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      DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
) ISCR Case No. 16-02906 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Jeff Nagel, Esq., Department Counsel 
For Applicant: Ryan Nerney, Esq. 
July 14, 2017 
______________ 
Decision 
______________ 
GOLDSTEIN, Jennifer I., Administrative Judge: 
Between 2001 and 2011, Applicant was charged with multiple criminal offenses, 
many involving alcohol and drugs. He was convicted twice of driving under the influence 
of alcohol (DUI); once for driving under the influence of marijuana; and once for 
resisting, obstructing, or delaying a police officer. His criminal record raises unmitigated 
security concerns under the guideline for criminal conduct. His alcohol-related offenses 
raise unmitigated security concerns under the guideline for alcohol consumption. 
Applicant was additionally alleged to be delinquent on four debts totaling $10,731, which 
raise security concerns under the guideline for financial considerations. All of the 
alleged debts are unresolved. Eligibility for access to classified information is denied.  
Statement of the Case 
On November 19, 2016, in accordance with the Department of Defense (DoD) 
Directive 5220.6, as amended (Directive), the DoD issued Applicant a Statement of 
Reasons (SOR) alleging facts that raised security concerns under Guidelines J, G, and 
 
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F.1 The SOR  informed Applicant that, based on information available to the 
government, DoD adjudicators could not make the preliminary affirmative finding it is 
clearly consistent with the national interest to grant or continue Applicant’s security 
clearance. 
 
Applicant answered the SOR on January 3, 2017, and requested a determination 
on the written record. On March 27, 2017, Department Counsel received a notice of 
Appearance from Applicant’s counsel, which requested a hearing in this matter before 
an administrative judge. The case was assigned to me on March 28, 2017. The Defense 
Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 4, 2017, 
scheduling the hearing for May 9, 2017. The hearing was convened as scheduled. The 
Government offered Exhibits (GE) 1 through 7, which were received without objections. 
Applicant testified on his own behalf. Applicant presented documents, which I marked 
as Applicant’s Exhibits (AE) A through U. AE A through AE U were admitted without 
objection. DOHA received the transcript of the hearing (Tr.) on May 17, 2017. 
 
Findings of Fact 
 
 Applicant admitted all of the criminal, alcohol, and financial allegations in SOR ¶¶ 
1.a through 1.g, 2.a, and 3.a through 3.d. After a thorough and careful review of the 
pleadings, exhibits, and testimony, I make the following findings of fact.  
 
 Applicant is a 35-year-old employee of a defense contractor. He has been 
employed with the defense contractor in his current position since January 2017, 
although he previously worked for his employer as an intern in 2015 and 2016. He 
earned a bachelor’s degree in December 2016. He is not married, and has one minor 
son. (GE 1; AE A; AE B; AE C; AE D; AE E; Tr. 24-25.) 
 
 Applicant grew up without adult supervision. His mother left when he was 
approximately ten years old. His father was not around. Applicant testified that he grew 
up on the streets. (AE A; Tr. 37.) His history includes several arrests and citations, as 
follows. 
 
 In July 2001, Applicant was charged with trespassing on state property and 
possession of marijuana. Applicant and his friends had been hiking through a rock 
quarry that crossed into state property unbeknownst to Applicant. As they returned from 
the hike to Applicant’s vehicle, they were stopped by a patrolman. Applicant gave the 
officer permission to search his car, and the officer found a small amount of marijuana 
in Applicant’s friend’s spare pants, which were in Applicant’s vehicle. Applicant pled 
guilty to trespassing and the possession of marijuana charge was dismissed. He was 
fined $250. He is no longer a friend to the individual that possessed the marijuana on 
this occasion. (Answer; GE 3; AE Q; Tr. 38-39, 60-62.) 
 
                                                          
1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new 
Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was decided 
under the previous Adjudicative Guidelines. Applicant’s counsel had notice of the applicability of the new 
Adjudicative Guidelines prior to the hearing. (Tr. 7.) 
 
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 In March 2002, Applicant was arrested and charged with driving under the 
influence (DUI)/alcohol or drugs, and possession of marijuana. This arrest occurred 
after Applicant drove down a one-way street in the wrong direction. Applicant was 
administered a blood test, and the results showed he had “THC,” a chemical found in 
marijuana, in his blood. He pled guilty to DUI and was sentenced to five days in jail and 
three years of probation. (GE 2; GE 3; Tr. 39-40, 63-64.) 
  
 In August 2005, Applicant was arrested and charged with DUI, and drunk driving-
priors, after he was stopped for speeding and the officer detected Applicant was 
intoxicated. A breathalyzer was administered to Applicant. Applicant pled guilty to DUI 
and was found guilty of drunk driving-priors. He was sentenced to 30 days in jail, fined 
$1,550, and placed on probation for 60 months. He was required to complete alcohol 
education classes. His license was restricted for 18 months. (GE 3; AE R; Tr. 40-41, 66-
68.) 
 
 In March 2008, Applicant was charged with driving while privilege suspended or 
revoked. Unbeknownst to Applicant, his licenses had been suspended for failure to 
maintain insurance. He received a $272 fine as a result of this citation. He was placed 
on probation for 36 months for that charge. (AE S; Tr. 42.) 
 
 In May 2009, Applicant was arrested and charged with possession of aerosol 
paint container with intent to deface and resist, obstruct, delay peace officer. Applicant 
had been at the beach and left his car there overnight. He was not sure what led to the 
charges related to the aerosol spray paint, but believes the officer broke into his car, 
impounded it, found Applicant’s Identification in it, and attempted to arrest Applicant at 
his father’s house. When Applicant learned there was a warrant for his arrest, he turned 
himself in to the police. Applicant admits no wrongdoing in this incident. Despite his 
claim of innocence, he pled guilty to resist, obstruct, delay peace officer and was placed 
on probation for 36 months. (Answer; AE T; Tr. 42-45, 73-74.) 
 
 In August 2011, Applicant was arrested and charged with DUI. Applicant pled 
guilty to this charge. He was sentenced to 125 days incarceration, which he served in a 
work-furlough program. He was required to install an ignition interlock device in his 
vehicle for one year. He was fined $2,319. He testified he was placed on probation in 
2012 for five years. As a condition of probation, Applicant was required to abstain from 
alcohol use. Applicant is no longer on probation for this offense. (GE 2; GE 3; AE U; Tr. 
45-46, 75.) 
 
 Applicant successfully abstained from alcohol use from 2011 to 2014. However, 
Applicant consumed alcohol from 2014 to 2016 in violation of his probation. He testified 
that he was on informal probation during this period for his 2011 DUI. (Tr. 47.) He last 
consumed alcohol on his birthday in early 2017. (Tr. 50.) He testified that he will not 
consume alcohol because it has been too destructive to his life. He signed statements 
indicating he will never “use illegal drugs again” and will “never abuse/use alcohol 
again.” (AE L; AE M; Tr. 50-51.) 
 
 
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 Applicant testified he stopped associating with drug users in 2011. (Tr. 48.) He 
provided the results of drug tests administered in February 2016 and March 2017, which 
were negative. (AE J; AE K.) He claims he is now more responsible and takes care of 
his son. He has not completed any type of alcohol counseling, beyond the court-ordered 
alcohol education programs. However, he claimed to have attended Alcoholics 
Anonymous twice a week for a three-month period from September 2011 to November 
2011 in GE 2. (GE 2; Tr. 82.) 
 
 Applicant was also alleged to be delinquent on four debts totaling $10,731. 
These debts appear on credit reports from May 2015, September 2016, and May 2017. 
(GE 4; GE 5; GE 7.) They include a phone bill delinquent since 2011 in the amount of 
$175 (SOR ¶ 3.a); a medical bill incurred in relation to his 2011 arrest in the amount of 
$9,462 (SOR ¶ 3.b); a debt owed to his state’s highway patrol as a result of his 2011 
arrest in the amount of $540 (SOR ¶ 3.c); and a medical debt in the amount of $554 
(SOR ¶ 3.d). Applicant disputed the debt in SOR ¶ 3.b, and the debt was reduced to 
approximately $400, but he has not resolved that remaining delinquency because he 
was awaiting an invoice. He sent letters containing pay-off offers to the creditors in SOR 
¶¶ 3.a and 3.d in March 2017 expressing an interest in resolving these debts, but failed 
to document any other actions taken on these accounts. He sent a letter requesting the 
highway patrol validate the debt in SOR ¶ 3.c in March 2017, but failed to provide 
documentation of other action on this debt. All of his delinquencies are unresolved. (AE 
F; AE G; AE I; AE H; Tr. 26-33, 54-58.) 
 
 Applicant testified he has $3,500 in cash saved at his home. He has $900 in his 
checking account. He earns an annual salary of $73,450. His personal financial 
statement shows he has $413.58 left at the end of the month after all his monthly 
financial obligations are met. He did not attempt to resolve his debts until recently 
because he has only been in his full-time position since January 2017. (AE N; Tr. 34-35, 
54-56.) 
 
 Applicant presented letters of recommendation from professional and personal 
contacts. They indicate he is a hardworking, trustworthy, reliable, and talented 
employee. One mentioned Applicant is an “upstanding and responsible citizen” with an 
excellent work ethic. (AE P.) 
 
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, administrative judges apply the guidelines 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 
 
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commonsense decision. According to AG ¶ 2(a), 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 ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for national security 
eligibility 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. 
 
Directive ¶ E3.1.14 requires the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
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.”  
 
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 (EO) 10865 provides that adverse 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 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. 
 
The guideline at AG ¶ 31 contains five disqualifying conditions that could raise a 
security concern and may be disqualifying. Two conditions apply, as discussed below: 
 
 
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(a) a pattern of minor offenses, any one of which on its own would be 
unlikely to affect a national security eligibility decision, but which in 
combination cast doubt on the individual's judgment, reliability, or 
trustworthiness; and 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
whether the individual was formally charged, prosecuted, or convicted. 
 
Applicant has been convicted of: trespassing on state property in 2001; DUI in 
2002; DUI in 2005; driving while his license was suspended in 2008; resist, obstruct, 
delay peace officer in 2009; and DUI in 2011. Additionally, while he was not formally 
charged with a probation violation, he violated the terms of his 2012 probation by using 
alcohol from 2014 to 2016. This evidence raises security concerns under these 
disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or 
mitigate those concerns. 
 
The guideline in AG ¶ 32 contains four conditions that could mitigate criminal 
conduct security concerns: 
 
(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 individual was pressured or coerced into committing the act and 
those pressures are no longer present in the person's life; 
 
(c) no reliable evidence to support that the individual committed the 
offense; and 
 
(d) there is evidence of successful rehabilitation; including, but not limited 
to, the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 
Sufficient time has not passed since Applicant’s most recent DUI, given the fact 
that he was previously convicted of two DUIs and multiple other offenses between 2001 
and 2011. Although he provided some evidence of rehabilitation, including a history of 
successful work with his employer and his recent achievement of a bachelor’s degree, 
that evidence does not outweigh the fact that he demonstrated an 11-year history of 
disregarding for the law from 2001 to 2011. Further, despite being on probation from 
2014 to 2016, he admitted to violating the terms of his probation by drinking alcohol. 
Based on those facts, the evidence continues to cast doubt on Applicant’s reliability, 
trustworthiness, and good judgment. The evidence does not establish mitigation under 
any of the above conditions.   
 
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Guideline G: Alcohol Consumption 
 
The security concern relating to the guideline for Alcohol Consumption is set out 
in AG ¶ 21: 
 
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 guideline at AG ¶ 22 contains seven conditions that could raise a security 
concern and may be disqualifying in this case. One condition may apply: 
 
(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 the frequency of the individual's 
alcohol use or whether the individual has been diagnosed with alcohol use 
disorder. 
 
Applicant was convicted of DUIs in 2005 and 2011. This evidence raises the 
above security concern, thereby shifting the burden to Applicant to rebut, extenuate, or 
mitigate that concern. 
 
The guideline at AG ¶ 23 contains four conditions that could mitigate security 
concerns. Three conditions may apply: 
 
(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 judgment;  
 
(b) the individual acknowledges his or her pattern of maladaptive alcohol 
use, provides evidence of actions taken to overcome this problem, and 
has demonstrated a clear and established pattern of modified 
consumption or abstinence in accordance with treatment 
recommendations; and 
 
(d) the individual has successfully completed a treatment program along 
with any required aftercare, and has demonstrated a clear and established 
pattern of modified consumption or abstinence in accordance with 
treatment recommendations. 
 
 Applicant’s history of alcohol-related arrests is troublesome. His two alcohol-
related DUIs, coupled with his admitted probation violations continue to cast doubt on 
his trustworthiness. He has done little to acknowledge he has a pattern of maladaptive 
alcohol use. While he recently decided to stop the consuming alcohol and signed a 
statement to that effect, not enough time has passed since his last DUI and completion 
 
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of all probations to insure he will not relapse. He completed no treatment program. 
None of the above mitigating conditions apply. 
 
Guideline F: Financial Considerations 
 
 The security concern relating to the guideline for Financial Considerations is set 
out in AG ¶ 18: 
 
Failure to live within one's means, satisfy debts, and meet financial 
obligations may indicate poor self-control, lack of judgment, or 
unwillingness to abide by rules and regulations, all of which can raise 
questions about an individual's reliability, trustworthiness, and ability to 
protect classified or sensitive information. Financial distress can also be 
caused or exacerbated by, and thus can be a possible indicator of, other 
issues of personnel security concern such as excessive gambling, mental 
health conditions, substance misuse, or alcohol abuse or dependence. An 
individual who is financially overextended is at greater risk of having to 
engage in illegal or otherwise questionable acts to generate funds. 
Affluence that cannot be explained by known sources of income is also a 
security concern insofar as it may result from criminal activity, including 
espionage. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 19. Two are potentially applicable in this case:   
 
(a) inability to satisfy debts; and 
 
(c) a history of not meeting financial obligations. 
 
  Applicant was alleged to be indebted on four debts totaling $10,731. Those debts 
date back to 2011 and remain unresolved. The evidence is sufficient to raise these 
disqualifying conditions.  
 
 AG ¶ 20 provides seven conditions that could mitigate security concerns. Five 
may apply: 
 
(a) the behavior happened so long ago, was so infrequent, or occurred 
under such circumstances that it is unlikely to recur and does not cast 
doubt on the individual's current reliability, trustworthiness, or good 
judgment; 
 
(b) the conditions that resulted in the financial problem were largely 
beyond the person's control (e.g., loss of employment, a business 
downturn, unexpected medical emergency, a death, divorce or separation, 
clear victimization by predatory lending practices, or identity theft), and the 
individual acted responsibly under the circumstances; 
 
 
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(c) the individual has received or is receiving financial counseling for the 
problem from a legitimate and credible source, such as a non-profit credit 
counseling service, and there are clear indications that the problem is 
being resolved or is under control; 
 
(d) the individual initiated and is adhering to a good-faith effort to repay 
overdue creditors or otherwise resolve debts; and 
 
(e) the individual has a reasonable basis to dispute the legitimacy of the 
past-due debt which is the cause of the problem and provides 
documented proof to substantiate the basis of the dispute or provides 
evidence of actions to resolve the issue. 
 
Applicant’s financial problems are ongoing. He has a long history of 
delinquencies. He has yet to fully resolve any of the debts identified on the SOR. He 
has not demonstrated that future financial problems are unlikely. Mitigation under AG ¶ 
20(a) has not been established. 
 
 Applicant attributed his delinquencies to not having sufficient money to pay them 
until recently, when he obtained full-time employment. However, he failed to establish 
that he acted reasonably or responsibly with respect to his debts while they were 
accumulating. He has also not demonstrated that he addressed his debts in a 
responsible or timely manner since January 2017, when he became fully employed. Full 
mitigation under AG ¶ 20(b) has not been established. 
 
 Applicant presented no evidence of financial counseling. There are no clear 
indications that his financial problems are being resolved or are under control. Mitigation 
under AG ¶¶ 20(c) or (d) has not been established. 
 
 Applicant contested the delinquency in SOR ¶ 3.b with the creditor and the 
amount of the debt was reduced. However, he failed to present evidence to show he 
paid the reduced amount. Mitigation under AG ¶ 20(e) is only partially applicable to 
SOR ¶ 3.b.  
 
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(d):  
 
(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 
 
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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 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 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines J, G, and F in my whole-person analysis. Some of the factors in AG ¶ 2(d) 
were addressed under those guidelines, but some warrant additional comment.  
 
Applicant has recently demonstrated several commendable steps toward 
rehabilitation. He completed his bachelor’s degree, obtained a job, and has stopped 
consuming alcohol. He is respected by his colleagues and friends, who wrote letters on 
his behalf. He performs well at his job. He has tested negative for illegal substances. 
However, his long criminal history, his history of problematic alcohol consumption, and 
his history of delinquent debts leave me with questions and doubts as to his present 
eligibility and suitability for a security clearance. For all these reasons, I conclude 
Applicant failed to mitigate the criminal conduct, alcohol consumption, and financial 
considerations security concerns.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of the Directive, are: 
 
Paragraph 1, Guideline J:   AGAINST APPLICANT 
 
  Subparagraphs 1.a through 1.g:  Against Applicant 
 
Paragraph 2, Guideline G:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
 
Paragraph 3, Guideline F:   AGAINST APPLICANT 
 
  Subparagraphs 1.a through 1.d:  Against 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 Goldstein 
Administrative Judge