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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 -------------------- )  ISCR Case No. 09-05086 
 SSN: ----------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: David F. Hayes, Esq., Department Counsel 
For Applicant: John Ward Bane, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines G (Alcohol 
Consumption) and E (Personal Conduct). Eligibility for access to classified information 
is granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on November 11, 2007, and 
he received a security clearance on a date not reflected in the record. On July 27, 2010, 
the Defense Office of Hearings and Appeals (DOHA) sent him a Statement of Reasons 
(SOR) detailing the basis for its preliminary decision to revoke his clearance, citing 
security concerns under Guidelines G and E. DOHA acted 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) implemented by the Department of Defense on September 
1, 2006.  
 
 
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 Applicant received the SOR on July 30, 2010; answered it on August 9, 2010; 
and requested a hearing before an administrative judge. DOHA received the request on 
August 12, 2010. Department Counsel was ready to proceed on August 30, 2010, and 
the case was assigned to me on September 1, 2010. DOHA issued a notice of hearing 
on September 2, 2010, scheduling it for September 21, 2010. I convened the hearing as 
scheduled. Government Exhibits (GX) 1 through 14 were admitted in evidence without 
objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through H, which 
were admitted without objection. DOHA received the transcript (Tr.) on October 1, 2010. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the factual allegations in the 
SOR. His admissions in his answer and at the hearing are incorporated in my findings of 
fact.  
 
 Applicant is a 25-year-old electronics technician employed by a defense 
contractor. He graduated from college with honors in May 2006. While he was a full-
time student, he also worked as a network support specialist for a city school system 
from June 2002 to August 2005. He has worked for his current employer since 
November 2007 and has held a security clearance for most of his current employment. 
(AX A; AX B; Tr. 33.) 
 
 Applicant began drinking alcohol in 2002, while a senior in high school. He drank 
two or three beers on one or two occasions. At a high school graduation party, he 
became heavily intoxicated and blacked out. During his first year of college, beginning 
in August 2002, he drank two or three beers about once a week. During his second year 
of college, beginning in August 2003, his drinking increased to six beers or a 
combination of beer and hard liquor about three times a week. (GX 2 at 6.)  
 
On August 30, 2003, Applicant was arrested for underage possession of alcohol 
and being drunk in public, and he spent the night in the “drunk tank.” He testified he had 
consumed at least five or six beers. (Tr. 36-37.) Adjudication was deferred, and he was 
ordered to perform 50 hours of community service and complete a weekend alcohol 
education program. The charges were dismissed after one year. (GX 2 at 3; GX 13; GX 
14.) 
 
 During his third year of college, beginning in August 2004, he stopped drinking, 
because his girlfriend did not drink, they were both in an honors program, and they 
spent their spare time studying. After they broke up, Applicant began drinking again. (Tr. 
43.)  
 
During his senior year of college, Applicant was a freshman mentor, involved in 
counseling freshmen and helping them become involved in college activities. (Tr. 45.) At 
the same time, he increased his drinking to five or six beers three or four times a week. 
(GX 2 at 6.)  
 
 
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In March 2005, Applicant and three friends were stopped by police when one of 
them had an open container of alcohol in their car. Everyone in the car was given a 
breathalyzer test, and Applicant was charged with underage possession of alcohol 
because he was over the legal limit of .01%. He had a case of beer under his feet when 
they were stopped by the police. (Tr. 41.) He was sentenced to 90 days in jail, with 88 
days suspended, fined $100, and required to perform 50 hours of community service 
and complete a ten-week counseling program. His driver’s license was suspended for 
90 days. (GX 2 at 4; GX 10; Tr. 41.)  
 
In September 2005, while still underage, Applicant tried to enter a bar with a 
fictitious driver’s license, but the bouncer confiscated it. He was not charged at that 
time, but he was warned to refrain from further misconduct. However, in October 2005, 
he was charged with petit larceny after a construction worker’s hard hat and some 
stolen street signs were found in his apartment. At that time, he was charged with his 
earlier possession of the fictitious driver’s license. The petit larceny charge was reduced 
to trespassing, and he pleaded guilty to the reduced charge and the possession of a 
fictitious driver’s license. He was sentenced to 90 days in jail, with 86 days suspended, 
fined $100, and ordered to perform 50 hours of community service. (GX 2 at 5; GX 8; 
GX 9; Tr. 47.)  
 
After graduating from college, Applicant worked as an information technology 
specialist for a private-sector company from May 2006 to August 2007, and for his 
current employer beginning in November 2007. He had no further incidents of 
misconduct for almost three years.  
 
On March 14, 2009, Applicant and some friends celebrated St. Patrick’s Day at a 
bar. Applicant consumed about six beers. He testified that he had arranged for a friend 
to drive him home, but he left the bar and tried to drive home alone because of a 
“stressor event” in a bar, when he encountered an ex-girlfriend. (Tr. 50, 66-67.) While 
driving home in the rain, he hit a pothole, slid off the road, and got stuck in the mud. 
While waiting for a tow truck, he was approached by a police officer. After Applicant 
explained what had happened, the police asked him to take a breathalyzer test. When 
Applicant refused, he was arrested for driving under the influence (DUI), reckless 
driving, and refusal to take a breathalyzer test. He spent the night in jail. He pleaded 
guilty to first offense DUI. The reckless driving and breathalyzer refusal were disposed 
of by nolle prosequi. He was sentenced to 30 days in jail (suspended), fined $250, and 
ordered to attend Alcohol Safety Action Program (ASAP) classes. His driver’s license 
was restricted for one year, until May 12, 2010. (GX 3 at 3-4; GX 5; GX 6.)  
 
In accordance with his employer’s policy, Applicant reported his arrest and 
charges to his facility security officer. (Tr. 33-34.) His supervisor, a retired Navy chief 
petty officer, counseled him about the incident and warned him that he was in danger of 
ruining his life. (Tr. 55-56.) 
 
Applicant completed the ten-week ASAP requirement, received six months of 
intensive out-patient care, and attended Alcoholics Anonymous meetings. (Tr. 27-28.) 
 
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He has successfully completed all the requirements imposed by the court (AX G.) The 
record contains no medical evidence of alcohol addiction. His mother states that he “has 
changed his ways and his friends,” and he now understands the consequences of his 
behavior. (AX H.)  
 
Applicant testified that his attitude toward alcohol has changed. He consumes 
beer infrequently at social events like football games and limits himself to one or two 
beers. (Tr. 52.) He stays away from bars, and he no longer drinks and drives. (Tr. 56, 
68.)  
 
Applicant’s performance appraisal for the period ending in September 2008 rated 
him as a 3.5 on a five-point scale, between a rating of “meets all” performance 
expectations and “exceeds most” expectations. (AX C.) His performance appraisal for 
the period ending in December 2009 rated him as a 4.1, slightly above a “exceeds 
most” rating. (AX D.) A coworker describes him as an outstanding employee who goes 
“above and beyond” on a daily basis. (AX F.) His supervisor, the same retired U.S. Navy 
chief petty officer mentioned above, describes him as a “solid and reliable employee” 
who has stumbled and recovered from his mistake. (AX E; Tr. 22.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained 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 an evaluation of the whole person. An administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk the applicant may deliberately or inadvertently fail to safeguard classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about potential, rather than actual, risk of compromise of classified information. 
 
 
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Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue his security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity 
clearance determinations should err, if they must, on the side of denials.” Egan, 484 
U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline G, Alcohol Consumption 
 
 The SOR alleges that Applicant has consumed alcohol, at times to excess and to 
the point of intoxication from approximately 2002 to “at least” May 2010 (¶ 1.a). It also 
alleges the three alcohol related incidents in March 2009 (¶ 1.b), March 2005 (¶ 1.c), 
and August 2003 (¶ 1.d). 
 
 The concern under this guideline 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 evidence establishes two disqualifying conditions under this 
guideline: AG ¶ 22(a) (“alcohol-related incidents away from work, such as driving while 
under the influence . . . disturbing the peace, or other incidents of concern, regardless of 
whether the individual is diagnosed as an alcohol abuser or alcohol dependent”); and 
AG ¶ 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”). Thus, the burden shifted to Applicant to rebut, explain, extenuate, or 
mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a 
mitigating condition, and the burden of disproving it never shifts to the Government. See 
ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).   
 
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 Security concerns under this guideline may be mitigated if “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.” AG ¶ 23(a). The first prong of this 
mitigating condition (“so much time has passed”) focuses on whether the criminal 
conduct was recent. There are no Abright line@ rules for determining when conduct is 
Arecent.@ The determination must be based on a careful evaluation of the totality of the 
evidence. If the evidence shows Aa significant period of time has passed without any 
evidence of misconduct,@ then an administrative judge must determine whether that 
period of time demonstrates Achanged circumstances or conduct sufficient to warrant a 
finding of reform or rehabilitation.@ ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 
2004). 
 
 Applicant’s arrest for DUI, reckless driving, and breathalyzer refusal was his first 
and only alcohol-related incident after he graduated from college in May 2006. It 
occurred more than 18 months before his hearing. Since his arrest, he has completed 
the court-ordered ten weeks of counseling, received six months of intensive out-patient 
care, received a strong warning from his supervisor, and regained the trust and support 
of that supervisor. He has changed friends, stays away from bars, and has significantly 
reduced his alcohol consumption. There is no evidence that he is alcohol dependent or 
requires further treatment. I conclude that AG ¶ 23(a) is established. 
 
 Security concerns also may be mitigated if “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).” AG ¶ 23(b). For the reasons set 
out above in the discussion of AG ¶ 23(a), I conclude that this mitigating condition also 
is established. No other enumerated mitigating conditions are relevant. 
 
Guideline E, Personal Conduct 
 
 The SOR alleges Applicant’s arrest for petit larceny and conviction of trespassing 
in October 2005 (¶ 2.a) and his arrest and conviction of possessing a fictitious driver’s 
license in September 2005 (¶ 2.b). It also cross-alleges the conduct alleged in ¶¶ 1.a-
1.d under this guideline.  
 The concern under this guideline is set out in AG ¶ 15: “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.” The evidence establishes the following 
disqualifying conditions under this guideline: 
AG ¶ 16(c): credible adverse information in several adjudicative issue 
areas that is not sufficient for an adverse determination under any other 
single guideline, but which, when considered as a whole, supports a 
whole-person assessment of questionable judgment, untrustworthiness, 
 
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unreliability, lack of candor, unwillingness to comply with rules and 
regulations, or other characteristics indicating that the person may not 
properly safeguard protected information; and 
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 Security concerns raised by personal conduct may be mitigated if “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.” AG ¶ 17(c). For the 
reasons set out above in the discussion of AG ¶ 23(a), I conclude that Applicant’s 
conduct has been mitigated by the passage of time and evidence that he has outgrown 
his college immaturity and has become a responsible citizen and a dependable 
employee. 
 
 Security concerns under this guideline also may be mitigated if “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.” AG ¶ 17(d). Applicant completed his court-ordered counseling and 
completed six months of intensive out-patient treatment. He was counseled by his 
supervisor, who apparently made an impression on him. He has found new friends, 
matured, and changed his lifestyle. I conclude that this mitigating condition is 
established. 
 
 Finally, security concerns may be mitigated if “the individual has taken positive 
steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.” AG ¶ 
17(e). This mitigating condition is established by Applicant’s demonstrated change of 
behavior and attitude.  
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all the relevant circumstances. An 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 
 
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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 have incorporated my 
comments under Guideline G and E in my whole-person analysis. Some of the factors 
in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional 
comment. 
 
 Applicant is well educated, intelligent, and articulate. I am satisfied that he has 
left his irresponsible lifestyle behind him. He thinks and acts like an adult rather than an 
immature college student. He promptly notified his supervisor of his arrest and 
conviction in March 2009. His arrest, conviction, and sentence, reinforced by strong 
warnings from his supervisor, apparently gained his attention. He was sincere, candid, 
and credible at the hearing. After weighing the disqualifying and mitigating conditions 
under Guidelines G and E, and evaluating all the evidence in the context of the whole- 
person, I conclude Applicant has mitigated the security concerns based on alcohol 
consumption and personal conduct. Accordingly, I conclude he has carried his burden 
of showing that it is clearly consistent with the national interest to continue his eligibility 
for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline G (Alcohol Consumption): FOR APPLICANT 
 
  Subparagraphs 1.a-1.d:    For Applicant 
 
 Paragraph 2, Guideline E (Personal Conduct):  FOR APPLICANT 
 
  Subparagraphs 2.a-2.c:    FOR APPLICANT 
 
Conclusion 
 
 I conclude that it is clearly consistent with the national interest to continue 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is granted. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge