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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 17-02324 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Gatha Manns, Esq., Department Counsel 
For Applicant: Alan V. Edmunds, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines G (Alcohol 
Consumption) and J (Criminal Conduct). Eligibility for access to classified information is 
granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on March 6, 2017. On 
August 8, 2017, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) sent him a Statement of Reasons (SOR) alleging security concerns under 
Guidelines G and J. The DOD CAF acted under Executive Order (Exec. Or.) 10865, 
Safeguarding Classified Information within Industry (February 20, 1960), as amended; 
DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review 
Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines 
(AG) promulgated in Security Executive Agent Directive 4, National Security 
Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after 
June 8, 2017. 
 
 
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 Applicant answered the SOR on September 1, 2017, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on 
December 4, 2017, and the case was assigned to an administrative judge on February 
14, 2018. The case was reassigned to me on April 19, 2018. On April 23, 2018, the 
Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for May 22, 2018. I convened the hearing as scheduled. Government 
Exhibits (GX) 1 through 9 were admitted in evidence without objection. Applicant 
testified, presented the testimony of two witnesses, and submitted Applicant’s Exhibits 
(AX) A through K, which were admitted without objection. DOHA received the transcript 
(Tr.) on June 6, 2018. 
 
Administrative Notice 
 
 I have taken administrative notice of the text of the state statute which is the 
basis for SOR ¶ 1.b and the city ordinance which is the basis for SOR ¶ 1.d. I notified 
Department Counsel of my intent to take administrative notice, and she did not object. 
(Hearing Exhibit I.) 
 
Findings of Fact1 
 
 In Applicant’s answer to the SOR, he admitted the allegations in SOR ¶¶ 1.b, 1.c, 
and 2.a. He admitted in part the allegations in SOR ¶¶ 1.a, 1.d-1.f, and 2.b and denied 
them in part. His admissions in his answer and at the hearing are incorporated in my 
findings of fact.  
 
 Applicant is a 38-year-old technologist employed by a defense contractor since 
May 2008. He received a bachelor’s degree in computer science in May 2002 and a 
master’s degree in business administration in December 2005. (Tr. 38.) He has never 
married and has no children. He has held a security clearance since August 2008. His 
employer sponsored him for a top secret clearance in March 2013, but a decision has 
been suspended pending resolution of the allegations in the SOR. (GX 2; Tr. 37.)  
 
 In September 2003, Applicant was charged with driving while intoxicated (DWI). 
He pleaded guilty in March 2004. (GX 1 at 34; GX 2 at 33.) He was required to complete 
an alcohol-intervention program, and his driver’s license was suspended for 12 months. 
He completed the alcohol-intervention program in May 2004. (AX J at 2.) 
 
 In August 2007, Applicant was charged with reckless driving by driving 87 miles 
per hour (mph) in a 55 mph zone. He was tried in absentia and fined $250. (GX 5.) 
 
 In October 2009, Applicant was charged with disorderly conduct. He and his 
roommate were attending an event, and both were consuming alcohol. Applicant was 
not intoxicated, but his roommate was intoxicated and disruptive, and he was asked to 
                                                          
1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless 
otherwise indicated by a parenthetical citation to the record. 
 
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leave the event. As Applicant and his roommate left the event in a taxi, his roommate 
began arguing with him, and the taxi driver sought assistance from a police officer. Both 
Applicant and his roommate were charged with disorderly conduct. The charge against 
Applicant was dismissed. (GX 9; Answer to SOR at 3.) 
 
 In October 2011, Applicant was charged with violating a city ordinance (§ 23-22) 
which provides: “If any person be intoxicated in public . . . , he shall be deemed guilty of 
a Class 4 misdemeanor.” Applicant was waiting for a ride in a parking lot adjacent to a 
bar and was arrested by a police officer who thought he was loitering. The case initially 
was scheduled for a hearing in November 2011, but the charge was dismissed in May 
2012. (GX 8; Answer to SOR at 3.) 
 
 In August 2012, Applicant was charged with DWI (2nd offense) and refusing a 
blood or breath test. He pleaded guilty to DWI (1st offense) and the test-refusal charge 
was dismissed. He was placed on unsupervised probation for 12 months and fined 
$250. His driver’s license was restricted and he was required to complete an Alcohol 
Safety Action Program (ASAP) and install an ignition interlock on his vehicle. In his 
answer to the SOR, he stated that this arrest made him realize the seriousness of the 
charges, and he pledged to never drive after drinking again. (GX 7; Answer to SOR at 
2-3.) He completed the ASAP in April 2013. (AX J at 1.)  
 
 In October 2016, Applicant was outside a bar when he was cited for violating a 
state statute (§ 18.2-388). The court records and the SOR list the offense as “profane 
swearing/public intoxication.” However, the statute is written in the disjunctive and 
provides: “If any person profanely curses or swears or is intoxicated in public . . . , he 
shall be deemed guilty of a Class 4 misdemeanor.” Applicant testified that the person 
who had driven him to the bar had left earlier, and he left the bar when it closed at 2:00 
am. He was trying to engage an Uber or Lyft, but it was difficult to get a ride because it 
was Halloween weekend. He testified that he did not remember if he used profanity. He 
was released on his own recognizance, waived a hearing, and prepaid a $25 fine and 
$91 in court costs. In his answer to the SOR and at the hearing, he admitted that he 
was cited, but he did not admit that he was intoxicated. (Tr. 49; GX 6; Answer to SOR at 
2.) 
 
 One of the principals in the consulting firm for whom Applicant works testified in 
his behalf and submitted a letter recommending that his application for a security 
clearance be granted. She is a graduate of a service academy with six years of active 
duty as an officer. She regards Applicant as a “superior performer” and trusts him 
implicitly. Applicant promptly self-reported his arrests and citations and has continued 
his high level of performance in spite of the pressure of the pending security 
adjudication. She has never observed or received reports of alcohol abuse by Applicant 
in the workplace. She has no reservations about Applicant holding a security clearance. 
(Tr. 12-19; AX A at 5.)  
 
 Another of the firm’s principals testified and submitted a letter on Applicant’s 
behalf. This principal worked with Applicant for about five years, interacting two or three 
 
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times a week. He regards Applicant as honest, candid, hardworking, and talented. (Tr. 
30-35; AX A at 2.) A co-worker submitted a letter describing Applicant as an “exemplary 
employee” who has earned the trust of his supervisors and colleagues. (AX A at 6.) A 
client of Applicant’s employer submitted a letter describing him as courteous, honest, 
and professional. (AX A at 7.) Three of Applicant’s friends and a professor at a local 
university attested to his extensive community involvement. (AX A at 1, 3, 4; AX K.) 
 
 Applicant’s performance evaluation for 2016 praised his increased leadership, 
development of strong client relationships, and his care and concern for subordinates. 
(AX E.) In February 2017, Applicant received an information technology excellence 
award from the Navy for his work on an information technology project in 2016. (AX H.)  
 
 Applicant admitted that he sometimes drank to the point of intoxication while in 
college, and that he had been drinking on the occasions alleged in the SOR. (Tr. 55-59.) 
He testified that he no longer drives after drinking. He usually consumes one or two 
drinks in a social situation, but he does not drive even if he has only one drink. (Tr. 53.) 
He submitted a statement of intent, in which he declared his intent to never abuse 
alcohol again and agreed to an automatic revocation of his security clearance for any 
alcohol abuse. (AX I.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865 § 2.  
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules 
of law. Instead, recognizing the complexities of human behavior, an administrative judge 
applies these guidelines in conjunction with an evaluation of the whole person. An 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. An administrative judge must consider all available and reliable 
information about the person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
 
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Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 
10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. 
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15-
01253 at 3 (App. Bd. Apr.20, 2016).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531.  
 
Analysis 
 
Guideline G, Alcohol Consumption 
 
 The SOR alleges that Applicant has consumed alcohol, at time in excess and to 
the point of intoxication, since about 1997-1998 to at least May 2017 (SOR ¶ 1.a). It 
also alleges that he was cited for “profane swearing/public intoxication” in October 2016 
(SOR ¶ 1.b); arrested for DWI (2nd offense) in August 2012 and refusing a blood or 
breath test and pleaded guilty to DWI (1st offense) (SOR ¶ 1.c); arrested in October 
2011 for “public swearing/intoxication” (SOR ¶ 1.d); cited for disorderly conduct in 
October 2009 (SOR ¶ 1.e); and arrested for DWI in September 2003 (SOR ¶ 1.e). 
 
 Applicant admitted that he consumed alcohol in excess when he was in college 
and for a time after he graduated, but he denied that he consumed alcohol in excess for 
the duration alleged in SOR ¶ 1.a. His admission partially establishes SOR ¶ 1.a. His 
admissions and the documentary evidence submitted at the hearing establish the DWI 
convictions in September 2003 and August 2012, alleged in SOR ¶¶ 1.c and 1.f.  
 
 
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 The state statute (§ 18.2-388) cited in the documentary evidence supporting 
SOR ¶ 1.b is written in the disjunctive and prohibits profane cursing or swearing or 
public intoxication. It is not clear from the documentary evidence whether Applicant was 
cited and paid a prepaid fine for cursing, swearing, public intoxication, or a combination 
of offenses. Because Applicant had stayed in the bar until it closed, his consumption of 
alcohol in the bar is a reasonable inference, but the court records, standing alone, do 
not establish that he was intoxicated. Thus, I conclude that SOR ¶ 1.b is established to 
the extent that it alleges that he was cited for one of the offenses proscribed by the 
statute, but it is not established to the extent that it alleges that he was cited for public 
intoxication. 
 
 The allegation in SOR ¶ 1.d incorrectly describes the offense as “public 
swearing/intoxication.” The city ordinance cited in the documentary evidence supporting 
SOR ¶ 1.d prohibits public intoxication but does mention public swearing. Unlike the 
state statute, it is not written in the disjunctive. The documentary evidence and 
Applicant’s admission establish that he was arrested for public intoxication, which is 
sufficient to establish one of the offenses alleged in SOR ¶ 1.d.  
 
 Applicant admitted that he was cited for disorderly conduct in October 2009, as 
alleged in SOR ¶ 1.e. He also admitted that he had been drinking but denied that he 
was intoxicated. The citation for disorderly conduct was dismissed. The evidence is 
sufficient to establish that he was cited, but insufficient to establish that he was 
intoxicated.  
 
The concern under this guideline 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.” Applicant’s partial admission of SOR ¶ 1.a and his admissions and the 
documentary evidence regarding his two DWI convictions alleged in SOR ¶ 1.c and 1.f 
are sufficient to raise the following potentially disqualifying conditions:  
 
AG ¶ 22(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; and 
 
AG ¶ 22(c): habitual or binge consumption of alcohol to the point of 
impaired judgment, regardless of whether the individual is diagnosed with 
alcohol use disorder. 
 
 The following mitigating conditions are potentially applicable: 
 
AG ¶ 23(a): so much time has passed, or the behavior was so infrequent, 
or it happened under such unusual circumstances that it is unlikely to 
 
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recur or does not cast doubt on the individual's current reliability, 
trustworthiness, or judgment; and 
 
AG ¶ 23(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. 
 
 AG ¶ 23(a) is established. Applicant’s last alcohol-related incident established by 
the evidence was the DWI that occurred six years ago. The evidence does not establish 
that Applicant’s arrest in October 2016 was alcohol-related. 
 
 AG ¶ 23(b) is established. Applicant acknowledged his lack of judgment by 
driving after drinking, and he now refrains from driving, even after consuming only one 
drink. 
 
Guideline J, Criminal Conduct 
 
 SOR ¶ ¶ 2.a alleges reckless driving in August 2007, by speeding more than 80 
mph in a 55 mph zone, and SOR 2.b cross-alleges SOR ¶¶ 1.a-1.f. The security 
concern under this guideline 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.” 
 
Applicant’s admissions and the documentary evidence submitted at the hearing 
establish the following potentially disqualifying conditions: 
 
AG ¶ 31(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; 
 
AG ¶ 31(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; 
 
 For the reasons set out in the above discussion of Guideline G, I conclude that 
AG ¶¶ 31(a) and 31(b) are raised. The following mitigating conditions are potentially 
applicable: 
 
AG ¶ 32(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; 
 
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AG ¶ 32(c): no reliable evidence to support that the individual committed 
the offense; and 
 
AG ¶ 32(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. 
 
 AG ¶ 32(a) is not established. Applicant’s citation for public intoxication in 
October 2016 was recent and did not occur under unusual circumstances. 
 
 AG ¶ 32(c) is established for the conduct alleged in SOR ¶¶ 1.b, 1.d, and 1.e, for 
the reasons set out in the above discussion of Guideline G. 
 
 AG ¶ 32(d) is established for the reasons set out in the above discussion of 
Guideline G and the following considerations. Applicant’s pattern of irresponsible 
conduct ended with his DWI arrest in August 2012. His employer sponsored him for an 
upgrade of his security clearance in March 2013. Two senior officials of the company by 
whom he is employed submitted strong endorsements of his suitability for continuing his 
clearance. Finally, the evidence does not support a finding that Applicant was 
intoxicated in October 2016. Even if he was guilty of publicly uttering an illegal expletive 
because of his frustration in obtaining transportation, this minor infraction, considered in 
the context of his employment record and constructive community involvement, is 
insufficient to raise doubt about his trustworthiness, responsibility or good judgment.  
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).2  
 
 I have incorporated my comments under Guidelines G and J in my whole-person 
analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but 
some warrant additional comment.  
 
                                                          
2 The factors are: (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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 Applicant was candid, remorseful, and credible at the hearing. He self-reported 
his arrests and citations to his facility security officer, even though he believed he was 
not guilty of some of them. He has placed himself on probation by submitting his sworn 
statement of intent to refrain from further alcohol-related misconduct. He is highly 
regarded by his friends, coworkers, and supervisors. The testimony of two senior 
members of Applicant’s company was particularly impressive. After weighing the 
disqualifying and mitigating conditions under Guidelines G and J, and evaluating all the 
evidence in the context of the whole person, I conclude Applicant has mitigated the 
security concerns raised by his alcohol consumption and criminal conduct. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline G (Alcohol Consumption): FOR APPLICANT 
 
  Subparagraphs 1.a-2.f:    For Applicant 
 
 Paragraph 2, Guideline J (Criminal Conduct):  FOR APPLICANT 
 
  Subparagraphs 2.a-2.b:    For Applicant 
 
Conclusion 
 
 I conclude that it is clearly consistent with the national security interests of the 
United States to continue Applicant’s eligibility for access to classified information. 
Clearance is granted. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge