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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------------------- ) ISCR Case No. 09-06693
)
Applicant for Security Clearance )
Appearances
For Government: Francisco J. Mendez Jr., Esq., Department Counsel
For Applicant: Pro se     
                     
           
______________
Decision
______________
LEONARD, Michael H., Administrative Judge:
Applicant contests the Defense Department’s intent to deny his eligibility for a
security clearance to work in the defense industry. The evidence shows Applicant is a
former federal employee with a history of alcohol-related incidents, which includes a
1995 manslaughter conviction. While in an alcohol-induced blackout in 1994, he had a
hit-and-run accident hitting a pedestrian. He pleaded guilty to several criminal charges,
to include aggravated involuntary manslaughter, and was sentenced to 15 years of
incarceration with 5 years suspended. He has abstained from alcohol since the day of
the accident. Since his release from prison in 2000, he reunited with his family, he
obtained employment in his field of engineering, and he has a good employment record.
Even though Applicant presented substantial evidence of reform and rehabilitation, it is
outweighed by the nature, extent, and seriousness of his criminal conduct. Accordingly,
as explained below, this case is decided against Applicant.
  
  This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry,1
signed by President Eisenhower on February 20, 1960, as amended, as well as DoD Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program , dated January 2, 1992, as amended
(Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information (AG), effective within the Defense Department on September 1, 2006, apply to this case.  The AG
were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replace
the guidelines in Enclosure 2 to the Directive.   
 Exhibits 1–29. 2
2
 Statement of the Case
Acting under the relevant Executive Order and DoD Directive,  on May 6, 2010,1
the Defense Office of Hearings and Appeals (the Agency) issued a statement of
reasons (SOR) explaining it was unable to find it is clearly consistent with the national
interest to grant Applicant access to classified information. The SOR is similar to a
complaint, and it sets forth the factual basis for the action under the security guidelines
known as Guideline J for criminal conduct, Guideline K for handling protected
information, and Guideline E for personal conduct. The SOR also recommended that
the case be submitted to an administrative judge to decide whether to deny or revoke
Applicant’s security clearance.  
Applicant answered the SOR and requested a hearing. In his Answer, Applicant
admitted all allegations except for the falsification allegation in SOR ¶ 3.c. He also
submitted a four-page memorandum in support of his application for a security
clearance. His admissions are incorporated into the findings of fact below. The case
was assigned to me September 7, 2010. The hearing took place October 13, 2010. The
hearing transcript (Tr.) was received October 21, 2010.
Findings of Fact
Applicant is a 61-year-old employee who is seeking a security clearance for an
engineering job with a federal contractor. His employment history includes 25-plus years
working for the federal government that ended in 1995, when he resigned in light of  a
manslaughter conviction. His educational background includes a bachelor’s degree in
electrical engineering. He has been married to the same woman for more than 30 years,
and they have two adult sons. One son suffers from autism, and it is necessary for him
to live with Applicant and his wife.  
The evidence shows Applicant has a history of alcohol-related incidents, which
includes a 1995 conviction for aggravated involuntary manslaughter.  His history also2
includes two arrests for drunk driving that preceded the manslaughter conviction,
neither of which resulted in substantial punishment. The first took place in 1984, when
he was arrested and charged with driving under the influence of alcohol (DUI). The case
was disposed of by placing it on the stet docket, which typically means the prosecutor
decided not to proceed with the case for some reason. The second took place in 1991,
 Tr. 75. 3
 Tr. 72–74. 4
 Tr. 74. 5
 Exhibit 18 at 3. 6
 Exhibit 18 at 3. 7
 Tr. 78–79. 8
 Answer; Tr. 80–81. 9
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when he was arrested and charged with driving while intoxicated (DWI). The case was
disposed of when Applicant pleaded guilty and paid a  fine. 
Applicant consumed alcohol for many years, and by 1994 he was a self-
described “raging alcoholic.”  In July 1994, while employed by the federal government,3
Applicant went to lunch and became intoxicated. He left the establishment and got in his
car to return to work. He had a hit-and-run accident hitting a pedestrian crossing the
street. To this day, Applicant claims to have no memory of the event due an alcohol-
induced blackout.  His recollection consists of waking up in jail at about 10:30 p.m., and4
he learned about what he had done when he was informed by the police. Applicant
described himself as “flabbergasted” and “very ashamed” of himself.5
The police drew blood samples from Applicant that night, and his blood-alcohol
content (BAC) was measured at levels of 0.21% and 0.20% several hours after the
accident.  A forensic toxicologist estimated his BAC was approximately 0.33% at the6
time of the accident.  7
A search of Applicant’s car discovered a briefcase that was searched as well.
Inside the briefcase, the police found classified information that Applicant used for work
on a regular basis.  Applicant admits keeping the classified information in his locked8
briefcase at home or in his vehicle without authorization from about 1992 until his arrest
in 1994.  9
The victim of the hit-and-run accident was not killed immediately, but his injuries
left him in a vegetative state. The victim died about two months later. The death of the
victim, a husband and father, was a terrible blow to his family as reflected in a victim-
impact statement made by his daughter:
My whole family has been totally devastated because of this crime. No
one can really understand what we are going through until they’ve actually
gone through it themselves. What we cannot understand is how anybody
can be so irresponsible to drink, especially during work, until they are
totally intoxicated and then drive. [Applicant] is not a teenager; he is a
family man who holds a government job with secret/top secret clearance.
 Exhibit 19. 10
 Exhibit 17. 11
 An Alford plea is a guilty plea that a defendant enters as part of a plea bargain, without actually admitting12
guilt, and it is based on the Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).
 Exhibits 21 and 22. 13
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He should know what’s right and wrong. We can never forget or forgive
what [Applicant] has done; he has taken from us, our only and loving
father. He not only killed my father, but killed my family as well. Our whole
family structure is destroyed (in our custom, it is the man who holds the
family together). My mother does not speak English very well and my
sister is handicapped. We all relied on my father for everything. Now that
my father is gone, nothing will ever be the same again. We will never get
over the loss. Living each day without my father has been so difficult for all
of us especially for my mother. She has not been eating well and has lost
a considerable amount of weight. She is in a state of depression and
feeling very lonely and extremely frustrated. She is constantly worrying
about her and my sister’s future. It has made me to be constantly angry
and stressed out. Angry in that it wasn’t fair that this should have
happened to my father who has done nothing wrong. He was a good man
who believed in working hard and in taking care of his family. It makes me
so sad to think that all his life, he worked hard and saved his money for
any uneventualities and his life has been terminated. Too many people die
because of drunk driving. We need to make the laws stricter so people will
think twice before they get behind the wheel. [Applicant] has been
convicted of DWI before. He is a repeat offender who has no regard for
public safety. After being convicted before, he has never altered his
behavior; my father paid for it with his life. Why do we keep hearing the
victim is always the victim and the bad guys get away? When someone is
killed, not  only does that person die, but everyone who is related to that
person dies. I just hope that the judge will sentence [Applicant] in prison
for the maximum 26 years.  10
Applicant entered into a plea agreement for the offenses of DWI, felony hit-and-
run, and aggravated involuntary manslaughter.  He agreed to enter an Alford plea  to11 12
the offenses without a sentence limitation. For the manslaughter offense, the court
sentenced Applicant to confinement in the state penitentiary for 15 years, with 5 years
suspended, and placed him on probation for 5 years upon release.   For the two other13
offenses, the court sentenced Applicant to confinement for lesser terms to be served
concurrently with the 15-year sentence.  
 Exhibits 24 and 25. 14
 Tr. 26. 15
 Tr. 45–58; Exhibits A(7) and B. 16
 Exhibit A(1). 17
 Exhibits 2 and 3. 18
 Answer; Exhibit A(2)–(5).19
 E.g., Exhibit A(4); Tr. 76–77. 20
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With credit for good time, Applicant served a little less than five years and was
released on probation in early 2000.  He was then unemployed for several months until14
he obtained an engineering job with his current employer. He has worked his way from
a starting salary of $60,000 to his current salary of more than $120,000. He is
considered an expert in a particular field of engineering.  Applicant has a good15
employment record as verified by witness testimony and documentary exhibits.16
Applicant has abstained from alcohol since the day of the hit-and-run accident in
1994. He completed numerous treatment programs while in prison.  He has been an17
active participant in Alcoholics Anonymous while in prison and upon his release. He
completed his probation without a violation. He has a valid driver’s license issued by his
state of residence, which is different from the state where he was convicted and
incarcerated. 
Applicant completed security clearance applications in 2000 and 2008.  In his18
2000 application, he disclosed his employment at the state penitentiary, his departure
from federal employment in 1995 under unfavorable circumstances, his manslaughter
conviction and related offenses, the 1984 and 1991 drunk driving cases, and a pending
action to revoke a security clearance he held as a federal employee. In his 2008
application, he disclosed essentially the same information except for the matter
concerning his security clearance. He explained that he omitted the information due to
an honest mistake or oversight.  On this point, I found his testimony to be credible and19
worthy of belief. 
Applicant expressed remorse for his criminal conduct throughout this proceeding,
as he has done in the past.    20
Law and Policies
This section sets forth the general principles of law and policies that apply to an
industrial security clearance case. The only purpose of a clearance decision is to decide
if an applicant is suitable for access to classified information. The Department of
Defense takes the handling and safeguarding of classified information seriously
 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to21
a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10  Cir. 2002) (no right to ath
security clearance).
 484 U.S. at 531.22
 Directive, ¶ 3.2. 23
 Directive, ¶ 3.2. 24
 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004).25
 Directive, Enclosure 3, ¶ E3.1.14.26
 Directive, Enclosure 3, ¶ E3.1.15.27
 Directive, Enclosure 3, ¶ E3.1.15.28
 Egan, 484 U.S. at 531. 29
 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted).30
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because it affects our national security, the lives of our servicemembers, and our
operations abroad. 
It is well-established law that no one has a right to a security clearance.  As21
noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent
standard indicates that security clearance determinations should err, if they must, on the
side of denials.”  Under Egan, Executive Order 10865, and the Directive, any doubt22
about whether an applicant should be allowed access to classified information will be
resolved in favor of protecting national security.  
A favorable clearance decision establishes eligibility of an applicant to be granted
a security clearance for access to confidential, secret, or top-secret information.  An23
unfavorable decision (1) denies any application, (2) revokes any existing security
clearance, and (3) prevents access to classified information at any level.  24
There is no presumption in favor of granting, renewing, or continuing eligibility for
access to classified information.  The Government has the burden of presenting25
evidence to establish facts alleged in the SOR that have been controverted.  An26
applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate
facts that have been admitted or proven.  In addition, an applicant has the ultimate27
burden of persuasion to obtain a favorable clearance decision.  In Egan, the Supreme28
Court stated that the burden of proof is less than a preponderance of the evidence.29
The DOHA Appeal Board has followed the Court’s reasoning, and a judge’s findings of
fact are reviewed under the substantial-evidence standard.30
The AG set forth the relevant standards to consider when evaluating a person’s
security clearance eligibility, including disqualifying conditions and mitigating conditions
 Executive Order 10865, § 7.31
 AG ¶¶ 15, 16, and 17 (setting forth the security concern and the disqualifying and mitigating conditions). 32
 AG ¶ 15. 33
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for each guideline. In addition, each clearance decision must be a commonsense
decision based upon consideration of the relevant facts and circumstances, the
pertinent criteria and adjudication factors, and the whole-person concept. 
The Government must be able to have a high degree of trust and confidence in
those persons to whom it grants access to classified information. The decision to deny a
person a security clearance is not a determination of an applicant’s loyalty.  Instead, it31
is a determination that an applicant has not met the strict guidelines the President has
established for granting eligibility for access.
Analysis
Under Guideline E for personal conduct,  the suitability of an applicant may be32
questioned or put into doubt due to false statements and credible adverse information
that may not be enough to support action under any other guideline. The overall
concern under Guideline E is:  
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations [that may] 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.  33
A statement is false when it is made deliberately (knowingly and willfully). An omission
of relevant and material information is not deliberate if the person genuinely forgot about
it, inadvertently overlooked it, misunderstood the question, or genuinely thought the
information did not need to be reported. 
The issue here is the truthfulness of Applicant’s answer to a particular question
about his security clearance record when he completed his 2008 security clearance
application. Based on the evidence as a whole, including Applicant’s disclosure of the
manslaughter conviction and the pending action to revoke his clearance on his 2000
security clearance application, I conclude that Applicant answered the question
incorrectly due to an honest mistake or oversight. Applicant has been candid  about the
facts and circumstances of his past problems, and I am persuaded that he made no
deliberate effort to hide, conceal, or omit information. On this basis, the falsification
allegation is decided for Applicant.
 AG ¶¶ 33, 34, and 35 (setting forth the security concern and the disqualifying and mitigating conditions). 34
 AG ¶ 33. 35
 Tr. 87. 36
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Under Guideline K for handling protected information,  the suitability of an34
applicant may be questioned or put into doubt when that applicant has a history of
noncompliance with security rules and regulations. The overall concern under Guideline
K is:
Deliberate or negligent failure to comply with rules and regulations for
protecting classified or other sensitive information raises doubt about an
individual’s trustworthiness, judgment, reliability, or willingness to
safeguard such information, and is a serious security concern.  35
The evidence here supports a conclusion that Applicant has a history of
deliberate noncompliance with security rules and regulations. Keeping classified
information in his briefcase without authorization over a period of years is ample proof of
this conclusion. It is most probable that Applicant engaged in this conduct due to his
abuse of alcohol and associated arrogance, in that he then believed he could do no
wrong.  These facts and circumstances require consideration of the following36
disqualifying conditions:
¶ 34(b) collecting or storing classified or other protected information at
home or in any other unauthorized location; and 
¶ 34(g) any failure to comply with rules for the protection of classified or
other sensitive information.  
Guideline K also contains conditions that may mitigate security concerns as
follows:
¶ 35(a) so much time has elapsed since the behavior, or it has happened
so infrequently or under such unusual circumstances, that it is unlikely to
recur and does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment;
¶ 35(b) the individual responded favorably to counseling or remedial
security training and now demonstrates a positive attitude toward the
discharge of security responsibilities; and
¶ 35(c) the security violations were due to improper or inadequate training.
Of those mitigating conditions, the most pertinent here is subparagraph 35(a).
Applicant’s deliberate noncompliance took place more than 15 years ago when his
 Fed. R. Evid. 609(b)(2) (describing the ten-year time limit and circumstances where the evidence of37
conviction older than ten years is admissible).
 AG ¶¶ 30, 31, and 32 (setting forth the security concern and the disqualifying and mitigating conditions). 38
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abuse of alcohol was at or near its peak. Crossing the ten-year mark is significant
because it is a commonsense measurement of recency or remoteness. This is
recognized in the law as well. For example, the law of evidence prohibits interrogation of
witnesses about remote criminal convictions by imposing a ten-year time limit.  The37
passage of time since 1994, Applicant’s abstinence from alcohol since 1994, and a
more humble attitude is sufficient to mitigate the security concerns under this guideline. 
Under Guideline J for criminal conduct,  the concern is that “[c]riminal activity38
creates doubts about a person’s judgment, reliability, and trustworthiness.” Applicant is
a twice-convicted felon (both the hit-and-run and manslaughter offenses were felonies)
and he has two prior arrests and one conviction for drunk driving. These facts and
circumstances are sufficient to raise serious security concerns and require application of
the following disqualifying conditions:
¶ 31(a) a single serious crime or multiple lesser offenses; and
¶ 31(c) allegation or admission of criminal conduct, regardless of whether
the person was formally charged, formally prosecuted or convicted.
 
 Guideline J also contains conditions that may mitigate security concerns. The
most pertinent here are:
¶ 32(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 
¶ 32(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. 
 
Applicant receives substantial credit in mitigation under both conditions. He has
done a remarkable job at changing his life from that of a “raging alcoholic” to that of a
sober, productive, and law-abiding citizen, albeit one with two felony convictions. His
abstinence from alcohol since 1994, his genuine remorse, and his good employment
record are persuasive evidence of reform and rehabilitation.    
Nevertheless, the evidence in disqualification is more persuasive. Felony-level
criminal conduct has consequences, and sometimes those consequences last a long
 It is well established in the law that a criminal conviction carries the risk of collateral consequences. These39
are the results of arrest, prosecution, or conviction that are not part of the sentence imposed by a court.
Examples include: (1) administrative license suspensions; (2) adverse employment consequences, including
suspensions and job loss; (3) revocation, suspension, or denial of professional or occupational license; (4)
deportation or exclusion of non-citizens and related immigration concerns; (5) disciplinary proceedings
including suspension and expulsion hearings; and (6) loss of civil rights, including the right to vote and the right
to possess firearms.
 AG ¶ 2(a)(1). 40
 AG ¶ 2(a)(1)–(9).41
 E.g., Exhibits A–F. 42
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time.  That is the situation here. Even though Applicant presented substantial evidence39
of reform and rehabilitation, it is outweighed by the nature, extent, and seriousness of
his criminal conduct.  In 1994, the then 45-year-old Applicant became so intoxicated he40
has no recollection of the events surrounding the hit-and-run accident. His level of
intoxication was high, measured at twice the legal limit several hours after the event,
and it was estimated to be higher. His criminal conduct had a severe effect on the
victim’s family as shown by the victim-impact statement. This was clearly serious
criminal conduct on its own. But it is viewed as even more egregious in light of
Applicant’s two prior arrests for drunk driving. Taken together, these matters continue to
undermine his trustworthiness, reliability, and good judgment in a security-clearance
context.      
To conclude, the facts and circumstances surrounding Applicant’s hit-and-run
accident and convictions for two felonies justify current doubts about his suitability for a
security clearance. Following Egan and the clearly-consistent standard, I resolve these
doubts in favor of protecting national security. In reaching this conclusion, I gave due
consideration to the whole-person concept  and Applicant’s favorable evidence.41 42
Applicant did not meet his ultimate burden of persuasion to obtain a favorable clearance
decision. This case is decided against Applicant. 
Formal Findings
The formal findings on the SOR allegations are as follows:
Paragraph 1, Guideline J: Against Applicant
Subparagraphs 1.a–1.c: Against Applicant
Paragraph 2, Guideline K: For Applicant
Subparagraph 2.a: For Applicant
 Decided for Applicant under the same rationale as SOR ¶ 2.a. 43
 Decided for Applicant because this allegation does not allege any disqualifying conduct; instead, it alleges44
a consequence of Applicant’s criminal conduct, which was adequately addressed under Guideline J. 
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Paragraph 3, Guideline E: For Applicant
Subparagraph 3.a: For Applicant43
Subparagraph 3.b: For Applicant44
Subparagraph 3.c: For Applicant
Conclusion
In light of the record as a whole, it is not clearly consistent with the national
interest to grant Applicant eligibility for a security clearance. Eligibility for access to
classified information is denied.          
Michael H. Leonard
Administrative Judge