
questions about an individual=s reliability, trustworthiness and ability to
protect classified information. An individual who is financially overextended
is at risk of having to engage in illegal acts to generate funds. 
The guideline notes several conditions that could raise security concerns. Under
AG & 19(a), an Ainability or unwillingness to satisfy debts@ is potentially disqualifying.
Similarly under AG & 19©, Aa history of not meeting financial obligations@ may raise
security concerns. Applicant accumulated delinquent debts on several accounts,
including a vehicle repossession and did not meet some of his financial obligations from
1998 until the present time. His credit reports confirm the debts. The evidence is
sufficient to raise these potentially disqualifying conditions.
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The guideline also includes examples of conditions that could mitigate security
concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition
may be mitigated where Athe behavior happened so long ago, was so infrequent, or
occurred under such circumstances that it is unlikely to recur and does not cast doubt
on the individual=s current reliability, trustworthiness, or good judgment.@ Applicant
accumulated some delinquent debt and the debt has remained for a period of time. He
paid one account listed in the SOR ($1,823) through debt consolidation but this does
not remove security concerns or doubts about his current reliability, trustworthiness, and
good judgment. This potentially mitigating condition partially applies.
Under AG & 20(b), it may be mitigating where Athe conditions that resulted in the
financial problem were largely beyond the person=s control (e.g., loss of employment, a
business downturn, unexpected medical emergency, or a death, divorce or separation),
and the individual acted responsibly under the circumstances.@ Applicant has been
steadily employed since leaving the military. He did experience separation and divorce
but the debt does not stem from that situation. Applicant was unemployed for a period
and his car was repossessed. Applicant was not as aggressive as he should have been
in initially addressing or resolving his delinquent debts. I find this potentially mitigating
condition partially applies. 
Evidence that Athe person has received or is receiving counseling for the problem
and/or there are clear indications that the problem is being resolved or is under control@
is potentially mitigating under AG & 20©. Similarly, AG & 20(d) applies where the
evidence shows Athe individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.@ Applicant paid one small account. I find his efforts are
insufficient to carry his burden in this case. I conclude this potentially mitigating
condition partially applies.
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, “(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,” and “22© “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.”
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In this case, Applicant has three arrests for DUI. The first DUI was April 28, 2004.
After that, on July 2, 2004, Applicant was arrested for DUI and reckless driving. On May
19, 2005, Applicant was found guilty of DUI. Thus, AG ¶¶ 22 (a) applies.
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);
© 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 had three DUIs in a short period of time in 2004, and then again a year
later in 2005. Applicant completed an alcohol education program. He was not diagnosed
as an alcohol dependent or as an abuser. He never received an evaluation and was
credible in that he now drinks rarely. Applicant has a very good work record with his
current employer. He is recommended for his fine work. Applicant does not want alcohol
to ruin his life. He values his work and now admits that he made mistakes. His drinking
is moderate (2 beers monthly). The alcohol-related incidents are almost four years old.
Applicant has mitigated the alcohol consumption concerns under AG ¶¶ 23(a), and (b). 
 
Guideline E, Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG ¶ 15:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
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about an individual’s reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to cooperate with
the security clearance process.
The guideline notes several conditions that could raise security concerns. Under
AG ¶ 16(d), “credible adverse information that is not explicitly covered under any other
guideline, and may not be sufficient by itself for an adverse determination, but which
when combined with all available information supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to
comply with rules and regulations, or other characteristics indicating that the person
may not properly safeguard protected information” is potentially disqualifying.
Applicant denied the underlying conduct in each of the allegations under personal
conduct. He admitted that he did receive the April 23, 1997, Article 15 for a false report
on a sensitive item. He also admitted at the hearing that he received an Article 15 on
September 23, 2001 but that it was not for indecent assault. He acknowledged the
administrative punishment that he received for these two incidents. Applicant was
initially discharged from the Army in June 2005 due to misconduct under other than
honorable conditions. 
As for the cross allegations concerning his alcohol consumption, Applicant
initially denied the three incidents, but made clear at the hearing that he admitted the
actual incidents but denied the underlying issue of intoxication in allegation 2.b.
Applicant acknowledged at the hearing that he made mistakes in judgment by driving on
the two occasions.
Applicant’s Article 15s are not recent. In fact one is more than ten years old. He
has had an upgrade to his discharge. He has had no more alcohol-related incidents. His
discharge has been changed. I find that under mitigating condition 17© “the offense is
so minor, or so much time has passed, or the behavior is so infrequent, or it happened
under such unique circumstances that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment” that Applicant has
mitigated the personal conduct concerns. 
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
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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 common sense 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 and conclude they are not sufficient
to overcome the government’s case. Applicant served in the USA for many years and
held a security clearance. While in the military he had some incidents that resulted in
Article 15 administrative punishments. He was discharged in 2005 for misconduct
(based on the alcohol incident) under other than honorable conditions.
Applicant was charged with three DUIs (2004-2005). He admitted his mistakes in
judgment, except for the second one. He is adamant that he was not intoxicated. He
has not had any other alcohol-related incidents. He drinks rarely. He completed his
alcohol education and unsupervised probation. 
Applicant has a history of delinquent debts. He paid one debt alleged in the SOR
through a debt consolidation plan. He still has $16,000 in delinquent debt. The largest is
for the vehicle repossession. He is attempting to track down the collection company. He
did have some unemployment when he was barred from the base, but he has not been
aggressive with his delinquent debts. He is working steadily and is highly
recommended for a security clearance. However, at this time, Applicant has not met his
burden of proof to overcome the government’s case.
Overall, the record evidence leaves me with questions and doubts 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 financial
considerations. 
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 F: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: For Applicant
Paragraph 2, Guideline G: FOR APPLICANT
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Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: For Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraph 3.a: For Applicant
Subparagraph 3.b: For Applicant
Subparagraph 3.c: For Applicant
Subparagraph 3.d: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
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NOREEN A. LYNCH
Administrative Judge