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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 08-09399
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
October 13, 2010
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Decision
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MOGUL, Martin H., Administrative Judge:
On January 12, 2010, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
G, H, 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
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 February 12, 2010, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on March 8, 2010. DOHA issued a notice of hearing on March 9,
2010, and I convened the hearing as scheduled on April 5, 2010. The Government
offered Exhibits 1 through 4, which were received without objection. Applicant testified
on his own behalf and submitted Exhibit A at the time of hearing, which was also
admitted without objection. I granted Applicant’s request to keep the record open until
April 19, 2010, to submit additional documents. He timely submitted a cover letter and
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five character letters, which have been identified collectively and entered into evidence
without objection as Exhibit B. DOHA received the transcript of the hearing (Tr) on April
13, 2010. Based upon a review of the case file, pleadings, exhibits, and the testimony of
Applicant, eligibility for access to classified information is denied.
Findings of Fact
In his RSOR Applicant admitted SOR allegations 1.a. through 1.d., under
Guideline G, 2.a. through 2.c., under Guideline H, and 3.a. under Guideline E. He
indicated that he did not know if 1.e. was correct. The admitted allegations are
incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the additional findings of fact: 
Applicant is 54 years old. He is married, but legally separated from his wife since
2004.  Applicant is employed by a defense contractor, and he seeks a DoD security
clearance in connection with his employment in the defense sector.
Paragraph 1 (Guideline G - Alcohol Consumption) 
The Government alleges that Applicant is ineligible for clearance because he has
engaged in excessive alcohol consumption. The following are the five allegations as
they are cited in the SOR, and as reviewed above, 1. a. through 1.d. have been
admitted by Applicant in his RSOR :
1.a. In approximately 1977 or 1978, Applicant was arrested and charged with
Driving Under the Influence of Alcohol (DUI).  He pled guilty to the charge of Reckless
Driving and was sentenced to pay a fine of $500. In his RSOR, Applicant admitted this
allegation.
At the hearing, Applicant testified that on the day of this event he had consumed
approximately a case or three six packs of beer, and he drove home from a wedding
anniversary party when this arrest occurred. (Tr at 31-33.)
1.b. In approximately July 1996, Applicant was arrested and charged with DUI.
He was convicted and found guilty of DUI and was sentenced to pay a fine of $1,000,
and to attend an outpatient alcohol treatment program. In his RSOR, Applicant admitted
this allegation. In his RSOR and during his testimony, Applicant admitted that he was
guilty. He thereafter plead No Contest to the charge and  paid a fine of approximately
$1,000. He testified that as part of the sentence, he attended two months of outpatient
treatment, two times a week, and then attended two months of Alcoholics Anonymous
(AA) meetings. During the outpatient treatment, he was advised to abstain completely
from alcohol consumption, which he did for six or eight months, but then he resumed his
alcohol consumption. (Tr at 33-35.) 
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1.c. The SOR alleges that despite receiving recommendations from three alcohol
treatment programs that he attended to abstain from alcohol consumption, Applicant
has continued to consume alcohol until at least January 18, 2009. Applicant testified
that presently he continues to drink in an amount from three or four beers to two six-
packs, on approximately five occasions during the last year before the date of the
hearing. He continues to drink simply as a form of socializing. (Tr at 35-39.) When he
was questioned later about an answer he gave on an interrogatory (Exhibit 4), Applicant
conceded that on one occasion in January 2009, he consumed 10 beers during one
day. (Tr at 69.) He also testified that a domestic disturbance that he had with his wife in
2004, was at least partially due to alcohol consumption. (Tr at 69-70.) Finally, in Exhibit
4, Applicant indicated that he did not intend to consume alcohol in the future. He clearly
has not followed this plan. 
1.d. In approximately April 2006, Applicant’s employment was terminated for
failing a urinalysis test, which detected excessive alcohol in his system.
Applicant testified that he had consumed too much alcohol on the previous night,
and it resulted in a positive urinalysis the next day at work. He estimated that he had
consumed three shots of vodka and a six pack of beer. He received the urinalysis test
because that was his first day employed by that company.  After his termination, he was
informed that he should receive rehabilitation, if he had any hopes of being rehired at a
later date by this company. (Tr at 39-41.)
1.e. On or about May 8, 2009, Applicant was diagnosed by a licensed
independent substance abuse counselor as “Alcohol dependent with Psychological
Dependence.” Applicant testified that he had never received the report from the
counselor, and the first time he viewed it was after it was sent to him from Department
Counsel. Exhibit 3 contains the report from the counselor. Among the findings on the
report is that Applicant is Alcohol Dependent, which is based on three factors: 1) A need
for markedly increased amounts of the substance to achieve intoxication of desired
effect, 2) the substance is often taken in larger amounts or over longer periods than was
intended, and 3) there is a persistent desire of unsuccessful efforts to cut down or
control substance abuse. Based on these findings he was found to have a “High
Probability for Substance Abuse Disorder.”
Under cross examination, Applicant justified his continuing to consume alcohol,
despite all of the problems it has caused him by saying, “I really like the taste of beer.”
He conceded that he could be an alcoholic, and he continues to consume alcohol, in
spite of the fact that all of the counselors he has seen have advised him to abstain
completely from alcohol. (Tr at 55-59.) 
Paragraph 2 (Guideline H - Drug Involvement) 
The SOR lists three allegations regarding illegal drug involvement under
Adjudicative Guideline H. As stated above, all of these allegations were admitted by
Applicant in the RSOR., although his testimony, as will be reviewed below, differed from
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the SOR in terms of dates of usage. They will be discussed in the same order as they
were listed in the SOR:
2.a. The SOR alleges that Applicant used Crystal Methamphetamine
approximately five times during the period from 2001 to 2008. At the hearing, Applicant
testified that he was not certain what the period of usage was. He purchased the Crystal
Methamphetamine that he used for approximately $20 each time. (Tr at 45-46.)
2.b. The SOR alleges that Applicant used cocaine in approximately 2000.
Applicant testified that he used cocaine on 20 occasions from 1976, when he was 20,
until his last usage in 2000. He estimated that he purchased the cocaine about 10 times
for $80 to $100 each time. The other times he used it, it was given to him. (Tr at 46-48.) 
2.c.  The SOR alleges that Applicant used prescription drugs that were not
prescribed to him, on approximately four or five occasions during the period from 2001
to 2008. At the hearing, Applicant testified that he used the drugs of a friend for pain
after he injured his back. (Tr at 49-50.) 
Paragraph 3 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he exhibited conduct involving questionable judgement, lack of
candor, dishonesty or unwillingness to comply with rules and regulations.
3.a. Applicant executed a Security Clearance Application (SCA), which was
executed by him on February 28, 2008 (Exhibit 1.)  Question #24 of the SCA asked
since the age of 16 or in the previous seven years, whichever is shorter, had Applicant
illegally used any controlled substance? Applicant answered "No" to this question, and
he listed no illegal substances. The Government alleges, and the evidence is clear that
Applicant should have included all of his illegal drug usage as included in
subparagraphs 2.a. through 2.c., above.  In his RSOR, Applicant wrote about this
allegation, “In response to my dishonesty pertaining to section 24: The question was
given orally I mistook the answer as ‘no’ instead of ‘yes’ that was my mistake and I
admit to being wrong about my answer.” (Sic.)
At the hearing Applicant continued to aver that he had misunderstood the
question, and he was not attempting to give untruthful answers. (Tr at 50-51.) However,
in Exhibit 2, which contains a Report of Investigation that was ratified by interrogatories,
it states, “Subject failed to list the above information concerning his drug use on his SF
89, because he was embarrassed.” 
Mitigation
Applicant submitted five character letters in Exhibit B from individuals who have
known Applicant in his employment capacity and wrote in positive terms about him. He
was described as “completely reliable and deserving of a position of trust.”
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the 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. 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
Paragraph 1 (Guideline G - Alcohol Consumption) 
Applicant's alcohol consumption has resulted in two DUI arrests and convictions,
a termination from employment, and a diagnosis as being Alcohol Dependent from a
substance abuse counselor. 
The Government established that Applicant was involved in “alcohol-related
incidents away from work,” and “binge consumption of alcohol to the point of impaired
judgement.” Disqualifying Conditions AG ¶ 22(a) and (c) apply to this case.  
As stated above, Applicant admitted to currently drinking beer on a regular basis,
and to consuming as many as 10 beers at one time. This is despite the fact that
Applicant has been advised not to consume any alcohol in the future by three
rehabilitation programs that he attended, and after he averred in a response to an
interrogatory that he intended not to consume alcohol in the future. As a result of this, I
do not find that any Mitigating Condition under ¶ 23 applies. Paragraph 1 Guideline G is
found against Applicant.
Paragraph 2 (Guideline H - Drug Involvement)
With respect to Guideline H, the Government has established its case.
Applicant's improper and illegal drug abuse, including the possession, and use for many
years of marijuana, and other illegal substances is of great concern, especially in light of
his desire to have access to the nation's secrets. Applicant's overall conduct pertaining
to his illegal substance abuse clearly falls within Drug Involvement Disqualifying
Condition AG ¶ 25(a) “any drug abuse” and (c) “illegal drug possession, including
cultivation, processing, manufacture, purchase, sale, or distribution.”
Based on the Applicant’s recency of  use of illegal substances, and his lack of
candor in the information that he provided to the Government about his drug
involvement, I cannot conclude at this time that Applicant’s conduct comes within any
Mitigating Condition under AG ¶ 26. 
In this case, the Government has met its initial burden of proving that Applicant
has used illegal drugs for many years under Guideline H. Applicant, on the other hand,
has failed to introduce persuasive evidence in rebuttal, explanation or mitigation which
is sufficient to overcome the Government's case against him.  Accordingly, Paragraph 2
Guideline H of the SOR is concluded against Applicant.
Paragraph 3 (Guideline E - Personal Conduct)
With respect to Guideline E, the evidence establishes that Applicant furnished to
the Government incomplete, untruthful answers regarding his drug involvement on an
SCA that he executed on February 28, 2008.
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The Government relies heavily on the honesty and integrity of individuals seeking
access to our nation’s secrets. When such an individual intentionally falsifies material
facts or fails to furnish relevant information to a Government investigator, it is extremely
difficult to conclude that he nevertheless possesses the judgment, and honesty
necessary for an individual given a clearance. In this case, I conclude that Applicant
knowingly and willingly failed to give complete, honest answers regarding his drug
usage to the Government.
In reviewing the disqualifying conditions under Guideline E, I conclude that
because of Applicant’s “deliberate omission, concealment, or falsification of relevant
facts from any personnel security questionnaire” that ¶ 16(a) applies against Applicant. I
find no mitigating conditions can be applied. I therefore, resolve Guideline E against
Applicant. 
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 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
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why the disqualifying conditions apply and the mitigating conditions do not
apply, I find that the record evidence leaves me with significant questions and doubts as
to Applicant’s eligibility and suitability for a security clearance under the whole-person
concept. For all these reasons, I conclude Applicant has not mitigated the security
concerns. 
Formal Findings
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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.e.: Against Applicant
Paragraph 2, Guideline H: AGAINST APPLICANT
Subparagraphs 2.a.-2.c.: Against Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraphs 3.a.: 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 security
clearance.  Eligibility for access to classified information is denied.
                                              
Martin H. Mogul
Administrative Judge