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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------- )       ISCR Case No. 10-03275
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Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Joseph Testan, Esquire
February 13, 2012
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Decision
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MOGUL, Martin H., Administrative Judge:
On October 18, 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 November 2, 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 January 4, 2011. DOHA issued a notice of hearing on June 22,
2011, and the hearing was set for July 20, 2011. The case was continued and a second
notice of hearing was issued on July 14, 2011. I convened the hearing as scheduled on
July 21, 2011. The Government offered Exhibits 1 through 5, which were received
without objection. Applicant testified on his own behalf and submitted Exhibits A through
I, which were also admitted without objection. Three additional witnesses testified on
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behalf of Applicant.  DOHA received the transcript of the hearing (Tr) on August 10,
2011. Based upon a review of the pleadings, exhibits, and the testimony of Applicant,
eligibility for access to classified information is granted.
Findings of Fact
In his RSOR Applicant admitted SOR allegations 1.a. through 1.c., under
Guideline G, with some explanations in mitigation regarding 1.a. 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 28 years old. He is not married and he has no children. He received
a Bachelor of Science degree in Aerospace Engineering in 2005. Applicant has been
employed by a defense contractor, his current employer since 2006, 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 three allegations as
they are cited in the SOR:
1.a. The SOR alleges that Applicant has “consumed alcohol, at times to excess
and to the point of intoxication, from approximately 2001 to at least June 2010.” In his
RSOR, Applicant admitted that he “consumed alcohol during this time period,” but he
denied that he “consumed it to excess and to the point of intoxication subsequent to
[his] May 2008 arrest.”  
At the hearing, Applicant testified that he first began consuming alcohol when he
was in high school. He described his usage during that period as “pretty minimal. A
couple of beers at a party type situation,” which did not lead to difficulties of any kind.
When he started college in 2001, his frequency of alcohol consumption did not change,
but the amount of his consumption increased. (Tr at 85-86.) He conceded that in college
he drank to the point of intoxication on different occasions. (Tr at 105.) Applicant
described his current alcohol consumption as “very, very minimal to moderate.” He
drinks once or twice a week, not more than one glass of wine, or two glasses on the
weekend. (Tr at 100-101.) 
1.b. The SOR alleges that In 2004, Applicant was arrested and charged with (1)
Driving Under the Influence of Alcohol (DUI), and (2) Driving with a .08% of Higher
Blood Alcohol Content. Applicant plead guilty to an added charge of Wet Reckless
Driving and was fined, placed on 18 months probation, and ordered to attend a DUI
class. Counts (1) and (2) were dismissed.  As reviewed above, Applicant admitted this
allegation in his RSOR. 
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Applicant testified that this incident occurred in the evening after he had gotten
off work. He and a friend went to a local bar, where they shot pool, and he “drank some
beer.” When they left the bar he drove his friend home, and as he was driving after
leaving his friend, his vehicle slid into a curb and was undrivable. Applicant testified that
his tires were in poor condition, and that was the cause of his problem with his car.
While he was waiting at the side of the road for a tow truck, some police officers arrived
at the scene. He was asked if he had been drinking, and when he admitted that he had,
he underwent a field sobriety test and a Breathalyzer test. His recollection at the hearing
was that he blew a .12% at the scene, and he was thereafter arrested and taken to the
local jail. He was released after he had someone take him home. (Tr at 86-88.) 
Applicant testified that as a result of his pleading guilty to the Wet Reckless
Driving charge, he had to pay a fine that he estimated to be between $600 and $1,000,
which he confirmed he had paid. He also attended three months of an alcohol
awareness class, going one time a week. Finally, he was on court probation for 18
months, which he completed satisfactorily. Sometime in either 2005 or 2006, Applicant
made a motion with the court to recall his guilty plea and have the case dismissed. His
motion was granted. (Tr at 88-91.) Applicant testified that he was very concerned after
the arrest and conviction in 2004, and did not drive again after consuming alcohol until
the incident in 2008, that is the subject of 1.c., below. (Tr at 117.) 
1.c.  The SOR alleges that in 2008, Applicant was arrested and charged with (1)
Driving Under the Influence of Alcohol (DUI), and (2) Driving with a .08% of Higher
Blood Alcohol Content. Applicant plead no contest to an added charge of Wet Reckless
Driving and was fined, sentenced to 20 days in jail, placed on three years probation. His
drivers license was suspended for one year, and he was ordered to attend a drinking
driver program. His probation is scheduled to terminate in October 2011. As reviewed
above, Applicant admitted this allegation in his RSOR. 
Applicant testified that this incident occurred after he had been working for a year
or two, and he had recently purchased a new car. He attended a one day festival, which
he described as a “beer festival” with his friends, and he parked his car in a large field
with many other vehicles. He stated that he drank many beers on that day, and after the
festival was over, even though he knew he was intoxicated, he decided that he should
drive his car out of the field so it would not be damaged by all the other intoxicated
drivers. He was stopped and arrested almost immediately. He testified that he realizes
what a “very, very dumb decision” that he made; worrying about his car, rather than
about his livelihood, his friends or hurting someone. (Tr at 92-93, 108.) 
Applicant averred that since that event, he has not consumed alcohol to the point
of intoxication or to excess on any occasion. Additionally, since this event, one of his
strict rules is that he will not drive if he has had even “one sip of alcohol.” He cited
several reasons for his decision, including that a third arrest for DUI would lead to
“major jail time,” as well as the real possibility of his losing family and friends. Finally, he
stated that if there was a third DUI arrest, he would lose his career, which is extremely
important to him. He summed up his feelings by stating, “the risks for me are just
tremendous. I know I can’t screw up again.”
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Applicant corrected certain allegations in the SOR, in that he plead guilty to Wet
Reckless Driving charge rather than no contest. As a result of the plea of guilty he was
placed on a 30 month court probation. He also had to attend a one year alcohol
awareness class for second offenders, going to class one time a week, with six months
of monthly follow up check-ups. During that one year period, Applicant abstained
completely from alcohol consumption. As a result of complying with all of the court
requirements, Applicant petitioned the court to terminate his probation early. Exhibit G
establishes that the court granted Applicant’s petition, and his probation was terminated
on November 9, 2010. (Tr at 95-98.) 
Applicant underwent an evaluation of his alcohol consumption by a Ph.D.
psychologist. Exhibit H is a copy of the report prepared by the therapist after the
examination. The psychologist gave Applicant alcohol related urinalysis tests on June 6,
2011, and June 9, 2011. Applicant also completed several psychological tests and the
psychologist interviewed Applicant. Based on his findings, the psychologist concluded
that Applicant does not have a physical or psychological dependence on alcohol. He
further found: 
It appears [Applicant] is an example of someone who has matured
out of his drinking problems. In his case a substantial part of the reason
for his maturation is his realization that he loves his work and it provides
enormous opportunity. Although drinking still remains pleasurable to him,
its pleasures are not as significant to him as career advancement. 
Consequently, his risk of further alcohol problems does not appear
to be any greater than the average risk associated with other personnel
who also have security clearances. I recommend that his security
clearance not be diminished or eliminated on the basis of his past drinking
and driving episodes. 
Witnesses testimony 
As stated above, three witnesses testified on behalf of Applicant. The first
witness has known Applicant since 2006, as both a co-worker and supervisor. He
described Applicant’s work as outstanding. He stated that they have socialized on
company functions and traveled together on business trips, and he has never seen
Applicant drink to intoxication or drive after consuming any alcohol. He also indicated
that Applicant expressed remorse because of his DUIs, (Tr at 37-51.) 
The second witness is an attorney who has been Applicant’s roommate since
October 2010, and has seen him daily since that time. Since she has known Applicant
she has never seen him drink to the point of intoxication or drive after consuming any
alcohol. He expressed remorse to her over her DUIs,  and he has made it clear he is
committed to not getting another DUI in the future.  She indicated that she believed he
will keep that commitment because he is “very truthful, very honest.” (Tr at 53-62.) 
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The third witness, who is Applicant’s girlfriend, has known him since October
2008.  She has never seen him drink to the point of intoxication or drive after consuming
any alcohol. Applicant expressed remorse to her over her DUIs,  and he has made it
clear he is committed to not getting another DUI in the future. She described Applicant
as honest, very reliable and someone who exercises good judgement. (Tr at 64-77.) 
Mitigation
Applicant submitted eight very positive character letters. (Exhibit I.) All of the
individuals who wrote the letters hold Applicant in extremely high regard. They believed
that he was honest and trustworthy, and that he took his career very seriously. It was
also written that Applicant expressed sincere remorse over his previous DUIs. 
Issue Raised at Hearing 
Applicant’s counsel raised the issue that based on Exhibit E, which indicated that
the Department of the Air Force granted Applicant a reinstatement of full access
eligibility on June 21, 2010, to all Special Access Programs, after they had been
suspended on June 10, 2008, that DOHA, because of reciprocity, is bound by that
determination and barred from proceeding with a security clearance hearing in this
case. 
Department Counsel argued that since the SAP program is based on a higher
level clearance, there is no reciprocity with DOHA decisions. Also, he argued that the
decision by the Air Force of a reinstatement of full access eligibility to all Special Access
Programs was based, in part, on DOHA’s earlier granting of Applicant’s security
clearance, so it can not be used for reciprocity to bar DOHA from having a subsequent
security clearance hearing.
After reviewing the arguments of both Applicant’s Counsel and Department
Counsel and the related documents, I find that this issue is moot for the following
reasons: Before any decision was reached on this issue, the security clearance hearing
was held in this case. After reviewing all of the evidence introduced at the hearing, I
have reached a decision to grant Applicant a security clearance under Guideline G, as
will be discussed in more detail below.  Applicant’s Counsel stated at the hearing,
“We’re willing, I think, to waive that argument [regarding reciprocity] if [Applicant’s]
granted a clearance on the Guideline.” (Tr at 144.) Since a security clearance will be
granted under Guideline G concerns, I find Applicant’s Counsel’s argument for
reciprocity waived and not at issue. 
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.
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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. 
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 resulted in two DUI convictions in 2004 and
2008. 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.  
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In reviewing the mitigating conditions, I find that ¶ 23(a) is applicable, as, “so
much time has passed or the behavior was so infrequent,” because the two DUIs
happened four years apart, and the more recent DUI occurred more than three years
ago. Also, “it happened under such unusual circumstances that it is unlikely to recur,”
because, when Applicant received the 2008 DUI, he consumed alcohol to the point of
intoxication, which, based on Applicant’s testimony, the testimony of the witnesses, the
report of the psychologist, and the very positive character letters, Applicant has not
done since that 2008 arrest.  I also find that ¶ 23(d) is applicable because Applicant did
complete a court ordered one year alcohol awareness program, he has greatly reduced
his alcohol consumption, and he has received a favorable prognosis by duly qualified
medical professional. Considering ¶ 23(a) and 23(d), together with Applicant’s very
persuasive and credible testimony that he will never again drive after consuming
alcohol, I find Guideline G for 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
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 mitigating conditions apply, together with Applicant’s testimony and
the strong, laudatory testimony of the witnesses who appeared on behalf of Applicant
and the positive character letters, I find that the record evidence leaves me with no
significant questions or 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 mitigated the security concerns under the whole-person concept. 
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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 APPLICANT
Subparagraphs 1.a.- 1.c.: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge