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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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-------------------------- )       ISCR Case No. 12-07958
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel 
For Applicant: Pro se
June 6, 2013
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Decision
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MOGUL, Martin H., Administrative Judge:
On September 20, 2012, the Department of Defense (DoD) issued a Statement
of Reasons (SOR) detailing the security concerns under Guidelines E, J, G and D 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 November 13, 2012, Applicant replied to the SOR (RSOR) in writing, and he
requested a decision to be issued without a hearing on the written record. On December
6, 2012, Department Counsel requested a hearing in this case. The case was assigned
to this Administrative Judge on April 1, 2013. DOHA issued a notice of hearing on April
2, 2013, and I convened the hearing as scheduled on May 3, 2013. The Government
offered Exhibits 1 through 5, which were received without objection. Applicant testified
on his own behalf and submitted Exhibit A, which was also admitted without objection.
DOHA received the transcript of the hearing (Tr) on May 14, 2013.  The record was left
open until May 17, 2013 to allow Applicant to submit additional evidence into the record.
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Applicant did not submit any additional document.  Based upon a review of the
pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified
information is denied.
Findings of Fact
After a complete and thorough review of the evidence in the record discussed
above, and upon due consideration of that evidence, I make the following findings of
fact: 
Applicant is 53 years old. He is divorced, but was married from 1985 to 2003,
and he has no children. He is a high school graduate with some college.  Applicant is
employed by a defense contractor, and he seeks a DoD security clearance in
connection with his employment in the defense sector.
Paragraph 1 (Guideline E - Personal Conduct) 
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he engaged in conduct that exhibited questionable judgement,
unreliability, unwillingness to comply with rules and regulations, and untrustworthiness.  
         1.a. It is alleged in the SOR that Applicant was arrested and charged with
Exposure of Sexual Organs, and that Applicant pled nolo contendere and was found
guilty. He was fined and ordered to undergo a psychological evaluation and any follow
up treatment required, to have no contact with any of the witnesses and not to return to
the location of the offense. 
In his RSOR, Applicant denied this allegation, but during his testimony, he stated
that the only parts of the allegation that he was denying were that he was not to have
contact with any of the witnesses indefinitely He contended it was only for one year; and
he was ordered not to return to the location of the offense indefinitely; he contended it
was only for one year. He did admit that he was found guilty, fined $300, and he was
ordered to undergo a psychological evaluation, which he did for a few sessions of
approximately five hours each. (Tr at 31-34, 39-40.)
Applicant testified that this incident occurred while he was on business related
travel. He began to masturbate in his hotel room, which was on the first floor. Applicant
contended that unbeknownst to him, his blinds were partially opened, and people could
look inside his room and see him. He stated that later that evening the police entered
his room and accused him of masturbating in front of the window.  He testified that he
ultimately pled nolo contendere as a plea bargain at the advice of his counsel, even
though he claimed it had not been his intention to masturbate in front of people. (Tr at
35-39.)
Applicant testified that he was consuming a beer at the time when the police
officers entered his hotel room after the masturbation, which he estimated occurred
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approximately between 7 and 9 PM. He did concede that he had been consuming other
drinks earlier in the day. (Tr at 60-61.) 
Applicant denied that he intended for anyone to see him masturbating. (Tr at 75-
76.)  However, Exhibit 2 included the Sheriff’s report for this incident, which was
described as alcohol related, and in which it was reported: 
[Applicant] would open the room blinds and would masturbate when
females were present in the courtyard/common area of the complex.
[Applicant] would look at the females and begin his activity. [Applicant]
was on the first floor/ground floor and was clearly visible from the
courtyard. This was witnessed by a female guest and by a female staff
member. This was also witnessed by law enforcement. No other persons
were present in [Applicant’s] room. He had the strong and distinct odor of
alcoholic beverages on his person. 
1.b. The SOR alleges that in February 2009, Applicant was charged with (1)
Aggravated Driving While Intoxicated, (2) Speeding, (3) Unsafe Lane Change, and (4)
No Signal Prior to Lane Change. Applicant refused to perform field sobriety tests and
the charges were dismissed, but Applicant lost his driving privileges in the state for one
year.
In his RSOR, Applicant denied this allegation. During his testimony, Applicant
stated that there were only three charges against him, and that charge 3, Unsafe Lane
Change, and charge 4, No Signal prior to Lane Change, were actually combined
together as charge 3. He admitted all of the other charges in this SOR allegation.
Applicant stated that he refused to take the field sobriety tests because that was his
right. He did concede that he had consumed three drinks in the previous three and a
half hours, but he claimed he was certain he had not been driving under the influence of
alcohol. As a result of Applicant refusing to take the field sobriety test, he did lose his
driving privileges in the state for one year. (Tr at 44-49, 65-68.)   
1.c. The SOR alleges that in April 2003, Applicant was arrested and charged with
Reckless Driving. Applicant was fined, placed on 1 year probation, and ordered to
attend 14 hours of self improvement classes.  
In his RSOR and during his testimony, Applicant admitted this allegation. He
estimated that his fine was under $300, and he satisfactorily completed his one year
probation. Applicant also attended the required 14 hours of self improvement classes for
individuals found guilty of alcohol related driving. (Tr at 49-51.) Applicant conceded that
he had consumed four alcoholic drinks prior to this incident. (Tr at 63-65.) 
1.d. The SOR alleges that in October 1982, Applicant was arrested and charged
with Driving Under the Influence. Applicant was fined, had his license suspended for 90
days, was placed on 3 year probation, and was ordered not to have a repeat offense.
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In his RSOR and during his testimony, Applicant admitted this allegation. He
explained that he was allowed to drive his vehicle to and from work for the 90 days, and
that he was placed on informal probation for three years, which he completed without
further incident. (Tr at 51-53.) 
Paragraph 2 (Guideline J - Criminal Conduct) 
          The SOR alleges that Applicant has engaged in criminal acts, which create doubt
about a person’s judgement, reliability, and trustworthiness. As reviewed above,
Applicant admitted all of these allegations in his RSOR and during his testimony at the
hearing. 
2.a. It is alleged in the SOR that Applicant's conduct, reviewed above in
Paragraph 1.a., through 1.d., above, constitutes criminal behavior. Applicant denied this
allegation in his RSOR.
Paragraph 3 (Guideline G - Alcohol Consumption) 
The Government alleges that Applicant is ineligible for clearance because he has
engaged in excessive alcohol consumption, which leads to the exercise of questionable
judgement or the failure to control impulses. The following allegations as they are cited
in the SOR tend to show that:
3.a. It is alleged in the SOR that from approximately 1974 to at least 2011,
Applicant consumed alcohol at time to excess and to the point of intoxication.  Applicant
denied this allegation in his RSOR. Applicant testified that he first consumed significant
alcohol in 1973, when he was in junior high school. Currently, he continues to consume
alcohol, and estimated that he has about one drink each day. He testified that in the last
year there were five to 10 occasions when he consumed as many as three alcoholic
drinks at one time. Upon cross examination, Applicant did concede that over the years
from 1974 to 2011, there were times when he consumed alcohol to the point of
intoxication. (Tr at 62-63.)
Upon further cross examination, Applicant conceded that it would be best for him
if he abstained completely from consuming alcohol in the future. He did aver that he
plans to stop consuming alcohol in the future. (Tr at 70-72.) 
3.b. It is alleged in the SOR that Applicant's conduct, reviewed in Paragraph 1.a.,
through 1.d., above, constitutes excessive alcohol consumption. Applicant denied this
allegation in his RSOR. 
Paragraph 4 (Guideline D - Sexual Conduct) 
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has engaged in sexual behavior that is either criminal, indicates a
personality or emotional disorder, reflects lack of judgement or discretion, or which may
subject an individual to undue influence or coercion.  
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4.a. It is alleged in the SOR that Applicant's conduct, reviewed in Paragraph 1a,
above, constitutes sexual behavior that is either criminal, indicates a personality or
emotional disorder, or reflects lack of judgement or discretion. Applicant denied this
allegation in his RSOR. 
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 E - Personal Conduct)
With respect to Guideline E, the evidence establishes that Applicant engaged in
conduct, which considered as a whole, exhibits questionable judgement, unreliability,
unwillingness to comply with rules and regulations and a lack of candor. In reviewing the
disqualifying conditions, I find that disqualifying condition AG ¶ 16(d) applies, “credible
adverse information . . . which when considered as a whole, supports a whole-person
assessment of questionable judgement, untrustworthiness, unreliability, . . . or other
characteristics indicting that the person may not properly safeguard protected
information.” 
Because of the seriousness of Applicant’s conduct, and the recency of the
conduct reviewed in 1.a., above,  I do not find any mitigating condition under ¶ 17 is
applicable.  I, therefore, resolve Paragraph 1 Guideline E against Applicant.
(Guideline J - Criminal Conduct)
        The Government has established that Applicant engaged in multiple acts of
criminal conduct that occurred from 1982 to 2011. Among the disqualifying conditions, I
find that ¶ 31(a), “a single serious crime or multiple lesser 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. 
          Because of the seriousness of the criminal conduct, including the most recent that
occurred in 2011, I do not find “there is evidence of successful rehabilitation;” Therefore,
mitigating condition ¶ 32(d) is not applicable. I also do not find any other mitigating
condition applicable in this case. Paragraph 2 Guideline J is found against Applicant.
(Guideline G - Alcohol Consumption) 
        Applicant had a long history of alcohol consumption for many years. Applicant's
alcohol consumption was involved in the criminal conduct and convictions listed under
paragraph 1, subparagraphs a. through d. 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) or 23(b) are
applicable because of the multiple alcohol-related incidents, including the most recent in
2011, and because Applicant continues to consume alcohol. I also do not find that any
of the other mitigating conditions are applicable in this case. Therefore, I find Paragraph
3 Guideline G against Applicant.
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(Guideline D - Sexual Conduct)
        The Government has established that Applicant engaged in the kind of sexual
behavior that is of concern to the Government, as it is criminal conduct, and it exhibits a
lack of discretion and good judgement.   
         In reviewing the disqualifying conditions, I find AG ¶  13 (a) “sexual behavior that
is of criminal nature, whether or not the individual has been prosecuted” applies to the
facts of this case. AG ¶ 13(d) also applies because Applicant “engaged in sexual
behavior that reflects lack of discretion or judgement.”  No mitigating condition under AG
¶ 14 can be found to apply here.  Paragraph 4 Guideline D is found 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.
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 disqualifying conditions apply under all of the guidelines alleged
and 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. 
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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 E: AGAINST APPLICANT
Subparagraphs 1.a.-1.d.: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Paragraph 3, Guideline G: AGAINST APPLICANT
Subparagraphs 3.a.-3.b.: Against Applicant
Paragraph 4, Guideline D: AGAINST APPLICANT
Subparagraph 4.a.: 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