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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------, -------- ---------- )                                                          
                                           )       ISCR Case No. 08-04978
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Laura Anderson, Esquire
______________
Decision
______________
WHITE, David M., Administrative Judge:
Applicant was arrested for Driving Under the Influence (DUI) in 2002. He
completed outpatient treatment for alcohol dependence as part of a deferred
prosecution agreement. He had another alcohol-related arrest in 2006 and attended
relapse prevention treatment. In November 2008, he was inebriated at work. He very
recently completed another course of inpatient and outpatient treatment. He is making a
good effort at sobriety, but security concerns are insufficiently mitigated to date. Based
upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is denied. 
Applicant submitted his security clearance application on November 6, 2007. On
June 2, 2009, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a
Statement of Reasons (SOR) detailing security concerns under Guideline G (Alcohol
Consumption). 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
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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 June 9, 2009. He answered the
SOR in writing on June 18, 2009, and requested a hearing before an administrative
judge. Department Counsel was prepared to proceed on July 15, 2009, and the case
was assigned to me on July 21, 2009. DOHA issued a Notice of Hearing on July 24,
2009, and I convened the hearing as scheduled on August 25, 2009. The Government
offered exhibits (GE) 1 through 3, which were admitted without objection. Applicant
offered exhibits (AE) A through D, which were also admitted without objection, and
testified on his own behalf. Two other witnesses also testified for Applicant. I granted
Applicant’s request to leave the record open until September 8, 2009, to permit
submission of additional evidence. Applicant’s counsel submitted that evidence on
September 3, 2009, and Department Counsel forwarded it the following day without
objection. That evidence was marked AE E and admitted. DOHA received the transcript
of the hearing (Tr.) on September 1, 2009. 
Findings of Fact
In his answer to the SOR, Applicant admitted all but one of the factual allegations
concerning his alcohol consumption, and denied SOR ¶ 1.a because he thought it
implied heavier drinking over the years than he would admit. His admissions are
incorporated into the following findings. 
Applicant is a 50-year-old software engineer employed by a defense contractor.
He earned a bachelor’s degree in 1982, and a master’s degree in 1998. He has no
military service. He worked for his present employer, and held a security clearance
without incident, from 1985 to 2000, when he left to accept a higher-paying offer from a
consulting firm. That led to a series of layoffs and dot-com business failures, resulting in
intermittent employment until he was rehired in October 2007. He is unmarried, with no
children. (GE 1 at 6, 11, 13-35; Tr. at 77-82.)
Applicant started drinking around 1977 while in college. Until his first significant
unemployment period, from April 2001 to August 2003, he was a social drinker. He
normally consumed about three beers a few times a week but occasionally drank to the
point of intoxication. He then began to drink more heavily, to the point of daily
consumption of larger amounts of alcohol. (GE 3 at 5; Tr. at 96-99.) 
In mid 2002, he consulted his doctor about panic attacks, and was advised to cut
back his drinking. He did so for a month or two. In September 2002, after breaking up
with his girlfriend, he drove to a resort town about 135 miles northeast of his home.
There he ate and consumed beer and hard alcohol. Although he denied this during the
hearing and did not mention it during his Office of Personnel Management (OPM)
interview, he told his alcohol treatment program case manager on October 5, 2006, that
he stopped at a liquor store on the way out of town and bought a bottle of vodka that he
drank as he drove home. While driving through a town about 15 miles south of his
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home, where he intended to stop for dinner, he “fell asleep” while driving and collided
with a utility pole. His air bags deployed and prevented any injury. He failed field
sobriety and Breathalyzer tests and was arrested and charged with Driving Under the
Influence (DUI). (GE 1 at 41; GE 3 at 4, 27; Tr. at 98-99.)
Applicant entered into a deferred prosecution agreement, which required that he
successfully complete an approved alcohol treatment program, undergo two years of
supervised probation, install an ignition interlock on his car, and pay a fine of $2,000. He
entered an intensive outpatient treatment program in July 2003 and continued there
until January 2004. He then transferred to a different intensive outpatient program
closer to the location of a new job, which he attended during March and April 2004. In
May 2004, having lost the job, he transferred to another site operated by this second
program closer to his home and completed his treatment successfully in November
2005. His program reported this to his probation officer in a letter describing his
compliance with all program requirements, “good” progress and “very favorable”
prognosis. It also described him as “a very good example of how the deferred
prosecution program can work to benefit the chemically dependent individual as well as
the community.” He was then released from supervised probation. During his treatment,
he was diagnosed as alcohol dependent, and was counseled to remain abstinent and
continue with support groups upon his discharge. (GE 3 at 4, 19, 32; Tr. at 83-86.)
Applicant started drinking again within a month or two of completing his treatment
program, although he was not fully forthcoming about this during his hearing or the
intake interview for his subsequent relapse prevention treatment program. (GE 3 at 26,
27; Tr. at 102.) On February 25, 2006, he drove to a resort town in a neighboring state
for a wine and seafood festival, fully intending to drink. He drank so much wine, before
eating any food, that he became intoxicated to the point that he could not remember
what happened. Based on his later review of police reports, he reported to the OPM
investigator that he was asked to leave the festival by a security guard. When he did
not, the guard contacted a police officer, who asked him to put down his glass of wine.
When Applicant forcibly resisted the guard and officer, he was arrested, charged with
Disorderly Conduct and Harassment, and held overnight in jail. (GE 2; GE 3 at 3, 27; Tr.
at 103-105.)
In April or May 2006, Applicant entered into a diversion program with the other
state’s court, under which the pending criminal charges would be dismissed if he
completed an approved alcohol treatment program. He returned to the facility where he
completed his prior program, and entered a relapse prevention treatment program.
During his September 6, 2006, initial intake interview, he told the counselor he drank “a
few glasses of wine” at the festival, and had not drunk any alcohol since then. His case
manager’s notes from the October 5, 2006 counseling session reflect that Applicant’s
initial intake urinalysis results were positive for alcohol. When confronted with this,
Applicant said he thought he had admitted drinking since the festival. He successfully
completed his relapse prevention program on April 2, 2007, and was discharged with a
diagnosis of Alcohol Dependence in early full remission. His prognosis was
“[s]atisfactory if patient continues his involvement in sober support network and working
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with his sponsor.” It was recommended that he continue to maintain abstinence from
alcohol and to attend Alcoholics Anonymous (AA). After Applicant reported completion
of the program to the neighboring-state court, his charges were dismissed on April 9,
2007. (GE 2 at 3; GE 3 at 3-4, 15, 26-27; Tr. at 86-88, 103.) 
Applicant was rehired by his current employer in October 2007. In December
2007, apparently unaware of the 2006 incident at the wine festival, his local court
dismissed the 2002 DUI charge for having successfully completed his deferred
prosecution agreement. He resumed drinking alcohol, and reported to the OPM
investigator on January 31, 2008, that he had last drunk alcohol on December 31, 2007,
and January 1, 2008, consuming a bottle of champagne by himself on each day. He told
the investigator that he was concerned that his past alcohol problems might jeopardize
his employment, which he valued very highly after many years of employment turmoil.
Later, his supervisor began noticing alcohol-related attendance problems and counseled
Applicant about them. Shortly thereafter, around November 21, 2008, Applicant was
found to be inebriated at work. Applicant testified that his alcohol consumption between
April 2007 and November 2008 was “very seldom,” and that he could not recall how
much he had to drink before the November incident at work. He was referred into an
employee assistance program that found a high level of alcohol content in his blood. He
was placed on a leave of absence in January 2009, to attend inpatient alcohol
treatment. (GE 3 at 5; Tr. at 64, 67-68, 72-73, 100, 106-108, 117-118.)
 
Applicant attended inpatient alcohol treatment from January 2 through 15, 2009.
After completing that program, he began an intensive outpatient program at a different
facility. He completed that program on August 17, 2009. He was compliant with all
program requirements, and maintained abstinence throughout this period. The manager
of his outpatient treatment center testified that Applicant demonstrated above average
commitment and dedication to the program. In describing Applicant’s prognosis, he
stated that Applicant will still continue to be alcohol dependent and he should continue
to attend 12-step meetings. Since this manager is not a “duly qualified medical
professional,” as defined under Guideline G, nor a licensed clinical social worker, his
facility medical director, who is an M.D., submitted a letter. He expressed his agreement
with the manager’s assessment concerning Applicant’s clinical course and pertinent
information. He stated his belief that if Applicant follows his recommended program, he
will continue to do well and his prognosis will be excellent. Applicant’s AA sponsor also
described Applicant’s renewed commitment to sobriety and extensive participation in AA
since January 2009. (AE A; AE B; AE C; AE E at 3; Tr. at 28-46.)
The employee assistance program under which Applicant attended both his
inpatient and outpatient treatment programs lasts three years. It monitors his
compliance with follow-up recommendations and continuing abstinence through
meetings and random urinalysis testing. His program counselor, a licensed clinical
social worker, reports that he has been compliant with all appointments, expectations,
referrals, tests, and subsequent treatment recommendations from inpatient, outpatient,
and aftercare services as of August 26, 2009. (AE A; AE E at 4-5; Tr. at 22-23, 108-
109.)
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Applicant’s supervisor testified that his work has been generally satisfactory, but
he is in the bottom third of employees that he manages due to having less experience
than the others. He further said that Applicant’s attendance at work since completing his
inpatient treatment has been exemplary, and there has been absolutely no indication of
any subsequent problem with alcohol. (Tr. at 52-74.) A close friend, who has known
Applicant for 29 years, described him as “trustworthy, hard working, and highly
committed.” He further said he is, “a loyal, honest, considerate, and supportive person
who cares deeply for other people.” (AE D.) 
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 to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense 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 “[a]ny 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. 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, “[t]he 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 “[a]ny 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
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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.
Analysis
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 (DCs). The DCs supported by the SOR allegations and asserted by
Department Counsel 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;
(e) evaluation of alcohol abuse or alcohol dependence by a licensed
clinical social worker who is a staff member of a recognized alcohol
treatment program; and 
(f) relapse after diagnosis of alcohol abuse or dependence and completion
of an alcohol rehabilitation program.
Applicant’s admitted DUI, Disorderly Conduct, and Harassment offenses in 2002
and 2006 clearly raise security concerns under AG ¶ 22(a). Although charges were later
dismissed through deferred prosecution and diversion agreements, he was sufficiently
impaired to have driven into a utility pole while unconscious, and to have been unable to
remember forcibly resisting security and police personnel who were trying to prevent his
further intoxication. He was evaluated as alcohol dependent by the licensed chemical
dependency professionals and clinical social workers at all of the treatment clinics he
attended, supporting application of AG ¶ 22(e). Finally, he relapsed into regular alcohol
consumption in early 2006, a few months after completing his first alcohol rehabilitation
program. This drinking continued even after his February 2006 arrest until his entry into
a second treatment program in September 2006, as evidenced by his positive intake
urinalysis. He again relapsed within months after completing that second treatment
program, and admitted consuming alcohol over the New Year 2008 holiday. Therefore,
AG ¶ 22(f) also supports security concerns. The subsequent alcohol-related attendance
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problems and November 2008 intoxication at work were not alleged in the SOR, so they
will not be considered as evidence used to support potential application of additional
Guideline G DCs, but may be considered under mitigation and whole-person analysis. 
AG ¶ 23 provides conditions that could mitigate alcohol consumption 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
(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’s multiple alcohol-related incidents preclude a finding that the behavior
was infrequent, and his 2006 arrest and 2008 impairment at work were relatively recent.
He resumed drinking shortly after the successful completion of each of his lengthy
outpatient treatment programs in November 2005 and April 2007. His resumed
abstinence since his January 2009 inpatient treatment is not of sufficient duration to
establish that such conduct is unlikely to recur or no longer casts doubt on his reliability,
especially since he only finished intensive outpatient treatment about three months ago
in August. Applicant did not yet establish mitigation under AG ¶ 23(a). Applicant has
acknowledged his alcoholism, and has begun to demonstrate effective action to
overcome it, but he has yet to establish a pattern of abstinence sufficient to overcome
concerns raised by his previous relapses. 
There is no evidence that he has consumed alcohol since November 2008, and
he has made a substantial start toward establishing a pattern of responsible conduct
and abstinence. However, as discussed above, insufficient time has passed to establish
mitigation under AG ¶ 23(b) given the duration, pattern, and seriousness of his history
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of alcohol abuse. Similarly, there is insufficient evidence yet to support mitigation under
either AG ¶¶ 23(c) or (d), due to his history of relapses and the qualified nature of the
favorable prognoses by a duly qualified medical professional and qualified social
workers following each of his three treatment programs. All said, essentially, that his
prognosis is favorable as long as he remains abstinent and follows their
recommendation to continue followup work with AA. The last two times he suffered
relapses within less than a year of completing treatment, and it has only been a few
months since his completion of the most recent program. He is taking proper and
commendable measures to create future mitigation under these provisions, especially
with ongoing monitoring by his employee assistance program, but has not yet done so
sufficiently to overcome the security concerns raised by his history and pattern of
alcohol abuse.
 
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 relevant 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.    
I considered the potentially disqualifying and mitigating conditions in light of all
relevant facts and circumstances surrounding this case. Applicant’s conduct of security
concern involves multiple alcohol-related offenses over the past seven years, and his
ongoing alcohol dependence. All of this occurred while he was mature and accountable
for his actions. None of the incidents in and of itself was particularly serious since he
was fortunate enough not to have hurt himself or others. Taken together, however,
these incidents form a pattern reflecting very poor judgment, flaunting of rules and
regulations, and inadequate self-control. He knowingly and voluntarily participated in
every incident of security concern, and failed to take necessary steps to change the
circumstances under which his problems recurred until fairly recently. It has been less
than a year since his most recent incident, and he remains on a company monitoring
program until 2012. The inpatient and intensive outpatient supervision by others that he
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has undergone since January 2009 lessens the degree to which his recent good
behavior can be attributed to his own remorse and rehabilitation. While evidence of an
excellent start toward establishing rehabilitation was presented, including his recent
outstanding work performance, lifestyle changes, and abstinence from alcohol, it is too
soon to confidently conclude that continuation or recurrence of his alcohol problems are
unlikely. He made insufficient showing of reduced potential for pressure, exploitation, or
duress, especially should a future relapse put his continued employment in jeopardy. 
Overall, the record evidence generates substantial doubts concerning Applicant’s
present eligibility and suitability for a security clearance. Although his recent efforts have
been commendable, he has not yet met his burden to mitigate the security concerns
arising from his alcohol consumption.
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: 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
Subparagraph 1.h: 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