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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-07868
)
)
Applicant for Security Clearance )
Appearances
For Government: Gina Marine, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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WHITE, David M., Administrative Judge:
Applicant regularly consumed alcohol while underage, with two such occasions
resulting in criminal charges and fines. He then underwent a year of court-ordered
alcohol treatment. He had another alcohol-related conviction for Driving Under the
Influence in 2009. 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 (SF 86) on August 14, 2007,
and was granted a clearance based on the results of the ensuing investigation. On
March 21, 2012, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant, detailing security concerns under Guideline
G (Alcohol Consumption). 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. 
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Applicant answered the SOR in writing (AR) on April 1, 2012, and requested that
a decision be reached on the written record without a hearing. On May 17, 2012,
pursuant to Directive ¶ E3.1.7, Department Counsel requested a hearing before an
administrative judge. Department Counsel was prepared to proceed on June 12, 2012.
The case was assigned to me on June 14, 2012. DOHA issued a Notice of Hearing on
July 20, 2012, and I convened the hearing, as scheduled, on August 15, 2012. The
Government offered exhibits (GE) 1 and 2, which were admitted without objection, and
Hearing Exhibit (HE) I, a Government exhibit list. Applicant offered no documentary
evidence, and testified on his own behalf. DOHA received the transcript of the hearing
(Tr.) on August 23, 2012.
Findings of Fact
Applicant is a 32-year-old employee of a defense contractor. He is divorced, with
no children. He is a high school graduate, and has no prior military service. (GE 1; Tr.
6.) In his response to the SOR, Applicant admitted the truth of all of the factual
allegations in the SOR. Applicant’s admissions, including his statements in response to
DOHA interrogatories (GE 2), are incorporated in the following findings.
Applicant and a friend went to Canada in April 1999 because the legal drinking
age for beer and wine there is 19. His friend drove. Applicant was due to turn 19 the
following month, but was able to purchase and consume some beer. On their way back
into the U.S., the border patrol officer detected that Applicant had consumed alcohol,
and issued him a citation for “Minor in Possession of Alcohol” (MIP). The officer also
cited him for Obstruction of Justice after finding a different friend’s identification card in
Applicant’s possession. Applicant was subsequently fined $450 for these offenses,
which he paid. (AR; GE 2.)
During February 2001, Applicant and two friends had dinner and drinks at a steak
house. Shortly after midnight, Applicant left the restaurant and started to drive home. He
was stopped by a police officer, and arrested after failing a field sobriety test. He
submitted to a breath test at the police station, with a blood alcohol level (BAC) result of
.18, exceeding the .08 legal limit in the state. He was later found guilty of Driving Under
the Influence (DUI), sentenced to one day in jail, fined $1,050, and ordered to attend a
DUI Victim Impact Panel and undergo alcohol treatment for one year. He successfully
met all of the court’s requirements. He was not diagnosed with alcohol dependence or
alcohol abuse, but was required to participate in the treatment program because it was
his second alcohol-related offense in two years while under age 21. (AR; GE 2; Tr. 26-
32, 39-40.)
Before his 2001 DUI arrest, Applicant would drink beer or wine socially with
friends two or three times a week starting at age 18. Afterwards, he stopped drinking
almost completely for about five or six years. He eventually resumed drinking one or two
glasses of wine or beers with family over dinner a couple times per month. Both of
Applicant’s alcohol-related incidents were disclosed on the SF 86 he completed in 2007,
before receiving his security clearance. (GE 1; GE 2; Tr. 31-35.)
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On November 14, 2009, Applicant met a friend and former coworker at a tavern
to catch up after not seeing each other for some time. Applicant had not eaten anything
since lunch. He says that they split a pitcher of beer over the course of two to three
hours, and he drank two or three glasses of beer. They left the tavern around midnight
in Applicant’s car. A State Patrol officer stopped him for failing to use his turn signal as
he left the parking lot. Applicant failed the field sobriety test, and was arrested. At the
county sheriff’s office, a breath test revealed his BAC to be .12, and he was issued a
citation for DUI. He was later convicted of that offense, and sentenced to serve one day
in jail and two years on unsupervised probation, to pay a fine of $1,050, to attend a DUI
Victim Impact Panel, to obtain and comply with the treatment recommendations of an
alcohol evaluation, and to install a breathalyzer ignition interlock on his car for one year.
(AR; GE 2; Tr. 35-38.)
Applicant was permitted to serve 24 hours of community service in lieu of jail,
paid his fine, and successfully completed his probation without further incident. He paid
his fine, used the ignition interlock for a year, and attended the DUI Victim Impact Panel.
His alcohol evaluation revealed no alcohol dependence or alcohol abuse, with no
treatment recommended. In such cases, state law mandates attendance at an eight-
hour Alcohol Information School, which Applicant completed. He currently drinks one or
two glasses of wine or beer once or twice a month with friends or family. (GE 2; Tr. 36-
41.)    
Applicant submitted no references or other evidence concerning his reputation,
work performance, or good character. His testimony, including his stated intention not to
abuse alcohol or drive after drinking more than one drink in the future, appeared to be
sincere and credible. (Tr. 23-24, 42-43.) However, during the hearing Applicant claimed
that he stopped drinking altogether after his 2009 DUI arrest and did not resume
occasional moderate consumption until his probation was over in May 2012. (Tr. 37-41.)
During his interview with an investigator from the Office of Personnel Management on
December 28, 2010, he said that he currently drank beer with his friends one or two
times a month, and “becomes more relaxed and happy when he is intoxicated.” (GE 2 at
I11.)  He affirmed the accuracy of those statements under oath on February 1, 2012,
and said that he was currently drinking one to two glasses of beer or wine on a weekly
basis. (GE 2 at I2, I16-I17.)
  
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
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overarching adjudicative goal is a fair, impartial, and commonsense decision. According
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 raised by the evidence are:
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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; and
(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.
Applicant was arrested for, and found guilty of, MIP and DUI offenses in 1999
and 2001, before turning 21 years old. He admitted to regular underage drinking from
1998 until his DUI arrest in 2001, after which he completed a year-long alcohol
treatment program. He was arrested for DUI again in November 2009, with a BAC of .12
despite his claim to have consumed only a couple beers over the course several hours.
These incidents raise security concerns under AG ¶¶ 22(a) and (c).
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);
(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 has a lengthy history of alcohol-related offenses, leading to a series of
criminal charges under circumstances demonstrating bad judgment. The evidence
concerning subsequent periods of abstinence and moderate consumption comes only
from his statements, which are inconsistent and contradictory. His latest documented
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incident was less than three years ago, and he was pending charges or on probation for
all but a few months of that time. In the absence of any independent evidence of
responsibility or good character, it cannot be determined that recurrence is unlikely or
that doubts concerning his judgment and reliability are resolved. Applicant failed to meet
his burden to establish mitigation under AG ¶ 20(a). 
Applicant claims to be currently consuming alcohol in moderation, but offered
contradictory statements concerning his alcohol consumption throughout the past
several years. He intends to continue alcohol consumption, and offered no evidence of
a substantial support network or a favorable prognosis concerning future alcohol abuse.
He committed a second DUI offense with a BAC of 1.5 times the legal limit in November
2009, despite having completed a year-long alcohol treatment program in 2002.
Accordingly, Applicant failed to establish mitigation under the terms of AG ¶¶ 23 (b), (c),
or (d).
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
pertinent facts and circumstances surrounding this case. Applicant appeared to be a
sincere and earnest individual, but did not take the opportunity to introduce evidence of
his good character, reliability, or trustworthiness. He is a mature individual who is
accountable for his choices and actions. His history of alcohol-related misconduct dates
back fourteen years, and his latest DUI is too recent to permit a conclusion, absent
other evidence, that recurrence is unlikely. His inconsistent and contradictory
statements concerning his post-treatment alcohol use preclude a supportable finding of
permanent behavioral changes or rehabilitation. The potential for exploitation or duress
is undiminished. Overall, the record evidence creates doubt as to Applicant’s present
eligibility and suitability for a security clearance, and any such doubt must be resolved in
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favor of the national security. Although this is a relatively close case, in which Applicant
has begun to establish a recent record of responsible conduct and could probably have
strengthened his case with some good-character evidence, he did not meet his burden
to mitigate the security concerns arising from his alcohol consumption.
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
Subparagraphs 1.a through 1.f: Against Applicant
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