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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 09-08429
)
Applicant for Security Clearance )
Appearances
For Government: 
Jeff A. Nagel, Esquire, Department Counsel
For Applicant:
John N. Griffith, Esquire
The Edmunds Law Firm
August 9, 2011
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on June 29, 2009. (Government Exhibit 1.) On December 9, 2010, the Defense
Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons
(SOR) detailing the security concerns under Guideline G (Alcohol Consumption) 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 Directive 5220.6, Defense Industrial Personnel Security
Clearance Review Program (January 2, 1992), as amended (Directive); and the
adjudicative guidelines (AG) effective within the Department of Defense for SORs
issued after September 1, 2006. 
 
Applicant submitted an Answer to the SOR on January 4, 2011, and requested a
hearing before an administrative judge.  Department Counsel was prepared to proceed
on January 26, 2011. I received the case assignment on February 4, 2011.  DOHA
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issued a notice of hearing on March 2, 2011. I convened the hearing as scheduled on
March 16, 2011. The Government offered Government Exhibits 1 through 4, which were
received without objection. Applicant testified on his own behalf, and submitted
Applicant Exhibits A through W, which were also admitted without objection. Applicant
requested that the record remain open for an additional period of time for receipt of
additional documents. He submitted Applicant Exhibit X on March 28, 2011, which was
admitted without objection. DOHA received the transcript (Tr) of the hearing on March
30, 2011, and the record was closed. Based upon a review of the pleadings, exhibits,
and testimony, eligibility for access to classified information is denied.
Findings of Fact
Applicant is 26 and has a GED. He lives with his fiancée, and has one child and
another on the way. He is employed by a defense contractor, and seeks to obtain a
security clearance in connection with his employment in the defense industry. Applicant
admitted allegations 1.c., 1.d., 2.a., 2.b., 2.c., 2.d., 2.e., 2.f. and 2.g. in the SOR. Those
admissions are deemed findings of fact. He denied the remaining allegations either in
whole or in part. He also submitted additional information supporting his request for a
security clearance.
Paragraph 1 (Guideline G - Alcohol Consumption)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he uses intoxicants to excess. 
Applicant admits that he used alcohol between 2001 and December 2009.
(Answer.) He admits using alcohol, and having alcohol-related incidents, but denies that
he used alcohol to excess during this period. 
The records show that Applicant has been involved in three alcohol-related
incidents. In March 2004, and again in August 2008, Applicant was arrested for
Disorderly Conduct, which was related to his being under the influence of alcohol. (Tr at
37-38, 41-42.) Applicant pleaded guilty and received short jail times and fines for these
two incidents.
Applicant was arrested for Driving Under the Influence in August 2005. He plead
guilty and was sentenced to one day in jail, a fine, and seven years probation. Applicant
Exhibit I shows that he completed the Drinking Driver Program, which was part of his
sentence. His probation was terminated in December 2008 based in part on his telling
the Court he was going to join the Army. Applicant did not enter the Army. (Tr at 38-41.)
Applicant continued to drink at a reduced rate from August 2008 until February
2011. He does not intend to use alcohol to excess in the future. (Tr at 43-44.) In
preparation for his hearing Applicant took and passed two alcohol screening tests.
(Applicant Exhibits G and H.) He also received an alcohol assessment from the Drinking
Driver Program at his county department of mental health. The conclusion, based on all
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of the available information, was that Applicant “is not in need of further treatment.”
(Applicant Exhibit M.) Applicant also submitted a signed statement of intent with
revocation of clearance for any alcohol abuse in the future. (Applicant Exhibit A.) Finally,
Applicant testified that he was deeply affected by the recent death of his mother, who
had severe alcohol problems and died of an alcohol-related illness. (Tr at 110.)
Paragraph 2 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he made false statements to the Government during the clearance
screening process; or engaged in other conduct which shows poor judgment,
unreliability or untrustworthiness. 
2.a. - 2.g. These subparagraphs concern a series of non-alcohol-related traffic
offenses, which were committed by the Applicant between May 2004 and May 2010. Of
the seven incidents, two involve Applicant driving while his license was suspended
because of his DUI arrest and conviction, discussed above.  These two citations were in
November 2005 and January 2006. (2.d. and 2.e.) His license was suspended from
2005 to 2008, primarily because it took the Applicant that long to pay his fines. Under
extensive questioning by Department Counsel, Applicant admitted driving “numerous”
times during the period when he did not have a license. He knew that such conduct was
illegal and a violation of his probation. (Tr at 80-88.) Applicant submitted documentation
showing that he had completed traffic school following his last traffic offense in 2010.
(Applicant Exhibit J.)
2.h. Applicant filled out a Government questionnaire on June 29, 2009.
(Government Exhibit 1.) Question 22.e., of that questionnaire asked Applicant, “Have
you EVER been charged with any offense(s) related to alcohol or drugs?” In response
Applicant stated, “Yes,” and listed his August 2005 DUI offense. The SOR alleges that
he deliberately did not list his 2004 and 2008 Disorderly Conduct arrests and
convictions. 
Applicant has explained his failure to list these arrests in various ways. First, in
an affidavit dated March 11, 2010, he states, “Regarding my 03/13/04, disorderly
conduct - DUI offense [SOR 1.b.], I did not list this because I was placed only on
informal probation and paid the court fees/fines.” (Government Exhibit 2 at 1.) Later in
the same statement, “I forgot to list this citation on my original application because it
had slipped my mind. I had gathered all my paperwork to annotate my criminal history
and I just forgot about it.” (Government Exhibit 2 at 3-4.) 
This affidavit does not address the August 2008 Disorderly Conduct arrest at all.
The closest the statement comes is when he says, “Regarding a 08/10/08 DUI, I do not
know what this is. I have only had one DUI charge and that was in 08/05. I suspect that
this 08/10/08 DUI allegation is a result of me failing to pay my court fines from the
original 08/05 DUI charge.” (Government Exhibit 2 at 9.)
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Applicant testified that his company’s human resources representative told him
that his answers to the questionnaire could be augmented during a subsequent
interview. (Tr at 26-31; 69-70.) During cross-examination, Applicant stated that there
were actually two reasons for not putting down the Disorderly Conduct offenses. These
reasons were he did not remember the dates, and he felt that if he put down the most
severe offense, the DUI, he could supplement the record later. Applicant also stated
that he was rushing through the questionnaire. (Tr at 64-71, 111-114.) As stated above.
Applicant’s affidavit does not contain any information regarding the 2008 offense.
Applicant attempted to obtain a statement from the human resources
representative confirming her advice to the Applicant. Based on orders from her
company superiors, she refused to provide such a statement. (Applicant Exhibit X.)
2.i. The Government alleges in this subparagraph that the conduct set forth
under Paragraph 1, above, also has security significance under this Guideline as well. 
Mitigation
 Applicant submitted letters of recommendation from coworkers, supervisors, and
friends. He is described as someone who has a good reputation with his employer, is an
outstanding employee, and has “great work ethics.” (Applicant Exhibits B - F.) He has
also received letters of appreciation from his employer. (Applicant Exhibits R and S.)
Applicant also submitted evidence showing that he had successfully taken
several courses required for his job. (Applicant Exhibits N - Q, T - W.)
Policies
Security clearance decisions are not made in a vacuum.  When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider
the adjudicative guidelines (AG). In addition to brief introductory explanations for each
guideline, the adjudicative guidelines list potentially disqualifying conditions and
mitigating conditions, which are to be used as appropriate in evaluating an applicant’s
eligibility for access to classified information.
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 over-arching
adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c),
the entire process is a conscientious scrutiny of a number of variables known as the
“whole-person concept.” The administrative judge must consider all available, reliable
information about the person, past and present, favorable and unfavorable, in making a
decision.  In addition, the administrative judge may also rely on his or her own common
sense, as well as knowledge of the law, human nature, and the ways of the world, in
making a reasoned decision.
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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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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
applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
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. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
 
Finally, as emphasized by the President in Section 7 of Executive Order 10865,
“Any determination under this order . . . shall be a determination 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).  
Analysis
Paragraph 1 (Guideline G - Alcohol Consumption)
The security concern relating to the guideline for Alcohol Consumption is set out
in AG & 21:      
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.
Applicant admitted that he used alcohol, occasionally to excess, from 2001 until
2011.  He has been involved with three alcohol-related criminal incidents, in 2004, 2005
and 2008. Since his last alcohol-related arrest in 2008, his drinking has been severely
reduced.
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There are two disqualifying conditions that arguably apply to this case.  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.”  In addition, AG ¶ 22(c) states a concern is, “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.” 
Under the particular facts of this case, the following mitigating conditions apply to
the Applicant’s situation. AG ¶ 23(a) states that it can be mitigating when, “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.” In addition, AG ¶ 23(b) states that
is mitigating where, “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.” 
The evidence shows that Applicant had alcohol problems in his past. However, it
appears that, since 2008, he has changed his life in substantial ways in terms of
alcohol. His alcohol use now is very moderate and does not appear to be a problem.
Under the particular circumstances of this case, Applicant has mitigated the security
significance of his past alcohol use. Paragraph 1 is found for the Applicant.
Paragraph 2 (Guideline E - Personal Conduct)
The security concern relating to Personal Conduct is set out in AG ¶ 15:
Conduct involving questionable judgment, lack of candor,
dishonesty or unwillingness to comply with rules or regulations can raise
questions about an individual’s reliability, trustworthiness and ability to
protect classified information. Of special interest is any failure to provide
truthful and candid answers during the security clearance process or any
other failure to cooperate with the security clearance process.
Turning first to the Applicant’s alleged falsification of his questionnaire (2.h.), I
have considered the disqualifying conditions under AG ¶ 16 and especially considered
the following with regard to allegation 2.h.:  
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities; and
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(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative.  
I have examined the Applicant’s stories very thoroughly and find them wanting.
Applicant repeatedly stated during his hearing that he had come forward completely
about his criminal past during his interview with a Government investigator. The affidavit
of that interview, Government Exhibit 2, does not support that testimony whatsoever.
While he did discuss the 2004 arrest, there is no mention of the much more recent 2008
arrest. In addition, Applicant never gave a fully coherent or believable explanation about
why those arrests were left off the form. Applicant had an obligation to be completely
forthcoming with the Government; he failed. Subparagraph 2.h. is found against the
Applicant.
With regards to the other subparagraphs of Paragraph 2 of the SOR, the
following disqualifying conditions apply under AG ¶ 16:
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may no
properly safeguard protected information: and
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may no properly safeguard protected information. This includes but
is not limited to consideration of:
(3) a pattern of dishonesty or rule violations.
Including his alcohol offenses, Applicant has a years-long history of criminal
conduct, primarily involving driving offenses. His conduct included speeding, DUI and
driving while his license was suspended. What was apparent during his testimony is that
the Applicant knew his driving while his license was suspended was wrong, but that he
did it because he thought his needs were greater than obeying the law.  Even though
Paragraph 1 was found for Applicant, his alcohol conduct has security significance
under this paragraph separate from Guideline G. These incidents show a pattern that,
viewed as a whole, lead to an assessment of questionable judgment, unreliability, and
unwillingness to comply with rules and regulations that has lasted for a considerable
period of time.
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Under the particular circumstances of this case, AG ¶ 17(c) is the only mitigating
condition that may apply, “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.” There are indications that Applicant is beginning to understand the
impact his conduct has had on his life. However, they are insufficient at this time to
support a finding in his favor under these subparagraphs. Paragraph 2 of the SOR is
found against the Applicant.
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 relevant circumstances. 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. 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) 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.      
       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. My findings under Paragraph 1 and
2, above, are also relevant to this discussion. The Applicant is a hard-working,
respected professional who has engaged in conduct reflecting poor judgment for many
years. In addition, he falsified material information on a Government questionnaire. In
viewing all the facts of this case, I find that the Applicant has not mitigated the security
significance of his prior conduct. As set forth above, I find that there have not been
permanent behavioral changes under AG ¶ 2(a)(6). In addition, I find that there is still
potential for pressure, coercion, exploitation, or duress (AG ¶2(a)(8)), and that there is
likelihood of recurrence (AG ¶2(a)(9)). 
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude the Applicant has not mitigated the security concerns arising from his conduct
as expressed in Paragraph 2 of the Government's Statement of Reasons. As stated
above, Paragraph 1 is found for the Applicant.
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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: FOR THE APPLICANT
Subparagraphs 1.a through 1.d.: For the Applicant
Paragraph 2, Guideline E: AGAINST THE APPLICANT
Subparagraphs 2.a. through 2.i.: Against the 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 grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
WILFORD H. ROSS
Administrative Judge