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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-02520
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
March 16, 2015
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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 February 12, 2013.  On August 18, 2014, 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 August 22, 2014.  He answered
the SOR in writing on August 22, 2014, and requested a hearing before an
Administrative Judge.  The Defense Office of Hearings and Appeals (DOHA) received
the request soon thereafter, and I received the case assignment on December 8, 2014.
DOHA issued a notice of hearing on December 10, 2014, and I convened the hearing
as scheduled on January 20, 2015.  The Government offered Exhibits (GXs) 1 through
2
3 which were received without objection.  Applicant testified on his own behalf and
submitted Exhibit (AppX) A, which was received without objection.  DOHA received the
transcript of the hearing (TR) on January 28, 2015.  I granted Applicant’s request to
keep the record open until February 20, 2015, to submit additional matters.  On January
24, 2015, he submitted Exhibit B; and on February 19, 2015, he submitted Exhibits C
and D, which were received without objection.  The record closed on February 20, 2015.
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.
Guideline G - Alcohol Consumption & Guideline J - Criminal Conduct
Applicant is a 24 year-old high school graduate with some college credits.  (TR at
page 20 line 8 to page 21.)  He has worked for a defense contractor for “just over two
years.”  (TR at page 21 lines 2~8.)
Applicant started to drink alcohol, beer being his drink of choice, at about the age
of 17, while in high school.  (TR at page 23 lines 12~23.)  He would drink, “maybe once
a week . . . a couple” of beers.  (TR at page 23 line 24 to page 24 at line 5.)  He
graduated from high school in “2008.”  (TR at page 25 lines 20~22..)  While attending
college, in 2009, his beer consumption increased to “maybe two times a week, from five
. . . [to] seven” beers.  (TR at page 24 line 18 to page 25 line 6, and at page 25 line 23
to page 26 line 1.)
In June of 2009, Applicant was arrested for, and subsequently convicted of,
Driving Under the Influence of alcohol.  (GX 3 at page 3.)  He had consumed “about
eight beers,” over a period of “about three and a half [to] four hours.”  (TR at page 27
lines 15~21.)  He was sentenced to probation for three years, attended a three months
alcohol program, and was fined.  (TR at page 28 lines 2~10, and GX 3 at page 3.)  After
this conviction, he abstained from the consumption of alcohol for “about a year.”  (TR at
page 28 lines 11~17.)  However, Applicant began drinking again; and by 2013, he was
consuming five or six beers, “once a week.”  (TR at page 28 line 18 to page 29 line 25.)
In January of 2013, Applicant was again arrested for, and subsequently
convicted of, Driving Under the Influence of alcohol.  (GX 2.)  He was sentenced to
probation for five years, attended an 18 month alcohol program, and was fined.  (TR at
page 30 line 14 to page 31 line 25, and GX 2.)  He successfully completed the alcohol
program in November of 2014, and has not consumed alcohol since his arrest.  (TR at
page 33 lines 2~19, and AppX A.)  However, he is still currently on probation.  (TR at
page 32 lines 1~6.)
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised 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
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.
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
applicant concerned.”  See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).
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Analysis
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.
Applicant has two alcohol-related convictions, one in 2009, and most recently, one in
2013.  He is still on probation as a result of his most recent conviction.  I can find no
countervailing mitigation conditions that are applicable.  However, if he continues his
sobriety, he may be eligible for a security clearance in the future.
Guideline J - Criminal Conduct
The security concern for Personal Conduct is set out in Paragraph 30: “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 guideline notes several conditions that could raise security concerns.  Under
Subparagraph 31(a), “a single serious crime or multiple lesser offenses” may be
disqualifying.  Here, the Applicant has two convictions for Driving Under the Influence of
alcohol.  Subparagraph 31(d) is also applicable as the “individual is currently on parole
or probation.”  Again, I can find no countervailing mitigating conditions that are
applicable.  However, once he successfully completes his probation, he may be eligible
for a security clearance in the future
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 Paragraph 2(c), the ultimate
determination of whether to grant eligibility for a security clearance must be an overall
common sense 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 Paragraph 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
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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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has the unqualified support
of his mother, his brother, and his girlfriend.  (AppXs B~D.)  However, at this time 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 has not
mitigated the security concerns arising from his Alcohol Consumption and related
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 G: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.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 security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge