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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-00339 
 SSN: ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Richard B. Stevens, Esquire, Department Counsel 
For Applicant: Joseph Egan, Jr., Esquire 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted a Questionnaire for National Security Positions (SF 86), on 
July 11, 2006. On February 20, 2009, the Defense Office of Hearings and Appeals 
(DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under 
Guideline G, Alcohol Consumption, to 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.  
  
 On March 24, 2009, Applicant answered the SOR and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on May 1, 
2009. The case was assigned to me on May 15, 2009. On June 1, 2009, a Notice of 
Hearing was issued scheduling the hearing for June 16, 2009. The hearing was held, as 
scheduled. During the hearing, it was discovered Applicant did not receive the Notice of 
Hearing 15 days prior to the date of the hearing as required by the Directive. Applicant 
waived the 15-day notice requirement. (Tr at 8) The Government offered three exhibits 
 
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which were admitted as Government Exhibits (Gov) 1 – 3 without objection. The 
Applicant offered three exhibits which were admitted as Applicant Exhibits (AE) A - C. 
Department Counsel objected to two of the character letters that were included in AE B 
because they were not signed. One of the authors of the letters also testified and 
verified that the letter was written by him. The record was left open for two weeks for 
Applicant to submit a signed copy of the other character letter. He timely submitted a 
two-page document which was marked as AE D. Applicant testified and called four 
witnesses. The transcript was received on June 24, 2009. The record closed on July 1, 
2009. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility 
for access to classified information is granted. 
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant admits to all of the allegations.  
 
Applicant is a 50-year-old employee with a Department of Defense contractor 
seeking a security clearance.  He is a calibration technician and has worked for his 
current employer since February 2000. (Several defense contractors have successfully 
bid on the contract over the years but the employees have remained the same.) 
Applicant grew up in a military family. He enlisted in the United States Navy on February 
1, 1978. After serving over 18 years on active duty, he applied for early retirement. He 
retired from the United States Navy as an E-6 on October 31, 1996.  After his retirement 
from the United States Navy, he worked several jobs prior to accepting his current 
position. He has been married for 30 years. He and his wife have three children. Their 
oldest son passed away, which was the main reason for his early retirement from the 
United States Navy. Their two other sons are ages 26 and 27. (Tr at 72 - 79; Gov 1; AE 
A)   
 
Applicant started drinking alcohol when he was younger. He drank alcohol while 
in the United States Navy. He admits to occasionally drinking to intoxication. He has 
never experienced a black out after drinking alcohol. He has never craved alcohol. He 
has never felt the need to drink alcohol in the morning after drinking alcohol the night 
before. He has never thrown up from drinking too much alcohol. He has never been 
diagnosed or characterized as someone with an alcohol problem. (Tr at 79, 90, 111)  
 
In October 2003, Applicant was arrested and charged with Driving Under the 
Influence and Careless Driving. He was found guilty of Driving Under the Influence. On 
the night in question, Applicant and his wife had a couple drinks at two bars that were 
located not far from where they live. Applicant recalls drinking two or three drinks at the 
first bar. They went to another bar and shared about ½ pitcher of beer. While driving 
home, Applicant started to turn left onto the wrong road but corrected himself prior to 
completing the turn. A police car pulled him over. Upon approaching his car, the police 
officer smelled alcohol on his breath and gave him a breathalyzer test. He registered a 
0.12. (Tr at 84, 117)  
 
 
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On June 4, 2006, Applicant was arrested and charged with Driving Under the 
Influence, Refuse Breath/Urine Test After Previous Misdemeanor, and Failure to Use a 
Designated Lane. He was found guilty of Reckless Driving. Applicant’s license was 
suspended. He paid fines and court costs. Prior to his court date, he voluntarily entered 
counseling classes and attended AA meetings. (Tr at 85-88, 95, 109-110, 117; Gov 1, 
question 23; Gov 2; Gov 3) 
 
On the day of the arrest on June 4, 2006, Applicant and his wife spent the day at 
the local American Legion post. He was an officer. They were nominating a new 
commander. He and his wife planned to stay until the bartender closed down so that 
she would not have to leave by herself. Another customer came in so Applicant decided 
to drive home. He had about three or four drinks during the time he was there. He was 
pulled over by the police on the way home for activating his turn signal too early. The 
police officer smelled alcohol on his breath. Applicant refused to take a breathalyzer or 
a field sobriety test. He was subsequently arrested. (Tr at 85; Gov 2)  
 
Applicant reported his two arrests for DUI to his supervisor the next time he came 
in for work. He listed the two DUI arrests on his security clearance questionnaire. He did 
not try to hide the DUI arrests. (Tr at 106; Gov 1, section 23)  
 
Applicant states the second DUI arrest was a signal to him that he needed to 
change his life. He decided that he could not go through another DUI arrest. He 
occasionally drinks alcohol but never drinks and drives. He does not drink to excess. 
His definition of drinking to excess is drinking more than three or four drinks in one 
sitting. He drinks once or twice a month at the American Legion or the VFW post. He 
occasionally drinks non-alcoholic beer. (Tr at 87-94)  
 
During the hearing, Applicant testified, “I’ve got a noose around my neck and I 
know it and I’m the only one with my hand on the trap door.” (Tr at 111) His experience 
with the DUI arrests and his attendance at AA meetings showed him how alcohol can 
adversely affect a person’s life. He would never do anything to harm this country (United 
States of America). (Tr at 111-112) 
 
Four of Applicant’s colleagues took time off from work to testify on his behalf.  
The Business Manager and CEO of the International Brotherhood of Electrical Workers 
testified. He is on leave from the company where Applicant works. When not serving in 
his union position, he is a metrologist. Metrology is the field of measurement, test 
equipment, and calibration. He used to be Applicant’s lead prior to departing for the 
union job. He states Applicant was hired 10 years ago. Applicant’s job requires being 
very meticulous and demands a very technical type of analytical thinking. He states 
Applicant is an excellent worker. He is very dependable. He does not believe Applicant 
is an alcohol abuser. Although he does not socialize with him outside of work, he has 
never seen him intoxicated. He has never smelled alcohol on his breath. He never 
observed him to be affected from drinking alcohol at work. He is aware of Applicant’s 
two DUIs. (Tr at 25 – 33) 
 
 
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Another co-worker, a calibration specialist, has known Applicant for seven years. 
He and Applicant are co-workers. He works down the hall from Applicant. They see 
each other on a daily basis.  Each time Applicant was arrested for DUI, he told his co-
workers that he was arrested within the next work day.  Applicant was not secretive 
about his DUI arrests.  Applicant’s reputation pertaining to his technical skills, as well his 
honesty and integrity are impeccable. Applicant is always working. He never complains. 
He never has observed Applicant to be under the influence of alcohol in the work place. 
The co-worker and Applicant do not socialize much outside of work because the co-
worker lives 40 miles away from work. (Tr at 35-44) 
 
The Calibration Support Coordinator testified that Applicant is a very hard worker. 
Applicant is honest and straight-forward. He is a good technician who is very well liked. 
He interacts well with others and is ethical. The Calibration Support Coordinator is 
aware of Applicant’s two DUIs. He occasionally socializes with Applicant outside of 
work. He has never observed Applicant being drunk or out of control.  He is aware that 
Applicant volunteers with Toys for Tots. (Tr at 50-56) 
 
Mr. A., a metrologist, has a direct working relationship with Applicant. Mr. A. has 
known Applicant for seven years. They work the same shift and interact with each other 
daily. Applicant cares about the work. He has never had any concerns about Applicant’s 
work performance over the past six years. He has never noticed Applicant under the 
influence of alcohol on the job. If he had noticed that Applicant was impaired by alcohol, 
he would have notified management because they cannot afford to have an employee 
be impaired in their line of work. After Applicant’s second DUI, he noticed Applicant was 
disappointed in himself, and fearful as to how his second DUI arrest would affect his 
ability to work. He was aware that as part of his DUI punishment, Applicant lost his 
license for a year. He never saw Applicant drive during that period. During the period 
that Applicant’s license was suspended, a co-worker drove him to work. (Tr at 58-72) 
 
The people who wrote reference letters on Applicant’s behalf say similar 
favorable things about Applicant. They attest to his honesty and work ethic. (AE B and 
AE D) Recently, Applicant attempted to rescue an elderly woman from a house fire. She 
lived about three doors down from Applicant. Applicant and his son noticed her house 
was on fire. Applicant’s son called 911 and Applicant crawled into the house. He tried to 
get to his neighbor who was in a bedroom. He eventually had to turn back due to the 
flames and smoke. His neighbor died of smoke inhalation. (Tr at 113-115)  
 
Applicant’s awards and decorations from his active duty service include: Master 
Training Specialist, Sea Service Deployment Ribbon (4 devices); National Defense 
Service Medal (1 device); Navy Achievement Medal (2 devices); Good Conduct Award 
(4 devices); Enlisted Surface Warfare Specialist; and the Meritorious Unit 
Commendation. (AE A) 
 
In his spare time, Applicant volunteers at the American Legion and the Veterans 
of Foreign Wars (VFW). He is an avid motorcyclist. He is the Safety Officer for the 
American Legion Riders. His volunteer activities include raising funds for Meals on 
 
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Wheels and Toys for Tots. He also volunteers for an organization called The River Rats 
which is an organization that provides help and support to military veterans. (Tr at 82, 
115-116; AE B at 5) 
 
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.  
 
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 
 
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applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).   
 
Analysis 
  
Guideline G, Alcohol Consumption 
 
The security concern relating to the guideline for Alcohol Consumption is set out 
in AG & 21:       
 
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.  
 
The guideline notes several disqualifying conditions that could raise security 
concerns. The following Alcohol Consumption Disqualifying Condition (AC DC) is 
relevant to Applicant’s case: 
 
AC DC ¶22(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) applies with respect to Applicant’s two DUI arrests in 
October 2003 and June 2006.  
 
The guideline also includes examples of conditions that could mitigate security 
concerns arising from alcohol consumption. The following Alcohol Consumption 
Mitigating Condition (AC MC) is relevant to Applicant’s case: 
 
AC MC ¶ 23(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 and does not 
cast doubt on the individual=s current reliability, trustworthiness, or good judgment) 
applies. While security concerns were raised as a result of two DUI arrests within a 
three-year period, Applicant has mitigated the concern. He fully disclosed his two 
arrests to his supervisor shortly after the arrest. He is open and forthcoming about the 
arrests. He completed the terms of his court sentence for both arrests. The second DUI 
clearly affected Applicant. Although he still occasionally drinks a moderate amount of 
alcohol, he refuses to drive when he does drink alcohol. The record contains no 
evidence that he was diagnosed as an alcohol dependent or an alcohol abuser. 
Numerous co-workers testified or wrote letters on his behalf attesting to his honesty and 
work ethic. Most of them also indicated that they have never observed Applicant under 
the influence or impaired by alcohol. Applicant has learned his lesson. For the past 
three years, he has had no alcohol-related incidents. Future incidents are unlikely to 
recur. Applicant’s past DUIs, while serious, do not cast doubt on his current reliability, 
trustworthiness or good judgment.    
 
Guideline G is found for Applicant.  
 
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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. I considered Applicant’s honorable 
service with the United States Navy. I considered his favorable employment history after 
his retirement from the military. Applicant is highly thought of by his superiors, co-
workers, and peers. In his spare time, he volunteers within the community. While 
Applicant’s two DUIs raised some warning signs, Applicant’s demeanor and testimony 
at hearing indicates that he has learned a grave lesson about drinking and driving. He 
did not attempt to hide his DUI arrests from his employer. His current level of alcohol 
use does not raise a concern that he is an alcohol abuser or alcohol dependent. Though 
he occasionally drinks alcohol, he refuses to drive after drinking. He is aware that a 
future DUI arrest could jeopardize his ability to maintain a security clearance and 
possibly his job. Guideline G, Alcohol Consumption, is found for Applicant.   
 
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 G:    FOR APPLICANT 
 
  Subparagraph 1.a:    For Applicant 
  Subparagraph 1.b:    For Applicant 
  Subparagraph 1.c:    For Applicant 
    
 
 
 
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Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with national security to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is granted. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge