1 
                                                
 
 
              DEPARTMENT OF DEFENSE  
                  DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
 
 
 
In the matter of:                                                 ) 
               )   
                 )      ISCR Case No. 09-06621 
                  ) 
                        ) 
Applicant for Security Clearance                        ) 
 
 
Appearances 
 
For Government: William T. O’Neil, Esq., Department Counsel 
 
For Applicant: Pro se 
 
 
 
________________ 
 
Decision 
________________ 
 
O’BRIEN, Rita C., Administrative Judge: 
 
Based on a review of the case file, pleadings, exhibits, and testimony, I 
conclude that Applicant has failed to mitigate the security concerns raised under the 
guidelines for alcohol consumption and criminal conduct. Accordingly, his request for a 
security clearance is denied. 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing 
(e-QIP) signed on April 23, 2009. After reviewing the results of the ensuing background 
investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) 
were unable to make a preliminary affirmative finding1 that it is clearly consistent with 
the national interest to grant Applicant’s request for a security clearance.  
 
1 Required by Executive Order 10865, as amended, and DoD Directive 5220.6 (Directive), as amended. 
 
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On June 10, 2010, DOHA issued to Applicant a Statement of Reasons (SOR) 
that specified the basis for its decision: security concerns addressed in the Directive 
under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of the 
Adjudicative Guidelines (AG).2 Applicant submitted an Answer to the SOR dated June 
24, 2010, in which he admitted all the SOR allegations. Applicant requested a decision 
before an administrative judge. Department Counsel was prepared to proceed on 
August 4, 2010, and the case was assigned to me on October 8, 2010. DOHA issued a 
Notice of Hearing on October 19, 2010, and I convened the hearing as scheduled on 
November 9, 2010. 
 
During the hearing, I admitted six exhibits offered by Department Counsel and 
identified as Government Exhibits (GE) 1 through 6. I also admitted six exhibits offered 
by Applicant, identified as Applicant Exhibits (AE) A through F. I held the record open 
to allow Applicant to submit further documentation. He timely submitted two 
documents, which I admitted as AE G and H. DOHA received the transcript (Tr.) on 
November 17, 2010. 
 
Procedural Matters 
 
Notice was issued originally on September 22, 2010, for a hearing to be held in 
another state, where Applicant was on temporary duty. Based on his request of 
October 1, 2010, the hearing was cancelled on October 4, 2010. The case was 
transferred to me so that the hearing could be held in his state of residence. 
 
Findings of Fact 
 
Applicant’s admissions to the SOR allegations are incorporated as findings of 
fact. After a thorough review of the pleadings, Applicant’s response to the SOR, and 
the record evidence, I make the following additional findings of fact. 
 
Applicant, 36 years old, recently received a bachelor of science degree in 
professional aeronautics. He maintained a strong average, often achieving placement 
on the Honor Roll and Dean’s List. He is about to begin studies for a master’s degree. 
He married in 2004, separated in 2008, and is now divorced. He has three children 
who are eight, four and three years old. He served in the Navy from 1999 to 2003, and 
was honorably discharged at pay grade E4. He has worked for his current employer, a 
defense contractor, since 2007 as a flight operations mechanic. Applicant received a 
secret security clearance in 2008. (GE 1, 5; AE F; Tr. 35, 60-66) 
 
2 Adjudication of this case is controlled by the Adjudicative Guidelines that were implemented by the 
Department of Defense on September 1, 2006. The Adjudicative Guidelines supersede the guidelines 
listed in Enclosure 2 to the Directive, and they apply to all adjudications or trustworthiness 
determinations in which an SOR was issued on or after September 1, 2006.  
 
 
Applicant has been consuming alcohol since he was in high school, usually 
having one or two beers once or twice per month. Starting at about age 21, he 
drank four or five beers once per month at a bar. He feels the effects of the alcohol 
after about three beers. (GE 6) 
 
In 2002, when he was 28 years old, Applicant was deployed with the Navy in 
Greece. In November 2002, he was in the port with a group of service members in 
a van, when it was involved in an accident. He was not driving. All the members 
involved received non-judicial punishment; all were demoted. Applicant was 
reduced in rank from E4 to E3. It was the only negative incident in his military 
career. The Good Conduct Award in April 2002 was awarded before the van 
incident. The Letter of Commendation was awarded for performance after this 
incident. (GE 1, 4; AE E; Tr. 26-27, 51-55) 
 
In October 2003, in state A, Applicant was arguing with his ex-girlfriend, the 
mother of his oldest daughter. She was talking with a friend on the telephone. He 
tried to grab the telephone. Her friend heard the argument and called the police. 
Applicant was arrested for Assault 4th Degree – Domestic Violence. Applicant 
testified that alcohol was not involved in this incident. The court ordered Applicant 
to have no contact with the victim from October 2003 to October 2005. Applicant's 
ex-girlfriend wrote a letter to the state’s attorney’s office indicating that Applicant 
was not at fault. The charge was dismissed by the prosecution. (GE 1, 4, 6; Tr. 25-
26, 50) 
 
While living in state A in April 2007, Applicant drank four or five beers at 
home one afternoon after work. He then drove to a store to buy baby formula. On 
the way home, police stopped him for speeding. He was charged with Driving under 
the Influence of Alcohol; Speeding (25 mph over limit); and Negligent Driving 1st 
Degree. Applicant does not believe he was speeding. He failed the field sobriety 
test. His blood alcohol tests at the site and at the police station registered a blood-
alcohol content (BAC) of 0.07. The speeding charge was dismissed. The charge of 
driving while under the influence of alcohol was amended to the lesser charge of 
negligent driving because his BAC was under the state’s limit of 0.08 for the charge 
of driving under the influence of alcohol. (GE 2, 4, 6; Tr. 24-25, 44, 55-56) 
 
On July 6, 2007, Applicant was sentenced to 90 days jail (suspended); $685 
in fines; two years probation, to end July 2009; prohibited to drive with a BAC of 
0.08 or more or to refuse a BAC test; required to attend a Victims’ Panel within 60 
days; attend an alcohol assessment within 60 days; and prohibited to engage in any 
alcohol or drug-related violations, which would result in reinstatement of 
incarceration. Applicant was assessed by a medical doctor in August 2007. The 
doctor determined that Applicant did not abuse alcohol, nor was he alcohol 
dependent. He required Applicant to attend a one-day alcohol awareness class, 
which Applicant did. (GE 6) Applicant's court record notes that he complied with all 
court orders, and jurisdiction expired July 24, 2009. (GE 2; AE H; Tr. 62-64) 
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In the fall of 2007, Applicant and his family moved from state A to state B so 
that he could change his career focus from commercial aircraft maintenance to 
military aircraft maintenance. Applicant went through a difficult period, including 
financial problems concerning his house in state A, adjusting to his new job, and 
disagreeing with his wife about their move. In April 2008, she moved back to state A 
with their children. Applicant testified that he “kind of lost grasp of the right thing to 
do at that time.” (Tr. 21-24, 39) 
 
On March 14, 2009, Applicant was arrested in state B. He had gone to a bar 
to play pool with a friend. He did not plan to drink alcohol because of the distance of 
the bar from his home. However, he drank beer and three shots of liquor. After 
leaving the bar, Applicant was stopped by police for speeding. When tested at the 
police station, Applicant's BAC was 0.19, more than twice state B’s legal limit. He 
was ultimately charged with seven counts, including driving under the influence of 
alcohol, driving while impaired, and negligent driving. This arrest occurred while he 
was still on probation from the DUI in state A. Applicant did not report his drunk-
driving arrest to the probation office in state A. (GE 6; Tr. 44, 68) 
 
On April 4, 2009, Applicant was evaluated at an alcohol and drug counseling 
center. He believed an evaluation would help him during his July court appearance. 
The assessment consisted of two addiction tests, consideration of criteria in the 
Diagnostic and Statistical Manual, Fourth Edition (DMS-IV), and Applicant's self-
reporting. Applicant did not meet any criteria on the DSM-IV for alcohol abuse or 
dependence. The certified addiction counselor (CSC-AD) recommended 90 days of 
substance abuse group counseling; random urinalyses; and weekly breathalyzer 
tests. Applicant was informed that the 90-day program was advised because of the 
high level of alcohol in his blood when he was arrested. He entered treatment on 
April 22, 2009, attended 11 group sessions, and submitted three negative 
urinalyses. He successfully completed the program on July 23, 2009. He did not 
drink during his treatment. He began drinking alcohol again in December 2009. 
Applicant also attended counseling in June 2009, but it focused on his marital rather 
than alcohol issues. He expressed a desire to continue, but was financially unable 
to do so. (GE 6; AE A, C, B; Tr. 23, 41, 46, 50, 57-58) 
 
At his court appearance on July 30, 2009, Applicant accepted a plea 
agreement in which he pled guilty to driving while impaired by alcohol, and the 
remaining charges were dismissed. Applicant was fined $315; sentenced to 30 
days incarceration (suspended); and one year of unsupervised probation. Applicant 
was not required to abstain from alcohol. He drank alcohol during his probation, 
approximately one weekend per month. Applicant's probation ran from July 2009 to 
July 2010. As a condition of his probation, a breathalyzer was installed in his car. It 
prevented him from driving if he had consumed alcohol. If it detected alcohol, his jail 
sentence would be reinstated. It was removed in July 2009. (GE 3, 4, 6; Tr. 41, 43) 
 
Applicant believes that the two DUI events were isolated incidents and were 
uncharacteristic of his usual behavior. He continues to drink since his 2009 DUI, 
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consuming approximately three to four beers when he goes to a bar one weekend 
per month. He does not drive after drinking; he drinks at locations within walking 
distance of his home, or takes a cab home. His counselors have not recommended 
that he stop drinking, but he has considered it. He testified that he does not know 
how to stop, but will probably seek professional help. (GE 6; Tr. 39-40, 65-67)  He 
also stated,  
 
Well, I feel like I need to stop because it has gotten me 
trouble and I don't want it to happen again. But I also 
mentioned that maybe I should go see a counselor and ask 
for help to--not to have that four beers a month anymore. (Tr. 
67)  
 Seven of Applicant's co-workers signed a joint statement lauding Applicant's 
character. The letter describes Applicant as a dedicated worker who is 
conscientious, dependable, and takes his work with classified information seriously. 
Applicant submitted evidence that he received an undated company award for his 
accomplishments. (AE D, G)  
 
Policies 
 
 Each security clearance decision must be a fair, impartial, and 
commonsense determination based on examination of all available relevant and 
material information, and consideration of the pertinent criteria and adjudication 
policy in the AG.3 Decisions must reflect consideration of the “whole-person” factors 
listed in ¶ 2(a) of the Guidelines. 
 
 The presence or absence of a disqualifying or mitigating condition is not 
determinative of a conclusion for or against an applicant. However, specific 
applicable guidelines are followed whenever a case can be measured against them 
as they represent policy guidance governing the grant or denial of access to 
classified information. In this case, the pleadings and the information presented by 
the parties require consideration of the security concerns and adjudicative factors 
addressed under the cited guidelines.   
 
 A security clearance decision resolves only the question of whether it is 
clearly consistent with the national interest4 for an applicant to either receive or 
continue to have access to classified information. The Government bears the initial 
burden of producing admissible information on which it based the preliminary 
decision to deny or revoke a security clearance for an applicant. Additionally, the 
Government must be able to prove controverted facts alleged in the SOR. If the 
Government meets its burden, it then falls to an applicant to refute, extenuate or 
                                                 
3 Directive. 6.3. 
4 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
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mitigate the government’s case. Because no one has a “right” to a security 
clearance, an applicant bears a heavy burden of persuasion.5  
 
 A person who has access to classified information enters into a fiduciary 
relationship with the Government based on trust and confidence. Therefore, the 
Government has a compelling interest in ensuring that applicants possess the 
requisite judgment, reliability, and trustworthiness to protect the national interests 
as their own. The “clearly consistent with the national interest” standard compels 
resolution of any reasonable doubt about an applicant’s suitability for access in 
favor of the Government.6 
 
Analysis 
 
Guideline G, Alcohol Consumption 
 
 The security concern about alcohol consumption is that “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.” I have considered the disqualifying conditions under Guideline G, 
AG ¶ 22, especially the following: 
 
(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 
 
(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.  
 
 
 Applicant consumed alcohol to the point of intoxication at times since his 
teenage years. On at least two occasions, he drove after becoming intoxicated and 
was subsequently arrested. He was convicted of a lesser offense of negligent 
driving in 2007. In 2009, he was convicted of driving while impaired. He 
participated in an alcohol treatment program following the 2009 DWI. These facts 
support application of AG ¶¶ 22 (a) and (c). 
 
 AG ¶ 23 provides the following relevant factors that can mitigate security 
concerns: 
 
                                                 
5 See Egan, 484 U.S. at 528, 531. 
6 See Egan; Revised Adjudicative Guidelines, ¶ 2(b). 
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(a) 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; 
 
(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); and 
 
(d) the individual has successfully completed inpatient or 
outpatient counseling or rehabilitation along with any required 
aftercare, has demonstrated a clear and established pattern of 
modified consumption or abstinence in accordance with 
treatment recommendations, such as participation in meetings 
of Alcoholics Anonymous or a similar organization and has 
received a favorable prognosis by a duly qualified medical 
professional or a licensed clinical social worker who is a staff 
member of a recognized alcohol treatment program. 
 
Applicant’s alcohol use does not rise to the level of alcohol abuse; however, it does 
have security relevance. He has been drinking alcohol for years, and it has 
resulted in criminal conduct. Although the 2007 alcohol offense is almost four years 
in the past, his 2009 offense is recent. In addition, his most recent offense is also 
his most serious offense. In 2009, his BAC was so high that the 90 days of 
counseling was based on that fact. Applicant continues to drink alcohol, in 
approximately the same pattern as when he had his 2009 drunk-driving arrest. 
Applicant demonstrated extremely poor judgment by driving after becoming 
intoxicated. As Applicant's circumstances have not significantly changed--he is still 
drinking alcohol--I cannot conclude that alcohol-related criminal conduct will not 
recur. AG ¶ 23(a) does not apply. 
 
Applicant is ambivalent about his alcohol use. One the one hand, he 
believes that the two offenses do not represent his usual behavior. On the other 
hand, he believes he may need professional help to assist him in ending his 
alcohol use. He has not taken any steps to obtain such assistance. AG ¶ 23(b) 
does not apply. 
 
Applicant completed a three-month alcohol treatment program in 2009. He 
has been evaluated, and has not been diagnosed as either an alcohol abuser or 
alcohol dependent. He abstained from alcohol during the program, though it was 
not required. He resumed drinking alcohol a few months after completing the 
program, and currently drinks alcohol in about the same pattern as he has in the 
past. However, he is ambivalent about whether he should end his consumption, 
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and has not sought professional assistance in resolving the situation. AG ¶ 23 (d) 
applies in part. However, the partial mitigation is insufficient to overcome the 
disqualifying conditions. 
 
Guideline J, Criminal Conduct 
 
 The security concern under this guideline is that 
 
Criminal conduct 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” 
(AG ¶30).  
 
I have considered all of the disqualifying conditions under AG ¶ 31, and 
especially the following: 
 
(a) a single serious crime or multiple lesser offenses; and 
 
(d) violation of parole or probation, or failure to complete a court-mandated 
rehabilitation program. 
 
Applicant was arrested three times on criminal charges between 2003 and 
2009. He also received non-judicial punishment because of involvement in a 
vehicle accident in 2002. His decision to drive after becoming intoxicated in 2007 
and 2009 show a serious disregard for rules, and for the public safety. In 2007, 
Applicant was sentenced in state A to two years of probation, which ran from July 
2007 to July 2009. During that period, Applicant was arrested in state B for driving 
under the influence of alcohol. Applicant's conduct violated his probation in state A, 
and, if reported, would have resulted in reinstatement of his jail sentence. AG ¶ 
31(a) and (d) apply. 
 
Guideline J includes two relevant mitigating conditions under AG ¶ 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  
 
(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.  
 
AG ¶ 32(a) mitigates the conduct alleged in subparagraphs 2.b. and 2.c. 
Many years have passed since Applicant engaged in the conduct of 2002 and 
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2003. The state withdrew the 2003 charge in the domestic violence case. 
Moreover, the 2002 conduct listed at allegation 2.c. is not criminal in nature. 
 
However, Applicant engaged in serious criminal conduct in 2007 and 2009. 
These two offenses involving driving after drinking alcohol are both serious and 
recent. Both reflect poorly on his judgment. As neither of them occurred in unusual 
circumstances, and Applicant continues to drink alcohol, it is possible that such 
conduct may occur in the future. Applicant's conduct casts serious doubt on his 
trustworthiness and good judgment. AG ¶ 32(a) does not apply to allegation 2.a.  
 
AG ¶ 32(d) applies partially, because Applicant demonstrated some 
rehabilitation by attending counseling in 2009. He receives positive 
recommendations from his co-workers, and has received a company award. 
However, as noted previously, Applicant continues to drink in the manner that he 
did before his alcohol offenses. Though he recognizes he may have a problem, he 
has not taken steps to deal with it. In addition, insufficient time has passed since 
Applicant’s most recent criminal conduct in 2009 to support a conclusion that it will 
not recur. Only partial mitigation is available under AG ¶ 32(d). 
 
Whole-Person Analysis   
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct 
and all the 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 for the conduct; (8) the potential for pressure, coercion, 
exploitation, or duress; and (9) the likelihood of continuation or 
recurrence. 
 
AG ¶ 2(c) requires that the ultimate determination of whether to grant a security 
clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. Under the cited 
guideline, I considered the potentially disqualifying and mitigating conditions in light 
of all the facts and circumstances surrounding this case.  
 
 Applicant currently maintains the same drinking pattern as when he was 
arrested. He has been arrested on drunk-driving charges twice in the past three 
years. Moreover, his 2009 arrest occurred while he held a security clearance. In 
the past, he continued to drink alcohol despite the negative effects it caused. 
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Applicant's decisions to drink and drive posed a danger to himself and others. He 
believes he would benefit from help in ending his alcohol use, but has not entered 
such counseling, or attended any support groups that might assist him in doing so. 
His most recent probation ended only months ago, in 2010. He demonstrated a 
lack of trustworthiness when he failed to report his probation violation to his state A 
probation officer. At this point in time, I cannot conclude that Applicant will not be 
involved again in alcohol-related negative conduct in the future.  
 
 Applicant has not mitigated the security concerns arising from the alcohol 
consumption and criminal conduct guidelines. Overall, the record evidence fails to 
satisfy the doubts raised about Applicant’s suitability for a security clearance.  
 
Formal Findings 
 
Paragraph 1, Guideline G   AGAINST Applicant 
 
  Subparagraphs 1.a. - 1.e.  Against Applicant  
 
 Paragraph 2, Guideline J   AGAINST Applicant  
 
  Subparagraphs 2.a.   Against Applicant  
 
  Subparagraphs 2.b. – 2.c.  For Applicant  
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
not clearly consistent with the national interest to allow Applicant access to 
classified information. Applicant’s request for a security clearance is denied. 
 
 
 
 
 
RITA C. O’BRIEN 
Administrative Judge