DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of:                                            )
                                                                     )
---------------------------------- )       ISCR Case No. 09-04570
)
)
Applicant for Security Clearance )
Appearances
For Government: Daniel Crowley, Esquire, Department Counsel
For Applicant: Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony, I conclude that
Applicant failed to mitigate the security concerns regarding his criminal conduct and
alcohol consumption. Eligibility for access to classified information is denied. 
Statement of the Case
On June 10, 2010, the Defense Office of Hearings and Appeals (DOHA), pursuant
to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated
January 2, 1992, issued a Statement of Reasons (SOR) to Applicant, which detailed
reasons why DOHA could not make the preliminary affirmative finding under the
Directive that it is clearly consistent with the national interest to grant or continue a
security clearance for Applicant, and recommended referral to an administrative judge to
determine whether his clearance should be granted, continued, denied, or revoked.
Applicant responded to the SOR on June 30, 2010, and requested a hearing. The
case was assigned to me on December 8, 2010, and was scheduled for hearing on
December 15, 2010. A hearing was held on the scheduled date for the purpose of
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considering whether it would be clearly consistent with the national interest to grant,
continue, deny, or revoke Applicant’s security clearance. At the hearing, the
Government's case consisted of nine exhibits (GEs 1 through 9); Applicant relied on one
witness (himself) and one exhibit (AE A). The transcript (Tr.) was received on December
22, 2010. 
Procedural Issues
Before the close of the hearing, Applicant requested leave to supplement the
record with documentation of the court-directed alcohol counseling he received following
his 2008 alcohol-related arrest and conviction.  For good cause shown, Applicant was
granted seven days to supplement the record. Department Counsel was afforded two
days to respond.  Applicant did not supplement the record.  
Summary of Pleadings
Under Guideline J, Applicant is alleged to have been arrested and charged on
multiple occasions between June 1997 and October 2008 for assorted traffic-related
offenses, including recurrent incidents of driving on a suspended license, careless
driving, failure to appear in noticed court hearings, burglary, and alcohol-related arrests
and charges. 
Under Guideline G, Applicant allegedly (a) was arrested and charged with alcohol-
related offenses in 2000, 2001, and 2008, and (b) consumed alcohol, at times to excess
and to the point of intoxication, from approximately 1996 to at least June 2009. 
In his response to the SOR, Applicant admitted some of the criminal conduct
allegations, his arrests in 1998, 2000, and 2001, but denied parts of his 2004 and 2008
dispositions, his April 1999 arrest for speed racing and improper display of valid stickers,
and his 1997 arrest for failure to perform duties and careless driving.  Applicant admitted
the alcohol-related allegations.  
      Findings of Fact
Applicant is a 30-year-old test vehicle operator for a defense contractor who
seeks a security clearance. The allegations covered in the SOR and admitted by
Applicant are adopted as relevant and material findings.  Additional findings follow.
Background
Applicant married in August 2004.  He has two children from this marriage, ages
six and four. (GE 1; Tr. 39) Applicant and his wife separated in May 2008 (Tr. 30); his
divorce finalized in March 2009. (Tr. 48) He currently has joint custody of his children (Tr.
32, 35, 49-50) and pays child support for his two daughters. (Tr. 51)
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Applicant enlisted in the Marine Corps in May 1999 following his high school
graduation. (GE 1) He served four years of active duty and received his discharge in
June 2003. (GE 1; Tr. 30)  
Applicant was introduced to alcohol in high school at the age of 16. See GE 2; Tr.
29, 37. He confined most of his drinking in high school to parties and generally limited his
drinking to weekly consumption. (Tr. 38) Occasionally, he consumed alcohol excessively.
(GE 2; Tr. 37) He continued this pattern of drinking throughout his Marine Corps
enlistment. (GE 2) On a bimonthly basis, he and several members of his Marine unit
repaired to a local river to socialize and relax. (GEs 2 and 3) On these occasions, he
generally consumed six to ten beers per sitting. (GE 3)
Applicant’s arrest history
Between June 1997 and January 2004, Applicant was arrested on multiple
occasions (seven in all) for assorted traffic and alcohol-related offenses, and burglary.
Police and court records document Applicant’s being cited in June 1997 for failure to
perform duties of a driver and careless driving. (GE 2) Count one was reduced to
careless driving and Applicant was fined and required to attend a traffic school.  Count
two was dismissed after the police officer failed to appear for trial. Two years later (1999)
he was arrested and charged with speed racing and improper display of valid stickers.
He was found guilty of speed racing and fined.  
Applicant was arrested and charged in January 1998 with burglary, theft, and
unlawful possession of a firearm. (GE 2) Applicant had been out with a high school friend
and entered an unlocked house. (GE 3) Once inside the house, Applicant and his friend
stole some guns. (GE 3).  Several days later, his friend then tried selling the guns to an
undercover police officer and was apprehended. (GE 3) Three days later, police came to
Applicant’s house looking for him.  (GE 3) Once the police were inside of the house, they
recovered the stolen rifles and charged Applicant with the three offenses. (GE 3)
Applicant pled guilty to the charges, and the court placed him on probation for 18 months
and ordered him to pay restitution. (GE 3) Because of his pending Marine enlistment, the
court granted him early release from his probation. (GE 3)  
In June 2000, Applicant was arrested and charged with underage consumption.
He was counseled by his command in March 2001 for drinking under the legal drinking
age of 21 and returned to duty. (GE 2; Tr. 43) The following year (in December 2001), he
was charged with DUI and violation of a basic rule (speeding).  Applicant had driven to
the local river with several Marine friends and was returning to the base with his fellow
Marines when he was stopped at the main gate. (GE 3) Applicant and his friends were
then escorted to the Provost Marshal’s office where they were detained for questioning
for a few hours by military police before their release. (GE 3) When he appeared in court
to answer the charges, the court placed him in a diversion program. After he failed to
comply with the terms of the program, the court revoked it. Sometime in 2002, the state’s
department of motor vehicles revoked his driver’s license. (GE 2)
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Applicant was arrested again on alcohol-related charges in February 2002.
Arresting officers clocked him at close to 100 miles per hour as he and another car sped
by their check point. (GE 7) Arresting officers charged him with driving on a suspended
license, speed racing, careless driving, and failure to appear for a hearing involving the
revocation of his diversion program status. (GE 7).  In their police report, they described
Applicant as a participant in a high speed contest with another vehicle. (GE 7)
Applicant’s vehicle was inventoried by police and towed. (GE 7) In a hearing convened in
December 2003, Applicant pled guilty to the charges. 
 When sentencing Applicant on his 2002 charges, the court combined his 2001
DUI charges with the 2002 charges and sentenced Applicant to two years formal
probation, fined him $1,000, and ordered him to complete 80 hours of community service
and complete substance abuse classes. (GE 8). The sentencing court also suspended
his driving privileges for one year. (GE 8)
In January 2004, Applicant was charged again with driving on a suspended
license.  When he appeared before the court in December 2004, the court terminated his
probation, sentenced him to two days in jail, fined him, and placed him under new
probation conditions. (GE 6)   
In October 2008, Applicant was arrested and charged with DUI1st
Liquor/Drugs/Vapors and DUI 1  DUI Liquor BAC .08 or more.  Applicant was the driverst
of a pick-up truck that was involved in an accident.  The investigating officer at the scene
conducted a field sobriety test on Applicant.  Based on the reported observations of the
investigating officer, Applicant encountered difficulty performing the test. (GE 4) The
investigating officer then administered a Breathalyzer test. Test results revealed that
Applicant’ blood alcohol content registered a .134 blood alcohol concentration level
(BAC). (GE 4)  
After completing sobriety testing at the scene, the arresting officer transported
Applicant back to the police station where he administered a second Breathalyzer test.
On this test, Applicant’s test results revealed a BAC level of .115 per cent. (GE 4) In
court, Applicant pled guilty to the DUI charges and was sentenced to ten days in jail
(nine suspended), fined $1,420, and ordered to attend an alcohol counseling program.
(GE 4) Additionally, the court suspended Applicant’s driving privileges.
Responding to the court’s imposed alcohol counseling condition, Applicant
arranged for counseling sessions with a private substance abuse counselor. (Tr. 52)
After completing a survey, Applicant was diagnosed and counseled by his abuse
counselor over the course of eight sessions. (Tr. 53) Once he completed these eight
sessions, Applicant was credited with completing the course. (Tr. 53) Applicant has
never been diagnosed by any other credentialed substance abuse counselor for any
alcohol issue. (Tr. 43, 51)
While Applicant assured the counselor who diagnosed him found no evidence of
an alcohol problem, Applicant did not provide any documentation of the counselor’s
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observations, diagnosis, prognosis, and recommendations. Afforded an opportunity to
provide documentation of his counselor’s findings and recommendations, Applicant did
not supplement the record.  
Applicant’s alcohol consumption history
Between 2004 and June 2009, Applicant consumed alcohol regularly, mostly at
home and sometimes with his ex-wife and a friend. (GE 2) During this time, he drank to
intoxication levels about twice a year. For him to become  intoxicated (described as
physically impaired, to include blurred vision and poor balance) he needed seven to eight
drinks in a sitting, which he defined as seven to eight drinks in a single sitting. This
amount of alcohol consumption in a single sitting reflects binge drinking. (GE 2) He
continues to drink because he likes the taste, and because it relaxes him. (GE 2) 
Beginning in January 2008, Applicant reduced his general consumption of alcohol
to a weekly glass of wine with dinner and occasional beer consumption (two to three in a
sitting).  However, when his wife left him in May 2008, he returned to excessive drinking,
mostly by himself. (Tr. 31) His drinking pattern included drinking to intoxication.
Since his October 2008 DUI incident, Applicant has continued to consume
alcohol, but not excessively. (Tr. 47) He currently consumes alcohol once a month at
light levels. (Tr. 34, 42) He does not believe he has an alcohol problem and intends to
continue to drink at his current consumption level. (GE 2; Tr. 34, 42)
Endorsements 
Applicant is well regarded by his colleagues and friends. His coworker and friend
both describe him as a productive and dependable performer. (AE A) 
Policies
The AGs list guidelines to be used by administrative judges in the decision-
making process covering DOHA cases. These guidelines take into account factors that
could create a potential conflict of interest for the individual applicant, as well as
considerations that could affect the individual’s reliability, trustworthiness, and ability to
protect classified information. These guidelines include "[c]onditions that could raise a
security concern and may be disqualifying” (disqualifying conditions), if any, and many of
the "[c]onditions that could mitigate security concerns.” These guidelines must be
considered before deciding whether or not a security clearance should be granted,
continued, or denied. The guidelines do not require administrative judges to place
exclusive reliance on the enumerated disqualifying and mitigating conditions in the
guidelines in arriving at a decision. Each of the guidelines is to be evaluated in the
context of the whole person in accordance with AG ¶ 2(c) 
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a)
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of the revised AGs, which are intended to assist the judges in reaching a fair and
impartial commonsense decision based upon a careful consideration of the pertinent
guidelines within the context of the whole person. The adjudicative process is designed
to examine a sufficient period of an applicant’s life to enable predictive judgments to be
made about whether the applicant is an acceptable security risk. 
When evaluating an applicant’s conduct, the relevant guidelines are to be
considered together with the following ¶ 2(a) factors: 
(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 chances; (7) the motivation
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence.
Viewing the issues raised and evidence as a whole, the following adjudication
policy concerns are pertinent herein:
Criminal Conduct
The Concern: Criminal 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.  AG, ¶ 30.
      Alcohol Consumption
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.
AG ¶ 21.
    
Burden of Proof
Under the Directive, a decision to grant or continue an Applicant's request for
security clearance may be made only upon a threshold finding that to do so is clearly
consistent with the national interest. Because the Directive requires administrative
judges to make a commonsense appraisal of the evidence accumulated in the record,
the ultimate determination of an applicant's eligibility for a security clearance depends, in
large part, on the relevance and materiality of that evidence. As with all adversarial
proceedings, the judge may draw only those inferences which have a reasonable and
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logical basis from the evidence of record. Conversely, the judge cannot draw factual
inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) It must prove by substantial
evidence any controverted facts alleged in the SOR; and (2) it must demonstrate that the
facts proven have a material bearing to the applicant's eligibility to obtain or maintain a
security clearance.  The required showing of material bearing, however, does not require
the Government to affirmatively demonstrate that the applicant has actually mishandled
or abused classified information before it can deny or revoke a security clearance.
Rather, consideration must take account of cognizable risks that an applicant may
deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted or
controverted facts, the burden of proof shifts to the applicant for the purpose of
establishing his or his security worthiness through evidence of refutation, extenuation or
mitigation of the Government's case.  Because Executive Order 10865 requires that all
security clearances be clearly consistent with the national interest, “security-clearance
determinations should err, if they must, on the side of denials.” See Department of the
Navy v. Egan, 484 U.S. 518, 531 (1988).
Analysis
Applicant is a dependable test vehicle operator for his defense contractor who
presents with a considerable history of assorted arrests and convictions (mostly traffic
and alcohol-related) over an 11-year period. Principal security issues raised in this case
center on Applicant’s history of arrests that include recurrent driving on a suspended
license, careless driving, and alcohol-related offenses, and his continued consumption of
alcohol at frequency levels that over the past four years have included binge drinking to
intoxication. 
Criminal arrest issues
Applicant’s arrests and convictions involve numerous traffic and alcohol-related
offenses, as well as an isolated burglary offense, over an 11-year period.  Some of the
arrests and charges involve alcohol (three between 2000 and 2008), careless driving,
and driving on a suspended license. Together, they reveal some criminal disposition as a
high school youth and a continuing pattern of reckless behavior throughout Applicant’s
early 20s and into his late 20s with his latest alcohol-related offense in 2008. 
Applicable disqualifying conditions under the criminal conduct guideline include
DC ¶ 31(a), “a single serious crime or multiple lesser offenses,” and DC ¶ 31(c),
“allegation or admission of criminal conduct, regardless of whether the person was
formally charged, formally prosecute or convicted.”
Since October 2008, Applicant has not been involved in any arrest incidents and
shows added growth and maturity in his professional and personal relationships. Still,
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Applicant’s arrest history reflects considerable poor judgment and a lack of proper
respect for state driving laws.  His arrests involve a series of recurrent offenses covering
driving on a suspended license, speed racing, and DUIs between 1999 and 2008.  While
there have been several short-term breaks in his confrontations with law enforcement
officers, he has never been able to demonstrate a consistent pattern of respect for state
driving laws and avoidance of abusive drinking. 
Applicant is entitled to partial application of MC ¶ 32(a), “so much time has
elapsed since the criminal behavior happened, or it happened under unusual
circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment.” However, with his recurrent record of
arrests and convictions covering more than ten years, less than 27 months of elapsed
time since his last DUI in October 2008, his limited counseling credits, and the absence
of any documented rehabilitation showing, it is still too soon to make safe predictive
assessments about Applicant’s ability to maintain careful adherence to state traffic laws. 
 Based on his lack of any established rehabilitation program, his continued
drinking (sometimes to intoxication levels), and the absence of a good, reliable track
record for avoiding alcohol-related incidents (less than 27 months since his last DUI
offense), Applicant may take only limited advantage of MC ¶ 32(d) of the criminal
conduct guideline, “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.”
Both from a consideration of the applicable guidelines, and from a whole-person
perspective, it is still too soon to make safe assessments that Applicant possesses the
strength of commitment and resolve to meet all of the minimum requirements under the
criminal conduct guideline for continued eligibility to hold a security clearance. Based on
his lack of any concerted rehabilitative steps taken to date, he fails to persuasively
demonstrate he no longer presents any recurrent risk of judgment lapses associated with
his prior arrests and convictions. Taking into account all of the facts and circumstances
developed in the record, unfavorable conclusions warrant with respect to the allegations
covered by subparagraphs 1.a through 1.h of the SOR.
Alcohol concerns
Applicant’s recurrent problems with abusive drinking and alcohol-related arrests
over a 15-year period raise major concerns over his risk of recurrent alcohol abuse. On
the strength of the evidence presented, two disqualifying conditions (DC) of the AGs for
alcohol consumption (AG ¶ 21) may be applied: DC ¶ 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,” and DC ¶ 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.”
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While Applicant has never been diagnosed with any known alcohol abuse or
dependence, he did attend an alcohol counseling program that included a diagnosis.
Altogether, Applicant attended eight offered counseling sessions conducted by a private
substance abuse counselor approved by the court. This program offered no known
rehabilitative guidance, and cannot be properly assessed without some documentation of
the program’s content. While Applicant denies any alcohol problem, he admits to drinking
to intoxication levels twice a year and provides no diagnostic insights into his disposition
for alcohol.  
Because of the absence of any known diagnosis or prognosis to evaluate
Applicant’s capacity to safely consume alcohol at any level, application of DC ¶ 22(d),
“diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist,
or psychiatrist) of alcohol abuse or alcohol dependence,” may not be employed in
Applicant’s circumstances. His court-approved counseling sessions are not supported by
any records of counseling and treatment  by a qualified substance abuse counselor. If he
was diagnosed to be free of any alcohol problems (as Applicant claims) medical records
should be available to verify Applicant’s claims.  
By contrast, were Applicant diagnosed with either alcohol abuse or dependence,
some recommended abstinence or curtailing of his alcohol consumption could be
reasonably expected. Depending on the diagnosis, Applicant’s continued drinking at light
to abusive levels could be an important consideration in determining what weight to
assign to his reformed drinking claims. See ISCR Case 02-03186 (App. Bd. Feb. 16,
2006); ISCR Case 01-20579, at 5 (App. Bd. Apr. 14, 2004). Quite possibly, Applicant
may be able to continue drinking without any risk of recurrent abuse. Without any
counseling records to evaluate, though, there is no verifiable way to know whether he
can safely drink at any level. 
Considering Applicant’s recurrent arrest history (with three prior alcohol-related
offenses) and the limited elapse of time since Applicant’s last DUI in October 2008,
limited application of MC ¶ 23(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, is available to Applicant,” is available to him.  Partially applicable to Applicant’s
circumstances are  MC ¶ 23(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.” Too little is known about his court-
approved  counseling program in 2009, however, to assign much weight to his assured
completion of the program.
Faced with similar evidence of limited rehabilitation, the Appeal Board has
expressed doubts about the ability to make safe, predictive judgments about an
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applicant’s ability to avoid abusive incidents in the future without jeopardizing the
national interest. See ISCR Case No. 06-17541 (App. Bd. Jan. 14, 2008); ISCR Case
No. 04-10799 (App. Bd. Nov. 9, 2007); ISCR Case No. 05-16753 at 2-3 (App. Bd. Aug.
2, 2007). 
Taking into account both Applicant’s history of alcohol abuse and incidents away
from work and corresponding lack of solid probative evidence of rehabilitation, the
applicable guidelines, and a whole-person assessment of his continued drinking
following his latest DUI in 2008, it is too soon to draw firm conclusions about his
commitment to avert recurrent alcohol abuse in the future. 
Applicant’s overall showing that his excessive drinking in the past was situational
and that he can be trusted to drink responsibly and avert any recurrent problems with
judgment lapses related to alcohol in the future is not sufficient to enable him to meet his
mitigation burden. More time is needed for Applicant to persuade that he can drink
responsibly and free of any recurrence risks.  While his contributions to the Marine Corps
are commendable, they are not enough to enable him to surmount recurrent risks of
alcohol abuse at this time. Unfavorable conclusions warrant with respect to the
allegations covered by the alcohol guideline of the SOR. 
Formal Findings
   
In reviewing the allegations of the SOR in the context of the findings of fact,
conclusions, and the factors and conditions listed above, I make the following separate
formal findings with respect to Applicant's eligibility for a security clearance.
GUIDELINE J (CRIMINAL CONDUCT):    AGAINST APPLICANT
Subparagraphs 1.a through 1.h:                Against Applicant
GUIDELINE G ( ALCOHOL CONSUMPTION:      AGAINST APPLICANT
Subparagraphs 2.a and 2.b:    Against Applicant 
                     
Conclusions
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 Applicant's security
clearance.  Clearance is denied.
                                  
Roger C. Wesley
Administrative Judge
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