DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 12-04838
)
)
Applicant for Security Clearance )
Appearances
For Government: Ross Hyams. Esq., Department Counsel
For Applicant: Eric A. Eisen, Esq.
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Decision
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MASON, Paul J., Administrative Judge:
Applicant has a fairly long history of alcohol-related and criminal conduct that has
not been mitigated. He intentionally omitted relevant information about his criminal record,
alcohol history, personal history, and substance abuse treatment history. Applicant’s
laundry list of rationales and explanations for the omissions does not mitigate the
Government’s case under the personal conduct guideline. Eligibility for access to classified
information is denied. 
Statement of the Case
On May 15, 2014, the Department of Defense (DOD) issued a Statement of
Reasons (SOR) detailing security concerns under alcohol consumption (Guideline G),
criminal conduct (Guideline J), and personal conduct (Guideline E). The action was taken
pursuant to 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) implemented by the Department of
Defense on September 1, 2006. 
Applicant’s answer to the SOR was signed and notarized on June 11, 2014. The
Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December
8, 2015, for a hearing on January 19, 2016. The hearing was held as scheduled. Four
Government exhibits (GE 1-4) were admitted in evidence without objection. Applicant’s four
exhibits (AE A-D) were admitted into evidence without objection. The transcript was
received on January 28, 2016, and the record closed the same day. 
Evidentiary Rulings
The SOR is amended as follows: 
1. SOR ¶¶ 3.a, 3.b, 3.c, 3.d, and 3.e cite an Electronic Questionnaire for
Investigations Processing (e-QIP) dated August 27, 2011. The date is incorrect. Applicant
actually signed and certified the e-QIP on November 9, 2011. See, GE 3.
2. SOR ¶¶ 3.c, 3.d, and 3.f are allegations that apply to Applicant’s November 9,
2011 e-QIP. (GE 3) Each allegation makes a reference to an incident (SOR ¶ 1.b) that
transpired on January 12, 2013, after the foregoing e-QIP was signed. SOR ¶ 1.b is hereby
removed from the three foregoing allegations. The foregoing two amendments are
authorized by E3.1.17 of DoD Directive 5220.6, to conform the SOR to the evidence
presented. 
Findings of Fact
The SOR contains six allegations under the alcohol consumption guideline, two
allegations under the criminal conduct guideline, and seven allegations under the personal
conduct guideline. Applicant admitted most of the allegations except for SOR ¶¶ 3.c, 3.d,
and 3.g. Because no evidence was presented to establish SOR ¶ 3.g, the allegation is
found in Applicant’s favor.
Applicant is 60 years old. He has been married since October 1980. The marriage
produced a 24-year-old son and 32-year-old daughter. Applicant received a bachelor’s
degree in June 1978 and a master’s degree in June 2001. He served in the United States
Marine Corps from November 1979 to December 2005, and received an honorable
discharge in January 2006. He has held a security clearance since the early 1980s. (GE
2, December 2011 summary interview at 2)
In his February 10, 2012 summary interview, Applicant indicated that he began
drinking alcohol at the age of 16. The interview does not reveal the frequency and scope
of Applicant’s drinking over the years. For example, the interview states that Applicant
normally consumes two drinks at home, but does not provide a frequency. The interview
does indicate that Applicant reached intoxication after drinking four drinks about two times
a year. Applicant opined that when a person becomes intoxicated, he uses poor judgment
and poor motor skills. He recalled that his intellect suffered when he drinks. He informed
the investigator from the Office of Personnel Management (OPM) that he stopped drinking
on September 29, 2011, the day after he was arrested for driving while under the influence
of alcohol. See SOR ¶ 1.d. He noted that he began a court-ordered state alcohol safety
action program on February 7, 2012, where a counselor diagnosed him an alcohol abuser.
See SOR ¶ 1.c. He completed the program in May 2012. He completed a second program
in December 2012. He was attending Alcoholics Anonymous (AA) five days a week during
the period. (GE 2, February 10, 2012 summary interview at 1-3; GE 4 at Tab B, Tab C)
Alcohol-related Offenses and Other Criminal Conduct 
In April 1988, Applicant was stationed at a military base on a Friday evening when
two of his roommates telephoned him that they had driven to another location and had too
much to drink. Applicant drove to their location, picked them up, and was returning when
he was stopped for speeding. Although he maintains that he had not been drinking and
passed a field sobriety test, he was arrested for DWI. (SOR ¶ 1.f) The charge was reduced
to reckless driving. (Tr. 24-25)
In February 1992, Applicant was the commander of three rifle companies at a
military installation. His wife requested that he drive to the store to purchase diapers. He
recalled driving through a stop sign without stopping, a traffic violation apparently noticed
by military police officers. When he pulled into his driveway, the officers pulled in right
behind him. Applicant had been drinking and the officer detected an alcohol odor
emanating from his body. After smelling alcohol, Applicant was arrested for (1) speeding,
(2) DWI, (3) DWI refusal, and (4) reckless driving. (SOR ¶ 1.e) He pleaded guilty to counts
1, 3, and 4, and was required to attend a military safety action program. Applicant’s driver’s
license was suspended for a year for refusing to take the field sobriety test. (Tr. 24-28, 40)
On September 13, 2005, Applicant was awarded non-judicial punishment under
Article 15 of the Uniform Code of Military Justice (UCMJ), based on an extra-marital affair.
(SOR ¶ 2.a) He received a letter of censure and forfeiture of pay that was suspended. He
was reduced in rank and retired in January 2006. (Tr. 30-35) 
After Applicant’s retirement from the Marines in January 2006, his drinking increased
and he became concerned about whether he could control his drinking. He voluntarily
enrolled in treatment for about three weeks between November and December 2008. (Tr.
59)
In September 2011, Applicant was drinking with friends at a restaurant from 8 p.m.
to about 10:30 p.m. After consuming four mixed drinks, he was driving home and totaled
his car in a single car accident. He was taken to the hospital where he refused a blood test
and was charged with DWI. (SOR ¶ 1.d) He was fined and ordered to attend a state safety
action program. Applicant recalled he was placed on probation until he completed the
program. (SOR ¶ 1.c) (GE 2 at 2)
After an undisclosed period of abstinence and AA attendance, Applicant resumed
drinking. He was arrested in January 2013 for (1) DWI (second conviction) within less than
5 years, and (2) driving on a restricted license after a DWI conviction. (SOR ¶ 1.b) He
continued to drink for more than seven months after the arrest, but stopped drinking on
August 1, 2013, when he realized he was going to spend time in jail for the DWI. Applicant
pleaded guilty to both offenses and was incarcerated for 20 days of a 150-day suspended
sentence. He was ordered to complete a state safety action program. Applicant believes
he was on probation only until he completed the program. He has to report to a case
manager once every three months. The court records (July 25, 2013) do not clearly show
that he was placed on probation for three years. However, they do show that his driver’s
license was suspended for three years and an interlock device restriction was attached to
his car ignition for six months. (GE 4 at Tab D; Tr. 43-45, 46) 
In November 2013, Applicant was attending five AA meetings a week and group
counseling twice a week. He had a group counselor and a case manager. He had a
sponsor and fully embraced the 12-step program and is committed to a life of sobriety and
spiritual renewal. Because of the support from his wife, his support group and his AA
chapter, he believes his abstinence will realize long-term success. Speaking through the
12 steps of AA, Applicant regrets his alcohol-related conduct. (GE 4 at Tab D; Tab B; Tr.
43-45, 46, 66) 
Personal Conduct
On August 26 or 27, 2011, Applicant filled out an e-QIP (AE D) in draft form for his
then employer. AE D became the e-QIP that Applicant certified and signed on November
9, 2011. (GE 3) He does not deny he signed the form. He believes he filled out the form in
August and was asked to sign the e-QIP in November. A careful examination of both e-
QIPs reflects that they contain the same information and are missing the same information
that is alleged in the SOR. The only difference is that alphabetical letters appear next to the
questions in AE D, whereas the relevant questions in GE 3 are not lettered. (GE 3; AE D;
Tr. 37-41)
SOR ¶ 3.a alleges that in Section 15 of his November 9, 2011 e-QIP, Applicant
answered “No” to being subject to disciplinary proceedings under the UCMJ in the last
seven years. He did not disclose his September 13, 2005 non-judicial punishment because
he claimed he had already supplied that information to his command. The punishment was
an embarrassing part of his life that he did not want to share. (GE 3 at 16; Tr. 50-52, 74,
78)
SOR ¶ 3.b alleges that Applicant did not disclose his youngest child in Section 18
of the November 9, 2011 e-QIP. He did not list the child because he did not have custody
or any legal rights. He did not know where the child was located. He was aware of the
court-ordered requirement to provide care and custody of the child. He remembered
informing his government supervisor and his company supervisor. (GE 3 at 16; Tr. 50-52,
74, 78)
SOR ¶ 3.c alleges that Applicant responded “No” to section 22 of the November 9,
2011 e-QIP requiring an applicant to disclose any offenses related to alcohol or drugs. In
his February 2012 interview, he defended his “No” answer with advice he received from a
friend that he did not have to disclose the offense since he had not been convicted of the
September 2011 offense. Applicant’s other justifications for not disclosing the information
about the other alcohol-related offenses were: (1) that he had at least two previous
background investigations culminating in security clearances; (2) that the seven-year
window applied to the question; (3) the past offenses were no longer relevant because they
had been adjudicated and addressed; and (4) he never intended to conceal information
because he had given the investigators permission to look at his records. (GE 2 at 2; Tr.
47-49, 52-53)
SOR ¶¶ 3.d and 3.e allege that under Section 24 of the November 2011 e-QIP
(alcohol treatment), Applicant answered “No,” to deliberately failing to list his treatment in
1992 (SOR ¶ 1.e) and November 2008. He forgot about his 1988 treatment, but admitted
failing to disclose the 2008 treatment. (Answer to SOR; Tr. 56)
SOR ¶ 3.f alleges that Applicant deliberately concealed facts during his December
15, 2011 OPM interview. Those facts were his alcohol-related arrests, non-judicial
punishment, and alcohol treatment, as set forth in SOR ¶¶ 1.e, 1.f, and 2.a. The OPM
investigator had a copy of Applicant’s e-QIP and reviewed the document with him. The
investigator had a copy of Applicant’s credit report, since he questioned Applicant about
two accounts that were in a collection paid status. The interview ends with the statement
“All other information discussed with the [Applicant] was consistent with the information the
[Applicant] provided on the security questionnaire.” As noted in SOR ¶¶ 3.a through 3.e,
a large portion of that information on the e-QIP is incorrect. (GE 2, December 2011
interview at 1-3) 
Character Evidence 
Applicant’s direct supervisor for the past two years provided a character reference.
The supervisor considers Applicant a conscientious team player who is relied upon to
continually provide valuable guidance to military and civilian personnel. Applicant  authored
a substantive position statement and primer to ensure that U.S. Marines are trained to
defend and defeat improvised explosive devices. (AE A, C) 
The second reference in AE A has been Applicant’s colleague and friend since 1983.
He extolled Applicant’s leadership qualities while serving in the U.S. Marine Corps.
Applicant’s commanding officers have always provided positive comments about his
professionalism. Applicant’s keen interest in military history adds to his overall expertise.
(AE B)
Applicant’s Meritorious Service Medal was based on his laudable efforts in
innovating training programs for the period of 1991 to 1993. Applicant received the
Meritorious Service Medal for his outstanding leadership contributions from March to
August 2002. Applicant received an award of merit based on his contributions between July
2004 and December 2005. (AE B) 
Applicant’s program manager recognized Applicant for his 2014 performance by
authorizing a cash award. (AE B) 
On January 7, 2015, a lieutenant general in the U.S. Marine Corps, acknowledged
the ongoing danger of improvised explosive devices, and the importance of ordinances and
procedures that are available, i.e., Applicant’s primer, to counter them. (AE C) 
Policies
When evaluating an applicant's suitability for a security clearance, the administrative
judge must consider the AG. Each guideline lists potentially disqualifying conditions and
mitigating conditions, which are useful in evaluating an applicant's eligibility for access to
classified information.
The disqualifying and mitigating conditions should also be evaluated in the context
of nine general factors known as the whole-person concept to bring together all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision for security clearance eligibility. Such decisions entail a certain degree
of legally permissible extrapolation as to the potential, rather than actual, risk of
compromise of classified information.
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 of establishing that it is clearly consistent with the
national interest to grant him a security clearance. 
Analysis
Alcohol Consumption 
AG ¶ 21 sets forth the security concern for alcohol consumption: 
Excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about an
individual’s reliability and trustworthiness.
The pertinent disqualifying conditions under AG ¶ 22 that may be disqualifying are:
(a) alcohol-related incidents away from work regardless of whether the
individual is diagnosed as an alcohol abuser or alcohol dependent;
(c) habitual or binge consumption of alcohol to the point of impaired
judgment, regardless of whether the individual is diagnosed as an alcohol
abuser or alcohol dependent;
(e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical
social worker who is a staff member of a recognized alcohol treatment
program; and
(f) relapse after diagnosis of alcohol abuse or dependence and completion
of an alcohol rehabilitation program. 
Applicant began consuming alcohol at age 16. He has had four traffic offenses since
1988. Alcohol was involved in three of the four offenses. All four occurred while he held a
security clearance. Applicant’s recognition that he was losing control over his drinking in
2006 suggests binge consumption of alcohol during the period. Though there are no
medical records showing a diagnosis from a duly qualified medical professional, Applicant
recalled the counselor of the state action program diagnosing him as an alcohol abuser in
February 2012. After Applicant completed the treatment program in December 2012, he
relapsed and was arrested in January 2013 for DWI and driving on a restricted license. AG
¶¶ 22(a), 22(c), and 22(f) apply. 
The conditions that potentially mitigate under AG ¶ 23 are:
(a) so much time has passed, or the behavior was so infrequent, or it
happened under such unusual circumstances that it is unlikely to recur or
does not cast doubt on the individual’s current reliability, trustworthiness, or
good judgment; 
(b) the individual acknowledges his or her alcoholism or issues of alcohol
abuse, provides evidence actions taken to overcome this problem, and has
established a pattern of abstinence (if alcohol dependent) or responsible use
(if an alcohol abuser); and
(d) the individual has successfully completed an inpatient or outpatient
treatment counseling or rehabilitation along with any required after care, has
demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations, such as
participation in meetings of AA or a similar organization and has received a
favorable diagnosis by a duly qualified medical professional or a licensed
clinical social worker who is a staff member of a recognized treatment
program.
Though Applicant’s last alcohol-related offense occurred in January 2013, he did not
stop drinking until August 2, 2013, when he realized that he was going to spend time in jail.
I have reviewed his enrollment in AA and group counseling, however, I conclude that
insufficient time has transpired for me to justify with complete confidence that Applicant’s
past alcohol abuse will not recur. AG ¶ 23(a) has only limited application. AG ¶ 23(d) does
not receive full application because there is no favorable prognosis from a duly qualified
medical professional or a licensed clinical social worker who is a staff member of a
recognized treatment program.
Criminal Conduct
The security concern for criminal conduct is set forth in AG ¶ 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.
AG ¶ 31 of the criminal conduct guideline lists two disqualifying conditions that may
be applicable to this case: 
(a) a single serious crime or multiple lesser offenses; 
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally prosecuted or convicted; and
(d) violation of parole or probation, or failure to complete a court-mandated
rehabilitation program.
Between February 1992 and January 2013, Applicant committed three DWI
offenses. Almost 20 years separate the first DWI and the third DWI. However, less than two
years separates the second and third DWI. Significantly, the third DWI occurred about a
month after Applicant completed his treatment (December 2012) for the second DWI, and
was still on probation for the second DWI. AG ¶¶ 31(a), 31(c), and 31(d) apply.
The pattern of conduct and rule violations  to consume alcohol in excess and then
drive an auto also raise questions about Appellant’s judgment, reliability, and
trustworthiness. AG ¶¶ 31(a) and 31(c), and 31(d) apply to shift the burden to Appellant to
submit evidence in rebuttal, mitigation, and extenuation. 
AG ¶ 32 lists two pertinent mitigating conditions that may be applicable in this case:
(a) so much time has passed since the criminal behavior happened, or it
happened under such circumstances that it is unlikely to recur and does not
cast doubt on the individual’s reliability, trustworthiness, or good judgment;
and
(d) there is evidence of successful rehabilitation; including but not limited to
the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or
constructive community development.
The application of AG ¶ 32(a) is only partially applicable for the same reasons
discussed under AG ¶ 23(a). Applicant has provided favorable evidence of a good job
performance since 1983. He has expressed his contrition for his alcohol-related conduct.
However, because less than three years have passed since Applicant’s last alcohol-related
incident, AG ¶ 32(d) is only partially applicable.  
Personal Conduct
The security concern for personal conduct is set forth in AG ¶ 15:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about
an individual’s reliability, trustworthiness and ability to protect classified
information. Of special interest is any failure to provide truthful and candid
answers during the security clearance process or any other failure to
cooperate with the security clearance process. 
AG ¶ 16 contains three disqualifying conditions that are potentially pertinent: 
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personnel security statement, or similar
form to conduct investigations, determine employment qualifications, award
benefits and status, determine security clearance eligibility or trustworthiness,
or award fiduciary responsibilities; 
(b) deliberately providing false or misleading information concerning relevant
facts to an employer, investigator, security official . . . or other government
representative; and
(c) credible adverse information in several adjudicative areas that is not
sufficient for an adverse determination under any other single guideline, but
which, when considered as a whole, supports a whole-person assessment
of questionable judgment, untrustworthiness, unreliability, lack of candor,
unwillingness to comply with rules and regulations, or other characteristics
indicating that he may not properly safeguard classified information.  
The omission of relevant information during a security investigation, e.g., e-QIP or
interview, raises security concerns about an applicant’s judgment, reliability, and
trustworthiness. However, omissions which result from haste, oversight, or misreading the
question(s) asked, are not deliberate and therefore not within the reach of AG ¶¶ 16(a) or
16(b). None of those explanations are present in this case. Applicant deliberately concealed
information about his alcohol-related arrests (SOR ¶ 3(c), his non-judicial punishment (SOR
¶¶ 3.a, 3.b), and his alcohol treatment (SOR ¶ 3.d) from his November 2011 e-QIP. AG ¶
16(a) applies. Applicant’s deliberate omission of the foregoing information from his
December 2011 OPM interview falls within the scope of AG ¶ 16(b). Alternatively,
Applicant’s omissions of relevant information during two significant phases of the security
investigation represent rule violations under AG ¶ 16(c). 
There are three mitigating conditions under AG ¶ 17 that are potentially pertinent to
the circumstances in this case. Those conditions are: 
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment or falsification before being confronted with the facts; 
(c) the offense was so minor, or so much time has passed, or the behavior
is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment; and 
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate stressors,
circumstances, or factors that caused untrustworthy, unreliable or other
inappropriate behavior, and such behavior is unlikely to recur.
In his November 2011 e-QIP, Applicant deliberately did not disclose the information
identified in SOR ¶¶ 3.a, 3.b, 3.c, 3.d, and 3.e. He repeated this conduct a month later in
his first OPM interview in December 2011. (SOR ¶ 3.f) The repeated claims of not intending
to conceal information and giving the investigators permission to view his records does not
excuse Applicant’s deliberate omission of truthful and candid answers to e-QIP questions,
and during the interview. None of the mitigating conditions apply.
Whole-Person Concept 
I have examined the evidence under the disqualifying and mitigating conditions of
alcohol consumption, criminal conduct, and personal conduct. I have also weighed the
circumstances within the context of nine variables known as the whole-person concept. In
evaluating the relevance of an individual's conduct, the administrative judge should
consider the following factors:
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 the participation was 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 a commonsense judgment based on careful consideration of
the guidelines and the whole-person concept.
Applicant is 60 years old and has been married for 35 years. He has two grown
children. Before entering the military in 1979, Applicant received his bachelor’s degree. He
served in the military for 26 years and received an honorable discharge in January 2006.
During his service, he received a certificate for meritorious service in from July 1991 to April
1993. In June 2001, he received a master’s degree. He was recognized for his military
service from June 2001 to June 2003. He was honored again for outstanding service from
July 2004 to December 2005. His discharge was tarnished by the discovery of an extra-
marital affair leading to a reduction in rank and retirement. Applicant has earned the
respect of two close friends for his leadership qualities and strength of character for the
past 32 years. His program manager rewarded his 2014 job performance with a cash bonus
in December 2014.
The foregoing favorable evidence cannot be viewed in isolation, but together with
the unfavorable evidence of Applicant’s alcohol-related criminal conduct since 1982. In the
31-year period, Applicant has been fined, sentenced to three alcohol safety action
programs, evaluated as alcohol abuser by a counselor from the February 2012 program,
and had his driver’s license suspended or restricted. In November 2011, Applicant
deliberately omitted his history of alcohol-related conduct along with other relevant
information, giving the impression that he had no alcohol-related or criminal history.
Applicant’s deliberate omissions of relevant information to determine his security
qualifications reduces the weight that can be assigned to his current abstinence effort.
Having evaluated the disqualifying evidence with the mitigating evidence, and in the context
of the whole-person concept, Applicant has not met his burden of persuasion under the
guidelines for alcohol consumption, criminal conduct, and personal 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
Subparagraphs 1.a, 1.b, 1.d, 1.e : Against Applicant
Subparagraphs 1.c, 1.f: For Applicant
Paragraph 2 (Guideline H): AGAINST APPLICANT
Subparagraphs 2.a, 2.b (except 1.f): Against Applicant
Paragraph 3 (Guideline E): AGAINST APPLICANT
Subparagraphs 3.a-3.f: Against Applicant
Subparagraph 3.g: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant eligibility for a security clearance.
Eligibility for access to classified information is denied. 
Paul J. Mason
Administrative Judge