1 
       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
--------------------------- ) ISCR Case No. 18-01588 
) 
Applicant for Security Clearance ) 
Appearances 
   For Government: Eric Price, Esquire, Department Counsel 
 For Applicant: Stephen C. Glassman, Esquire 
06/11/2019
______________ 
Decision 
______________ 
MARSHALL, Jr., Arthur E., Administrative Judge: 
    Statement of the Case 
On September 19, 2018, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline G (Alcohol 
Consumption) and Guideline J (Criminal Conduct). The action was taken under 
Executive Order 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) effective within the DOD on or after June 8, 2017. On 
October 11, 2018, Applicant timely submitted a response in which both allegations 
under Guideline G were admitted, the sole allegation raised under Guideline J was 
denied, and a hearing before an administrative judge from the Defense Office of 
Hearings and Appeals (DOHA) was requested.  
On January 16, 2019, I was assigned the case. The Defense Office of Hearings 
and Appeals (DOHA) issued a notice of hearing on February 12, 2019, setting the 
hearing for March 28, 2019. The hearing was convened as scheduled.  
The Government offered four documents, accepted without objection as exhibits 
(Exs.) 1-4, as well as two hearing exhibits, noted as Exs I-II. Applicant offered testimony 
 
 
 
 
2 
and four documents, accepted without objection as Exs. A-D. On April 3, 2019, one 
additional document was submitted by Applicant. It was accepted into the record without 
objection as Ex. E The transcript (Tr.) was received on April 11, 2019, and the record 
was closed. Based on the exhibits, testimony, and record as a whole, I find Applicant 
failed to mitigate the alcohol consumption security concerns raised.   
 
     Findings of Fact 
 
 Applicant is a 32-year-old video-conference technician who has been in that 
position working for the same employer for over five years. He is a high school graduate 
who was enrolled in community college from 2004 to 2006, until his education was 
interrupted by a debilitating accident. Applicant has, however, pursued and received 
multiple post-secondary certifications. He is single and has no children. He applied for a 
security clearance in 2016. The results of the subsequent investigation led to the SOR. 
 
 In late June 2013, Applicant attended a pool party, arriving around 3:00 p.m. The 
party was “byob” - bring your own bottle or booze – so liquor was available. Although 
the party began to unwind around dusk, Applicant decided to stay behind because he 
had been drinking vodka mixed with juice. (Tr. 17-19) Around 10:00 p.m., he decided to 
leave the party with a friend. He planned to run an errand, then drop the friend off on his 
way home. Applicant was pulled over for speeding around 1:00 a.m. During the stop, he 
registered a .11 blood alcohol content (BAC) on a breathalyzer and failed a field 
sobriety test. (Tr. 22) In late September 2013, Applicant entered into a plea agreement 
with the prosecutor under advice of counsel. (Tr. 24) Pleading guilty, Applicant was 
found guilty of driving under the influence of alcohol (DUI). He was sentenced to 60 
days confinement (suspended), agreed to two years of probation, had his driver’s 
license suspended for 60 days, and paid a $500 fine plus court costs. He successfully 
completed his probation period in September 2015.  
 
 In early November 2016, a couple of months after applying for a security 
clearance, Applicant left a dance bar after consuming two rum drinks. They were served 
either straight or with mixer, over the course of about two hours. (Tr. 29-31) He did not 
feel so impaired he should not drive a vehicle. (Tr. 48-49) Heading home in his 
automobile with his girlfriend, who was then visiting from out-of-town, he was stopped 
for speeding at around 1:00 or 2:00 am. As the officer prepared to conduct sobriety and 
breathalyzer testing, Applicant curtailed his participation in the examination. (Tr. 27-28, 
36) He does not recall if he understood that in declining to submit to a breathalyzer, his  
driver’s license would be automatically suspended. (Tr. 28)  
 
Ultimately, in February 2017, Applicant appeared before a judge and pled guilty 
to driving while intoxicated (DWI). He was again sentenced to 60 days confinement, but 
this time he served seven days in prison and paid both a $200 fine plus court costs. 
Although two years of supervised probation were ordered, he met the criteria for early 
abatement in April 2018 and was transferred to unsupervised probation through mid-
February 2019. (Ex. D) In the interim, he completed alcohol and drug testing and, from 
 
 
 
 
3 
February to April 2017, he attended Alcoholics Anonymous (AA) about twice a week. 
(Tr. 41, 53, 56-57) 
 
 Since the DUI, Applicant has had no additional brushes with the law. He 
recognizes that his troubles were based on poor judgment that needed to be improved. 
During counseling, he totally refrained from alcohol, but he now limits his alcohol 
consumption to two to three glasses of alcohol per month. (Tr. 42-46) Since April 2018, 
he has considered himself a “social drinker.” (Tr. 50-51) This is an overall reduction in 
his alcohol consumption compared to his earlier patterns before the DWI. (Tr. 53)  
 
Applicant’s driving privilege has been restored. He no longer drives his own 
sporty vehicle, which is presently on blocks in his driveway. When he needs to drive, he 
uses his girlfriend’s utilitarian automobile. (Tr. 57) Otherwise, having purposefully 
relocated to a home near public transportation where he now cohabitates with his 
girlfriend, he relies on that mode of transportation or hires either Uber or Lyft. (Tr. 57)  
 
Applicant does not drive if he has been imbibing. (Tr. 63) He has also had to 
monitor his alcohol consumption due to a form of eczema wherein alcohol “was ruining” 
his skin. (Tr. 68) His personal circle of friends has been reduced and he no longer 
socializes as much with those with whom he used to once abuse alcohol, preferring to 
associate with a more professional crowd. (Tr. 68) At present, he is excelling at work 
and looking to aspire to a more challenging and more lucrative position. 
 
      Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are used in evaluating an 
applicant’s eligibility for access to classified information. 
 
These guidelines are not inflexible rules of law. They are applied in conjunction 
with the factors listed in the adjudicative process. The administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. According 
to the AG, 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 in making a decision. 
 
The protection of the national security is the paramount consideration. The AG 
requires that “[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of 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.  
 
Under the Directive, the Government must present evidence to establish 
controverted facts alleged in the SOR. In addition, an applicant is responsible for 
 
 
 
 
4 
presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts 
admitted by applicant or proven by Department Counsel and has the ultimate burden of 
persuasion to obtain a favorable security 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. The Government reposes a high degree of 
trust and confidence in those granted access to classified information. Decisions 
include, by necessity, consideration of the possible risk the applicant may deliberately or 
inadvertently fail to safeguard such information. Decisions shall be in terms of the 
national interest and do not question the loyalty of an applicant.  
 
Analysis 
 
Guideline G - Alcohol Consumption 
 
The Alcohol Consumption 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 alcohol-related DUI in 2013 and DWI in 2016 demonstrate his 
excessive use of alcohol and related poor judgment. They, therefore, establish the 
following disqualifying conditions under this guideline:  
 
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 security concerns raised under this guideline could potentially be mitigated 
by the following applicable factors:  
 
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, 
 
 
 
 
5 
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.  
 
Applicant was twice cited for drinking and driving within a three year period, with 
his second period of unsupervised probation only ending about three months ago. Both 
were the result of attending activities where it could be presumed alcohol would be 
imbibed, and predicted that driving home would conclude the evening. Applicant 
acknowledges his poor judgment and takes responsibility for his actions. He has 
completed an alcohol and drug program and, for a few months, benefitted from AA 
attendance.   
 
Applicant now drinks alcohol to a lesser degree and has foresworn drinking and 
driving going forward. To that end, he has relocated to a home near public 
transportation, has altered his circle of friends, and is more cognizant of the amount of 
alcohol he consumes. These efforts show promise. With his period of probation now 
over for only a short three months, however, insufficient time has passed to 
demonstrate a clear and established pattern of modified alcohol consumption. At least a 
year free of probation seems to be a reasonable period or benchmark upon which to 
best assess that Applicant is fully in control of his use of alcohol and capable of superior 
judgment. At best, AG ¶(d) applies in part.  
 
Guideline J – Criminal Conduct 
 
 The concern raised by 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. 
 
Applicant’s drinking and driving convictions in 2013 and 2016 establish the 
following 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 6 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, 
 
 
 
 
6 
regardless of whether the individual was formally charged, prosecuted, or 
convicted.  
 
The security concerns raised under this guideline have been mitigated by the following 
applicable factor: 
 
AG ¶ 31(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.  
 
Here, Applicant is genuinely contrite over his past criminal offenses. He has 
completed appropriate alcohol and drug counseling, attended AA for a notable period, 
changed his professional focus and personal circle of friends, relocated near public 
transportation in order to obviate his reliance on driving, reduced his alcohol 
consumption, matured, and foresworn driving after drinking. Besides these 
achievements, Applicant no longer drives his sporty car, relying instead on his 
girlfriend’s less seductive auto, Uber, or Lyft. He is genuinely contrite over his past 
criminal offenses. He has settled down with his girlfriend. Applicant completed the 
periods of probation sentenced after both his DUI and DWI convictions. He now aspires 
to a more challenging and lucrative employment position. Such accomplishments 
demonstrate that he is now ready to go willingly go forward living his life in compliance 
with laws and regulations.  
 
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 
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 the facts and 
circumstances surrounding this case. I have incorporated my comments under the two 
 
 
 
 
7 
applicable guidelines in my whole-person analysis. I also considered Applicant’s highly 
credible testimony, background, age, behavioral changes, and subsequent maturation. 
 
 Overall, the record evidence leaves me with questions or doubts about 
Applicant’s eligibility and suitability for a security clearance vis-à-vis alcohol 
consumption. The evidence persuades me that he has matured sufficiently to comport 
his behavior with applicable laws and regulations in general. Since Applicant has 
chosen to continue to imbibe, however, more time than a couple of months since the 
end of his last alcohol-related probation is needed to demonstrate that he is fully 
capable of independently monitoring his behavior with regard to his alcohol use and 
driving, and to exhibit appropriate reliability and judgment. Consequently, I conclude 
alcohol consumption security concerns are not mitigated.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline G:     AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.b:    Against Applicant 
 
Paragraph 2, Guideline J:     FOR APPLICANT 
 
  Subparagraph 2.a:     For Applicant 
 
  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 a security clearance. 
Eligibility for access to classified information is denied. 
 
                                                     
_____________________________ 
Arthur E. Marshall, Jr. 
Administrative Judge