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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------------- )       ISCR Case No. 09-00573
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Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
September 15, 2011
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Decision
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MOGUL, Martin H., Administrative Judge:
On November 17, 2010, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline G
for Applicant. 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) (Directive); and the adjudicative guidelines (AG) effective
within the Department of Defense for SORs issued after September 1, 2006. 
 
On December 13, 2010, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on March 2, 2011. DOHA issued a notice of hearing on March 4,
2011, and I convened the hearing as scheduled on March 30, 2011. The Government
offered Exhibits 1 through 9, which were received without objection. Applicant testified on
his own behalf and submitted Exhibits A through K at the time of hearing, which were
also admitted without objection. I granted Applicant’s request to keep the record open
until April 13, 2011, to submit a one page letter, which had been previously identified and
entered into evidence without objection as Exhibit F, although it had not been physically
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present at the time of the hearing. DOHA received the transcript of the hearing (Tr) on
April 7, 2011. Based upon a review of the pleadings, exhibits, and the testimony of
Applicant, eligibility for access to classified information is denied.
Findings of Fact
In his RSOR Applicant admitted SOR allegations 1.a. through 1.e., under
Guideline G. The admitted allegations are incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the additional findings of fact: 
Applicant is 31 years old. He is unmarried, and he has no children.  He served in
the United States Navy from 2000 to 2005, when he received an Honorable Discharge.
Applicant is employed by a defense contractor, and he seeks a DoD security clearance
in connection with his employment in the defense sector.
(Guideline G - Alcohol Consumption) 
The Government alleges that Applicant is ineligible for clearance because he has
engaged in excessive alcohol consumption. The following are the five allegations as they
are cited in the SOR, and as reviewed above, 1. a. through 1.e. have been admitted by
Applicant in his RSOR :
1.a. Applicant has “consumed alcohol, at times to excess and to the point of
intoxication, from approximately 1997 to at least December 2007.” 
1.b. On November 29, 2006, a Statement of Reasons was issued to Applicant
which alleged two alcohol related incidents. A hearing was conducted, and the findings
of the Administrative Judge in his decision included the following: 
i. Applicant “consumed alcohol, at times to excess and to the point of
intoxication, from approximately 1997 to at least June 2006.” 
ii. On October 31, 2004, Applicant was arrested and charged with (1)
Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence
of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed
on five years probation, 96 days confinement, four days of volunteer work and to attend
and complete a Mothers Against Drunk Driving (MADD) program. 
iii. On November 3, 2003, Applicant was arrested and charged with (1)
Driving Under the Influence of Alcohol and/or Drugs and (2) Driving Under the Influence
of Alcohol with BAC of .08 or More. He pled No Contest to Count (2) and he was placed
on five years probation, fined $1,700, ordered to participate in a public service program,
complete a three month first conviction program and to finish a MADD program.
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1.c. During the period when the Administrative Judge was making his deliberation
regarding Applicant’s case, and before a favorable decision was issued in August 2007,
Applicant was arrested a third time for Driving Under the Influence of Alcohol. 
1.d. Applicant received alcohol related counseling on or about January 2004,  at a
Substance Abuse Rehabilitation Program Applicant through the United States Navy, for
a condition diagnosed Alcohol Abuse.
1.e. In July 2007, Applicant was arrested and charged with (1) Driving Under the
Influence of Alcohol and/or Drugs and (2) Driving Under the Influence of Alcohol with
BAC of .08 or More. He pled Guilty. The imposition of the sentence was suspended for
five years. He was sentences to jail, ordered to pay a fine and fees, ordered to complete
a multiple conviction program, and attend a MADD program. Applicant’s license was
suspended and an ignition interlock device was ordered for his vehicle. 
Applicant testified that as a result of this conviction, he spent 45 days in a
detention facility. He had been sentenced to 90 days because of time served credit and
because he enrolled in a work furlough program where he was in a kind of half-way
house for 23 or 24 days, when not at his employment.  (Tr t 33-34.)
At the hearing, Applicant testified that he still consumes alcohol. The last time he
consumed alcohol prior to the hearing was on St. Patrick’s Day, March 17, 2011,
approximately one month before the hearing. He stated that at that time he drank two
beers.  Prior to that he estimated that he last consumed three beers on the previous New
Year’s Eve. He estimated that in 2010, he drank about four times, and he had as many
as four beers on at least one or two occasions. After Applicant’s arrest in 2007, he drank
alcohol on one occasion before he was incarcerated, and then he abstained completely
for approximately six months before he began consuming alcohol again. Since that time
he estimates that he drinks about three to five times a year on special occasions. (Tr at
27-31, 52-54.) Applicant attends Alcoholics Anonymous meetings not regularly, but
approximately once a month. (Tr at 36.)
Applicant testified at the current hearing that he would not get a DUI in the future.
His reasoning was because he has been incarcerated and in a work furlough program,
neither of which had ever happened to him before, and this would result in a different
outcome. However during Applicant’s testimony, Department Counsel pointed out that
Applicant had promised he would not get another DUI at his previous hearing in 2007,
but despite his promise, he did receive another DUI. (Tr at 59-60.)
Mitigation
Applicant submitted a number of documents to attempt to mitigate the SOR
allegations. They include but are not limited to the following: four character letters.
(Exhibits C, D, and K.) The first is from his supervisor from January 2008 until the
present. He wrote about Applicant, “he has not demonstrated any behavior that would
indicate irresponsibility or deliberate compromise of classified information or material if
granted access.”  Another letter was from the site leader and program manager for the
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facility of Applicant’s employer. He wrote Applicant’s “dedication and efforts have
resulted in both verbal and written compliments.”  Exhibit E is a letter from a Brigadier
General of the United States Air Force in which he congratulated Applicant for the
“extraordinary support” given to United States service members. 
Exhibit F is a letter from a counselor for the Employee Assistance Program for
Applicant’s employer, indicating that she met with Applicant after his last DUI, and that
his court ordered attendance at the Driving Under the Influence Program is appropriate
and sufficient follow up care. Exhibit I is a Notice of Complection Certificate showing that
Applicant finished an 18 month Driving Under the Influence Program multiple offender
program. Exhibit J includes AA attendance slips establishing that Applicant attended
multiple AA meetings. Exhibit K included a Letter of Commendation and two certificates
for Navy and Marine Corps Achievement Medals that Applicant’s earned during his time
in the Navy. 
Policies
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 useful 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 common sense 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.
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. 
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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).  
Analysis
(Guideline G - Alcohol Consumption) 
Applicant's alcohol consumption has resulted in three DUI arrests and convictions,
and a diagnosis of Alcohol Abuse from a substance abuse counselor. 
The Government established that Applicant was involved in “alcohol-related
incidents away from work,” and “binge consumption of alcohol to the point of impaired
judgement.” Disqualifying Conditions AG ¶ 22(a) and (c) apply to this case.  
As reviewed above, Applicant underwent a security hearing in 2007, during which
he promised that he would not receive any further DUI arrests and convictions. Yet
before the decision was actually issued, he received his third DUI arrest and conviction.
After Applicant served his sentence in the detention facility, he abstained from
consuming alcohol for about six months. Yet at the current hearing, he admitted to
consuming alcohol again, and he currently drinks alcohol, usually beer, approximately
four times a year, consuming as many as three or four beers at one time. This is despite
the fact that Applicant has been advised not to consume any alcohol in the future at the
AA meetings that he attends sporadically, and he has received a diagnosis of Alcohol
Abuse. As a result of this, I do not find that any Mitigating Condition under ¶ 23 applies.
Guideline G is found against 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 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) the extent to
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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.      
I considered the potentially disqualifying and mitigating conditions in light of all the
facts and circumstances surrounding this case. Based on all of the reasons cited above
as to why the disqualifying conditions apply and the mitigating conditions do not apply, I
find that the record evidence leaves me with significant questions and doubts as to
Applicant’s eligibility and suitability for a security clearance under the whole-person
concept. For all these reasons, I conclude Applicant has not mitigated the security
concerns. 
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.e.: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
Martin H. Mogul
Administrative Judge