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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------------- )       ISCR Case No. 11-10178
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Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
June 25, 2013
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Decision
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MOGUL, Martin H., Administrative Judge:
On December 12, 2012, the Department of Defense issued a Statement of
Reasons (SOR) detailing the security concerns under Guideline G 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 after September 1, 2006. 
 
On January 10, 2013, 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 March 25, 2013. DOHA issued a notice of hearing on April 2,
2013, and I convened the hearing as scheduled on May 6, 2013. The Government
offered Exhibits 1 through 4, which were received without objection. Applicant testified
on his own behalf and no documentary evidence was submitted. The record was left
open to May 20, 2013, to allow Applicant to offer additional evidence. The documents
that were submitted have been identified as Exhibits A through E, and they were also
admitted without objection.  DOHA received the transcript of the hearing (Tr) on May 14,
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2013. Based upon a review of the pleadings, exhibits, and the testimony of Applicant,
eligibility for access to classified information is denied.
Findings of Fact
In his RSOR, Applicant admitted both SOR allegations,1.a. and 1.b. The
admitted allegations are incorporated herein as findings of fact. 
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 36 years old. He is unmarried and he has no children. 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 allegations 1.a. and 1.b.
as they are cited in the SOR:
1.a. It is alleged that in March 2010, Applicant was arrested and charged with
Driving Under the Influence (DUI) in State A.  He plead guilty, and he was fined. He also
was ordered to complete community service, to attend an 18 month DUI program,
including weekly attendance at Alcoholics Anonymous (AA) meetings, had his driver’s
license suspended (except for driving to work), and was placed on five years probation.
Applicant is still on probation. As reviewed above, this allegation was admitted by
Applicant in his RSOR. 
At the hearing, Applicant testified that this incident occurred after he had been
rejected for four or five job interviews. He was upset and went with his friends to a bar to
have some drinks. He estimated that he had consumed between eight and ten mixed
drinks while at the bar, and he believed at the time of this arrest his blood alcohol was
.14% or .15%. 
Applicant explained that his car was parked where he could get a $40 parking
ticket or the car could be towed after a period of time. To avoid the ticket or towing, he
attempted to drive his car home. Applicant testified that he did not think it was that “big
of a deal” if he did get a DUI, since the DUI arrest in 2007 (1.b.) was in another state, so
he thought this would be considered a first DUI offense. He testified that he never would
have driven his vehicle if he knew it could be considered a second offense. (Tr at 25-
38.) 
As a result of the conviction, Applicant attended approximately 75 AA meetings.
He also paid a fine of $2,000, and had to pay $4,000 for the classes he attended. (Tr at
45-46.) 
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He believed that his probation was only for three years not five, and that his
probationary period had ended by the time of the hearing. (Tr at 38-40.) The record was
left open to allow him to submit written evidence of his current probationary status.
Applicant submitted a post hearing statement in which he wrote that he could not obtain
probation documents in the allotted time, but he did learn that he will be on probation for
five years from the arrest date of March 4, 2010, and that if he commits any crime with
alcohol in his system, he will immediately be incarcerated for 90 days.  He also wrote
that after half of his probation has been completed, he believed he could file a motion to
have his probation terminated, but at the time of his letter the probation had not yet
been terminated. (Exhibit A.) 
1.b. It is alleged that in April 2007, Applicant was arrested and charged with
Driving While Intoxicated (DWI) 1  Offense in State B. He plead guilty and wasst
sentenced to 30 days in jail (suspended) and 12 months probation. He was also fined,
ordered to attend alcohol awareness classes, and his license was suspended for 12
months (except for driving to work and alcohol awareness classes). As reviewed above,
this allegation was admitted by Applicant in his RSOR. 
Applicant testified that this incident occurred shortly after a major school shooting
incident in the state in which he attended public school. Many of his friends were in a
bar commiserating over the tragic events. He estimated that he had at least five or six
drinks or “probably more than that,” and then drove to a fast food restaurant next door to
the bar. His car tire drove onto the curb as a result of his drinking, and the police
arrested him there. He could not recall his blood alcohol at the time of his arrest, but he
estimated it to be well over the .08% limit. Applicant testified that his license was not
suspended for a full 12 months as it could be restored once he completed his classes.
He estimated that his fine was $2,500. (Tr at 40-46.) 
Applicant testified that at the time of the hearing, he was still consuming alcohol,
approximately once a month. He estimated that in the last year he has consumed as
much as a six pack of beer two or three times. He also estimated that since his 2010
arrest and conviction he has been “completely drunk” approximately five times and
“buzzed” 15 more times. He did state that he has considered abstaining completely from
alcohol consumption in the future, and he did indicate that he has no intention to drive
after consuming alcohol in the future. (Tr at 35-36, 53-54, 56.) In a post-hearing
document, Applicant wrote that he has made a decision to abstain completely from
alcohol consumption and that he has been attending AA meetings. (Exhibit E.)
Mitigation
Applicant submitted a character letter, dated October 25, 2011, and written to a
hiring manager. The letter described Applicant to be a person of “the highest moral
character.”  (Exhibit D.) Nothing in the letter made it clear if the writer was aware of
Applicant’s two DUI arrests and convictions.
Additionally, Applicant introduced a Notice of Completion Certificate showing that
he had completed his 18 month multiple offender Driver Under the Influence program.
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(Exhibit C.) Finally, Applicant submitted a Certificate of Appreciation that he had
received for network support. (Exhibit B.)
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 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. 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
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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) 
The security concern relating to the guideline for Alcohol Consumption is set out
in AG ¶ 21:  
Excessive alcohol consumption often leads to the exercise of
questionable judgement or the failure to control impulses, and can raise
questions about an individual’s reliability and trustworthiness. 
Applicant's alcohol consumption resulted in the criminal conduct and convictions
listed in subparagraphs 1.a. and 1.b. 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 do not find that ¶ 23(a) is applicable,
because not enough time has passed since the DUIs. Considering that Applicant’s two
DUI arrests and convictions occurred in 2007 and 2010,  that he is still on probation and
is scheduled to be until 2015, and that at the time of the hearing Applicant continued to
consume alcohol, at times in significant quantities, I do not find that any other mitigating
factor under this guideline applies in this case. While Applicant has now made the
positive commitment to abstain completely form alcohol consumption, I find it to be too
soon to determine that alcohol will not continue to be a potential security problem for
Applicant. I find Guideline G against 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.
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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
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why the mitigating conditions do not apply, I find that the record evidence
leaves me with 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 not 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: AGAINST APPLICANT
Subparagraphs 1.a. and 1.b.: 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.
                                              
Martin H. Mogul
Administrative Judge