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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 XXXXXXXXXX, XXXXX )  ISCR Case No. 09-06220 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace Le’i Garcia, Esq., Department Counsel 
For Applicant: Woody Thompson, Esq. 
 
 
 
______________ 
 
Decision 
______________ 
 
 
TUIDER, Robert J., Administrative Judge: 
 
Applicant has mitigated security concerns pertaining to Guidelines G (alcohol 
consumption) and J (criminal conduct). Clearance is granted. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaires for Investigations Processing 
(e-QIP) on June 1, 2009. On May 11, 2010, the Defense Office of Hearings and 
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns 
under Guidelines G (alcohol consumption) and J (criminal conduct). The action was 
taken under Executive Order 10865, Safeguarding Classified Information Within 
Industry, dated February 20, 1960, as amended; Department of Defense Directive 
5220.6, Defense Industrial Personnel Security Clearance Review Program, dated 
January 2, 1992, as amended (Directive); and the adjudicative guidelines (AG), effective 
within the Department of Defense for SORs issued after September 1, 2006. 
 
 
 
 
 
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 Applicant answered the SOR on May 25, 2010, and DOHA received his answer 
on May 28, 2010. Department Counsel was prepared to proceed on July 12, 2010. The 
case was assigned to me on July 16, 2010. DOHA issued a notice of hearing on July 
22, 2010, scheduling the hearing for August 18, 2010. The hearing was held as 
scheduled. 
 
The Government offered Government Exhibits (GE) 1 through 9, which were 
received without objection. Applicant offered Applicant Exhibits (AE) A and B, which 
were received without objection, and he testified on his own behalf.  
 
I held the record open until September 1, 2010, to afford Applicant the 
opportunity to submit additional documents. Applicant timely submitted AE C through H, 
which were received without objection. DOHA received the hearing transcript (Tr.) on 
August 26, 2010. The record closed on September 1, 2010.  
 
Findings of Fact 
 
Applicant admitted all of the SOR allegations. His admissions are incorporated as 
findings of fact. After a thorough review of the evidence, I make the following additional 
findings of fact. 
 
Background Information 
 
Applicant is a 41-year-old principle software engineer, who has been employed 
by a defense contractor since August 2002. (GE 1, Tr. 21.) He held a security clearance 
with a previous employer from 1993 to 1998. Applicant’s security clearance was 
reinstated when he was hired by his current employer in 2002. Maintaining a security 
clearance is essential for Applicant to continue with his current company duties. (Tr. 37-
38, 71-72.) 
 
Applicant graduated from high school in May 1988. He attended a university from 
August 1988 to December 1993, and was awarded a Bachelor of Science Degree in 
Electrical Engineering. He married in November 1992, and has a 22-year-old son and a 
17-year-old daughter. (GE 1, Tr. 101-103.) 
 
Alcohol Consumption 
 
Applicant has a 25-year history of episodic alcohol abuse, marked by occasional 
excessive alcohol consumption, and three separate driving under the influence (DUI) 
arrests in May 2006, April 2007, and July 2008. Applicant recalls having his first drink 
around age 13 and his next drink around ages 15 or 16. The amount and frequency of 
his drinking varied and continued until his last DUI in July 2008. 
 
Applicant’s three DUIs occurred over a three-year period. In May 2006, He was 
pulled over by the police for a traffic-related stop. The officer detected an odor of alcohol 
on Applicant’s breath and required him to perform a field sobriety test, which he failed. 
 
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Applicant was taken into custody and blew a .185 BAC on a breathalyzer. He was 
arrested for DUI and was later convicted of reckless driving in July 2006. He was fined 
$300 and ordered to attend Mother’s Against Drunk Driving (MADD) class and attend 
one Alcoholics Anonymous (AA) meeting.  
 
In April 2007, Applicant was pulled over by the police for a traffic-related stop. 
The officer detected an odor of alcohol on Applicant’s breath and required him to 
perform a field sobriety test, which he failed. He was taken to a mobile police DUI 
station where he provided a blood sample and his BAC was .18. He was charged with 
extreme DUI and was later convicted as charged in August 2007. He was sentenced to 
20 days in jail of which he served 15 days in the county jail and the remaining five days 
in house arrest, fined about $5,000, and his driver’s license was suspended for one 
year. Additionally, he was ordered to attend substance abuse classes. 
 
In July 2008, Applicant was pulled over by the police for a traffic-related stop. 
The officer detected an odor of alcohol on Applicant’s breath and required him to 
perform a field sobriety test, which he failed. He was taken to the county jail where he 
provided a blood sample and his BAC was .17. He was charged with aggravated DUI, a 
felony, because he was driving on a suspended license and because there was a child 
in the car. He was convicted as charged in February 2009. He was sentenced to 120 
days in the county jail and was allowed to participate in a work furlough program. Under 
this program, he was released for 12 hours a day from Monday through Friday to allow 
him to work. He was also sentenced to two years probation and fined $6,500. His 
driver’s license remained in a revoked status and he was ordered to undergo an alcohol 
and drug screening to determine what services he needed. (Tr. 110.) 
 
Applicant acknowledged his poor decisions with regard to past alcohol use and 
that he had a problem with alcohol. He testified that it was not until his third DUI that the 
severity of his problem “hit home.” Following his third DUI, Applicant attended an 
authorized substance abuse treatment center. He has fully embraced AA and has 
completed the twelve-step program. Applicant has quit drinking since his third DUI 
arrest in July 2008. He renewed his commitment to his family. Upon successful 
completion of his substance abuse treatment program and good behavior, Applicant’s 
felony conviction was designated a misdemeanor and his probation was terminated 
early in July 2010. (AE A(1), AE A(2), Tr. 73-82, 100-101.) 
 
Applicant testified that he finds his job very fulfilling. He understands that having 
a security clearance is a privilege, not a right, and expressed sincere remorse for 
jeopardizing his security clearance. Applicant is an active member of his church and a 
member of a church-related fraternal organization. (Tr. 82-84.) He does not socialize on 
a regular basis with anyone who drinks. His family and friends are aware of his situation 
and “out of respect” for him do not drink in social situations. (Tr. 95-96.) Applicant’s 
activities apart from work include working out at a nearby gym and his other activities 
that are family-centric and church-related. (Tr. 98-99.) Applicant estimates that his three 
DUIs cost him in excess of $30,000. (Tr. 105-106, 108.) 
 
 
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Character Evidence 
 
 Three character witnesses testified on Applicant’s behalf -- a senior company 
official, his wife, and his 22-year-old son.  
 
The senior company official was the company official responsible for hiring the 
Applicant. He indicated that Applicant is an outstanding employee, who advanced 
quickly within the company. Applicant’s annual performance evaluations were “above-
expectations” based on Applicant’s exceptional technical abilities and his commendable 
teamwork and interpersonal skills. His past problems with alcohol did not cause 
Applicant’s work performance to suffer. Applicant is reliable, trustworthy and exercises 
good judgment at work. Applicant fully disclosed his alcohol problems with company 
officials. The senior company official who testified on Applicant’s behalf was granted his 
first security clearance in 1983 and currently holds a top secret clearance. He had no 
reservation in recommending Applicant for a security clearance. Applicant is required to 
maintain a security clearance as a condition of remaining in his current position. (Tr. 20-
38.) 
 
Applicant’s wife is a registered nurse. She and the Applicant met as “high school 
sweethearts” in her sophomore year and have been together 23 years. She described 
the Applicant as her “best friend,” has a “great relationship,” and is proud of her 
marriage. She confirmed Applicant’s commitment to AA and stated that he encourages 
their children not to drink. Applicant has not had a drink since his July 2008 DUI arrest. 
She stated Applicant’s third DUI arrest was a turning point in helping him realize the 
severity of his drinking problem. She confirmed Applicant’s involvement in his family and 
church. Applicant’s wife and her daughter intend to get involved in Al-Anon so they can 
provide more help to the Applicant in dealing with his problems with alcohol. (Tr. 39-61.) 
 
Applicant’s son attends college and lives at home. He is fully aware of his father’s 
DUIs and the impact they have had on their family. Applicant’s son is clearly very close 
to his father and fully supports his father’s recovery and desire to remain sober. He 
stated his father has been very open with the family regarding his problems with 
alcohol. He added that his father’s three DUIs hurt their family, however, the overall 
experience brought their family closer together. He stated he could always count on his 
father to be there for him. (Tr. 62-69.) 
 
Applicant submitted three reference letters. The first was from a senior company 
official, the second was from a longtime family friend, and the third was from his pastor. 
The company official described Applicant’s significant contributions to their company, 
his work ethic, honesty, and reliability. His longtime friend has known Applicant for over 
eight years and has been to numerous social events with Applicant. He fully supports 
Applicant in his decision to quit drinking and respects him for doing so. His pastor 
verified that Applicant and his family have been active and contributing members of the 
parish since June 1998. (AE B, AD E, AE E.) 
 
 
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Applicant submitted work performance evaluations for the years 2007 to 2009. 
These evaluations reflect solid and consistent performance and clearly demonstrate that 
Applicant is a valued and trusted employee who is making a contribution to the national 
defense. (AE F – AE H.) 
 
Psychological and Substance Abuse Evaluation 
 
Post-hearing, Applicant submitted a Psychological and Substance Abuse 
Evaluation prepared in August 2010. (AE C.) Briefly, the neuropsychologist’s credentials 
consist of over 30 years of experience in alcohol and other drug abuse assessment, 
treatment, and research. He has designed and managed chemical dependency 
treatment programs, and has been a consultant to private, state, county, federal, and 
national chemical dependency treatment programs. He has worked with criminal 
offenders in three states. He holds a Ph.D. and maintains an active practice in clinical 
and forensic psychology and neuropsychology and substance abuse. Additionally, he is 
a Board Certified Forensic Examiner, a Fellow of the American College of Forensic 
Examiners International, and holds the APA Certificate of Proficiency in Alcohol and 
Other Substance Abuse Treatment. (FRE 702.) 
 
Under Diagnostic Considerations, the neuropsychologist stated that Applicant’s 
clinical profile reveals no marked elevations that should be considered to indicate the 
presence of clinical psychopathology other than alcohol-related problems. He concluded 
it is increasingly likely that Applicant is alcohol-dependent. Overall, the 
neuropsychologist concluded that his objective personality testing results in a clear set 
of indicators. Applicant does meet the criteria for alcohol dependence, in remission for 
25 months. He does not appear to exhibit any coexisting or co-morbid disorders that 
would negatively affect his prognosis. He does appear to possess a number of 
strengths that suggest a reasonably good prognosis. 
 
Listed under characteristics and conditions that will improve Applicant’s chances 
for success: (1) he has had a lengthy period of abstinence (25 months), (2) he had one 
year of sobriety before his last use of alcohol, (3) he has a supportive family, (4) he has 
moved out of a peer situation with alcohol abuse norms, (5) there is no family history of 
substance abuse or dependence, (6) there is no family history of mental illness, (7) he 
has reasonably good social skills, (8) he has a track record of demonstrated success in 
business and academia, (9) he has alternatives for positive addictions, (10) he does not 
have personality disorders that would increase his risk for failure, (11) he does not have 
a history of antisocial behaviors or personality disorder, (12) he experiences anxiety, 
guilt, and remorse that can motivate positive lifestyle changes, (13) he is involved in a 
recovery program and is actively participating, (14) he has a sponsor who is assisting 
him in his recovery, (15) he has the support of his church and faith, (16) the 
consequences of his drinking have cost him a large amount of money, (17) sobriety has 
improved his relationships with his wife and children, and (18) his job requires the 
security clearance, and this is a highly motivating factor for maintaining sobriety. (AE C.) 
 
 
 
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Criminal Conduct 
 
 The allegation, which references Applicant’s three DUI arrests, is cross-alleged 
under this concern. Applicable facts and discussion under Alcohol Consumption are 
incorporated under this concern, discussed supra. 
 
Personal Observations 
 
I found Applicant to be credible. At his hearing, Applicant promptly answered all 
the questions asked. He was frank, candid, forthcoming, and explained his answers 
without hesitation. He accepted responsibility for his actions and recognizes that his 
actions led to his current predicament. 
  
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the 
Executive Branch in regulating access to information pertaining to national security, 
emphasizing that, “no 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 
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 and modified.    
 
Eligibility for a security clearance is predicated upon meeting the criteria 
contained in the adjudicative guidelines (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 
of or about potential, rather than actual, risk of compromise of classified information. 
Adverse clearance decisions are made “in terms of the national interest and shall in no 
sense be a determination as to the loyalty of the [a]pplicant concerned.” See Exec. Or. 
10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in 
this decision should be construed to suggest that I have based this decision, in whole or 
in part, on any express or implied determination of or about applicant’s allegiance, 
loyalty, or patriotism. It is merely an indication the applicant has not met the strict 
 
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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. 95-0611 
at 2 (App. Bd. May 2, 1996).      
 
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 or her] security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 
02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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 
 
  Under Guideline G (alcohol consumption), the Government’s concern 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. (AG ¶ 21.) 
 
The Government established its case under Guideline G through Applicant’s 
admissions and the evidence presented. Applicant consumed alcohol excessively and 
at times to the point of intoxication from 1983 to 2008, and was arrested three times for 
DUI in 2006, 2007, and 2008. 
 
 A review of the evidence supports application of three alcohol consumption 
disqualifying conditions. AG ¶ 22(a): “alcohol-related incidents away from work, such as 
driving while under the influence,” 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,” and AG ¶ 22(d) “diagnosis by a duly qualified 
medical professional (e.g. physician, clinical psychologist, or psychiatrist) of alcohol 
abuse or alcohol dependence,” apply.  
AG ¶ 23 indicates three conditions that could mitigate alcohol consumptions 
concerns: 
 
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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 licensed clinical social worker who is a staff 
member of a recognized alcohol treatment program.  
All three of these mitigating conditions apply. Although Applicant was not 
previously diagnosed as alcohol dependent or as an alcohol abuser, the 
neuropsychologist who evaluated him post-hearing concluded that Applicant is alcohol-
dependent, but in remission for 25 months. Applicant has acknowledged and recognizes 
the deleterious effect the misuse of alcohol has had on his life. Following his third DUI, 
Applicant attended an authorized substance abuse center. He has embraced AA and 
regularly attends meetings. Applicant has received a favorable prognosis from a highly 
qualified medical professional post-hearing. Furthermore, Applicant has been sober for 
over two years, a significant period of time considering that he began drinking when he 
was 13 years old. 
Applicant presented credible evidence of actions taken to overcome his problem, 
and established he has significantly modified his behavior and alcohol consumption 
over the last two years. He is remorseful for his behavior and has initiated changes in 
his lifestyle. The statement from a senior company representative shows Applicant’s 
work behavior has not been indicative of an alcohol problem. He is viewed as a valuable 
employee, who is reliable, dependable, and professional. Applicant’s sobriety and 
responsible use of alcohol is supported not only by his company vice president, but also 
by his wife of 23 years and his son. Furthermore, Applicant acknowledged the problems 
the misuse of alcohol have caused him and has adopted a steadfast commitment to a 
life of sobriety. 
 
Criminal Conduct 
 
Under Guideline J (criminal conduct), the Government’s concern is that criminal 
activity creates doubt about a person's judgment, reliability, and trustworthiness. By its 
 
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very nature, it calls into question a person's ability or willingness to comply with laws, 
rules and regulations. (AG ¶ 30.) 
 
 The Government established its case under Guideline J through Applicant’s 
admissions and the evidence presented. As noted, the criminal conduct allegation is 
cross alleged under alcohol consumption. 
 
A review of the evidence supports application of two criminal conduct 
disqualifying conditions. AG ¶ 31(a) “a single serious crime or multiple lesser offenses;” 
and AG ¶ 31(c) “allegation or admission of criminal conduct regardless of whether the 
person was formally charged, formally prosecuted or convicted.”  
  For reasons discussed under Alcohol Consumption, supra, I find that criminal 
conduct mitigating conditions 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 AG ¶ 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;” apply. The record is void of any criminal involvement of any 
nature other than the three DUI arrests previously discussed. Applicant’s most recent 
DUI occurred more than two years ago and he has been alcohol-free since then. He has 
made significant lifestyle changes consistent with a life of sobriety and consequently is 
making every effort to be a law-abiding member of society.  
Whole-Person Concept 
  
Under the whole-person concept, the administrative judge must evaluate an 
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s 
conduct and all the circumstances. The administrative judge should consider the nine 
adjudicative process factors listed at AG ¶ 2(a):  
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) extent to which 
participation is voluntary; (6) the presence or absence of rehabilitation and 
other permanent behavioral changes; (7) the motivation for the conduct; 
(8) the potential for pressure, coercion, exploitation, or duress; and (9) the 
likelihood of continuation or recurrence. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
security clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole person-concept.  
 
 
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Applicant has been forthright and cooperative throughout this entire process. He 
voluntarily underwent a post-hearing psychological and substance abuse evaluation 
from a qualified medical professional. He recognizes the adverse consequences of 
misusing alcohol. Applicant’s third DUI made a significant impact on him. He saw the 
potential loss of his career and the adverse impact his conduct had on his family, 
emotionally and financially. Applicant has been willing to do whatever is necessary to 
maintain sobriety. He has family support, stable employment, a strong work ethic, 
church involvement, and regularly attends AA. His willingness to make significant 
lifestyle changes enhance the likelihood of his continued success. Applicant 
demonstrated the correct attitude and commitment to being sober. Considering his 
demeanor and testimony, I believe Applicant has learned from his mistakes, and his 
returning to drinking is unlikely. In sum, I find Applicant has presented sufficient 
evidence of rehabilitation.  
 
Noteworthy is Applicant’s past behavior, which serves as a reliable indicator of 
future behavior. In particular, he has successfully held a security clearance since he 
was hired by his current employer in August 2002. He also successfully held a security 
clearance with a previous employer from 1993 to 1998. Applicant has been cooperative 
throughout this process and recognizes the gravity of these proceedings. Applicant is 
living a different lifestyle from the person who was arrested after his third DUI in July 
2008. 
 
To conclude, Applicant presented sufficient evidence to explain, extenuate, or 
mitigate the security concerns raised. Applicant met his ultimate burden of persuasion to 
obtain a favorable clearance decision. I take this position based on the law, as set forth 
in Department of Navy v. Egan, 484 U.S. 518 (1988), my careful consideration of the 
whole-person factors and supporting evidence, my application of the pertinent factors 
under the adjudicative process, and my interpretation of my responsibilities under the 
adjudicative guidelines. For the reasons stated, I conclude he is eligible for access to 
classified information. 
 
Formal Findings 
  
Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline G:   FOR APPLICANT 
  Subparagraphs 1a – 1d:  For Applicant 
 
 Paragraph 2, Guideline J:   FOR APPLICANT 
  Subparagraph 2a:   For Applicant 
 
 
 
 
 
 
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Conclusion 
  
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with national security to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is granted. 
 
 
 
_________________ 
ROBERT J. TUIDER 
Administrative Judge