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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-07734
)
)
Applicant for Security Clearance )
Appearances
For Government: Caroline H. Jeffreys, Esquire, Department Counsel
For Applicant: Pro se
______________
Decision
______________
WHITE, David M., Administrative Judge:
Applicant had alcohol-related driving offenses in 1990, 2002, and 2008. He is
presently serving five years of probation in connection with his latest offenses. He
successfully completed a two-year outpatient treatment program for his alcohol
dependence in July 2011. The evidence is insufficient to mitigate resulting security
concerns. Based upon a review of the pleadings, testimony, and exhibits, eligibility for
access to classified information is denied. 
Statement of the Case
Applicant submitted a security clearance application on May 12, 2010. On August
23, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of
Reasons (SOR) to Applicant, detailing security concerns under Guidelines G (Alcohol
Consumption), and J (Criminal 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 for Determining Eligibility for Access to Classified Information,
effective within the Department of Defense after September 1, 2006. 
GE 1; Tr. 5-7, 30-31.1
AR; Tr. 12-14.   2
GE 2.3
AR; GE 3; GE 10; Tr. 31-35. The SOR inaccurately described the fine as being $625.4
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Applicant answered the SOR in writing (AR) on September 30, 2011, and
requested a hearing before an administrative judge. Department Counsel was prepared
to proceed on November 15, 2011. The case was assigned to me on November 22,
2011. DOHA issued a Notice of Hearing on December 19, 2011, and I convened the
hearing, as rescheduled due to inclement weather, on January 23, 2012. The
Government offered exhibits (GE) 1 through 10, which were admitted without objection.
Applicant offered no documentary evidence beyond the items submitted with his answer
to the SOR, and testified on his own behalf. Another witness also testified for him. I
granted Applicant’s request to leave the record open until February 8, 2012, to permit
submission of written evidence. DOHA received the transcript of the hearing (Tr.) on
February 1, 2012. On March 2, 2012, Department Counsel forwarded Applicant’s exhibit
(AE) A, without objection to its admission. The exhibit was admitted and the record
closed.
Findings of Fact
Applicant is a 55-year-old employee of a defense contractor, for whom he has
worked as a sheet metal mechanic since April 2010. Before that, he worked as an
elementary school custodian for about ten years. He is divorced, with no children. He
earned a General Educational Development (GED) credential while serving in the
Marine Corps from January 1974 to December 1977, when he received a General
Discharge under Honorable Conditions. He was granted a confidential security
clearance from August 1978 to September 1994, while he worked for the Navy as a
civilian ordinance equipment mechanic. He was released from that job for failure to
follow procedure by a supervisor with whom he had a personal conflict.  In his response1
to the SOR, Applicant admitted the truth of all allegations, with some explanations.2
Applicant’s admissions, including his statements in response to DOHA interrogatories,3
are incorporated in the following findings.
Applicant first consumed alcohol at age 14, and began regular consumption of up
to six beers at a time on weekends at age 18. In approximately 1983, he was arrested
and convicted for an offense he recalls to have been reckless driving, after he had
consumed five or six beers during the preceding two or three hours. He was not
required to undergo an alcohol evaluation, but was required to attend an alcohol
information class. On December 23, 1990, he was arrested for driving under the
influence (DUI), and driving while his license was suspended (DWLS). The following
July, he was convicted of both offenses and sentenced to 365 days in jail (with 350 days
suspended), and fined $1,475 (with $800 suspended). He was not required to undergo
an alcohol evaluation or attend any classes after this conviction.4
AR; AE A; GE 2; GE 4; Tr. 33-34.5
AR; GE 2; GE 5; Tr. 34-36.6
AR; GE 2; GE 6; Tr. 36-37.7
AR; GE 2; GE 7; Tr. 29-30, 37-42.8
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Applicant and his girlfriend had a domestic dispute on August 13, 1998. His
girlfriend called police from a neighbor’s house and complained that he assaulted her.
She has since recanted that complaint, and would not cooperate with prosecutors to
testify against him. Applicant entered into a deferred prosecution agreement under
which he was on probation until February 2002, when the charge was dismissed. While
on probation, he was ordered to perform eight hours of community service, to pay $325,
and to obtain an alcohol evaluation. This evaluation did not result in any treatment.5
Applicant continued regular alcohol consumption at about the same rate, and
was arrested for DUI again on November 30, 2002. His blood alcohol content (BAC)
tested in excess of .20, with .08 being the legal limit. On December 2, 2002, he pled
guilty to DUI and was sentenced to 365 days in jail (with 335 suspended for two years),
five years of supervised probation, and fined $5,000 (with $3,900 suspended). He was
also ordered to obtain a chemical dependency evaluation, not to possess or consume
any alcohol or drugs while on probation, and not to drive a vehicle without an ignition
interlock for one year. After the dependency evaluation, he was only required to attend
a one-day alcohol information school.  6
With one exception, Applicant complied with the court order not to drink alcohol
during his five-year probationary period. On March 25, 2003, he was stopped by police
while driving when his license was still suspended from the previous DUI. This offense
was not alcohol related. He pled guilty to DWLS second degree on July 21, 2001, and
was sentenced to 365 days in jail (with 350 suspended) and fined $5,000 (with $4,250
suspended).   7
Sometime during 2003, Applicant had a barbecue party at his house and his
guests were drinking alcohol. One of them had a flat tire on her car, and asked to use
Applicant’s car to go to the store and buy something to fix it. When she blew into the
ignition interlock, it alarmed and recorded her BAC as .13. When Applicant took the
interlock for a regularly scheduled recalibration, the mechanic reported the positive
result to Applicant’s probation officer. On October 9, 2003, the deputy prosecuting
attorney filed a motion to revoke the suspension of Applicant’s sentence for failure to
remain abstinent from alcohol. During a subsequent hearing on this motion, and during
Applicant’s security clearance hearing, the guest testified that she was the person who
had blown into and triggered the ignition interlock. The court found that Applicant had
not violated the court order or caused the positive reading on the ignition interlock.8
Applicant resumed drinking alcohol after his probation ended in late 2007. On
September 21, 2008, Applicant rolled his car off a narrow rural road and onto its side
AR; GE 2; GE 8; Tr. 44-48, 52-57.9
AR; GE 2; GE 9; Tr. 48-49.10
AR; GE 10; Tr. 43, 47-52.11
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after having consumed eight to ten beers at a bar and a friend’s house. He was lost and
disoriented, and was transported to a hospital to ensure that he had not suffered any
serious injuries. While at the hospital, he provided a blood sample that tested at .17g/ml
(equivalent to .17 BAC). On April 14, 2009, he entered into a deferred sentencing
agreement under which final sentencing was deferred for five years of monitored
unsupervised probation, and he was required to pay a fine of $875 and $600 in
restitution. He was also required to undergo and comply with treatment
recommendations of an alcohol abuse assessment, abstain from alcohol, and use an
ignition interlock.9
On December 28, 2008, Applicant was stopped by police and again charged with
DWLS second degree. He said that he did not understand the timing of his license
suspension after his DUI arrest. His prosecution on this charge was combined with the
recent DUI charge, he was found guilty of both, and final sentencing was deferred for
the same five-year probation period ending April 15, 2014. He was also required to pay
$900 in fines and costs as part of this agreement.10
Applicant entered a three-phase intensive outpatient alcohol treatment program
on March 24, 2009, pursuant to his deferred prosecution agreement and after being
evaluated as alcohol dependent by a licensed Chemical Dependency Professional on
the staff of the treatment facility. He successfully completed the treatment program on
July 21, 2011. He has not consumed any alcohol since the night of his last DUI in
September 2008. Since completing his outpatient treatment, he only occasionally
attends Alcoholics Anonymous (AA) meetings, and does not have a sponsor.    11
  
Applicant did not provide any evidence concerning the quality or nature of his
recent work performance, or of his reputation for reliability, character, judgment, or
trustworthiness among his personal or professional acquaintances.  
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 (DCs) and mitigating conditions (MCs), which are to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
Tr. 59.12
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to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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 the 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “[a]ny determination under this order adverse to an
applicant 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.”
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline G, 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 conditions that could raise a security concern and may be
disqualifying. The DCs asserted by Department Counsel  are:12
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(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;
(c) 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; and
(e) evaluation of alcohol abuse or alcohol dependence by a licensed
clinical social worker who is a staff member of a recognized alcohol
treatment program.
Applicant was arrested for and convicted of DUI offenses in 1990, 2002, and
2008. His BAC levels during the two most recent DUI incidents were .20 and .17, both
of which were more than twice the legal limit and indicative of binge consumption. He
was found to be alcohol dependent by a state-licensed Chemical Dependency
Professional on the staff of a recognized alcohol treatment program who performed a
court-ordered alcohol evaluation during March 2009. These incidents establish security
concerns under AG ¶¶ 22(a), (c), and (e). 
There is evidence that Applicant was ordered to undergo an alcohol evaluation
by the court in connection with his 1998 domestic violence assault proceedings, but no
evidence that a problem was diagnosed at that point or that the precipitating argument
was alcohol related. Of his three alleged and admitted arrests and convictions for
DWLS, only the first, in 1990, was alcohol related.
Applicant proved that the 2003 positive reading on his ignition interlock was
caused by someone else trying to start his car, and was not evidence that he violated
the 2002 court order requiring him to abstain from alcohol. He admitted having one drink
at some unspecified time and place during that five-year period of probation, but that
was neither alleged in the SOR nor asserted by Department Counsel as a security
concern under SOR ¶ 22(g). 
AG ¶ 23 provides 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.
Applicant committed DUI offenses in 1990, 2002, and 2008. None were caused
by unusual circumstances, and his BAC was more than twice the legal limit during the
two more recent incidents. That pattern is neither infrequent nor far enough in the past
to support a conclusion that it is unlikely to recur or does not cast doubt on his current
reliability and judgment. Mitigation was not established under AG ¶ 23(a).
Applicant successfully completed intensive outpatient treatment after his third
DUI offense, but he has only occasionally participated in AA meetings since July 2011,
and is not an active participant. There is no evidence of a favorable prognosis by a duly
qualified medical professional or licensed social worker. He has remained abstinent
since September 2008, but this abstinence has been pursuant to a court order and
probationary monitoring with substantial suspended punishment pending for any
violation. Applicant’s 2008 DUI occurred less than a year after he successfully
completed his previous five-year period of court-ordered abstinence and probation.
Accordingly, although he is beginning to establish a pattern of abstinence, it is too early
to conclude that Applicant established mitigation under the terms of AG ¶¶ 23 (b), (c), or
(d).
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “Criminal
activity creates doubt about a person's judgment, reliability, and trustworthiness. By its
very nature, it calls into question a person's ability or willingness to comply with laws,
rules and regulations.”
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying. Despite the numerous and undisputed incidents of criminal activity alleged
under Guideline G in ¶ 1 of the SOR, the only Criminal Conduct DC alleged in the SOR
and asserted by Department Counsel is:
(d) individual is currently on parole or probation.
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Applicant is on probation, for his 2008 DUI and DWLS offenses, until April 15,
2014. To date, he has complied with the conditions of that probation.
AG ¶ 32 provides conditions that could mitigate security concerns:
(a) so much time has elapsed since the criminal behavior happened, or it
happened under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the individual's reliability, trustworthiness, or
good judgment;
(b) the person was pressured or coerced into committing the act and those
pressures are no longer present in the person's life;
(c) evidence that the person did not commit the offense; and
(d) there is evidence of successful rehabilitation; including but not limited
to the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or
constructive community involvement.
As discussed above under Guideline G, Applicant successfully completed a five-
year probationary period after his 2002 DUI conviction, but committed another DUI
within the next year and another DWLS shortly after that. Applicant’s repeated alcohol-
related offenses and defiance of legal limitations on his driving privileges preclude a
finding of mitigation under any of the foregoing MCs. Applicant’s trustworthiness,
judgment, and willingness to comply with laws, rules, and regulations remain in doubt.
He has begun to establish evidence of successful rehabilitation, but to date that has
only occurred under probationary supervision and the threat of substantial punishment if
he should commit additional offenses.
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. 
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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
pertinent facts and circumstances surrounding this case. Applicant recently completed
an outpatient treatment program for his alcohol dependence, and has not consumed
alcohol since September 2008. This is a good start toward establishing rehabilitation,
but he has yet to demonstrate his ability to abstain from alcohol or comply with driving
regulations in the absence of probationary supervision. In the past twelve years, he has
three DUI and three DWLS offenses, establishing a pattern of irresponsible choices and
bad judgment. 
 
Applicant is a mature individual who is accountable for his choices and actions.
He failed to demonstrate reduced susceptibility to pressure or duress in the face of
potentially unpleasant consequences, or that recurrence of alcohol-related misconduct
is unlikely. He provided no evidence of good work performance or good character to
overcome the resulting security concerns. Overall, the record evidence creates
substantial doubt as to Applicant’s present eligibility and suitability for a security
clearance. He did not meet his burden to mitigate the security concerns arising from his
alcohol consumption and criminal conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline G: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: For Applicant*
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: For Applicant*
Subparagraph 1.e: For Applicant*
Subparagraph 1.f: Against Applicant
Subparagraph 1.g: For Applicant*
Subparagraph 1.h: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
*The factual allegations in these subparagraphs are true, but they do not describe
incidents during which Applicant’s conduct was alcohol related.
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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.
                                              
DAVID M. WHITE
Administrative Judge