DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 11-02866 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace Garcia, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
Between 1999 and 2008, Applicant was arrested and convicted twice of Driving 
While Intoxicated (DWI) and received a deferred adjudication for a third alcohol-related 
offense. He has failed to rebut or mitigate the alcohol consumption security concerns. 
Clearance is denied. 
 
History of the Case 
 
 Applicant contests the Department of Defense’s (DoD) intent to deny or revoke 
his eligibility for an industrial security clearance. Acting under the relevant Executive 
Order and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued 
a Statement of Reasons (SOR) on September 20, 2011, detailing security concerns 
under Guideline G (Alcohol Consumption). 
 
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1 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. 
 
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 On October 6, 2011, Applicant answered the SOR and did not request a hearing. 
On November 28, 2011, I was assigned the case. On November 23, 2011, DOHA 
issued a Notice of Hearing for the hearing held on December 7, 2011.  
 
 The Government offered exhibits (Ex.) 1 through 5, which were admitted into 
evidence without objection. Applicant testified and submitted no documents. The record 
was held open to allow Applicant to submit additional information. In a timely manner, 
additional material was submitted. Department Counsel had no objection to the 
material, which was admitted into the record as Exs. A and B. On December 15, 2011, 
DOHA received the hearing transcript (Tr.). 
 
Findings of Fact 
 
In Applicant’s Answer to the SOR, he denies being incarcerated for eight months 
as set forth in SOR ¶ 1.b, but admits the remaining factual allegations in the SOR, and 
his admissions are incorporated herein. After a thorough review of the pleadings and 
exhibits, I make the following findings of fact. 
 
 Applicant is a 34-year-old systems administrator who has worked for a defense 
contractor since October 2006. Applicant called no witnesses other than himself, and 
produced no work or character references.  
 
 Applicant acknowledges he has made some bad choices related to alcohol. (Tr. 
52) In his SOR answer, he stated: 
 
If I lose my security clearance, I have no one to blame but myself . . . The 
choices I have made have brought me to where I am today, and I wish I 
had made a few less bad choices, but I didn’t and I have to deal with the 
consequences for my actions.  
 
 Applicant also stated, “I understand why I’m here. It’s – – the Government has 
their concerns and they have valid reasons for their concerns.” (Tr. 62) 
 
 In August 1999, Applicant – then age 22 – was charged with DWI. Applicant had 
gotten off work at 11:00 p.m. and went to a local tavern. (Ex. 3) While there he drank 
beer. On the way home, he was stopped for speeding. He was arrested after a verbal 
argument with the officer, an individual whom he knew because the officer had gone to 
high school with Applicant’s sister. (Ex. 2, Tr. 20) He was released after a night in jail. 
He pleaded no contest to the DWI. (Ex. 2) He was found guilty, sentenced to eight 
months incarceration, fined $300, incurred $219 court costs, and sentenced to 12 
months of probation. (Ex. 5, Tr. 36)  
 
 Applicant was ordered to, and did attend, a 12-hour alcohol awareness class, 
where he learned it was never a good idea to drink and drive. (Tr. 20) He was also 
required to do community service, which he did working with the elderly. (Tr. 21) His 
automobile insurance also increased from $80 to $120 monthly. (Tr. 37) At that time, he 
 
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was working as a server at a restaurant and the fine, court costs, and increase 
insurance fees had a “huge impact” on his lifestyle. (Tr. 38) While on probation, he was 
to abstain from drinking and to report to a probation officer monthly initially and then 
every other month. (Tr. 38)  
 
 On Applicant’s November 2010 Electronic Questionnaires for Investigations 
Processing (e-QIP), he acknowledged he had been charged with or convicted of 
alcohol-related offenses and listed this arrest. (Ex. 1) He also listed it on his June 2007 
e-QIP. (Ex. 2) 
 
 In May 2005, Applicant – then age 27 – was charged with Public Intoxication. He 
paid a $120 fine and received deferred adjudication. The charges were later dropped. 
He had been drinking in a bar and decided it was unsafe to drive home so he decided to 
sleep in the car. (Tr. 23) He was sleeping in his vehicle when a police officer asked him 
if he was able to drive home. (Ex. 4) He was arrested when he told the officer he should 
not be driving. He did not list it on his e-QIP because he had forgotten about it. (Ex. 4) 
The charge occurred the week before his university graduation. (Tr. 39)  
 
 In November 2008, Applicant – then age 31 – was charged with DWI, Second. 
He was arrested, spent the night in jail, and was released the next day. Applicant 
indicated he was in town attending computer training. (Tr. 41) He met his niece for 
dinner. He had two beers with dinner, went to a pool hall, played pool for 2 ½ to 3 hours, 
and drank beer while playing pool. (Ex. 3) He drove his niece home and then was 
driving across town to stay at his brother’s place. (Tr. 42) He fell asleep while driving, 
woke just prior to hitting a police car parked at the side of the road, and was arrested 
when the officer saw him swerve to avoid the collision. (Ex. 3) He failed a sobriety test 
and refused to take a breathalyzer test. 
 
 At a trial in May 2009, Applicant was found guilty, fined $700, ordered to attend 
alcohol awareness classes, and placed on probation for two years. (Exs. 3, 5) He was 
required to refrain from alcohol consumption while on probation. (Tr. 38) His attorney 
cost $5,000. (Tr. 43) His automobile insurance increased $60 monthly. (Tr. 43) Three 
years later, his insurance premiums have come down some, but he still pays an 
increase in insurance due to this incident. (Tr. 44) He attended court-ordered classes 
two or three times a week from May 2009 through May 2011. (Tr. 27) The class was 
entitled DWI Intervention Program. (Ex. 3) He found the classes to be very eye opening 
to see how alcohol can affect people’s lives. (Tr. 27) On June 2011, his community 
supervision had expired and was discharged from the community service program. (Ex. 
B) He listed this arrest on his e-QIP.   
 
 In May 2008, Applicant started attending Alcoholics Anonymous (AA) meetings. 
(Ex. 1, Tr. 28) As of November 2010, he was attending twice a week. (Ex. 1) He 
provided documentation that he attended 142 12-step meetings between September 
2009 and July 2010. (Ex. A) He last attended a meeting in June 2011. (Tr. 28) By 
attending AA, he decided he does not have a problem with alcohol. (Tr. 30) He never 
obtained an AA sponsor and was working on the second of the twelve steps. (Tr. 31)  
 
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 In December 2010, in a personal subject interview, Applicant stated he would 
consume six or seven beers in a social setting at home over the weekend. (Ex. 3) He 
stated he got intoxicated one a month on average. Intoxication meaning the point where 
someone’s judgment was impaired and poor decisions result from their intoxication. (Ex. 
3) At that time, he was not attending AA, used a designated driver when he drank, or 
did his drinking at home. He asserted he had reduced the amount and frequency of his 
alcohol consumption. At this time, he was on probation, which ran from May 2009 
through May 2011. As a condition of probation he was to refrain from alcohol 
consumption. At some point, he returned to attending AA meetings. He stated he last 
attended AA in June 2011, which was shortly after his probation ended.  
 
 Applicant currently drinks beer once or twice a week. (Tr. 32) He will purchase a 
12-pack for the weekend. (Tr. 32) He understands another alcohol-related driving arrest 
would be a felony and have serious consequences for him. (Tr. 63) In 2007, he 
purchased a home. (Tr. 40)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which must be considered 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 overarching 
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. 
 
The protection of the interests of 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.  
 
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 to obtain 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 
 
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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 safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of classified 
information. 
  
Section 7 of Executive Order (EO) 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 
 
Alcohol Consumption 
 
AG ¶ 21 expresses the security concern pertaining to 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.” 
 
AG ¶ 22 describes a condition that could raise a security concern and may be 
disqualifying: 
 
(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. 
 
AG ¶ 22 (a) applies due to Applicant’s three alcohol-related arrests including: a 
1999 DWI conviction, a deferred adjudication for 2005 public intoxication, and a second 
DWI conviction in 2008.  
 
AG ¶ 23 provides four conditions that could mitigate alcohol consumption 
security concerns: 
 
(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; 
 
(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); 
 
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(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; and 
 
(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. 
 
None of the mitigating conditions apply. Applicant had three arrests and, as of 
December 2010, he stated he was drinking six or seven beers in a social setting weekly 
and admitted to drinking to intoxication monthly. He was on probation during this period, 
which required him to refrain from all alcohol consumption. His behavior was not 
infrequent, nor did it happen under unusual circumstances. He got off work, went to a 
bar, drank, and got arrested for speeding. Five years later, he was again at a bar 
drinking and decided he should not drive home resulting in his public intoxication arrest. 
Three and a half years later, he goes to dinner, has a few beers, shoots pool, has a few 
more, falls asleep driving home, and almost hits a police car. The drinking did not occur 
under unusual circumstances and there is nothing to prove it is unlikely to recur.  
 
The first arrest resulted had a “huge impact” on Applicant’s life style. He was 22 
years old and a server in a restaurant. The fine and increased monthly auto insurance 
greatly affected his finances. His most recent arrest cost him $5,000 in attorney fees, a 
fine, court costs, and additional monthly auto insurance. Even with the financial impact 
on his life, as of December 2010, he was getting intoxicated monthly and currently 
drinks a 12-pack over the course of a weekend. The mitigating factor in ¶ 24(a) does not 
apply.  
 
Applicant has not acknowledged his issue of alcohol abuse. He thought he had 
an alcohol problem due to his three arrests, but after attending AA realizes he does not 
have a problem. The mitigating factor in ¶ 24(b) does not apply. The mitigating factor in 
¶ 24(c) does not apply because he is not participating in counseling or treatment. He did 
take classes, but is drinking a 12-pack on weekends.  
 
 Applicant attended AA meetings from May 2009 through May 2011. His 
attendance ended about the time his probation did. It is clear he has gotten something 
from his attendance. However, even while he was attending AA meetings regularly, he 
was continuing to drink six to seven beers during a setting and was getting intoxicated 
monthly as of December 2010. The knowledge he gained from his attendance was 
insufficient to end his monthly intoxication. Whatever value he was receiving from his 
attendance would have diminished when he stopped attending, which occurred in June 
2011. He has not attended inpatient or outpatient counseling or rehabilitation along with 
 
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any required aftercare, nor has he has demonstrated a clear and established pattern of 
modified consumption or abstinence in accordance with treatment recommendations. 
Additionally, there is no favorable prognosis. The mitigating factor in ¶ 24(d) does not 
apply. 
 
It has been a little over three years since Applicant’s arrest for DWI and about 
two and a half years since he was convicted to the DWI charge. Considering the three 
arrests, his drinking to intoxication while on probation, the period since his late 
conviction, it is too soon to be able to safely predict that the security concern pertaining 
to alcohol consumption is no longer applicable.  
 
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 relevant 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. To his credit, Applicant 
acknowledges he has made some bad choices and there are valid reasons for the 
Government’s concern. This is an important beginning. Additionally, he received 
important insight during his attendance at AA. He is now 34 years old and purchased a 
home in 2007, each event known to have a maturing impact on individuals. This is 
countered by him believing he once might have had a problem with alcohol, but after 
attending AA no longer believes alcohol is a problem for him.  
 
It was Applicant’s drinking while on probation and his getting intoxicated monthly 
as of at least December 2010, which indicates it is too soon to find his alcohol 
consumption is no longer a security concern. Overall, the record evidence leaves me 
with questions or doubts as to Applicant’s eligibility and suitability for a security 
clearance. For all these reasons, I conclude Applicant not mitigated the security 
concerns. 
 
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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, Alcohol Consumption: AGAINST APPLICANT 
 
  Subparagraphs 1.a – 1.d:  Against Applicant 
   
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the interests of national security to grant Applicant a security 
clearance. Eligibility for access to classified information is denied.  
 
 
 
_______________________ 
CLAUDE R. HEINY II 
Administrative Judge