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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------- )       ISCR Case No. 09-05941
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Esquire, Department Counsel
For Applicant: Matt Fargo, Personal Representative
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
On October 20, 2010, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) enumerating security concerns arising under
Guideline G (Alcohol Consumption), Guideline D (Sexual Behavior), and Guideline E
(Personal Conduct). The action was taken under Executive Order 10865, Safeguarding
Classified Information within Industry (February 20, 1960), as amended; Department of
Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance
Review Program (January 2, 1992), as amended (Directive); and the adjudicative
guidelines (AG) effective within the DOD on September 1, 2006. 
In a December 1, 2010, response, Applicant admitted two of seven of the
allegations set forth under Guideline G, the single allegation raised under Guideline D,
and denied both allegations under Guideline E. He also requested a hearing. DOHA
assigned the case to me on May 20, 2011. The parties proposed a hearing date of June
29, 2011. A notice setting that date for the hearing was issued on June 3, 2011. I
convened the hearing as scheduled. 
Applicant gave testimony and introduced five witnesses, including his personal
representative. He also presented eight documents that were accepted into the record
without objection as exhibits (Exs.) A-H. Department Counsel offered one hearing
 Tr. 8.      1
 Tr. 63.      2
 See, e.g., Tr. 97. At the time, Applicant did not think of his conduct in terms of it being potentially illegal,      3
but he was aware that the conduct was not the type contemplated by his academy’s or service’s honor code.
Tr. 94-95.
 Indeed, the girl, now in her mid-20s, wrote a letter on Applicant’s behalf. She stresses that the relationship      4
was consensual. Ex. A (Letter, dated Jun. 29, 2011). See also Tr. 64-66, 98-99.
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exhibit (Ex. HE-1) and 15 documents, which were admitted as Exs. 1-15 without
objection. Upon motion by Department Counsel, SOR allegation ¶ 3.b was struck from
the SOR without objection.  The parties were given until July 12, 2011, to submit any1
additional materials. The transcript (Tr.) of the proceeding was received on July 9,
2011. In the absence of supplementary submissions, the record was closed on July 12,
2011. Based on a review of the testimony, submissions, and exhibits, I find Applicant
failed to meet his burden of mitigating security concerns related to alcohol consumption.
Clearance is denied.
Findings of Fact
Applicant is a 30-year-old systems engineer who has worked for the same
defense contractor for approximately three-and-a-half years. He is mathematically gifted
and has earned both a high school diploma and a bachelor of science degree.
Applicant is single and has no children. 
In the autumn of 2000, Applicant was 19 years of age and enrolled as a
freshman in a post-secondary military academy. During the final examination period for
the fall term, Applicant began an on-line relationship with a female he later discovered
was a 14-year-old girl.  When his roommates discovered this fact, they argued with2
Applicant about the relationship and his poor grades. Their advice was regularly
dismissed, and his behavior was often sophomoric. During the winter holiday break,
Applicant met the girl several times. He would regale his roommates with tales of his
sexual exploits with the girl, much to their disapproval.  Eventually, he told the3
roommates that he had stopped seeing her and was currently datng a 17-year-old girl.
In fact, however, there was no 17-year-old girl involved; he was still seeing the 14-year-
old. The girl faced a pregnancy scare around the time of Applicant’s spring break in
March 2000. Applicant’s roommates learned that he was still involved with the girl.
During this time, the girl pursued the relationship, threatening to commit suicide if their
affair ended. Although the sexual relationship ended in March 2001, when Applicant
was still 19, Applicant, the girl, and her parents remain on cordial terms.    4
By the end of March 2001, the military had instituted an investigation into the
relationship. The details of the incident were reported to the local police, but the state
chose not to pursue the issue because neither the girl nor her family wished to
cooperate. During the military investigation, Applicant turned 20. He cooperated with
investigators and admitted his actions. In September 2001, Applicant was
 The SOR incorrectly states that the administrative discharge occurred in 2002. Applicant’s Certificate of      5
Release or Discharge (Ex. 14) and security clearance application (Ex. 1), however, reflect a discharge date
in September 2001. This discrepancy was noted during the hearing, and the SOR appropriately amended. See
Tr. 67-68.
 Tr. 51-52.      6
 Tr. 52-53.      7
 Tr. 54.      8
 See also Ex. 11 (Case file at 30 of 40, indicating the judge’s order of May 6, 2008).      9
 Id.      10
 Tr. 58-60.      11
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administratively discharged under other than honorable circumstances in lieu of a trial
by court-martial.  5
Starting in 2002, the year in which he turned 21, Applicant began consuming
alcohol, at times to excess and to the point of intoxication. That year also marked his
entry into a civilian university in another part of the country. In about March 2003, while
he was an undergraduate student, Applicant was arrested for impaired driving.  He was6
ultimately found guilty of operating a vehicle while intoxicated (DWI), operating with a
blood alcohol level (BAC) of .08% or more, and speeding. He was ordered to complete
an alcohol education program, a community service term, pay fines, and serve one year
of probation. 
In March 2004, the State filed a petition to revoke Applicant’s probation after he
was arrested following a fraternity party in February 2004 on two counts of theft and
public intoxication. That petition was dismissed. However, Applicant agreed to a plea
bargain under which he was accepted into a diversion program and ordered not to
return to the fraternity house in question.  The following month, in June 2004, Applicant7
was arrested for public intoxication after a graduation party. He pled guilty to the charge
and was ultimately found guilty of public intoxication.  8
In late September 2007, Applicant and friends went to a bar. One friend felt ill,
and Applicant volunteered to drive him home. After crossing the median strip, he was
arrested and charged with DUI, driving with a BAC of .08% or more, possession of an
open container while driving, and failure to provide evidence of financial responsibility.
Applicant was found guilty of the BAC charge and was sentenced to fine and costs,
community service, attendance in an alcohol program, and three years of probation.9
The judge’s order was signed in May 2008.  Also at the end of September 2007, on the10
morning before a big college football game, Applicant was arrested for public
intoxication and ultimately placed into a diversion program, sentenced to fines and fees,
and ordered to complete an alcohol education program.  He does not recall ever being11
 Tr. 57.      12
 Tr. 50.      13
 Tr. 45-46.      14
 Tr. 47.      15
 Tr. 57.      16
 Tr. 17, 35, 38-39, 45-49.      17
 See generally Tr. 15-43.      18
 Tr. 70.      19
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given a diagnosis of alcohol dependence or abuse during the subsequent alcohol
programs.12
A couple of months after his 2007 arrest, Applicant relocated. He took his alcohol
rehabilitation program seriously and decided to make changes in his life. He stopped
drinking to excess “at the end of 2007.”  He met a girlfriend. He chose to spend time13
with her instead of going out with the “guys.”  He applied himself to working on his14
career. When he goes out, he paces his alcohol consumption and limits himself to three
drinks per evening.  He will not drive if he has had alcohol, preferring instead to use a15
designated driver or public transportation. He has a new set of friends who are
supportive of his attempts to comport his alcohol consumption within socially acceptable
boundaries. He has actively worked at demonstrating that he is a responsible adult.    
Today, Applicant continues to consume alcohol. He does so in moderation. He
does not believe he needs to maintain total sobriety to contain his alcohol use or
prevent him from binge drinking.  None of his witnesses have seen him intoxicated in16
the past few years.  Applicant and his girlfriend do not usually visit bars, though they17
occasionally meet friends at them. Applicant tries to comport his behavior appropriately
and professionally. At work, he is considered a gifted and brilliant employee.  Applicant18
is financially stable. He enjoys travel and nature. He regularly donates to a fund for
needy children in Latin America. Now a competitive runner, he watches his diet and is,
consequently, particularly mindful of his alcohol consumption.19
Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the AG. In addition to brief introductory explanations
for each guideline, the AG list potentially disqualifying conditions and mitigating
conditions. These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The administrative judge’s overarching
adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this
process is a conscientious scrutiny of a number of variables known as the “whole-
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      20
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      21
 Id.      22
 Id.      23
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person concept.” The administrative judge must consider all reliable information about
the person, past and present, favorable and unfavorable, in making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical, and based
on the evidence contained in the record.
The Government must present evidence to establish controverted facts alleged
in the SOR. An applicant is responsible for presenting “witnesses and other evidence to
rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by
Department Counsel. . . .”  The burden of proof is something less than a20
preponderance of evidence. The ultimate burden of persuasion is on the applicant.  21
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access22
to sensitive information must be resolved in favor of protecting such sensitive
information.23
Based upon consideration of the evidence, Guideline G (Alcohol Consumption),
Guideline D (Sexual Behavior), and Guideline E (Personal Conduct) are the most
pertinent to this case. Conditions pertaining to those AGs that could raise a security
concern and may be disqualifying, as well as those which would mitigate such
concerns, are set forth and discussed below.
 AG ¶ 21.      24
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Analysis
Guideline G – Alcohol Consumption
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.  In this case, Applicant admits that he24
regularly drank alcohol, at times to excess, from 2002 through the end of 2007. He was
cited for excessively high blood alcohol levels while driving in 2003 and late 2007. His
last such citation in late 2007 led to his being ordered to serve three years of probation.
The judge signed the order for that case in May 2008. Applicant was also arrested for
public intoxication twice in 2004 and once at the end of September 2007. While there is
no evidence of a diagnosis of alcohol abuse or dependence, such facts are sufficient to
raise Alcohol Consumption Disqualifying Condition (AC DC) AG ¶ 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 AC
DC 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). With disqualifying conditions raised, the burden shifts to Applicant
to raise mitigating conditions.
Applicant was arrested for behavior related to his excessive use of alcohol on
multiple occasions between 2002 and late 2007. While he now drinks in moderation
and admits the facts related to his past misconduct, Applicant continued drinking
alcohol to excess through only the end of 2007, less than four years ago. As a
consequence of his last drunk driving incident in September 2007, he was ordered to
serve three years of probation. The judge’s order in that case appears to have been
signed in May 2008. Therefore, his most recent probationary period was not completed
until somewhere between September 2010 and May 2011. Given these facts, the
behavior is neither infrequent nor remote in time. 
Moreover, while Applicant presently drinks alcohol in moderation, insufficient
time has passed to demonstrate that alcohol is no longer an issue in his life or that he
can maintain his present level of responsible alcohol consumption. This is particularly
true given that a similar period of about three-and-a-half years of incident-free
moderation preceded his September 2007 incidents. In light of these considerations,
neither Alcohol Consumption Mitigating Conditions (AC MC) AG ¶ 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 individual’s current
reliability, trustworthiness, or good judgement) nor AG ¶ 23(b) (the individual
acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of
actions taken to overcome this problem, and has established a pattern of abstinence (if
alcohol dependent) or responsible use (if an alcohol abuser)) applies. In addition, under
 AG ¶ 12.      25
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the facts noted, neither, AG ¶ 23(c) (the individual is a current employee who is
participating in a counseling or treatment program, has no history of previous treatment
and relapse, and is making satisfactory progress) nor AG ¶ 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 meeting with [AA] or a similar organization and has received a favorable
prognosis by a duly qualified or a licensed clinical social worker who is a staff member
of a recognized treatment program) apply.
Guideline D – Sexual Behavior
Sexual behavior that involves a criminal offense, indicates a personality or
emotional disorder, reflects lack of judgment or discretion, or which may subject the
individual to undue influence or coercion, exploitation, or duress can raise questions
about an individual’s reliability, trustworthiness and ability to protect classified
information.  Here, Applicant had sexual relations with a 14-year-old girl when he was25
19 and attending a post-secondary military academy. Such conduct was criminal in
nature and was antithetical to the conduct expected by his institution and military
branch of service. During the height of their sexual relationship, Applicant indiscretely
shared details of his sex life with his roommates. Such facts are sufficient to raise
Sexual Behavior Disqualifying Conditions (SB DC) AG ¶ 13(a) (sexual behavior of a
criminal nature, whether or not the individual has been prosecuted), AG ¶ 13(c) (sexual
behavior that causes an individual to be vulnerable to coercion, exploitation, or duress),
and AG  ¶ 13(d) (sexual behavior of a public nature and/or that reflects lack of
discretion or judgment). With disqualifying conditions raised, the burden moves to
Applicant to mitigate security concerns.
 There is no federal law defining the age range of adolescence, the leading
dictionaries avoid setting precise years for the duration of the phase, and the AG
provides neither a definition of the term nor guidance. Biological, psycho-social, and
anthropological definitions generally set the term’s range within parameters loosely
around the ages of 13 and 19. Here, Applicant was 19 at the time at issue, setting him
at the cusp of adolescence. His overall behavior at the time with regard to other
matters, such as his behavior as a military academy student, appears to have been
somewhat puerile. However, the incidents at issue occurred over a decade ago, a
significant duration in the life of a 30-year-old. No subsequent incidents of sexual
contact or behavior are noted. He expressed no provocative interest in or fixation on
adolescent partners. He is now in a romantic relationship with a contemporary.
Applicant has since taken adult responsibility for both this behavior and his abuse of
alcohol, and demonstrated both maturity and improved judgment. He is open about his
past sexual behavior. Given these facts and considerations, I conclude that AG ¶ 14(a)
(the behavior occurred prior to or during adolescence and there is no evidence of
subsequent conduct of a similar nature), ¶ 14(b) (the sexual behavior happened so long
ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur
 AG ¶ 15.      26
 Id.      27
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and does not cast doubt on the individual’s current reliability, trustworthiness, or good
judgment), and 14(c) (the behavior no longer serves as a basis for coercion,
exploitation, or duress) each apply. 
However, despite the seemingly consensual nature of the relationship,
Applicant’s sexual partner was 14 at the time. Without delving into issues regarding that
state’s laws regarding the age of consent, his braggadocious reportage back to peers
on his relationship clearly flaunted his sexual escapades. AG ¶ 14(d) (the sexual
behavior is strictly private, consensual, and discreet) does not apply.
Guideline E – Personal Conduct
Security concerns arise from matters of personal conduct because “conduct
involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual’s reliability,
trustworthiness, and ability to protect classified information.“  In addition, “any failure to26
provide truthful and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process” is of special interest.  27
Here, Applicant was administratively discharged under other than honorable
conditions in lieu of trial by court-martial from a military academy. This occurred in the
wake of the revelation that he, at age 19, had recently had a sexual relationship with a
14-year-old girl. Such facts are sufficient to raise Personal Conduct Disqualifying
Condition (PC DC) AG ¶ 16(e) (personal conduct, or concealment of information about
one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person’s personal,
professional, or community standing. . . .). 
The incident at issue occurred a decade ago, when Applicant was 19 years old.
Since that time, however, Applicant, now 30, has comported his behavior in such a way
that no further incidents involving sex have occurred. Moreover, he is no longer in the
military. He has been in a stable relationship with an age-appropriate partner since
2007. He is considered a mature and productive employee in his current professional
position. His only other issues of personal conduct were previously discussed under
Guideline G, where issues regarding alcohol consumption are more appropriately
reserved for discussion and analysis. Therefore, in light of these considerations, PC MC
AG ¶ 17(c) (the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness, or good
judgment) applies. None of the other mitigating conditions are applicable.
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Whole-Person Concept
Under the whole-person concept, an administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of an applicant’s
conduct and all the circumstances. An administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a). Under AG ¶ 2(c), 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. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the whole-person factors.
Applicant is a 30-year-old systems engineer who has been steadily employed by the
same employer for approximately three-and-a-half years. A college graduate, he is
considered a gifted mathematician and a superior employee. He has the full support of
his professional superiors and peers. Despite past problems with discipline, restraint,
and excessive alcohol consumption, Applicant decided to turn his life around at the end
of 2007. He is now in a committed relationship and thriving in a new city, where he
responsibly socializes with age-appropriate peers. 
At issue in this case are two scenarios raising security concerns. First, at age 19,
Applicant had a sexual relationship with a 14-year-old girl. He did so while attending a
post-secondary military academy, at which poor judgment was noted in other behavioral
areas. As a result, he left the academy following an administrative discharge. In the
intervening decade, he completed his college education and matured. He is now in an
age-appropriate relationship. He has demonstrated his ability to comport his behavior
appropriately in sexual matters. To continue to hold this issue against him at this point
would serve little purpose. 
Remaining at issue are security concerns raised by Applicant’s past alcohol
consumption. It is noted that while Applicant continues to consume alcohol, he started
making adjustments to his lifestyle in late 2007. Lacking evidence that he was
diagnosed as an alcohol dependant or abuser, neither abstinence nor sustained
support are required. However, less than four years passed between his June 2004
alcohol-related incidents and the recurrence of related incidents in September 2007. To
date, as a matter of comparison, Applicant has developed a current record of
demonstrated moderation that exceeds his 2004-2007 incident-free period by only a
few months. At this point, less than four years of demonstrated moderation and less
than a year of successful post-probation behavior is insufficient to show that he is fully
capable of keeping his alcohol consumption within acceptable social and legal
boundaries. As noted above, any doubt concerning personnel being considered for
access to classified information will be resolved in favor of national security. In light of
the facts in his case, and the brevity of his current period of moderate alcohol use,
alcohol consumption security concerns remain unmitigated. Clearance is denied. 
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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: AGAINST APPLICANT
Subparagraphs 1.a-1.g: Against Applicant
Paragraph 2, Guideline D: FOR APPLICANT
Subparagraph 1.a: For Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraph 1.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant a security clearance.
Clearance denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge