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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 18-00018 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Benjamin R. Dorsey, Esq., Department Counsel 
For Applicant: Greg D. McCormack, 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 
denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on February 20, 2015. On 
March 9, 2018, 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. 
 
 Applicant answered the SOR on March 16, 2018, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on May 25, 2018, 
 
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and the case was assigned to an administrative judge on June 11, 2018. Applicant 
requested a change of venue, which was granted, and the case was reassigned to 
another administrative judge on June 29, 2018. It was reassigned to me on August 15, 
2018 to consolidate the docket. On August 27, 2018, the Defense Office of Hearings and 
Appeals (DOHA) notified Applicant that the hearing was scheduled for September 25, 
2018. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 11 were 
admitted in evidence without objection. Applicant testified and submitted Applicant’s 
Exhibits (AX) A through E, which were admitted without objection. DOHA received the 
transcript (Tr.) on October 3, 2018. 
 
Findings of Fact1 
 
 In Applicant’s answer to the SOR, he admitted all the allegations. His admissions 
in his answer and at the hearing are incorporated in my findings of fact.  
 
 Applicant is a 40-year-old employee of a defense contractor. He is working as a 
maintenance supervisor for a military housing area. He has been offered a position as a 
subject-matter expert embedded with tactical Army units conducting ground operations in 
a combat zone. His job offer is contingent on him qualifying for a top secret clearance and 
eligibility for access to sensitive compartmented information (SCI). (Tr. 28-29.) 
 
Applicant married in June 2003. He and his wife have four children, ages 14, 12, 
7, and 4. (Tr. 20.) He has taken online college courses and accumulated about 75 credit 
hours, but he does not have a degree. He and his wife own their home and are actively 
involved in church and community activities. (Tr. 19-21.) 
 
Applicant enlisted in the U.S. Army shortly after graduating from high school, 
served on active duty from July 1997 to August 2017, and retired as a master sergeant 
(pay grade E-8). While on active duty, he was awarded the Bronze Star Medal four times, 
one of which was for valor; the Meritorious Service Medal twice; the Army Commendation 
Medal four times; the Air Force Commendation Medal once; the Joint Service 
Achievement Medal once; the Army Achievement Medal four times; the Army Good 
Conduct Medal six times; the National Defense Service Medal once; and various 
campaign medals, ribbons, tabs, and qualification badges, including campaign medals 
for service in Afghanistan and Iraq. (AX B at 1-2.) He deployed to Afghanistan seven 
times, for four to six months each time. He deployed to Iraq four times for four to seven 
months each time. His total time deployed to combat zones was about five years. (Tr. 26-
27.) His last active-duty assignment was as the first sergeant of an infantry company in 
the United States. He received a security clearance in May 2002 and held it for all of his 
military service. He did not have an active security clearance at the time of the hearing. 
 
 In September 2012, Applicant was arrested by civilian authorities for simple 
battery, a misdemeanor. He testified that he had attended a hail-and-farewell party at an 
                                                          
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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Irish pub. He and a “Ranger buddy” had several drinks, decided that it was time to leave, 
and started walking toward a military van that was available for transportation back to 
their post. Applicant estimated that he had consumed about five beers over a three-hour 
period. (Tr. 64.)  
 
As Applicant and his “buddy” were walking toward the van, one of two men sitting 
on a park bench asked, “What the f--- are you looking at?” Applicant responded, “I guess 
I’m looking at you,” and they continued walking toward the van. Applicant was shoved 
from behind by one of the men, turned around, and was shoved in the face. Applicant 
punched the man and knocked him out. The other man from the park bench came toward 
Applicant, and Applicant knocked him out as well. Applicant and his “buddy” walked 
quickly to the van. A civilian police officer stopped the van as they were driving away. 
Applicant was arrested and charged with simple battery. When he appeared in court with 
an attorney, disposition was deferred, and his case was placed on the “dead docket,” 
where it remains. (Tr. 31-33; GX 4 at 3.) 
 
 In July 2013, Applicant was arrested by civilian authorities for driving under the 
influence of alcohol (DUI). He was a platoon sergeant at the time. He and his platoon 
leader went to a local pub for an informal farewell to the platoon leader, who was leaving 
the Army to attend medical school. They were joined by two squad leaders from the 
platoon. According to Applicant, they had one drink before dinner, three drinks with 
dinner, and another drink after dinner.  
 
As Applicant was driving home, he was stopped by the police. The record does not 
reflect why he was stopped, but he was charged with DUI. He pleaded guilty to reckless 
driving and was placed on supervised probation for 12 months, fined about $1,300, and 
required to perform 40 hours of community service. He was referred to the military 
installation’s substance use disorder clinical care (SUDCC) program and completed a 
two-day alcohol-education program. (Tr. 35-36; GX 4 at 4; GX 8 at 2; GX 9.) There is no 
evidence that he was diagnosed with an alcohol-use disorder at this time. 
 
 Applicant was arrested in October 2016 after he and some friends had several 
beers at a bar, while watching a football game on television. He testified that he tried to 
call someone to drive him home, but the battery on his cellphone was too weak. He asked 
the bartender to call a cab, but the bartender told him that there was no cab service 
because the bar was too far out in the country. He decided to ride his motorcycle home, 
using back roads to reduce the risk of being stopped for DUI. He got lost, and tried to 
revive his cellphone long enough to view a map. He dropped his cellphone, and he then 
tipped over his motorcycle when he reached down to pick it up. A policeman drove up 
behind him, smelled alcohol, and administered a field sobriety test. The policeman asked 
Applicant to take a breath test, and Applicant refused. (Tr. 38.)  
 
Applicant was arrested and charged with driving while intoxicated (DWI), refusal 
to take a breath test, driving across a hazard mark, and driving at an unreasonable speed. 
In August 2017, he pleaded guilty to driving while his ability was impaired (DWAI) and 
was sentenced to a conditional discharge for one year. He was fined and his driver’s 
 
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license was suspended for 90 days. He was warned by the court that any further incidents 
would result in his arrest and 15 days in jail. (GX 10.) He was relieved for cause from his 
duties as a company first sergeant and received an adverse evaluation report. (AX C at 
1-2.)  
 
After his arrest in October 2016, Applicant was again referred to the SUDCC, and 
he was diagnosed with an alcohol-use disorder. It is not clear who made the diagnosis, 
but the two clinicians identified in the records are both clinical psychologists. He 
completed a two-day alcohol education course. He was enrolled in the installation’s 
SUDCC treatment program, but he was administratively removed from the program in 
December 2016 after he was selected to take charge of a specialized military training 
course at another installation. He did not complete any further treatment.  
 
A drug and alcohol evaluation summary by a civilian psychologist in May 2017 
reflected that Applicant no longer met the criteria for an alcohol-use disorder. The 
evaluator noted that Applicant had not completed an alcohol-treatment program, but that 
his current alcohol consumption was moderate and non-problematic, and that it did not 
appear that treatment was needed. The evaluator’s immediate and long-term prognosis 
was “fair.” (GX 11.)  
 
In another psychological evaluation in June 2017, a military psychologist noted 
Applicant’s failure to complete an SUDCC treatment program or its equivalent and 
commented, “This is not the behavior of a person who takes his actions and/or potential 
alcohol problems seriously.” He concluded that Applicant “does have a material defect in 
judgment, but no defect in reliability or emotional stability.” He stated that Applicant’s “lack 
of personal insight, and known history of alcohol-related incidents, indicates that he is at 
high risk for further alcohol-related incidents.” (GX 2 at 3.) At the hearing, Applicant 
testified that he spent only 15-20 minutes with this psychologist and that they “clashed 
personality-wise” because the psychologist asked questions about Applicant’s family that 
Applicant did not believe were relevant. (Tr. 41.) 
 
 Applicant testified that he modified his alcohol consumption after his arrest in 
October 2016. He no longer drinks to excess. He no longer goes to bars to drink. He 
usually limits his consumption to one or two beers. He will not drive if he has consumed 
more than one drink. (Tr. 44-46.) He admitted that after his arrest he consumed about six 
beers over a nine-hour period on two occasions. (Tr. 54.)  
 
At the hearing, Applicant submitted an affidavit stating that he has not been 
stopped, arrested, charged, or held by any law enforcement authority for any reason since 
his arrest for DWI in October 2016. He also stated that, if he receives a security clearance, 
he will submit to any alcohol testing or evaluation deemed appropriate by proper authority 
or qualified professionals, and that he will not challenge any determination to revoke his 
clearance if he is involved in any alcohol-related incidents. (AX E at 1.)  
 
  
 
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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. 
 
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, 
 
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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 was arrested in 2012 and charged with battery for 
an affray that occurred after he had been drinking (SOR ¶ 1.a). It also alleges that he was 
arrested and charged with DUI in July 2013 and DWI in August 2016, and that he pleaded 
guilty in both cases (SOR ¶¶ 1.b and 1.c). Finally, it alleges that Applicant was diagnosed 
with an alcohol-use disorder in October 2016; that the SUDCC determined in May 2017 
that he no longer met the criteria for an alcohol-abuse disorder; and that in May 2017 he 
was determined by an Army psychologist to be likely to consume alcohol in excess in the 
future (SOR ¶ 1.d). 
 
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.” 
The following disqualifying conditions are potentially relevant:  
 
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; 
 
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; 
 
AG ¶ 22(d): diagnosis by a duly qualified medical or mental health 
professional (e.g., physician, clinical psychologist, psychiatrist, or licensed 
clinical social worker) of alcohol use disorder; 
 
AG ¶ 22(e): the failure to follow treatment advice once diagnosed; and 
 
AG ¶ 22(f): alcohol consumption, which is not in accordance with treatment 
recommendations, after a diagnosis of alcohol use disorder. 
 
 
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 AG ¶¶ 22(a), 22(c), and 22(d) are established by Applicant’s alcohol-related 
convictions in 2013 and 2016 and the SUDCC diagnosis of an alcohol-use disorder. 
Applicant’s arrest for battery in 2012 occurred after he had been drinking, but there is no 
evidence that the affray alleged in SOR ¶ 1.a was caused by his drinking. He has refuted 
the allegation that the affray was alcohol-related.  
 
 AG ¶¶ 22(e) and 22(f) are not established. Applicant was referred to an SUDCC 
after his July 2013 DWI arrest. He was placed on “extended evaluation” in August 2013 
and completed a two-day alcohol education program. However, there is no evidence that 
he was diagnosed with an alcohol-use disorder at this time, and no evidence of treatment 
or advice beyond the two-day education program.  
 
 The following mitigating conditions are potentially relevant:  
 
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 recur 
or does not cast doubt on the individual's current reliability, trustworthiness, 
or judgment; 
 
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; and 
 
AG ¶ 23(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. 
 
 AG ¶ 23(a) is not established. Applicant’s excessive alcohol consumption was 
frequent and did not happen under circumstances making it unlikely to recur. The key 
issue is whether sufficient time has passed since the last incident alcohol-related incident. 
There are no Abright line@ rules for determining when sufficient time has passed to mitigate 
excessive alcohol consumption. The determination must be based on a careful evaluation 
of the totality of the evidence. If the evidence shows Aa significant period of time has 
passed without any evidence of misconduct,@ then an administrative judge must 
determine whether that period of time demonstrates Achanged circumstances or conduct 
sufficient to warrant a finding of reform or rehabilitation.@ ISCR Case No. 02-24452 at 6 
(App. Bd. Aug. 4, 2004). In this case, two years have passed since Applicant’s last 
alcohol-related incident. However, during the first year he was subject to his conditional 
release and the threat of arrest and jail time for another alcohol-related incident; and 
during the second year he had received the SOR and was under pressure to regain his 
security clearance. 
 
 
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 AG ¶¶ 23(b) and 23(d) are not established. Applicant has acknowledged his 
problematic use of alcohol. However, he has not sought or obtained any treatment beyond 
a two-day alcohol education class. He testified that he has modified his consumption to 
one or two drinks at a sitting, but he admitted that on at least two occasions he has 
consumed about six beers over a nine-hour period. His testimony falls short of 
demonstrating a “clear and established pattern” of modified consumption. The May 2017 
psychological evaluation concluded that his prognosis is “fair.” The June 2017 
psychological evaluation noted that he does not take his potential alcohol problems 
seriously, that he lacks insight, and that he is at high risk for further alcohol-related 
incidents. 
 
Guideline J, Criminal Conduct 
 
 The SOR cross-alleges the conduct alleged in SOR ¶¶ 1.a-1.c under this guideline. 
The 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 arrests and convictions establish the following potentially disqualifying 
conditions under this guideline:  
 
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; and 
 
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.  
 
The following mitigating conditions are relevant:  
 
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;  
 
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. 
 
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 AG ¶¶ 32(a) and 32(d) are not established for the allegations in SOR ¶¶ 1.b and 
1.c, for the reasons set out in the above discussion of AG ¶¶ 23(a) and 23(d). AG ¶ 32(c) 
is established for the allegation in SOR ¶ 1.a. Applicant admitted that he was arrested for 
battery, but the evidence reflects that Applicant acted in self-defense and was not guilty 
of the charge. 
 
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. 
 
 In terms of military skills, devotion to duty, and courage under fire, Applicant has 
been a “soldier’s soldier.” He is seeking employment as a contractor in order to “get back 
into the fight.” He has not experienced any problems with alcohol abuse or criminal 
conduct while on his many deployments to hostile-fire areas. All his alcohol-related 
incidents have occurred when he has been between deployments and in a garrison 
environment.  
 
 On the other hand, the psychologist who evaluated Applicant in May 2017 gave 
him a weak prognosis of “fair.” The psychologist who evaluated him in June 2017 was 
concerned about his bad judgment in failing to recognize his alcohol problem. His alcohol-
related arrest and conviction while serving as the first sergeant of an infantry company 
was a serious breach of trust, and it caused him to be relieved for cause and given an 
adverse evaluation report.  
 
Applicant presented significant mitigating evidence at the hearing. However, 
“[o]nce a concern arises regarding an applicant’s security clearance eligibility, there is a 
strong presumption against the grant or maintenance of a security clearance.” ISCR Case 
No. 09-01652 at 3 (App. Bd. Aug 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 
(9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). Applicant has not overcome that 
presumption. After weighing the disqualifying and mitigating conditions under Guidelines 
                                                          
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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G and J, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not 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): AGAINST APPLICANT  
 
  Subparagraph 1.a:     For Applicant 
 
  Subparagraphs 1.b-1.d:    Against Applicant 
 
 Paragraph 2, Guideline J (Criminal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 2.a:     Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national security interests of the 
United States to grant Applicant eligibility for access to classified information. Clearance 
is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge