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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-00678
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
February 12, 2014
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on October 5, 2011.  On May 29, 2013, the Department of Defense (DOD)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
G and J 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), as amended (Directive); and the
adjudicative guidelines (AG), effective within the Department of Defense after
September 1, 2006. 
Applicant acknowledged receipt of the SOR on June 12, 2013.  He answered the
SOR in writing on June 27, 2013, and requested a hearing before an Administrative
Judge.  DOHA received the request on August 26, 2013, and I received the case
assignment that same date.  DOHA issued a notice of hearing on September 5, 2013,
setting this case for hearing on October 9, 2013.  However, due to the Department of
Defense furlough of federal employees, the hearing was cancelled.  On October 25,
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2013, DOHA issued a second notice of hearing, and I convened the hearing as
rescheduled on November 6, 2013.  The Government offered Exhibits (GXs) 1 through
3, which were received without objection.  Applicant testified on his own behalf, as did a
Master Gunnery Sergeant who knew Applicant in the Marine Corps, and as did his
current supervisor.  DOHA received the transcript of the hearing (TR) on November 18,
2013.  I granted Applicant’s requests, one made at his hearing and one after his
hearing, to keep the record open until January 23, 2014, to submit additional matters.
On December 4, 2013, he submitted Exhibit (AppX) A , which was received without
objection. The record closed on January 23, 2014.  Based upon a review of the
pleadings, exhibits, and testimony, eligibility for access to classified information is
denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in all the
Subparagraphs of the SOR, with explanations.  He also provided additional information
to support his request for eligibility for a security clearance.
Alcohol Consumption - Guideline G & Criminal Conduct - Guideline J
Applicant is a retired Gunnery Sergeant, who retired from the Marine Corps in
January of 2001, after 20 years of active duty.  (TR at page 46 line 23 to page 47 line 8,
and AppX A.)
2.a.  In June of 1983, as a Marine Corporal, Applicant self-referred himself to
alcohol counseling.  (GX 1 at page 33.)  He avers the following:
I just thought I was drinking a lot.  I just wanted help before the Marine
Corps asked me to get help. . . . I learned a lot.  I went through all the AA
[Alcoholics Anonymous] Meetings and followed the 12 Step Program.  I
also was not drinking - - during that time - - for the entire program.  (TR at
page 45 lines 10~22.)
1.a.  In August of 2011, Applicant attended a “company . . . going away party.”
(TR at page 39 lines 16~17.)  He consumed “about six to eight glasses of Vodka and
Cran[berry Juice].”  (TR at page 50 line 25 to page 51 line 4.)  Applicant further avers
“Then I made a bad choice, and I got in my vehicle and thought I was able to drive.
Obviously, I wasn’t.  I was pulled over by . . . [traffic police in State A].”  (TR at page 39
line 24 to page 40 line 2.)  As a result of this arrest, he pled guilty of “DUI [Driving Under
the Influence of] Alcohol/.08 Percent.”  (GX 2 at page 2.)  As part of his sentence,
Applicant was ordered to complete a six month level 2 first offender alcohol program,
and was placed on informal probation for three years.  (GX 3 at page 10.)
1.b.  In May of 2012, Applicant was charged with violating the terms of his
probation, by dropping out of the before-mentioned court-ordered alcohol program when
he moved to State B, his current state of residence.  (TR at page 41 line 4 to page 45
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line 1, and GX 3 at page 5.)  His probation runs through October of 2014, three years
from the date of his original sentencing.  (TR at page 44 lines 18~24.)
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.  (AG Paragraph 2.)  The administrative judge’s
over-arching adjudicative goal is a fair, impartial and commonsense decision.
According to AG Paragraph 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
Paragraph 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 Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph 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 J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines 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.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 31(a) provides that “a single serious crime or multiple lesser
offenses” may raise security concerns.  Subparagraph 31(d) “individual is currently on . .
. probation”; and Subparagraph 31(e) “violation of . . . probation” may also raise security
concerns.  Applicant has a conviction in 2011, and a probation violation in 2012.  I find
no countervailing mitigating condition that is applicable here.  Subparagraph 32(a)
requires that “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.”  The
Applicant’s probation violation occurred less than two years ago, and he is still subject
to that probation.  Although I find against Applicant under this guideline, he should not
be dissuaded from reapplying for a security clearance once he successfully completes
that probation.
Guideline G - Alcohol Consumption
Paragraph 21 of the adjudicative guidelines sets out the security concern relating
to Alcohol Consumption:
Excessive alcohol consumption often leads to the exercise of questionable
judgment or failure to control impulses, and can raise questions about an
individual’s reliability and trustworthiness.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 22(a) is applicable and provides that “alcohol-related incidents
away from work, such as driving while under the influence” may be disqualifying.  This is
countered, however, by Subparagraph 23(a) as “so much time has passed . . . that it
[the conduct] is unlikely to recur or does not cast doubt on the individual’s current
reliability, trustworthiness, or good judgment.”  Applicant’s DUI occurred more than
three years ago, and his current supervisor feels Applicant “is extremely responsible
and has excellent judgment.”  Alcohol Consumption is found for Applicant.
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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.  Under AG Subparagraph 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.
The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 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.
Applicant has the unqualified support of two witnesses, one who knew Applicant
in the Marine Corps, and one who knows Applicant in the defense industry.  (TR at page
19 line 8 to page 28 line 16, and at page 30 line 1 to page 37 line 4.). 
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
with questions or doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant failed to mitigate the security
concerns arising from his alleged Criminal Conduct.
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 J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2, Guideline G FOR APPLICANT
Subparagraph 2.a: For Applicant
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Subparagraph 2.b: For 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.
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Richard A. Cefola
Administrative Judge