DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------------- )       ISCR Case No. 10-00827
SSN: -------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Department Counsel
For Applicant: Darin Groteboer, Attorney At Law
December 8, 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) on August 1, 2007.  (Government Exhibit 1.)  On June 9, 2010, the Defense
Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing
the security concerns under Guidelines G and J 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 (DoD) for SORs
issued after September 1, 2006. 
 
  The Applicant responded to the SOR on August 5, 2010, and he requested a
hearing before a DOHA Administrative Judge.  This case was assigned to the
Administrative Judge on September 16, 2010.  A notice of hearing was issued on
September 28, 2010, scheduling the hearing for October 19, 2010.  At the hearing the
Government presented five exhibits, referred to as Government Exhibits 1 to 5, which
were admitted without objection.  The Government also moved to amend the SOR
under allegation paragraph 1(b) to reflect the month of “May 2009,” instead of the date
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of “May 30, 1999,” and paragraph 1(d) to reflect the month of “May 2009,” instead of the
month of “May 1999.”  The Applicant had no objection.  (Tr. p. 20.)  The Applicant
presented four exhibits, referred to as Applicant’s Exhibits 1 through 4, which were
admitted without objection.  He also testified on his own behalf.  The record remained
open until close of business on October 25, 2010 to allow the Applicant to submit to
additional documentation.  The Applicant submitted three Post-Hearing Exhibits,
referred to as Applicant’s Post-Hearing Exhibits A through C.  The official transcript (Tr.)
was received on November 3, 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 Applicant is 27 years old and unmarried with one child.  He is employed by a
defense contractor as a Bonding Assembler and is applying for a security clearance in
connection with his employment.  
Paragraph 1 (Guideline G - Alcohol Consumption).  The Government alleges that the
Applicant is ineligible for clearance because he abuses intoxicants.
The Applicant admitted each of the allegations with some qualifications that are
set forth under this guideline.  (Applicant’s Answer to SOR.)  He has been working for
his current employer for the past nine years.
The Applicant first tried alcohol as a junior high school student.  He did not like
the taste and did not try it again until he was 21 years old.  From 2004 to May 2009, he
consumed alcohol, not on a daily basis, but several times a week and at times to excess
and to the point of intoxication.  He did not drink alone.  His drinking was restricted to
social situations, such as when he watched sporting events on television with friends.
He does not believe that he has ever had a drinking problem, that he is alcohol
dependent or that he is an alcoholic.  (Tr. pp. 26 and 67.)  At the most, he would drink a
maximum of eight beers, and sometimes he might have a shot of hard liquor.  On most
occasions where he would drink with friends and consume five to nine beers, he would
not drive a vehicle. (Tr. p. 71.)    
In 2007, the Applicant was concerned about his drinking, as he was consuming
more alcohol than he wanted to.  At this point, he was consuming alcohol two to three
times a week.  (Tr. p. 77.)  He went on line and found an alcohol treatment program he
could attend.  (Tr. p. 51.)  From August 2007 to September 2007, he received inpatient
treatment for his alcohol problem and was diagnosed with Alcohol Dependence.
(Government Exhibit 4.) The Applicant testified that this occurred during a period where
the program he was working on was closing down.  People on the job were missing
work and not being reprimanded for it.  Although he was the Union Steward, he decided
to miss work too, and was written up for attendance problems.  He admits that he was
consuming alcohol more than twice a week during this time, as he was depressed about
the program shutting down, but he does not believe he was drinking to excess.  (Tr. p.
31.)  He states that he entered the treatment program on his own free will and not with
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the recommendation of his employer.  (Tr. p. 32.)  He explained to the DoD investigator
during his interview dated November 24, 2009, that the alcohol program was a scam,
and so he left the program early, after 28 days instead of the full 30 day program.  (Tr.
p. 34 and Government Exhibit 2.)  He did not want to take the medication that the
psychiatrist who was seeing him weekly was prescribing.  The Applicant was told that if
he did not follow the program, he was not wanted there.  (Tr. pp. 34-35.)  Following this
alcohol program, the Applicant did not consume any alcohol for about five or six
months.  (Tr. p. 56.)  He then resumed his drinking to once or twice on the weekends.
(Tr. p. 57.)    
In May 2009, the Applicant was arrested for Driving Under the Influence of
Alcohol (DUI).  (Government Exhibits 3 and 5.)  He explained that he was watching
sports with friends and drinking beer.  He has consumed eight or nine beers, it was
getting later and he did not feel drunk.  He decided to drive home.  The Applicant
explained that he was multi-tasking as he was driving on the freeway.  He was talking to
his Onstar system and trying to read his credit card number to add minutes to his
phone.  He drove off the freeway into the dirt and the Onstar system immediately called
the police.  (Tr. p. 61.)  The Applicant failed the breathalizer test and blew a .15.  (Tr. p.
62.)  He was found guilty and sentenced to 36 months probation, one day in jail,
$390.00 in fines, $936.00 in penalties, and completion of a six month alcohol program.
His driver’s license was suspended for six months.  Since the arrest, he has not
consumed alcohol. (Tr. p. 26.)
Following his DUI, in compliance with the court order, the Applicant enrolled in an
alcohol beverage control traffic program and Mother’s Against Drunk Drivers (MADD)
classes.  The Applicant successfully completed both of these classes in 2010.  (Tr. p.
32.)  He also attended Alcoholics Anonymous meetings required as part of the program.
He also stopped consuming alcohol and has been abstaining for more than a year.
During the interview with the DoD investigator dated November 24, 2009, the
Applicant admitted that he was drinking too much in the evening and was not being able
to get up for work.  (Government Exhibit 2.)  He also admitted that his company
recommended that he get help for his alcohol problem.  The Applicant testified that he
does not know how that information came out, but alcohol was never a problem for him
making it to work or not.  
Paragraph 2 (Guideline J - Criminal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because he has engaged in criminal conduct.    
The Applicant is currently on probation until May 2012, which is three years from
the date of his arrest for DUI.  (Tr. p 70.)
The Applicant is the father of a two year old and wants to be a good role model
for his son.  He realizes that he has made some bad decisions in the past and he
believes that he has learned from them.  He states that he has no plans to ever
consume alcohol again.  (Tr. p. 37.)  He believes his consumption of alcohol to be under
control and that he can manage it by himself.     
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A letter from the Applicant dated after the hearing indicates that after long and
careful thought about the matter, he is planning to go to Alcoholic Anonymous meetings
near his home to give himself the extra security to abstain from drinking and to prevent
relapse.  (Applicant’s Post-Hearing Exhibit B.)
Letters of recommendation from the Applicant’s past supervisor, a coworker and
a friend attest to his sense of responsibility toward his job and his personal life.  In the
past year, one of them has noticed a remarkable change for the better.  He is described
as patient, trustworthy, responsible, mature, and a good husband and father.
(Applicant’s Exhibits 1, 2 and 3.)  
A letter of recommendation from a professional associate of the Applicant who
has known him for ten years considers him trustworthy and loyal.  The Applicant is said
to have always taken the proper steps to safeguard any and all information while
supporting the classified program where he was assigned.  (Applicant’s Post-Hearing
Exhibit C.)  A letter of recommendation from a friend who has known the Applicant for
six years indicates that the Applicant is trustworthy.  He has never seen the Applicant
consume alcohol nor has he smelled alcohol on him.  (Applicant’s Post-Hearing Exhibit
A.)  
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
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;
22.  (d) diagnosis by a duly qualified medical professional (e.g. physician, clinical
psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;
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22. (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;
22. (f) relapse after diagnosis of alcohol abuse or dependence and completion of
an alcohol rehabilitation program.
Condition that could mitigate security concerns:
23(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).
Guideline J (Criminal Conduct)
30.  The Concern.  Criminal Conduct 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.
Conditions that could raise a security concern:
31.(a) a single serious crime or multiple lesser offenses;
31.(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
31.(d) individual is currently on parole or probation.
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; 
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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 predicated
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
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.
CONCLUSIONS
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 abuse and criminal conduct 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) and Criminal Conduct (Guideline
J).  The totality of 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
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persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome
the Government's case under Guidelines G and J of the SOR.  
The evidence shows that the Applicant was an alcoholic in denial.  Despite his
treatment program in 2007 for alcohol dependence, he continued to drink at times
excessively, until he was arrested for Driving Under the Influence of Alcohol in May
2009, just last year.  Since then, he has completely abstained from drinking and plans to
maintain sobriety.  He is commended for this, however, with only a year of sobriety,
there is no guarantee that he will be able to maintain any long term sobriety.  Based
upon his past record of relapse following treatment, there is a strong chance at this
point that he may return to his old habits.  He has indicated that he will attend Alcoholics
Anonymous meetings in the future.  Hopefully he will continue to be able to maintain
sobriety, and at some point demonstrate the maturity and level of responsibility required
to meet the eligibility requirements to access classified information.
Under 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; 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; 22.(d) diagnosis
by a duly qualified medical professional (e.g. physician, clinical psychologist, or
psychiatrist) of alcohol abuse or alcohol dependence; 22.(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 22.(f) relapse after diagnosis of alcohol
abuse or dependence and completion of an alcohol rehabilitation program apply.
Mitigating Condition 23(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) arguably applies.  However, it is not controlling in this case as the
Applicant has only recently acknowledged his alcohol problem and expressed an intent
to participate in an alcohol after care program to help him maintain sobriety.
Accordingly, I find against the Applicant under Guideline G, Alcohol Consumption.
 
Under Guideline J, Criminal Conduct, Disqualifying Conditions 31.(a) a single
serious crime or multiple lesser offenses, 31.(c) allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted; and 31.(d) individual is currently on parole or probation apply.  The
Applicant’s arrest for DUI occurred just last year and he will remain on probation for the
offense until May 2012.  The conduct was criminal and recent and has not been
mitigated.  Accordingly, I find against him under Guideline J, Criminal Conduct.  
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  The Applicant is a 27 year old alcoholic
who has just started to come to grips with the seriousness of his drinking problem.
Under the particular facts of this case, the totality of the conduct set forth under all of the
guidelines viewed as a whole, support a whole-person assessment of poor judgment,
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untrustworthiness, unreliability, a lack of candor, an unwillingness to comply with rules
and regulations, and/or other characteristics indicating that the person may not properly
safeguard classified information.  
This Applicant has demonstrated that he is not sufficiently trustworthy, and he
clearly does not meet the eligibility requirements for access to classified information.
Accordingly, I find against the Applicant under Guideline G (Alcohol Consumption) and
Guideline J (Criminal Conduct).     
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 Paragraphs 1 and 2 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.
    Subpara.  1.f.: Against the Applicant.
Paragraph 2: Against the Applicant.
    Subpara.  2.a.: Against the Applicant.
    Subpara.  2.b.: Against the Applicant.
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