DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ADP Case No. 06-11803 
  )  
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: D. Michael Lyles, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
 
Decision 
______________ 
 
 
RICCIARDELLO, Carol G., Administrative Judge: 
 
Applicant failed to mitigate the Government’s trustworthiness concerns under 
Guideline G, Alcohol Consumption, Guideline E, Personal Conduct, and Guideline J, 
Criminal Conduct. Applicant’s eligibility for access to sensitive information is denied. 
 
On December 4, 2009, the Defense Office of Hearings and Appeals (DOHA) 
issued to Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns 
under Guidelines G, E, and J. 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 
adjudicative guidelines (AG) effective within the Department of Defense for SORs 
issued after September 1, 2006.  
 
 Applicant’s answered the SOR in writing on December 27, 2009, and elected to 
have his case decided on the written record. Department Counsel submitted the 
 
1 
 
 
 
2 
 
 
                                                          
Government’s File of Relevant Material (FORM) on February 3, 2010. The FORM was 
mailed to Applicant and was received on February 12, 2010. Applicant was afforded an 
opportunity to file objections and submit material in refutation, extenuation, or mitigation. 
Applicant provided additional information without objection by Department Counsel. The 
case was assigned to me on March 29, 2010.  
 
Findings of Fact 
 
In Applicant’s answer to the SOR, he admitted the allegations in ¶¶ 1.a through 
1.h, and 2.a through 2.f. He failed to respond to the allegations in SOR ¶¶ 3.a and 3.b. 
After a thorough and careful review of the pleadings and exhibits submitted, I make the 
following findings of fact. 
 
 Applicant is 54 years old and married. He has worked for a federal contractor 
since 1990. He has consumed alcohol, at times to excess and to the point of 
intoxication, from about 1975 to at least 2004. In his answer to the SOR, on December 
27, 2009, Applicant stated the following: 
 
 I informed the investigator that I had stopped drinking alcohol. This 
statement was made to intend (sic) that I have stopped drinking alcohol as 
in hard liquor, i.e. vodka, gin. Not saying these two was the drink of my 
choice. I also informed the investigator that I was still drinking beer.1 
 
Applicant did not provide any information addressing whether he presently abstains 
from consuming alcohol or if he continues to drink. He did not provide information as to 
what rehabilitative steps he has taken. In his response to the FORM, he stated that 
sometime in the 2000 decade he attended a court-ordered “Drug/Alcohol Rehab class.”2 
 
 Applicant admitted his history of alcohol related arrests and convictions 
beginning in 1988 through 2001. They are as follows:  
 
• 1988-arrested and charged with Speeding and Violation of an Open Container. 
Ordered to complete 20 hours of community service, fined, license suspended for 
six months. 
• July 1992-arrested and charged with Driving Under the Influence (DUI), Driving 
Under Suspension (DUS), and Liquor Law Violation. Pleaded guilty and was 
fined. 
• February 1994-arrested and charged with DUS, Open Container, and Defective 
Tires. Fined $95.  
• June 1994-arrested and charged with DUS. Pleaded guilty. Sentenced to six 
months in jail, suspended to 90 days house arrest, six months probation, and 
fined.  
1 Item 3. 
 
2 Response to FORM. 
 
3 
 
 
                                                          
• August 1996-arrested and charged with DUS (more than first offense), DUI, and 
Open Container. Convicted of DUI, other counts dismissed. Forfeited bond of 
$152 on DUI. 
• April 1998-cited for DUI and DUS. Convicted of both charges and sentenced to 
one year in jail and a $2,500 fine, suspended on service of 14 days in jail; $2,135 
fine, and serve three years probation on the DUI offense. Sentenced to six 
months in jail, suspended on service of 90 days in jail, fined, serve three years 
probation, and pay restitution in the amount of $2,000 on the DUS offense.  
• December 1998-charged with DUI, DUS, and Open Container. Pleaded guilty to 
DUI and Open Container. Sentenced to one year in jail, suspended, ordered to 
serve 10 days in jail and three years probation. DUS dismissed.  
• October 2001-involved in alcohol-related accident. Charged with DUI and fined 
about $700 (no information if convicted of DUI). 
• November 1999-arrested and charged with Failure to Yield and DUS. Fined $174 
for Failure to Yield. Found guilty of DUS, and sentenced to 45 days in jail or $350 
fine.  
 
Applicant completed a Public Trust Position Questionnaire (SF 85P) on October 
30, 2002. In response to question 20, which asked if he had been arrested for, charged 
with, or convicted of any offenses in the last 7 years (leaving out traffic fines less than 
$150) he listed a DUI and DUS offense in October 2001. He deliberately failed to 
disclose the following offenses: the August 1996 DUI, DUS and Open Container 
charges; the April 1998 DUI and DUS charges; the December 1998 DUI, DUS and 
Open Container charges, and the November 1999 DUS and Failure to Yield charges.  
 
Applicant completed an SF 85P on August 17, 2004. In response to question 20 
which asked Applicant if he had been arrested for, charged with, or convicted of any 
offenses in the last 7 years (leaving out traffic fines less than $150) he listed a DUI in 
October 2001 and a DUS in December 2000. He deliberately failed to disclose that he 
had been arrested other times in that time period, to wit: April 1998 for DUI and DUS, 
December 1998 for DUI, DUS, and Open Container, and November 1999 for DUS and 
Failure to Yield.3  
 
Applicant completed a signed and sworn statement on April 14, 2005, which was 
presented to an authorized investigator for the Department of Defense. He falsified 
material facts in that he stated he quit using alcohol in October 2002 and deliberately 
failed to disclose that he continued to drink alcohol to at least 2004.4  
 
In response to interrogatories sent to Applicant by DOHA in November 2006, 
Applicant falsified material facts in that he stated he had stopped drinking alcohol in 
3 Item 4. 
 
4 Item 5. 
 
 
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October 2002, when in fact, he failed to disclose he continued to consume alcohol to at 
least 2004.5  
 
Applicant’s falsifications and omissions constitute a violation of Federal law, Title 
18 USC, Section 1001, felonies.  
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.”  
(See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.)  “The standard that must be met for 
. . . assignment to sensitive duties is that, based on all available information, the 
person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to 
sensitive duties is clearly consistent with the interests of national security.” (See 
Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence 
and Security) Memorandum, dated November 19, 2004, indicates trustworthiness 
adjudications will apply to cases forwarded to DOHA by the Defense Security Service 
and Office of Personnel Management. Department of Defense contractor personnel are 
afforded the right to the procedures contained in the Directive before any final 
unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)   
 
When evaluating an applicant’s suitability for a public trust position, the 
administrative judge must consider the disqualifying and mitigating conditions in the AG. 
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 overarching adjudicative goal is a fair, 
impartial, and commonsense 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 
[sensitive] 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 and has the 
ultimate burden of persuasion as to obtaining a favorable trustworthiness decision.”  
 
5 Item 8. 
 
5 
 
 
A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of 
the possible risk the applicant may deliberately or inadvertently fail to protect or 
safeguard sensitive information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
sensitive information. 
  
Section 7 of Executive Order (EO) 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 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. 
 I have considered all of the disqualifying conditions under AG ¶ 22, and 
especially considered the following: 
 
(a) alcohol-related incidents away from work, such as driving 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. 
 
Applicant drank alcohol to excess and to the point of intoxication from 1975 to at 
least 2004. He has had four DUI convictions and five other arrests, some were for 
alcohol-related offenses. I find the above disqualifying condition applies.  
 
I have considered all of the mitigating conditions under AG ¶ 23 including the 
following: 
 
(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 
 
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has established a pattern of abstinence (if alcohol dependent) or 
responsible use (if an alcohol abuser); 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 a treatment recommendation, such as 
participation in meeting of Alcoholics Anonymous or a similar organization 
and has received a favorable prognosis by a duly qualified medical 
profession or a licensed clinical social worker who is a staff member of a 
recognized alcohol treatment program.  
 
Appellant had numerous alcohol-related incidents in his past from 1988 to 2001. 
The most recent one reported was in 2001. Applicant’s answer to the SOR 
acknowledges he does not drink hard liquor, but continues to consume beer. Although a 
significant period of time has passed since his last criminal alcohol-related incident, 
without additional independent evidence as to his present consumption, I cannot find 
that his alcohol use will not be a recurring problem or not have a detrimental effect on 
his reliability, trustworthiness, and good judgment. I find AG ¶ 23(a) does not apply. 
There is no evidence that Applicant acknowledges his issues with alcohol or has taken 
actions to overcome his problem. No corroborative evidence was provided to convince 
me that he has abstained from alcohol consumption or established a modified pattern of 
consumption. Applicant provided information that he attended a court appointed alcohol 
awareness program some time in the 2000 decade. There is insufficient evidence to 
determine that Applicant’s issues with alcohol are under control. I find none of the above 
mitigating conditions apply. 
 
Guideline E, Personal Conduct 
AG ¶ 15 expresses the security concern pertaining to personal conduct:  
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness and ability to protect 
classified information. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.  
AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. I have considered all of them and especially considered the following: 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities; 
 
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(b) deliberately providing false or misleading information concerning 
relevant facts to an employer, investigator, security official, competent 
medical authority, or other official government representative;  
(c) 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. This includes 
but is not limited to considerations of: … (3) a pattern of dishonesty or rule 
violations; and  
(e) personal conduct, or concealment of information about one’s conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such 
as (1) engaging in activities which, if known, may affect the person’s 
personal, professional, or community standing. 
Applicant was arrested in June 1994, and charged with DUS. He was 
found guilty and was sentenced. He was arrested again in November 1999, for 
Failure to Yield and DUS. He was found guilty of both and sentenced. Applicant’s 
conduct rises to the level of establishing questionable judgment and a pattern of 
rule violations. His conduct creates a vulnerability and potentially could affect his 
personal, professional or community standing. I find disqualifying conditions AG ¶ 
16(c) and 16(e) apply.  
Applicant deliberately failed to disclose his complete history of arrests, 
charges, and convictions on his October 30, 2002 and August 17, 2004, SF 
85Ps. He also provided false material facts to a Department of Defense 
investigator in a sworn statement on April 14, 2005, in which he stated he had 
stopped consuming alcohol in October 2002, when in fact he deliberately failed to 
disclose that he continued to drink alcohol to at least 2004. He provided another 
false statement in the interrogatories provided to DOHA, stating the he stopped 
drinking alcohol in October 2002, when in fact he admitted that he continued to 
consume alcohol until at least 2004. I find disqualifying conditions AG ¶¶ 16(a) 
and 16(b) apply. 
The guideline also includes examples of conditions that could mitigate security 
concerns arising from personal conduct. I have considered all of the mitigating 
conditions and especially considered the following under AG ¶ 17: 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts;  
 
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(c) 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;  
(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that caused untrustworthy, unreliable, 
or other inappropriate behavior, and such behavior is unlikely to recur; and  
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress.  
I have considered all of the facts and information provided. There is no evidence 
that Applicant made a prompt good-faith effort to correct his omissions or falsifications. 
AG ¶ 17 (a) does not apply. Applicant’s failure to disclose his complete criminal record 
and alcohol-related incidents is not minor, but serious. No evidence was presented to 
conclude that his omissions, falsifications, and criminal actions occurred under unique 
circumstances that are unlikely to recur. I find AG ¶ 17(c) does not apply. There is no 
evidence indicating that Applicant has acknowledged his alcohol-related problems, 
obtained counseling, or taken positive steps to alleviate the stressors and underlying 
behaviors related to criminal offenses and abuse of alcohol. Without sufficient 
independent evidence, I cannot conclude that his behavior is unlikely to recur. I find 
mitigating conditions AG ¶¶ 17(d) and 17(e) do not apply.  
Guideline J, Criminal Conduct 
 
AG ¶ 30 sets out the security concern relating to criminal conduct:  
 
Criminal activity creates doubt about a person=s judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person=s ability 
or willingness to comply with laws, rules and regulations. 
 
I have considered the disqualifying conditions under Criminal Conduct AG ¶ 31 
and especially considered the following: 
 
(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 has four DUI convictions, four DUS convictions, and convictions for 
many other minor offenses. He was involved in an alcohol-related accident in October 
2001, and was charged with DUI. Applicant admitted in his answer to the SOR that he 
deliberately omitted relevant information pertaining to his police record and alcohol 
consumption on his SF 85Ps and provided false information to investigators, in violation 
 
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of Title 18 U.S. C. 1001, a felony offense. I find all of the above disqualifying conditions 
apply. 
 
 I have also considered all of the mitigating conditions for criminal conduct under 
AG ¶ 32 and especially considered the following: 
 
 (a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
and does not cast doubt on the individual’s reliability, trustworthiness, or 
good judgment; and 
 
 (d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
restitution, job training or higher education, good employment record, or 
constructive community involvement. 
 
 A significant period of time has elapsed since Applicant’s last alcohol-related 
criminal behavior in 2001. However, Applicant’s omissions and falsifications on his 2002 
and 2004 SF 85P and official statements in 2005 and 2006 reflect a pattern of 
dishonesty in disclosing his past misconduct. Under the circumstances, I find his 
deliberate falsifications cast doubt on his current reliability, trustworthiness, and good 
judgment. Therefore, I find mitigating condition AG¶ 32(a) does not apply. Insufficient 
evidence was presented to conclude there is successful rehabilitation. I find mitigating 
condition AG ¶ 17(d) does not apply.  
 
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s eligibility for access to sensitive information by considering the totality of the 
applicant’s conduct and all relevant 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 public 
trust position must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept.  
       
 
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I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant has a significant criminal 
history beginning in 1988 and primarily involving alcohol-related incidents. Although the 
passage of time without a criminal incident weighs in Applicant’s favor, he failed to 
provide sufficient and independent evidence to document his current alcohol 
consumption and refute potential alcohol-related concerns. An additional and serious 
concern is Applicant’s deliberate failure to disclose his entire criminal arrest and 
conviction record on his SF 85Ps, and his dishonest answers during discussions of his 
past alcohol consumption information. His willingness to omit and falsify information is a 
serious concern because the Government relies on applicant’s to provide honest 
information about their background. Failure to do so raises concerns that they may not 
be honest when they have access to sensitive information. Applicant failed to provide 
sufficient evidence to mitigate the trustworthiness concerns. Overall the record evidence 
leaves me with questions and doubts as to Applicant’s eligibility and suitability for 
access to sensitive information. For all these reasons, I conclude Applicant failed to 
mitigate the trustworthiness concerns arising under Guideline G, Alcohol Consumption, 
Guideline E, Personal Conduct, and Guideline J, Criminal Conduct. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline G:    AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.h:   Against Applicant 
 
 Paragraph 2, Guideline E:     AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.f:   Against Applicant 
 
 Paragraph 3, Guideline J:    AGAINST APPLICANT 
 
  Subparagraph 3.a-3b:   Against 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 public trust 
position. Eligibility for access to sensitive information is denied. 
 
 
                                                     
_____________________________ 
Carol G. Ricciardello 
Administrative Judge