DEPARTMENT OF DEFENSE
     DEFENSE OFFICE OF HEARINGS AND APPEALS
In the matter of: )
)
)  ISCR Case No. 15-06868
)
)
Applicant for Security Clearance )
Appearances
For Government: Aubrey De Angelis, Esquire, Department Counsel
For Applicant: Pro se
November 18, 2016
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Decision
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GOLDSTEIN, Jennifer I., Administrative Judge:
Applicant engaged in a series of alcohol-related criminal violations from 1995 to
2012. The evidence is insufficient to mitigate the alcohol and criminal conduct security
concerns. He mitigated the personal conduct security concerns related to omissions on
his August 2012 security clearance application. Based upon a review of the pleadings,
testimony, and exhibits, eligibility for access to classified information is denied. 
Statement of the Case
Applicant submitted a security clearance application on August 28, 2012. On
April 19, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a Statement
of Reasons (SOR) to Applicant, detailing security concerns under Guidelines E
(Personal Conduct), J (Criminal Conduct), and G (Alcohol Consumption). 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 for Determining Eligibility for
Access to Classified Information, effective within the Department of Defense after
September 1, 2006. 
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Applicant answered the SOR in writing (AR) on May 10, 2016, and requested a
hearing before an administrative judge. The case was assigned to me on June 13,
2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing
on June 16, 2016, scheduling the hearing for July 26, 2016. The hearing was convened
as scheduled. The Government offered Exhibits (GE) 1 through 8, which were admitted
without objection. Applicant testified on his own behalf, called one witness, and offered
two exhibits marked Applicant Exhibit (AE) A and B. AE A and AE B were admitted
without objection from Department Counsel. The record was left open until August 9,
2016, for receipt of additional documentation. Applicant did not present any further
documentation by that date, and the record closed. DOHA received the transcript of the
hearing (Tr.) on August 3, 2016. 
Findings of Fact
Applicant is a 42-year-old employee of a defense contractor. He has worked for
his employer since July 2010. He served in the Army on active duty from 1993 to 1996.
He has been a member of the Army National Guard since 1996. He possesses the rank
of Sergeant First Class, E-7. He is divorced since November 2015 and has no children.
(GE 1; GE 3; Tr. 38-39, 71.)
In his response to the SOR, Applicant admitted the factual allegations in SOR
subparagraphs 1.a, 1.b, 1.d, 1.e, 1.g, and 1.i; but denied subparagraphs 1.c, 1.f, 1.h, 1.j,
2.a, 3.a, 3.b, and 3.c. Applicant’s admissions are incorporated in the following findings.
Applicant was arrested on September 23, 1995, and charged with driving while
intoxicated (DWI), unlicensed operator, and unsafe speed, as alleged in SOR
subparagraph 1.a. Applicant recalled that he crashed his vehicle into a tree stump on
this occasion. Records show his blood alcohol content was .19%. He pled guilty to all
charges and was sentenced to a $500 fine, for the DWI; a fine of $50 for the unlicensed
operation conviction; and a $75 fine for speeding. (GE 3; GE 4; Tr. 40-41.)
Applicant was arrested in August 1997 and charged with driving under the
influence of alcohol (DUI), as alleged in SOR subparagraph 1.b. SOR subparagraph 1.c
is a duplicate listing concerning this charge. At hearing, he did not recall the details that
led up to his arrest. According to his May 16, 2006 personal subject interview, Applicant
consumed “about eight beers” before driving home from a party. (GE 3.) He “drove off
the freeway,” but was not injured. The police responded and detected alcohol on
Applicant’s breath. He was cited for DUI and released. He was convicted of
misdemeanor DUI, sentenced to pay a fine of $1,864, and was required to attend
alcohol classes once per week for nine months. He was placed on probation for 36
months. Proof of completion of the alcohol program was filed with the court. (GE 3; GE
6; Tr. 41-42.)
Applicant was arrested on November 30, 2001, and charged with DUI and driving
with a suspended license, as alleged in SOR subparagraph 1.d. Applicant was activated
for National Guard duty approximately 30 days after this arrest and failed to appear in
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court. He testified that on the day of the arrest he only had one or two beers, but in a
May 16, 2006 personal subject interview, he disclosed that he “had consumed 4 or 5
beers” prior to driving. After his 2006 interview, he turned himself in on these charges.
Ultimately, the charges were dismissed pursuant to a plea bargain. (GE 2; GE 3; GE 5;
GE 7; Tr. 43-47.)
Applicant was arrested in December 2011 and charged with driving under the
influence of alcohol (DUI), as alleged in SOR subparagraph 1.e. SOR subparagraphs
1.f and 1.h are duplicate listings concerning this charge. On this occasion Applicant
consumed approximately six beers before attempting to drive home. He felt sleepy and
pulled off the freeway to rest. The police notices his hazzard lights and stopped to
investigate. Applicant was given a field sobriety test, which he failed. He was convicted
of DUI and sentenced to 36 months probation; a fine of $1,827, and required to attend
an alcohol program for six months. Applicant’s probation was revoked in January 2013.
Proof of completion of the alcohol program was filed on March 29, 2013. Applicant’s
probationary status was reinstated in April 2013. It was again revoked in July 2015
because Applicant failed to pay his fine. As of July 11, 2016, the case was referred to a
collection agency. Applicant has yet to fully pay the fine. Applicant is still on probation
for this offense. (GE 3; GE 5; GE 8; Tr. 48-54.)
Applicant was arrested in August 2012 and charged with driving under the
influence of alcohol (DUI), as alleged in SOR subparagraph 1.g. SOR subparagraph 1.i
is a duplicate listing concerning this charge. On this occasion, Applicant consumed five
to six beers while playing golf with a friend. He elected to drive home and hit a parked
car. Applicant fled the scene. He was later arrested at his house. He was sentenced to
30-days house arrest and a 52-week alcohol course. He was also fined. Applicant is on
probation for this offense. (GE 3; GE 5; Tr. 55-58.)
Applicant was court ordered to attend counseling as a result of his alcohol use.
He attended counseling from July 2013 to February 2015. He completed 52 group
sessions, 6 educational sessions, 26 face to face interviews, and 4 reentry groups. He
denied receiving any type of alcohol-related diagnosis. (AE A; Tr. 59-62.) 
Applicant currently drinks four to five beers twice per week. He testified that he
“barely consumes alcohol now”. (Tr. 73.) When pressed further to explain this claim he
testified that he drinks significantly less now than he did when he was going through his
divorce. (Tr. 73-74.)
The SOR alleged that Applicant intentionally falsified his answers in his August
28, 2012 security clearance application when he failed to disclose some of his alcohol
arrests, charges, and convictions. Specifically, he was asked “have you EVER been
charged with an offense involving alcohol or drugs?” and “In the past seven (7) years
have you been charged, convicted or sentenced of a crime in any court?” On
Applicant’s August 28, 2012 security clearance application, in section 22, Applicant was
asked several questions about his police record. Applicant disclosed his December
2011 arrest (stated in SOR subparagraph 1.e); a May 2012 DUI; his August 2012 DUI
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(as stated in SOR subparagraph 1.i); and a 1997 DUI conviction. He testified that he did
not have his records with him when he attempted to complete the security clearance
application and made errors unintentionally. He omitted his 2001 DUI because it was
dismissed and he did not understand that he was still required to list it. (Tr. 37, 75.)
The SOR also alleged that Applicant intentionally falsified his August 28, 2012
security clearance application in Section 25 when he failed to disclose that his security
clearance had been suspended as a result of an administrative withdrawal in 1996.
Applicant testified that he was not aware of the suspension. He testified that he left
active duty in March 1996 and had a clearance at that time. In 2009 while deployed as a
National Guard member, he learned that he did not have an active clearance, but was
never notified of a suspension or revocation. Three days after he learned his clearance
was not active, it was reactivated. (Tr. 69-71.)
Applicant’s supervisor testified and submitted a statement on Applicant’s behalf.
He indicated that Applicant went through a difficult divorce and is now on a path to
success. Applicant is an asset to his employer, and the witness considers him to be his
“wing man.” Applicant has not had any security violations. (AE B; Tr. 5-14.)
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 (DCs) and mitigating conditions (MCs), which are to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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 the 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
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mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “[a]ny determination under this order adverse to an
applicant shall be a determination in terms of the national interest and shall in no sense
be a determination as to the loyalty of the applicant concerned.”
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline G, Alcohol Consumption
AG ¶ 21 expresses the security concern pertaining to 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.
AG ¶ 22 describes conditions that could raise a security concern and may be
disqualifying. The DC raised by the evidence is:
(a) alcohol-related incidents away from work, such as driving while under
the influence, fighting, child or spouse abuse, disturbing the peace, or
other incidents of concern, regardless of whether the individual is
diagnosed as an alcohol abuser or alcohol dependent.
Applicant admitted the five alcohol-related incidents, set forth in SOR ¶¶ 1.a
through 1.i, which occurred from 1995 to 2012. These incidents raise security concerns
under AG ¶ 22(a). 
AG ¶ 23 provides conditions that could mitigate alcohol consumption security
concerns:
(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;
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(b) the individual acknowledges his or her alcoholism or issues of alcohol
abuse, provides evidence of actions taken to overcome this problem, and
has established a pattern of abstinence (if alcohol dependent) or
responsible use (if an alcohol abuser);
(c) the individual is a current employee who is participating in a counseling
or treatment program, has no history of previous treatment and relapse,
and is making satisfactory progress; and
(d) the individual has successfully completed inpatient or outpatient
counseling or rehabilitation along with any required aftercare, has
demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations, such as
participation in meetings of Alcoholics Anonymous or a similar
organization and has received a favorable prognosis by a duly qualified
medical professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.
Applicant has a very lengthy history of alcohol abuse, leading to a series of
criminal charges. Because he continues to consume four to five beers twice per week, it
cannot be determined that recurrence is unlikely or that doubts concerning his judgment
and reliability are resolved. Mitigation was not established under AG ¶ 20(a). 
Applicant offered the testimony of his supervisor as evidence of rehabilitation.
While good work performance shows some mitigation, here it is not controlling.
Applicant has a long history of alcohol-related incidents. Only four years have passed
since his last conviction and he is still on probation for two of his DUI arrests. Not
enough time has passed to show that Applicant has the judgment necessary to hold a
security clearance. He continues to consume alcohol in excess. He is not currently
participating in any treatment program and offered no favorable prognosis. Accordingly,
Applicant failed to establish mitigation under the terms of AG ¶¶ 23 (b), (c), or (d).
Guideline J, Criminal Conduct
The security concern relating to the guideline for Criminal Conduct is set out 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 describes conditions that could raise a security concern and may be
disqualifying. The following are potentially applicable: 
(a) a single serious crime or multiple lesser offenses; 
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(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted; and 
(d) individual is currently on parole or probation. 
Applicant has a history of multiple criminal arrests and convictions that occurred
between 1995 and 2012, including four DWI/DUI convictions and one DUI arrest that
was dismissed pursuant to a plea agreement. These offenses give rise to concerns
about Applicant’s judgment and reliability, both because of the nature and the quantity
of criminal offenses. Further, he is currently on probation for his 2011 and 2012
convictions. The aforementioned disqualifying conditions have been established. 
Four Criminal Conduct mitigating conditions under AG ¶ 32 are potentially
applicable: 
(a) 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;
(b) the person was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
(c) evidence that the person did not commit the offense; 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 involvement.
Applicant’s criminal past continues to cast doubt on his trustworthiness and
judgment. Some of his offenses are recent and he failed to present evidence to show
that similar criminal conduct is unlikely to recur. AG ¶ 32(a) does not provide full
mitigation.
Applicant failed to present evidence to show that he did not commit the offenses
or that he was pressured into criminal acts. Neither AG ¶¶ 32(b) nor 32(c) provide
mitigation.
Applicant failed to introduce sufficient evidence of rehabilitation. While he
expressed remorse for his past, completed a class that taught him about the effects of
alcohol, and has a good employment record, his current alcohol consumption remains a
concern given his history of recidivism. AG ¶ 32(d) does not provide full mitigation.
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Guideline E, Personal Conduct
The security concern for the personal conduct guideline is set out 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 describes conditions that could raise a security concern and may be
disqualifying. The following disqualifying condition is potentially applicable:
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
Applicant failed to disclose his 2001 DUI arrest on his e-QIP. While he knew he
had been arrested for this DUI, he was genuinely confused as to why he was required
to report it when the charge had been dismissed. He now understands that the
Government is asking about all arrests, and not just convictions. Applicant did identify
his four other DWI/DUI arrests on his e-QIP, despite incorrect dates. He did not
intentionally conceal his DUI convictions from the government. Further, he was not
aware his security clearance had been administratively withdrawn after his separation
from active duty. He did not intentionally falsify sections 22 or 25 on his August 28, 2012
security clearance application. The Government failed to establish this disqualifying
condition applies. 
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 relevant 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. 
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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
pertinent facts and circumstances surrounding this case. Applicant provided exceptional
service to the United States during several deployments. His supervisor indicated he is
a trustworthy employee. However, Applicant is a mature individual who is accountable
for his choices and actions. He built a 17-year-long pattern of alcohol-related criminal
infractions and he continues to consume alcohol. The potential for exploitation or duress
is undiminished, and insufficient time has passed since his last alcohol-related arrest in
2012 to conclude that recurrence is unlikely. Overall, the record evidence creates
substantial doubt as to Applicant’s present eligibility and suitability for a security
clearance. While he did not engage in falsification, he did not meet his burden to
mitigate the security concerns arising from his alcohol consumption and criminal
conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline G: AGAINST APPLICANT
Subparagraphs 1.a through 1.j: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraph 3.a through 3.c: For Applicant
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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.
                                              
Jennifer I. Goldstein
Administrative Judge
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