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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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--------------------- )       ISCR Case No. 10-01703
)
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Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
April 25, 2012
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Decision
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MOGUL, Martin H., Administrative Judge:
On October 19, 2011, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
G and J 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, 2011, 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 February 13, 2012. DOHA issued a notice of hearing on
February 17, 2012, and I convened the hearing as scheduled on March 7, 2012. The
Government offered Exhibits 1 through 6, which were received without objection.
Applicant testified on his own behalf and submitted Exhibits A through K, which were
also admitted without objection. The record was left to allow Applicant to offer additional
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evidence, and two documents that were submitted have been identified and entered into
evidence without objection as Exhibit L. DOHA received the transcript of the hearing
(Tr) on March 20, 2012. 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. and 1.b., under Guideline
G; and failed to respond to allegation 2.a., under Guideline J. 
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 34 years old. He is unmarried and he has no children. He served in
the United States Navy from November 1995 to January 2007 and 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 two allegations as
they are cited in the SOR:
1.a. In the SOR is alleged that on or about March 18, 2001, Applicant was
arrested and charged with (1) Driving Under the Influence of Alcohol (DUI). He plead No
Contest and was found guilty of DUI. Applicant was fined $500 plus $293 for court cost,
and his license was suspended for six months. He also received one year of supervised
probation and was ordered to serve 50 hours of community service and attend DUI
school. As reviewed above, this allegation has been admitted by Applicant in his RSOR.
Applicant testified that this incident occurred when he was serving in the United
States Navy. The incident occurred at night after he had been attending a St. Patrick’s
Day party, and by his estimate, consuming alcohol for several hours. He began driving
for approximately one or two miles, when he realized that his driving was impaired, he
pulled off of the road, parked his vehicle, and went to sleep.  A police officer came to
where his car was parked, and after he was administered a field sobriety test and a
breathalyser, Applicant was arrested and charged with DUI, even though he had not
been driving when he was approached by the officer. (Tr at 33-39.) 
Applicant testified that in addition to the punishment listed on the SOR, he was
required to have an interlock device put on his vehicle for six months, requiring him to
blow into the device before any time he drove his vehicle; the installation charge was
approximately $200 and the monthly charge was $30. Applicant also averred that in
addition, he met all of his other requirements, including never driving his vehicle while
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his license was suspended, paying all of his fine, and attending the required classes. (Tr
at 41-44.)
1.b. In the SOR is alleged that on or about April 22, 2009, Applicant was arrested
and charged with (1) DUI, (2) DUI of 0.08% or more B.A.C., and (3) being an
Unlicensed Driver.  He plead guilty to charge (1) DUI, and the additional charges were
dismissed. Applicant was granted summary probation for five years and fined $2,077.
The requirements for Applicant included: attend four days of Public Service Work
Program (PSWP), do not drive with any measurable alcohol in his system, submit to any
test at the request of peace officer for detection of alcohol in system, violate no laws
while driving a motor vehicle under the influence or in possession of alcohol. Applicant
was also required to attend a First Conviction Program for three months, and not to
drive without a valid drivers license or valid liability insurance.  
It is also alleged in the SOR that on August 28, 2009, Applicant failed to meet his
obligation to pay his fine. On September 18, 2009, Applicant failed to comply with the
requirement to attend four days of PSWP, and failed to submit proof that he had
attended the required classes. As a result a bench warrant was issued with bail set at
$5,000. As reviewed above, this allegation has been admitted by Applicant in his RSOR.
Applicant testified that on the day of this incident, he had been playing softball,
and he consumed some alcoholic drinks after the game. He believed he was not
intoxicated so he drove his vehicle, but while driving he swerved to avoid another
vehicle and he stuck the center divider. He phoned 911 to get medical attention, and
when the police arrived he underwent a field sobriety test. Applicant averred that since
this incident, he has never driven after consuming even one alcoholic drink, and he
makes it a rule to never drive after drinking. If he believes there is any chance that he
may consume alcohol, he will either go to an event by taxi, or go with a friend who is a
designated driver. He will even make sure not to be a passenger in a vehicle being
driven by someone who has consumed any alcohol.
Applicant testified that he has completely paid his fine of $2,077. He also
attended the MADD class. Exhibit C confirms that Applicant did attend the Mothers
Against Drunk Driving Victim Impact Panel on February 14, 2012. However, a warrant
was issued against Applicant because it appeared that he had failed to follow all of the
requirements of the 2009 DUI conviction. Exhibit 6 shows that this warrant was issued
on September 29, 2009.  Applicant stated that this was a misunderstanding, and that he
had not been aware that a warrant was issued. When he learned of the bench warrant,
he appeared in court, and resolved the conflict. Exhibit A establishes that the warrant
was recalled on November 16, 2011. Applicant explained that the warrant was issued
because he had not completed attending all of the required classes. (Tr at 49-60.)
Exhibit 5 shows that he had completed three of the six Education Classes and seven of
the 12 Group Meetings, when he put in for leave of absence. He is required now to take
both classes again from the beginning. Exhibit L shows that Applicant is now scheduled
to attend all of the required classes. 
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(Guideline J - Criminal Conduct) 
          The SOR alleges that Applicant has engaged in criminal acts which creates doubt
about a person’s judgement, reliability, and trustworthiness.
2.a. The SOR alleges that the information as set forth under subparagraphs 1.a.,
and 1.b., above establishes that Applicant has engaged in criminal acts. 
Mitigation
Applicant submitted a very positive character letter from a retired United States
Navy Commander and the current Chief Operating Officer (COO) of his employer.
(Exhibit E.) He wrote, “I have known [Applicant] for three and a half years and with the
exception of the poor judgement he exercised on one occasion while driving under the
influence, he is a person of utmost integrity and absolutely trustworthy.” he also wrote,
“[Applicant] has learned his lesson from his DUI incident and he ceased the practice,
and has not consumed in excess or abused alcohol since that occurrence.”
Applicant also submitted his three Performance Evaluations from his current
employer. In his most recent evaluation, under the job criterion, he received three
“Outstanding,” one “Exceeds Expectations”, and one “Meets Expectations.” (Exhibit F,
G, and H.) Finally, Applicant introduced his DD Form 214, confirming that he served in
the United States Navy from 1995 to 2007, and listing a significant number of
Decorations and  Medals that he received during his service.  (Exhibit I.) 
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
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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 convictions for DUI. 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.  
In reviewing the mitigating conditions, I find that ¶ 23(a) is applicable, because
“so much time has passed” (11 years since the first DUI, and three years since the
second DUI), and the “the behavior was so infrequent” (the two DUIs happened eight
years apart). I also considered the fact that the 2001 DUI, “happened under such
unusual circumstances that it is unlikely to recur” (Applicant realized he was alcohol
impaired, and he pulled off of the road and attempted to sleep it off rather than
continuing to drive). Considering these factors together with Applicant’s credible and
persuasive testimony that he has made it a rule in his life never to drive again after
consuming even one alcoholic drink, I find Guideline G for Applicant.
(Guideline J - Criminal Conduct)
The Government has established that Applicant engaged in criminal conduct, by
his two convictions for DUI. I find that ¶ 31(a), “a single serious crime or multiple lesser
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offenses,” applies in this case. ¶ 31(c), “allegations or admissions of criminal conduct,
regardless of whether the person was formally charged,” is also applicable to this case. 
However, because three years have past since Applicant’s last DUI “without
recurrence of criminal activity,” Applicant has expressed sincere “remorse” for the
conduct that led to his convictions, and by the character letter of the COO of his
employer, Applicant has demonstrated a “good employment record,” I find “there is
evidence of successful rehabilitation,” and mitigating condition ¶ 32(d) is applicable.
Guideline J is found 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, the
laudatory character letter from his employer’s COO, plus his excellent military record, I
find that the record evidence leaves me with no 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 mitigated the security concerns
under the whole-person concept. 
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.b.: For Applicant
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Paragraph 2, Guideline J: FOR APPLICANT
Subparagraphs 2.a.: 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