DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-03410
)
)
Applicant for Security Clearance )
Appearances
For Government: Caroline E. Heintzelman, Esquire, Department Counsel
For Applicant: Pro se
April 10, 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 May 23, 2013.  On July 29, 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 8, 2014.  He answered
the SOR in writing on August 26, 2014, and requested an Administrative Determination
by an administrative judge.  Department Counsel issued a File of Relevant Material
(FORM) on January 20, 2015.  Applicant did not respond to the FORM.  The case was
assigned to me on March 31, 2015.  Based upon a review of the pleadings and exhibits,
eligibility for access to classified information is denied.
2
Findings of Fact
In his Answer to the SOR,, Applicant admitted the factual allegations in
Paragraphs 1.a.~1.d. of the SOR, with explanations.  He failed to respond to Paragraph
2.a. of the SOR, which I consider a denial.
Guideline G - Alcohol Consumption & Guideline J - Criminal Conduct
Applicant is 32 years old, and is employed by a “Federal Contractor” who seeks a
security clearance on behalf of Applicant.  (Item 5 at pages 5 and 10.)
1.a.  Applicant “first started using alcohol in high school (exact date not recalled)
and” consumed alcohol until at least June of 2013, the date of his Personal Subject
Interview.  (Item 6 at page 4.)  In his August 2014 Answer, Applicant avers he “will use
alcohol responsibly.”  (Answer.)
1.b.~1.d., and 2.a.  Applicant was first arrested in March of 2004 for Driving
Under the Influence of Alcohol (DUI).  (Item 6 at page 3.)  He was convicted of the DUI;
and as part of his sentence, he was placed on probation for three years.  (Id.)
In April of 2005, Applicant was arrested, in part, for a second DUI, for a Probation
Violation (as a result of the 2004 conviction), and was convicted of these charges.  (Item
6 at page 2, and Item 7 at page 3.)  As part of his sentence, Applicant was fined $1,500,
had to attend 18 months of DUI classes, and placed on probation for five years.  (Id.)
In October of 2011, Applicant was arrested a third time for DUI, for another
Probation Violation (as a result of the above conviction), and was again convicted of
these charges.  (Item 6 at page 2, and Item 7 at page 3.)  As part of his sentence,
Applicant was fined, had to attend 18 months of DUI classes, jailed for 192 days, and
placed on probation for another five years.  (Id.)  Applicant is still on probation as a
result of this most recent conviction.
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
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.
3
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).
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 under the influence . . . ” may be disqualifying.
Applicant has three alcohol-related convictions in the last 11 years, and he is still on
probation as a result of his most recent 2011 conviction.  I can find no countervailing
mitigation conditions that are applicable.
4
Guideline J - Criminal Conduct
The security concern for Criminal 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 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.  Under Subparagraph 31(d) when an “individual
is currently on parole or probation” that fact may raise security concerns.  Applicant has
three convictions, and is still under probation as a result of his most recent conviction.  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.”  That is not
the case here, as Applicant’s last conviction was less than four years ago.  The
mitigating condition under Subparagraph 32(d) requires that “there is evidence of
successful rehabilitation; including but not limited to the passage of time without
recurrence of criminal activity . . . good employment record . . . .”  That is not the case
here, as Applicant is still on probation as a result of that conviction.
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
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 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. 
5
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
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: 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 interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge