DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------------- )       ISCR Case No. 08-09898
SSN: -------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Department Counsel
For Applicant: Pro Se
August 30, 2010
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) dated May 13, 2008.  (Government Exhibit 1.)  On December 23, 2009, the
Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865
(as amended), and Department of Defense Directive 5220.6 (Directive), dated January
2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the
reasons why DOHA could not make the preliminary affirmative finding under the
Directive that it is clearly consistent with the national interest to grant or continue a
security clearance for the Applicant and recommended referral to an Administrative
Judge to determine whether a clearance should be denied or revoked.
The Applicant responded to the SOR on February 23, 2010, and he requested a
hearing before a DOHA Administrative Judge.  This case was assigned to the
undersigned Administrative Judge on March 23, 2010.  A notice of hearing was
originally issued on March 29, 2010, scheduling the case for May 17, 2010.  An
amended notice of hearing was issued on May 12, 2010, and the hearing was
rescheduled for May 20, 2010.   At that hearing the Government presented eight
exhibits referred to as Government Exhibits 1 through 8, which were admitted into
evidence without objection.  The Applicant presented seven exhibits, referred to as
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Applicant’s Exhibits A through G, which were admitted without objection.  He called
three witnesses and testified on his own behalf.  After the record was closed, the
Applicant submitted additional documentation that was not admitted into evidence, but
is noted for the record.  The official transcript (Tr.) was received on June 9, 2010. Based
upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is denied.
FINDINGS OF FACT
The following Findings of Fact are based on the Applicant’s Answer to the SOR,
the testimony and the exhibits.  The Applicant is 55 years old and has a Bachelors
Degree in Architecture.  He is employed by a defense contractor as a Project Manager
and is seeking to obtain a security clearance in connection with his employment.  
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  After a complete and
thorough review of the evidence in the record, and upon due consideration of the same,
the following findings of fact are entered as to each paragraph and guideline in the
SOR:
Paragraph 1 (Guideline G - Alcohol Consumption).  The Government alleges that the
Applicant is ineligible for clearance because he abuses intoxicants.
The Applicant has a history of excessive alcohol abuse that has continued off
and on from 1973, until at least September 2008.  Over the past sixteen years of a thirty
five year period, the Applicant was charged, arrested and convicted of Driving Under the
Influence of Alcohol on three separate occasions, and once for being Drunk in Public.
Following at least two of his arrests for DUI, including his most recent arrest of 2008, the
Applicant participated in and completed a court ordered alcohol rehabilitation program.  
The Applicant started consuming alcohol shortly after high school.  At that time,
he drank mostly beer and wine at social settings.  His drinking continued on a daily
basis over the years without interruption.  He usually has a beer or two when he gets
home from work, and a glass of wine with dinner.  He considers himself a social drinker
without an alcohol problem.  He last had a drink of alcohol the night before the hearing
to relax.  There is no evidence in the record that he has ever been formally diagnosed
with alcoholism, but his pattern of drinking, involving multiple alcohol related offenses,
indicates a serious alcohol problem.  The following statement of facts outline each
arrest.
 
In 1992, the Applicant was arrested and charged with Driving Under the Influence
of Alcohol.  He explained that he was going through a divorce with his wife and went out
to a bar.  He had consumed several mixed drinks before leaving the bar.  He was
followed home by the police.  (Government Exhibits 2, 3, 4 and 5.)  He pled guilty and
was fined.  He remembers attending two or three Alcohol Awareness classes and one
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Alcoholics Anonymous meeting as a result of this conviction.  Following this DUI, he
refrained from drinking and driving for over a year.  (Tr. p. 41.)      
In December 2000, the Applicant was charged with Drunk in Public.
(Government Exhibit 6.)  The Applicant explained that he had been consuming alcohol
at a party before he drove to a restaurant where he fell asleep in the booth.  (Tr. p. 47.)
He was  transported and booked into the jail.  Following this arrest, the Applicant
curtailed his drinking.  Rather than having two mixed drinks, he went to one glass of
wine.  (Tr. p. 53.)        
In July 2002, he was arrested and charged with Driving Under the Influence of
Alcohol.  He stated that he had been celebrating at a bachelor party where he had
consumed three shots of bourbon, beer and some champagne before driving.  He then
went to a hotel and slept for four hours before driving home.  While driving home, he ran
a red light and was pulled over.  He pled guilty to Wet Reckless.  In 2006, he was
sentenced to a fine and three years probation.  As of January 2009, his fine had not
been satisfied, and his probation was extended to August 2010.  During his interview
with the DoD investigator, he learned that a warrant had been issued for his arrest.  He
indicated that he would immediately contact the court and pay the outstanding fine.
(Government Exhibits 2, 3, 4 and 5.)
In August 2008, he was arrested and charged with, (1) Driving Under the
Influence of Alcohol and (2) Driving While having a 0.08% or Higher Blood Alcohol.  The
Applicant explained that he had been at a good friend’s home celebrating his friend’s
birthday during a barbeque where he had consumed beer and shots of tequila.  On his
way home, he was pulled over for land drifting.  He pled guilty to Count 1 and was
sentenced to five days jail, 90 days Driving Under the Influence 1  Offenders Program,st
fined and placed on 36 months probation.  Count 2 was dismissed.  Following this
incident, he states that he curtailed his drinking.  The Applicant remains on probation for
this arrest.  (Tr. p. 70.)  His drivers license was suspended until he finished the 13 week
alcohol awareness course.  (Government Exhibits 2, 3, 4, and 5).  He has completed his
substance abuse program and his drivers license has been reinstated.  (Applicant’s
Exhibit A.)
Since his last arrest, the Applicant states that he no longer drinks and drives.
The Applicant stated,
Well, the cornerstone of my case, sir, is that drinking and driving has been
the problem that I’ve been concerned with and not necessarily the
alcoholism because I seriously looked at that when I had to go to the AA
meetings for this last conviction and talked to some of the alcoholics there
and asked them, you know, what is it ? I really wanted to know if I had a
problem.  And after six weeks of AA meetings, 13 weeks of the Alcohol
Classes, I came away with the idea that just really needed to focus in on
not driving while I’m consuming alcohol.  (Tr. p. 31.)    
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The Applicant plans to continue to drink in the future.  He does not believe he is
an alcoholic, but that he has a problem with drinking and driving.  (Tr. p. 65.)  He
believes that he functions in and contributes to society very well.  (Tr. p. 50.)  He also
believes that he is simply an unlucky person who has been caught drinking and driving
on three separate occasions.  (Tr. p. 56.)  When asked whether he would consume
alcohol the night of the hearing, he stated that he believed that he would have a couple
of drinks.  (Tr. p. 69.)         
He testified that he has worked for his current employer for about three years and
his job performance is “above average” to “average.”  The  App l i can t ’ s  supe rv i so r
testified that the Applicant has worked for him for about nine months.  He believes the
Applicant to be an honest, patriotic, trustworthy individual that would do nothing to
jeopardize the national interest.  (Tr. pp. 86-87.)
A friend of the Applicant testified that he is trustworthy, honest, loyal and a man
of his word.  He considers him an individual who would do nothing to jeopardize the
national interests.  (Tr. p. 88.)  The Applicant’s son testified that his father instilled the
sense of working hard, patience, and the larger tasks will be completed a little at a time.
(Tr. p. 92-94.)  
Letters of recommendation from the Applicant’s current supervisor, a project
manager, coworkers, and a former supervisor attest to his professionalism, honesty and
integrity.  Since working for his current employer, he has been a valuable member of the
team.  He is always reliable and dependable, and has proven himself time and time
again to be of upstanding character.  He has an excellent attendance record and
normally works beyond the normal business day to complete his assigned tasks and
projects.  He is highly recommended for a position of trust.  (Applicant’s Exhibits B, C,
D, E and F.) 
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline G (Alcohol Consumption)
21.  The Concern.  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.  
Conditions that could raise a security concern:
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
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concern, regardless of whether the individual is diagnosed as an alcohol abuser or
alcohol dependent;
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.
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19,  in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and 
 
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to classified information is predicted
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.” The Administrative
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Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, “Any determination under this order
. . . 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.”
CONCLUSION
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be involved in alcohol and drug abuse that demonstrates poor judgment
or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has engaged in alcohol abuse (Guideline G).  This evidence indicates poor
judgment, unreliability and untrustworthiness on the part of the Applicant.  Because of
the scope and nature of the Applicant's conduct, I conclude there is a nexus or
connection with his security clearance eligibility.
Considering all of the evidence, the Applicant has not introduced persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case under Guideline G of the SOR.  Under Alcohol Abuse, Guideline G,
disqualifying conditions 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” 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” apply.  None of the mitigating
conditions are applicable.
Over the past sixteen years of a thirty-five year history of alcohol consumption,
the Applicant has been arrested on four occasions,  three times for Driving Under the
Influence of Alcohol, and once for being Drunk In Pubic.  Multiple alcohol related
infractions are indicative of a serious alcohol problem.  Although his most recent arrest
occurred in 2008, two years ago, there is no evidence in the record that the Applicant
has stopped drinking, or reduced his drinking for any significant period of time that
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would establish a pattern of abstinence or responsible use as required by the DoD
Directive. 
Although there is no formal diagnosis in the record of alcohol dependence, the
Applicant’s pattern of alcohol abuse is clearly indicative of a serious alcohol problem.
Based upon his long history of alcohol abuse and its related effects on the Applicant
there is insufficient evidence in the record to show that he is sufficiently trustworthy for
access to classified information at this time. Accordingly Guideline G is found against
the Applicant. 
    
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth above, when viewed under all of the guidelines as a
whole, support a whole-person assessment of poor judgement, untrustworthiness,
unreliability, and unwillingness to comply with rules and regulations, and/or other
characteristics indicating that the person may not properly safeguard classified
information.
  
Considering all of the evidence presented, it does not come close to mitigating
the negative effects of his alcohol problem, and the impact that they can have on his
ability to safeguard classified information.  On balance, it is concluded that the Applicant
has failed to overcome the Government's case opposing his request for a security
clearance.  Accordingly, the evidence supports a finding against the Applicant as to the
factual and conclusionary allegations expressed in Paragraph 1 of the SOR.    
     FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
    Subpara.  1.a.: Against the Applicant.
    Subpara.  1.b.: Against the Applicant.
    Subpara.  1.c.: Against the Applicant.
    Subpara.  1.d.: Against the Applicant.
       Subpara.  1.e.: Against the Applicant.
   
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DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
Darlene Lokey-Anderson
Administrative Judge