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                        DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 11-08352 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Richard Stevens, Esq., Department Counsel 
For Applicant: Andy P. Davis, Esq. 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
DUFFY, James F., Administrative Judge: 
 
Applicant mitigated the security concerns arising under Guidelines J (Criminal 
Conduct) and G (Alcohol Consumption). Eligibility for access to classified information is 
granted.  
 
Statement of the Case 
 
On September 18, 2012, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guidelines J and G. 
This action was taken under Executive Order (EO) 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 (AG) 
implemented on September 1, 2006. 
 
On November 15, 2012, the Defense Office of Hearings and Appeals (DOHA) 
received Applicant’s Answer to the SOR. Applicant initially requested a decision without 
a hearing. On December 11, 2012, Applicant requested a hearing. The case was 
 
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assigned to me on January 28, 2013. DOHA issued a notice of hearing on February 6, 
2013, and the hearing was held as scheduled on February 26, 2012. At the hearing, 
Department Counsel offered Government’s Exhibits (GE) 1 through 7. Department 
Counsel’s list of exhibits was marked as Hearing Exhibit 1. Applicant testified, called 
three witnesses to testify on his behalf, and offered Applicant’s Exhibit (AE) A through 
M. All exhibits were admitted into evidence without objection. DOHA received the 
hearing transcript (Tr.) on March 7, 2013.  
 
Findings of Facts 
 
Applicant is a 48-year-old truck driver employed by a defense contractor. He has 
worked for his current employer since April 2009. He graduated from high school in 
1984. He married in September 1994 and divorced in June 2007. He began living again 
with his ex-wife in November 2011. They have one child, a 17-year-old son. Applicant is 
seeking a security clearance for the first time.1 
 
 Under Guideline J, the SOR alleged six incidents in which Applicant was arrested 
and charged with criminal conduct. Five of those incidents were cross-alleged in a 
single Guideline G allegation as alcohol-related misconduct. In his Answer to the SOR, 
Applicant denied all of the SOR allegations. Through counsel at the hearing, he 
admitted all of the SOR allegations. His admissions are incorporated as findings of fact.2 
  
 In his testimony, Applicant described himself as a social drinker. Since his latest 
arrest, he has continued to consume alcohol, but indicated he does so infrequently. He 
stated that he may on occasion consume about three beers. He stated that he has 
never had any problems with alcohol at work. He has passed about six to eight drug 
and alcohol tests at work. On January 30, 2013, he was evaluated at a drug and alcohol 
treatment facility. The clinical director of the facility indicated that Applicant did not meet 
the clinical criteria for substance abuse treatment. Applicant has not received any 
alcohol treatment or counseling nor has he been evaluated as an alcohol abuser or as 
alcohol dependent.3 
 
Applicant and his ex-wife were married for 13 years. Following their divorce, they 
lived apart for about four years and have been residing together for about the past year 
and a half. She testified that his consumption of alcohol has never been an issue in their 
relationship. She described his alcohol consumption as occasional. She indicated that 
he might consume a beer after work to relax or have two beers on a weekend, but those 
were not regular occurrences.  She has not seen him intoxicated since they started 
residing together again. She indicated that he has not consumed any alcohol in about 
the month preceding the hearing. She generally does not consume alcohol, but may 
drink a glass of beer or wine on special occasions. Their son testified that he has not 
                                                          
1 Tr. 104, 115-116; GE 1, 2. 
2 Tr. 9-11.  
3 Tr. 47, 104-115, 125-126, 131-136; GE 2; AE A. 
 
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seen his father consume alcohol in the last month. He indicated that his father usually 
consumed alcohol only when friends were visiting their house or on special occasions.4 
 
 SOR ¶ 1.f. On June 29, 1998, Applicant was arrested and charged with speeding 
and driving under the influence (DUI). Earlier that evening, he was at a pool hall and 
had consumed alcohol. He indicated that, while driving home on a country road, a car 
approached him behind and was tailgating. He proceeded to drive faster because the 
car was right on his tail. About five miles up the road a police officer stopped him. The 
car following him also stopped and was being driven by an off-duty police officer. 
Applicant indicated that he was given a blood test that revealed he was not driving 
under the influence. He pled guilty to reckless driving for the speeding violation and was 
sentenced to six months of unsupervised probation, community service, and a fine.5 
 
 SOR ¶ 1.e. On March 17, 2001, Applicant was arrested and charged with public 
intoxication and possession of drug paraphernalia. On this occasion, Applicant and two 
female acquaintances stopped at a VFW, where he consumed alcoholic beverages. 
After they left the VFW, they were pulled over by the police. The female driver was 
charged with DUI. During this incident, the police found a pack of rolling paper and 
possibly a pipe or clip under a car seat. The driver, who owned the vehicle, did not take 
responsibility for the drug paraphernalia. All three of them were charged with 
possession of drug paraphernalia. Applicant was offered and elected to participate in a 
pretrial diversion program. As part of that program, he pled guilty (exact charge(s) 
unknown) and was sentenced to 30 days in jail suspended, 50 hours of community 
service, and a $50 fine.6 
 
 SOR ¶ 1.d. From about 2000 to 2006, Applicant worked at a beer distributorship. 
On April 6, 2002, he attended a beer company’s convention with his cousin. At the 
convention, Applicant consumed alcohol, but his cousin did not drink. Applicant 
admitted that he became intoxicated at the convention. Upon leaving the convention, his 
cousin later drove him to a restaurant. While at the restaurant, Applicant got into an 
argument with a woman who also had been drinking. His cousin agreed to drive the 
woman home in her car and planned to have the woman’s mother drive him back to the 
restaurant so that he could reunite with Applicant. While Applicant was waiting for his 
cousin at the restaurant, the police arrived and arrested him for public intoxication. He 
pled guilty to that charge and was sentenced to community service and a fine.7  
 
SOR ¶ 1.c. On March 17, 2009, Applicant and a woman were talking to each 
other between cars in the parking lot of a tractor supply company. She was the ex-
girlfriend of Police Officer X. While they were talking, the woman saw Police Officer X 
                                                          
4 Tr. 51-79, 133; AE A. 
5 Tr. 64-66, 80-83, 119-122; Applicant’s Answer to the SOR; GE 2, 6.  
6 Tr. 65-66, 72,  83-88, 117-119; Applicant’s Answer to the SOR; GE 2, 6, 7. 
7 Tr. 68-70, 87-92, 104-106; Applicant’s Answer to the SOR; GE 2, 4. 
 
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driving in his patrol car and decided to depart the parking lot. Applicant also departed 
and proceeded to drive to a grocery store. Police Officer X approached Applicant while 
he was walking in the parking lot of the grocery store. Police Officer X told him that he 
did not want Applicant talking to his ex-girlfriend. Police Officer X also ordered him to 
get into his vehicle. Applicant initially objected, but returned to his vehicle. A state 
trooper arrived at the scene and checked to see whether the body of Applicant’s vehicle 
was too high off the ground. The state trooper determined the height of his vehicle 
complied with legal requirements and departed the area. Police Officer X then ordered 
Applicant to get out of his vehicle. Police Officer X arrested him for disorderly conduct 
and failure to obey a law enforcement officer. Applicant testified that he had not 
consumed any alcohol on that occasion. The police officer’s ex-girlfriend went with 
Applicant to his arraignment. Police Officer X did not appear at Applicant’s arraignment 
and the charges were dismissed.8 
 
SOR ¶ 1.b. On December 31, 2010, Applicant and a male friend went to a bar to 
celebrate New Year’s Eve. After a few drinks, they decided to go to another bar. His 
friend was driving. The police pulled them over for speeding. Applicant indicated that he 
may have consumed about six or seven beers that night. After being pulled over, Police 
Officer X (same officer discussed above) arrived on the scene and ordered Applicant 
out of the car. Applicant argued with him because he did not want to get arrested. He 
was arrested and charged with disorderly conduct. In February 2011, the charge was 
dismissed without prejudice.9 
 
SOR ¶ 1.a. At about 3:30 p.m. on February 5, 2011, Applicant went to the local 
VFW for a meeting. While there, he consumed one or two beers and met two friends. A 
friend asked Applicant to drive him to another bar about four miles away, because 
Applicant had little or nothing to drink. Applicant agreed and another friend decided to 
go along for the ride. Applicant intended to drive his friend to the bar and then return to 
the VFW. As the three of them were departing the VFW at about 7:00 p.m., a woman 
across the street saw them get into Applicant’s vehicle. She mistakenly thought one of 
his friends was her boyfriend. She was upset that her boyfriend was leaving with them. 
She called the police and made a false report that Applicant’s vehicle was driving in an 
erratic manner. The police stopped Applicant in the parking lot of the other bar and 
accused him of pulling out in front of another car and almost causing an accident. 
Applicant denied doing so. He indicated that he saw only one vehicle on the road on 
that occasion and it was traveling in the opposite direction. The police officer asked if he 
had been drinking, and he told the officer that he had one or two drinks. One of 
Applicant’s friends had an open container of beer in the back seat of his vehicle and, in 
attempting to hide it, spilled beer. The police officer smelled beer in the vehicle. The 
officer and Applicant’s friend got into an argument. Applicant was asked to take a field 
sobriety test. At the time, it was raining and the wind was blowing. Applicant claimed he 
had difficulty completing the field sobriety test in the gravel parking lot under those 
weather conditions. The police officer concluded Applicant failed the field sobriety test. 
                                                          
8 Tr. 92-96, 135; Applicant’s Answer to the SOR; GE 2, 5. 
9 Tr. 96-99, 125-126, 135; Applicant’s Answer to the SOR; GE 2. 
 
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Applicant was asked to take a blood alcohol test. Being upset, he refused the test. He 
was arrested and charged with DUI and an implied consent law violation. When asked 
at the hearing why he refused the blood alcohol test, Applicant stated, “Because I was 
right.” Applicant’s Counsel also represented Applicant in the criminal proceeding. Before 
the court proceeding, his counsel believed that Applicant would beat the DUI charge, 
but would still lose his driver’s license for the implied consent law violation. His counsel 
arranged a plea agreement in which Applicant would plead guilty to reckless driving, but 
would be allowed to retain his driver’s license. In a court document, the judge noted that 
the implied consent violation was dismissed due to potential lack of probable cause for 
the traffic stop. Applicant pled guilty to the reduced charge of reckless driving and was 
sentenced to six months in jail/alternative six months supervised probation, eight hours 
of community service, and a fine.  His probation ended in September 2011.10 
 
At the hearing, Applicant testified in an open and forthcoming manner. I found 
him to be a credible witness. He admitted that he has made mistakes and accepted 
responsibility for his wrongdoing.  
 
 Applicant’s former boss testified that Applicant worked for him from 2006 to 2008. 
He stated that Applicant was a very reliable employee. He never had any concern about 
Applicant’s alcohol consumption. He indicated that Applicant was a trustworthy 
individual and that he would trust him with his property.11 
 
Applicant presented a number of character reference letters. They describe 
Applicant as a pleasant and decent person who does not have an alcohol problem. One 
letter was from a local circuit judge, who stated in part:  
 
I would preface my analysis of [Applicant’s] situation by stating that 
dealing with drugs and alcohol addiction has been a passion project for 
me. Several years ago I lost my youngest son in a tragic accident who had 
battled with drugs and alcohol for many years. Following his death, I 
noticed a void in this community for the treatment of alcohol and drug 
addiction, and established the Drug Court program in our judicial district. 
As part of my work as executive officer of the Drug Court I deal on almost 
a daily basis with the symptoms, denials, struggles and battles of 
addiction. In my many years knowing [Applicant] I have never observed 
any behavior that gave me concern. I would add that being a social drinker 
myself, on many occasions I have seen [Applicant] select iced tea when 
everyone else present was consuming what was not the best for us. 
 
I have looked at the arrest reports in question and discussed this matter at 
length with [Applicant]. I encouraged him to get an A&D assessment to 
allow a professional to evaluate him, which he did. I was gratified to hear 
that they did not feel he had a problem, as I shared that opinion. I noticed 
                                                          
10 Tr. 99-104, 106-107, 122-125, 128-131, 133-135; Applicant’s Answer to the SOR; GE 2, 3, 6. 
11 Tr. 38-51. 
 
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2 incidents occurred on New Year’s Eve, one was on a birthday, and the 
other occurred following a [beer company’s] function that allowed 
consumption. These are all common situations where a causal drinker 
may succumb to a momentary lapse of judgment, not indicators of 
addiction or other chronic problems. 
 
I apologize that I was not able to be present for the hearing. However, I 
want to staunchly vouch for the character, honesty, and trustworthiness of 
[Applicant]. Having known [Applicant] both personally and professionally, I 
would have no hesitation recommending him as a honest and trustworthy 
individual, who in no way poses any security threat to our government.12 
 
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 that 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, administrative judges apply the guidelines 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 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.  
 
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 the applicant or proven by Department Counsel.” The 
applicant has the ultimate burden of persuasion to obtain a favorable 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 
                                                          
12 The quotation is from AE B. The other character reference letters are AE C through L. 
 
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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 about potential, rather than actual, risk of compromise of classified 
information. 
 
Section 7 of EO 10865 provides that adverse 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 Executive Order 12968, Section 3.1(b) (listing multiple 
prerequisites for access to classified or sensitive information).   
 
Analysis 
 
Guideline J, Criminal Conduct, and Guideline G, Alcohol Consumption  
Because the Guideline J and G allegations are intertwined in this case, they are 
discussed together here. The security concerns arising under those guidelines are 
similar and involve questions of reliability, judgment, and trustworthiness.  
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 ¶ 30 sets out the security concern relating 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. 
 
 Both guidelines contain several disqualifying conditions that could raise security 
concerns. In this case, one alcohol consumption disqualifying condition under AG ¶ 22 
is potentially applicable: 
 
(a) alcohol-related incidents away from work, such as driving 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.  
 
Two criminal conduct disqualifying conditions under AG ¶ 31 are potentially applicable: 
 
(a) a single serious crime or multiple lesser offenses; and 
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted.  
 
 
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 Between the ages of 33 and 46, Applicant was arrested on six occasions. He 
consumed alcohol before five of those arrests. He was twice charged with DUI (1998 
and 2011) and pled guilty to reckless driving on both occasions. In 2001, he was 
charged with public intoxication and possession of drug paraphernalia and entered into 
a pretrial diversion program for those charges. He admitted that he was drunk in public 
in 2002. He did not consume alcohol before his arrest for disorderly conduct and 
disobeying a police officer in 2009, and those charges were later dismissed. After 
consuming six or seven beers in 2010, he was arrested for disorderly conduct, but that 
charge was dismissed. At the hearing, substantial evidence was presented to establish 
each of the above listed disqualifying conditions.  
 
 In this case four mitigating conditions are potentially applicable. Two are alcohol 
consumption mitigation conditions under AG ¶ 23: 
 
(a) so much time has passed, or the behavior was so infrequent, or it 
happened under such unique circumstances that it is unlikely to recur or 
does not cast doubt on the individual's reliability, trustworthiness, or good 
judgment; and 
 
(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). 
 
The other two are criminal conduct mitigating conditions under AG ¶ 32: 
 
 (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; 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. 
 
At the hearing, Applicant acknowledged that he has made mistakes, expressed 
remorse, and accepted responsibility for his misconduct. In his closing argument, 
Department Counsel stated: 
 
I would feel remiss if I didn’t point out that it appears as though at least 
two of these arrests seem to be triggered by perhaps an overaggressive 
police force there in a small community, and perhaps, on at least one 
occasion, was almost baited into committing an offense by a police officer 
who he had a prior encounter with.  
 
 
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The Government is a little concerned when a police officer charges 
somebody with an offense and fails to appear. The Applicant indicated 
that the lady who was present at the time, the officer’s ex-girlfriend was 
there [at the arraignment] in support, and we accept his word on that.13 
 
I agree with Department Counsel’s assessment of the allegations in SOR ¶¶ 1.b and 
1.c. Similarly, Applicant’s arrest for DUI in February 2011 (SOR ¶ 1.a) was precipitated 
when a false report was made to the police that he was driving erratically. In each of 
these three incidents, Applicant most likely exercised poor judgment by arguing or 
failing to cooperate fully with the police, but he acted in that manner because he thought 
he was being mistreated. It is also important to note that the alleged misconduct in SOR 
¶¶ 1.a–1.c arose when Applicant and his ex-wife were living apart. He is now living 
again with his ex-wife and son in a supportive family environment. This lifestyle change 
has had a positive impact on him and lessens the likelihood that he may have negative 
interactions with the police. In short, the incidents alleged in SOR ¶¶ 1.a–1.c occurred 
under unusual circumstances that are unlikely to recur.  
 
Applicant’s reckless driving conviction in 1998 (SOR ¶ 1.f), his charges that 
resulted in pretrial diversion in 2001 (SOR ¶ 1.e), and his public intoxication conviction 
in 2002 (SOR ¶ 1.d) occurred a long time ago. Those incidents do not cast doubt on his 
current reliability, good judgment, or trustworthiness and are of limited security 
significance.  
 
At times, Applicant has consumed alcohol to the point of intoxication and has 
gotten himself into trouble while in that condition. For at least the past year and a half, 
however, he has consumed alcohol only occasionally. When he does drink, he does so 
in a responsible manner, only consuming a reasonable quantity. His family, friends, and 
a local judge indicated that he does not have an alcohol problem. He has never been 
diagnosed an as alcohol abuser or as alcohol dependent. He was recently evaluated at 
an alcohol and drug treatment and counseling center and found to not meet the clinical 
criteria for substance abuse treatment.         
 
The security concerns arising from SOR allegations, whether viewed separately 
or in total, have been mitigated. AG ¶¶ 23(a) and 32(a) apply, and AG ¶¶ 23(b) and 
32(d) partially apply. 
 
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 
                                                          
13 Tr. 137-138. 
 
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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 
relevant facts and circumstances surrounding this case. I have incorporated my 
comments under Guidelines J and G in my whole-person analysis. Some of the factors 
in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional 
comment.  
 
Applicant is a responsible parent and family man. He is a reliable employee. He 
has learned from his negative interactions with the police and will likely avoid similar 
situations in the future. Overall, the record evidence leaves me with no questions or 
doubts about Applicant’s eligibility and suitability for a security clearance. I conclude 
Applicant has mitigated the Alcohol Consumption and Criminal Conduct security 
concerns.  
 
Formal Findings 
 
 Formal findings 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 J:  FOR APPLICANT 
  Subparagraphs 1.a – 1.f:  For Applicant 
 
Paragraph 2, Guideline G:  FOR APPLICANT 
Subparagraph 2.a:   For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant a security clearance. 
Eligibility for access to classified information is granted. 
                                                
    
 
________________________ 
James F. Duffy 
Administrative Judge