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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 08-01545
SSN: ----------------
)
Applicant for Security Clearance )
Appearances
For Government: Robert E. Coacher, 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 June 8, 2007.
On August 20, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guidelines J, 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 16, 2008. DOHA issued a notice of hearing on January
13, 2009, and I convened the hearing as scheduled on February 18, 2009. The
Government offered Exhibits (GE 1-6), which were received without objection. Applicant
testified on his own behalf and presented the testimony of one witness. He did not
submit any Exhibits at the hearing. I held the record open until March 12, 2009, so that
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Applicant could submit documents. The submission was timely received, marked as
(AE) A and entered into the record. Department Counsel did not object to the
documents. DOHA received the transcript on March 23, 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 17, 2008, Applicant admitted the
factual allegations in ¶¶ 1.a. through 1.g, 2.a. and 2.b, and 3.a. and 3.b of the SOR. He
provided additional information to support his request for eligibility for a security
clearance. 
Applicant is a 26-year-old employee of a defense contractor. He graduated from
high school in June 2000. From January 2002 until May 2006, he served on active duty
in the United States Army (USA) as a tank crew member, including one year in Iraq as a
combat veteran. He was injured in combat and received a disability when he was
discharged. Applicant did not hold a security clearance during his military career (Tr.
26).
Applicant married in 2004. He has two young children. He is currently attending
college classes working toward a degree. He has worked for his current employer since
November 2006 (GE 2). 
In 1996, when Applicant was in high school, he associated with gang members.
On one occasion, he took his father’s shotgun and used a hacksaw to cut off the barrel
which resulted in a 14 inch barrel, a dangerous weapon under the state law. His mother
found the weapon in his bedroom while he was at school. She reported the incident to
school officials. Applicant was 14-years-old at the time (Tr. 31). He was arrested and
charged with (1) Possessing a Dangerous Weapon, felony, and (2) Theft. He pleaded
guilty to Count (1) and was sentenced to three days detention, two years probation, and
an alcohol and drug treatment program. This charge has been expunged from
Applicant’s record (GE 6; Tr. 19).
In 1999, Applicant left a hunting rifle in his car after he and his father had been
hunting. He forgot about the rifle when he returned home. The rifle was unloaded and
packed in a case in the trunk of the car. He parked his car on school premises. His
girlfriend alerted school officials that he had a weapon. The police found the rifle in the
trunk of the car. He was arrested and charged with (1) Unlawful Possession of Weapon
on School Grounds and (2) Criminal Mischief. He pleaded guilty to Count (1) and was
sentenced to 45 days detention, 39 days suspended, two years probation, community
service, and restitution. Count (2) was dismissed (GE 5).
On November 23, 2002, Applicant was out drinking in a bar or restaurant with
some of his Army friends. It was the night before his deployment to Iraq. The group
became loud and rambunctious. A police officer arrived but Applicant did not believe he
was charged with any offense (Tr. 21). He was let go about fifteen minutes after the
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police arrived. Applicant was charged with (1) Menacing and (2) Disorderly Conduct
(Tr.21).
On November 30, 2002, Applicant was driving home very early in the morning
from a party at a friends house. He had slept at the friend’s house that evening but he
had to go to work. He fell asleep at the wheel and hit another car. The driver of the other
car sustained minor injuries. Applicant was arrested and charged with (1) Driving Under
the Influence and (2) Careless driving-Cause Death/Injury. He pleaded guilty to Driving
While Ability Impaired and was sentenced to 180 days, one year probation, community
service, and an alcohol evaluation. Count (2) was dismissed (GE 5).
In January 2003, Applicant was partying with some friends. After having a couple
of drinks, he decided to drive back to his parent’s home. He was pulled over on two
occasions by a police officer. Applicant was charged with (1) Driving Under the
Influence, (2) DUI Per Se, (3) Lane Usage Violation, and (4) Alcohol-Underage
Possession/ Consumption. All charges were dismissed on a technicality (Tr. 35).
However, Applicant acknowledged that he was drunk (Tr. 33).
In June 2004, Applicant was charged with (1) Driving Under the Influence, (2)
DUI over .10, (3) Instruct Permit, and (4) Safety Belt Use. He was sentenced to
attended alcohol classes, fines, and the loss of his driver’s license for one year. There
are no specific details about this incident in the record. (GE 4; GE 6).
On March 25, 2007, Applicant had been drinking at home all day and he admitted
that he was intoxicated (Tr. 38). He and his wife had a verbal argument. His wife and
two children left the house (GE 6 ). He heard a noise outside and wanted to check for
any intruders. He took a shot gun outside and pointed it in the air. He was yelling. His
neighbor saw him, became alarmed and called the police. When his wife returned to the
home, she stated that he had punched a hole in the closet door (GE 6). Applicant was
charged with (1) Menacing, felony, and (2) Prohibited Use of Weapons-Drunk W/Gun.
He pleaded guilty to Count (2) and was sentenced to one year probation, alcohol
evaluation, and fines. 
Applicant completed a Security Clearance Application on June 8, 2007. He
answered Section 23(b) by listing a 1999 weapons offense. He did not list the underage
weapons offense in 1996 because he had been advised that since the charge was
expunged in 2006, it was no longer on his record and he did not have anything to report
(Tr. 42). He did not list the 2007 weapons/drunk offense because he misread the
question. He did not understand that he had to list any charges. He was still in the court
process and had not been convicted of the weapons offense (Tr.24).
Applicant answered Section 23(d) concerning charges or convictions of any
offenses relating to alcohol or drugs by listing the June 2004 DUI offense. He did not list
the other alcohol related offenses from November 2002 and January 2003, because he
did not have any paperwork from the Department of Motor Vehicles (DMV) and he was
not clear on any charges or convictions. He did not realize that he could update his
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security clearance application at a later time. He claimed he was rushing to get the
application completed. He did not list the March 25, 2007, for the same reasons as
stated for Section 23(b). Applicant was credible at the hearing that he told his employers
about the incidents but he had a difficult time completing the questionnaire on line. He
completed the questions to the best of his ability. He was not trying to hide anything
about his police record because he listed two charges from his police record.
Applicant completed interrogatories in April 2008. He admits to having had a
problem with alcohol. He claims he has not had any alcohol since March 25, 2007 (GE
5; Tr. 24). Applicant completed an alcohol/drug evaluation in April 2008. The certified
therapist interviewed Applicant and screened him using various instruments. He was
diagnosed as “alcohol dependent” (AE A). One screening for alcoholism indicted “high
alcoholism probability.” He completed 12 sessions in chemical dependency groups
(Tr.40). Recommendations from the 2008 report include attendance at a monthly
individual session to address immediate needs and assess sobriety progress (AE A at
4). Random urinalysis is recommended and a followup/aftercare plan. Applicant was
tested on March 10, 2008 for all substances and the findings were negative.
Applicant claims he does not drink any more because he wants to improve the
quality of his life. He acknowledges his mistakes. He believes the 2007 incident was a
wake up call. He understands the seriousness of the misuse of alcohol in his life. He
does not participate in any support groups. He does not see a therapist or a counselor
on a regular basis. He explained that he was told if he felt the need - just call. He called
the therapist twice in the past year when he felt a relapse (Tr. 63).
Applicant is a hard-working employee. He is very reliable and has displayed a
great degree of initiative in his current position. He has shown dedication and
professionalism in the workplace. He is recommended for a security clearance by his
manager. His manager knows about Applicant’s 2007 alcohol incident and believes
there is no reason he should not have a security clearance (Tr. 54). 
Applicant’s evaluations rate him as “consistently exceeds” or “meets/
occasionally exceeds” 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. He trains fellow employees (AE A).
Applicant is entitled to wear the following: Army Commendation Medal; Army
Achievement Medal; Army Good Conduct Medal; National Defense Service Medal; Iraq
Campaign Medal, Global War on Terrorism Medal; Army Service Ribbon; and Overseas
Service Ribbon (GE 3). 
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
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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
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).
 
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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 it’s
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, “(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.”
Applicant was arrested in 1996 and 1999 for weapons charges when he was in
high school. In 2002, 2003 and 2004, Applicant was arrested for alcohol/driving
incidents. He was convicted of Driving While Intoxicated (DUI) in 2004. In 2007,
Applicant was arrested, charged and pleaded guilty to an incident of weapons/drunk
with gun.  AG ¶ 31(a) and (c) apply in this case.
AG ¶ 32 provides conditions that could mitigate security concerns:
(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;
(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 has provided some mitigation under this guideline. His youthful
incidents of criminal conduct occurred ten years ago. The 1996 incident has been
expunged. He was young and associating with the wrong crowd.
Applicant had three incidents involving alcohol/driving in 2002, 2003, and 2004.
The 2003 charges were dismissed on technical grounds. He was convicted for the other
offenses. He completed probation successfully. He attended alcohol classes. His last
driving offense that involved alcohol occurred in 2004. 
In 2007, Applicant was intoxicated and took a shot gun outside of his home one
evening. He had a verbal altercation with his wife and she left the home with the two
young children. He alarmed his neighbor when he had the shot gun in the air and was
yelling. 
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Applicant’s last incident of criminal conduct was the March 2007 incident. He has
abstained from alcohol which was involved in that 2007 incident. He completed a 12
session chemical dependency group in 2008. He completed his probation in March
2008. However, two years of abstaining from alcohol is not sufficient when compared
with the more than five years from 2002 to 2007 of alcohol related offenses, to mitigate
the government’s case. He has shown that he is on the right track but it is too soon to
find that he is successfully rehabilitated. Thus, AG ¶ 32(a) and (d) do not apply in this
case
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(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.”
In this case, Applicant admitted to his arrests involving alcohol. Some of the
charges were dismissed but Applicant pleaded guilty to DUI. He admitted to consuming
alcohol, at times to excess, from at least 2002 to March 2007 as described above. AG
¶¶ 22 (a) and (c) apply.
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);
(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,
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(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 has acknowledged his problem with alcohol. He claims he has been
abstinent since March 2007. He completed his probations successfully. He attended
and completed a 48 hour alcohol education program. His April 2008 evaluation reflects
that prior to his abstinence, he would be in an “alcohol dependency diagnosis”. He
attended and completed a 12 session chemical dependency group. He is not in an
aftercare program and does not attend any support groups. He consults a therapist if he
believes he needs the support. He tested negative in March 2008 for all substances. 
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. The last alcohol-related
incidents is two years old. Given the poor judgment shown in that incident, the severity
of the incident, and only two years of no alcohol-related incidents there is still an issue
of concern. Applicant has not mitigated the alcohol consumption concerns under AG ¶¶
23(a), (c)and (d). 
 
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
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(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 eligibility or trustworthiness, or award fiduciary responsibilities” is
potentially disqualifying.
Applicant listed certain offenses on his security clearance application in response
to Section 23 concerning his police record. He acknowledged that he omitted other
offenses. He denied, however, that he had a deliberate intent to falsify his answers to
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the questions. When a falsification allegation is controverted, the government has the
burden of proving it. Proof of an omission, standing alone, does not establish pr prove
an applicant’s intent or state of mind when the omission occurred. An administrative
judge must consider the record evidence as a whole to determine where there is direct
or circumstantial evidence concerning an applicant’s intent or state of mind at the time
the omission occurred. 
Applicant testified credibly that he did not list the other offenses because he did
not understand the question. He did not list the 1996 offense because it was expunged.
He only listed the 2004 alcohol-related incident. I find that he did not intentionally falsify
his answers to the above-referenced questions.
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) 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 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. Applicant served in the Army for a
number of years. He served in a combat situation. He was injured and discharged with a
disability. He is married with two children. He supports his family. He is working steadily
and is highly recommended for a security clearance.
Applicant admits his mistakes in judgment. He completed alcohol counseling and
his probation. Applicant’s patterns of criminal conduct and problems with alcohol span a
long period. His last incident was in 2007. He has taken steps in the right direction but
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
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conclude Applicant has not mitigated the security concerns arising from his criminal
conduct and alcoholism consumption. He has mitigated the personal conduct 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Subparagraph 1.f: Against Applicant
Subparagraph 1.g: Against Applicant
Paragraph 2, Guideline G: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraph 3.a: For Applicant
Subparagraph 3.b: 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.
                                              
_________________
NOREEN A. LYNCH
Administrative Judge