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         DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) CAC Case No. 15-06135 
) 
Applicant for CAC Eligibility ) 
Appearances 
For Government: Aubrey DeAngelis, Esq., Department Counsel 
For Applicant: Pro se 
October 14, 2016 
______________ 
Decision 
______________ 
Goldstein, Jennifer I., Administrative Judge: 
Statement of the Case 
On September 10, 2015, the Department of Defense (DoD) issued a Statement 
of Reasons (SOR) to Applicant detailing eligibility concerns for Common Access Card 
(CAC) issuance pursuant to Homeland Security Presidential Directive–12 (HSPD-12). 
DoD was unable to find that it was clearly consistent with the national interest to grant 
Applicant CAC eligibility. The action is based on the Adjudicative Standards found in 
DoD Instruction 5200.46, DoD Investigative and Adjudicative Guidelines for Issuing the 
Common Access Card, dated September 9, 2014, and made pursuant to the 
procedures set out in Enclosure 3 of DOD Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (January 2, 1992), as amended 
(Directive). The concerns raised under the Supplemental Adjudicative Standards of 
DoDI 5200.46 are: Paragraph 2.a (criminal or dishonest conduct) and Paragraph 4.a 
(alcohol abuse).   
Applicant answered the SOR on September 30, 2015 (Answer), and requested a 
hearing before an administrative judge. The case was assigned to another 
administrative judge on November 16, 2015, and was reassigned me on February 18, 
2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing 
 
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on May 10, 2016, scheduling the hearing for June 20, 2016. The hearing was convened 
via video teleconference, as scheduled. The Government offered Exhibits (GE) 1 
through 3, and they were admitted without objection. Applicant offered Exhibits (AE) A 
through C, and testified on his own behalf. AE A through AE C were admitted, without 
objection. DOHA received the transcript of the hearing (Tr.) on June 28, 2016. Based on 
the record evidence and testimony presented in this case, Common Access Card 
eligibility is denied.  
 
Findings of Fact 
 
 Applicant is 56 years old. He is married and has two adult daughters. He has 
worked for his employer for six years. (GE 1; Tr. 19.) 
 
 The SOR alleged, under the Supplemental Adjudicative Standards concerning 
criminal conduct and alcohol abuse, that Applicant should be disqualified from CAC 
eligibility because: Applicant was arrested and convicted of alcohol-related offenses in 
1999 and 2005; and he was arrested for driving under the influence in 2011. Applicant 
admitted all of the allegations. (Tr. 7-8.) After a thorough and careful review of the 
pleadings and exhibits, I make the following findings of fact: 
 
 On May 29, 1999, Applicant was arrested and charged with operating a motor 
vehicle with .10 of 1% alcohol (misdemeanor). He was convicted and sentenced to pay 
a fine of $300. His driver’s license was suspended for 90 days. Applicant testified that 
“after [a] church meeting, [he] had a drink with friends and [he] was intoxicated but [he] 
was driving to home, and [he] was caught by police.” He frequently drove after drinking 
alcohol during this time period. He estimated that he had four or five bottles of beer prior 
to driving on the day of his arrest. (GE 3; Tr. 26-29.) 
 
 On December 15, 2005, Applicant was arrested and charged with driving while 
intoxicated (misdemeanor). He testified he had again been drinking with friends after 
church and consumed approximately four or five bottles of beer prior to attempting to 
drive. He was convicted and sentenced to 15 days confinement, placed on probation for 
three years, fined $1,000, and his driver’s license was revoked. Applicant was required 
to complete a mandatory six-month rehabilitation program run by his state. During that 
rehabilitation program, he was subject to mandatory alcohol screening. He claimed he 
received no diagnosis during the treatment program. After this incident, Applicant 
abstained from alcohol use for two years. (GE 3; Tr. 23-25, 29-31.) 
 
 Applicant resumed drinking alcohol when he moved to another country in 2007. 
On June 19, 2011, Applicant was arrested in that foreign country, and charged with 
driving under the influence. On this occasion, Applicant had consumed half a bottle of 
Soju at his aunt’s house. Applicant’s wife was the designated driver, but she was ill and 
unable to drive. He was concerned that he should not drive after drinking, but did 
anyway. As a result of this incident, Applicant’s driver’s license was suspended for six 
months. He was fined approximately $1,000. (GE 2; Tr. 32-33, 35-36, 39.) 
 
 
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 Applicant testified that he consumes alcohol twice per week. He drinks three to 
four bottles of beer at a time. He weighs 120 pounds. He last consumed beer two days 
prior to the hearing. He does not recall the last time he was intoxicated, as he does not 
feel intoxicated when he drinks three to four bottles of beer. He testified that he has 
changed his drinking habit since his arrests, but failed to elaborate further. (Tr. 22-23, 
36.) He also testified that he learned his lesson, “and I [will] never drink and drive 
again.” (Tr. 33.) He does not believe he has any problems moderating the amount of 
alcohol he consumes. (Tr. 34.)  
 
 Applicant presented a letter or recommendation from his managing director. She 
indicated Applicant “has performed well on the projects under his supervision and had 
them completed on time.” (AE A.) Applicant’s daughter submitted an affidavit that 
indicated Applicant provided for his daughters and was a loving and supportive father. 
(AE B.) Applicant also included a list of his major projects he has performed. (AE C.) 
 
Policies 
 
Every CAC eligibility decision must be a fair and impartial overall commonsense 
decision based on all available evidence, both favorable and unfavorable. The HSPD-12 
credentialing standards are listed in DoDI 5200.46, Enclosure 4, Appendix 1, Basic 
Adjudicative Standards, and Appendix 2, Supplemental Adjudicative Standards. The 
overriding factor for all of these eligibility criteria is unacceptable risk. The decision must 
be arrived at by applying the standard that the grant of CAC eligibility is clearly 
consistent with the national interest.    
 
The objective of CAC credentialing process is the fair-minded commonsense 
assessment of a person’s life to make an affirmative determination that the person is an 
acceptable risk to have CAC eligibility. Each case must be judged on its own merits, 
taking into consideration all relevant circumstances, and applying sound judgment, 
mature thinking, and careful analysis.  
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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.” The 
applicant has the ultimate burden of persuasion to obtain CAC eligibility.  
 
Factors to be applied consistently to all information available include: (1) the 
nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; 
(3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the 
time of the conduct; (5) contributing external conditions; and (6) the absence or 
presence of efforts towards rehabilitation. (DoDI 5200.46, Enclosure 4, paragraph 1.) In 
all adjudications, the protection of the national interest is the paramount consideration.  
Therefore, any doubt concerning personnel being considered for CAC eligibility should 
be resolved in favor of the national interest.  
 
 
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Analysis 
 
Supplemental Adjudicative Standards, Paragraph 2.a 
 
 DoDI 5200.46, Enclosure 4, Appendix 2, Supplemental Adjudicative Standards 
expresses concerns pertaining to criminal or dishonest conduct. Paragraph 2 of this 
section states: 
 
A CAC will not be issued to a person if there is a reasonable basis to 
believe, based on the individual’s criminal or dishonest conduct, that 
issuance of a CAC poses an unacceptable risk.   
 
a. An individual’s conduct involving questionable judgment, lack 
of candor, dishonesty, or unwillingness to comply with rules and 
regulations can raise questions about his or her reliability or 
trustworthiness and may put people, property, or information 
systems at risk. An individual’s past criminal or dishonest 
conduct may put people, property, or information systems at 
risk. 
 
 The disqualifying conditions set forth in DoDI 5200.46, Enclosure 4, Appendix 2, 
Subparagraph 2.b that are raised by Appellant’s criminal conduct are: 
 
(1) A single serious crime or multiple lesser offenses which put the safety 
of people at risk or threaten the protection of property or information. A 
person’s convictions for burglary may indicate that granting a CAC poses 
an unacceptable risk to the U.S. Government’s physical assets and to 
employee’s personal property on a U.S. Government facility; and 
 
(2) Charges or admissions of criminal conduct relating to the safety of 
people and proper protection of property or information systems, 
regardless of whether the person was formally charged, formally 
prosecuted, or convicted. 
 
 Applicant was convicted of two separate alcohol offenses because he chose to 
drive a vehicle after consuming alcohol in 1999 and 2005. Despite two years of sobriety, 
he resumed alcohol consumption and again chose to operate a vehicle after consuming 
alcohol in 2011. These three criminal offenses put the safety of others at risk. The 
above disqualifying conditions apply. 
 
 Potentially mitigating conditions are set forth in DoDI 5200.46, Enclosure 4, 
Appendix 2, Subparagraph 2.c. The conditions that could apply to mitigate the security 
concerns raised by the evidence in this case are: 
 
(1) The behavior happened so long ago, was minor in nature, or happened 
under such unusual circumstances that it is unlikely to recur; 
 
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(2) Charges were dismissed or evidence was provided that the person did 
not commit the offense and details and reasons support his or her 
innocence; and 
 
(4) Evidence has been supplied of successful rehabilitation, including but 
not limited to remorse or restitution, job training or higher education, good 
employment record, constructive community involvement, or passage of 
time without recurrence. 
 
 Applicant admitted all three criminal incidents. He failed to submit evidence of 
successful rehabilitation. He has a history of driving after consuming alcohol. While he 
claims to have learned his lesson, and that five years have passed since his last 
alcohol-related arrest, he documented little evidence to establish that recidivism is 
unlikely. He continues to consume alcohol to excess. Six years passed between each of 
his prior alcohol-related incidents, yet he chose to get behind the wheel of a vehicle 
after becoming intoxicated again in 2011, despite completing a required alcohol 
rehabilitation program. As a result, I am unable to conclude that these three instances of 
criminal conduct occurred under unusual circumstances or that future criminal conduct 
is unlikely. Applicant failed to meet his burden to establish mitigation under the 
conditions in DoDI 5200.46, Enclosure 4, Appendix 2, Subparagraph 2.c. 
 
Supplemental Adjudicative Standards, Paragraph 4.a 
 
 DoDI 5200.46, Enclosure 4, Appendix 2, Supplemental Adjudicative Standards, 
also expresses concerns pertaining to alcohol abuse. Paragraph 4 of this section states: 
 
A CAC will not be issued to a person if there is a reasonable basis to 
believe, based on the nature or duration of the individual’s alcohol abuse 
without evidence of substantial rehabilitation, that issuance of a CAC 
poses an unacceptable risk.   
 
a. An individual’s abuse of alcohol may put people, 
property, or information systems at risk. Alcohol abuse 
can lead to the exercise of questionable judgment or 
failure to control impulses, and may put people, property, 
or information systems at risk, regardless of whether he 
or she is diagnosed as an abuser of alcohol or alcohol 
dependent. A person’s long-term abuse of alcohol 
without evidence of substantial rehabilitation may indicate 
that granting a CAC poses an unacceptable safety risk in 
a U.S. Government facility. 
 
 
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 The applicable disqualifying condition set forth in DoDI 5200.46, Enclosure 4, 
Appendix 2, Subparagraph 4.b that is raised by Appellant’s alcohol abuse is: 
 
(1) A pattern of alcohol-related arrests. 
 
 Applicant’s three arrests for driving under the influence constitute a pattern of 
alcohol-related arrests. Subparagraph 4.b(1) is disqualifying and places the burden on 
Applicant to mitigate the Government’s concern. 
 
 Potentially mitigating conditions are set forth in DoDI 5200.46, Enclosure 4, 
Appendix 2, Subparagraph 4.c. The conditions that could apply to mitigate the security 
concerns raised by the evidence in this case are: 
 
(1) The individual acknowledges his or her alcoholism or issues of alcohol 
abuse, provides evidence of actions taken to overcome this problem, and 
has established a pattern of abstinence (if alcohol dependent) or 
responsible use (if an abuser of alcohol); 
 
(2) The individual is participating in counseling or treatment programs, has no 
history of previous treatment or relapse, and is making satisfactory 
progress; and 
 
(3) The individual has successfully completed inpatient or outpatient 
counseling or rehabilitation along with any required aftercare. He or she 
has demonstrated a clear and established pattern of modified 
consumption or abstinence in accordance with treatment 
recommendations, such as participation in an alcohol treatment program. 
The individual has received a favorable prognosis by a duly qualified 
medical professional or a licensed clinical social worker who is a staff 
member of a recognized alcohol treatment program. 
 
 Applicant failed to demonstrate any of the above mitigating conditions apply. He 
does not acknowledge any issues of alcohol abuse or alcoholism. He continues to 
consume alcohol and did not present evidence of a pattern of responsible use, other 
than the absence of alcohol-related offenses in the past five years. This alone is not 
enough to mitigate the Government’s concern, given his past history since 1999. He 
previously completed a rehabilitation program, but relapsed when he moved to another 
country. He is not currently participating in any treatment programs. Applicant’s alcohol 
abuse remains a concern. 
 
Further Mitigation 
 
 DODI 5200.46, Enclosure 4, CAC Adjudicative Procedures, Paragraph 1, 
Guidance For Applying Credentialing Standards During Adjudication provides the 
following: 
 
 
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a. As established in Reference (g), credentialing adjudication considers 
whether or not an individual is eligible for long-term access to federally 
controlled facilities and/or information systems. The ultimate determination 
to authorize, deny, or revoke the CAC based on a credentialing 
determination of the PSI must be made after consideration of applicable 
credentialing standards in Reference (c).  
 
b. Each case is unique. Adjudicators must examine conditions that raise 
an adjudicative concern, the overriding factor for all of these conditions is 
unacceptable risk. Factors to be applied consistently to all information 
available to the adjudicator are: 
 
 (1) The nature and seriousness of the conduct. The more serious 
the conduct, the greater the potential for an adverse CAC determination. 
 
 (2) The circumstances surrounding the conduct. Sufficient 
information concerning the circumstances of the conduct must be obtained 
to determine whether there is a reasonable basis to believe the conduct 
poses a risk to people, property or information systems. 
 
 (3) The recency and frequency of the conduct. More recent or more 
frequent conduct is of greater concern.  
 
 (4) The individual’s age and maturity at the time of the conduct. 
Offenses committed as a minor are usually treated as less serious than 
the same offenses committed as an adult, unless the offense is very 
recent, part of a pattern, or particularly heinous. 
 
 (5) Contributing external conditions. Economic and cultural 
conditions may be relevant to the determination of whether there is a 
reasonable basis to believe there is an unacceptable risk if the conditions 
are currently removed or countered (generally considered in cases with 
relatively minor issues). 
 
 (6) The absence or presence of efforts toward rehabilitation, if 
relevant, to address conduct adverse to CAC determinations. 
 
     (a) Clear, affirmative evidence of rehabilitation is required for a 
favorable adjudication (e.g., seeking assistance and following professional 
guidance, where appropriate; demonstrating positive changes in behavior 
and employment). 
  
    (b) Rehabilitation may be a consideration for most conduct, not 
just alcohol and drug abuse. While formal counseling or treatment may be 
a consideration, other factors (such as the individual’s employment record) 
may also be indications of rehabilitation. 
 
 
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 Applicant presented evidence of good character through the letters from his 
manager and his daughter. However, those letters fail to establish rehabilitation or other 
positive changes. His three alcohol-related incidents, which occurred when Applicant 
was a mature adult, continue to cast doubt on his judgment and reliability. He has not 
demonstrated that he has the requisite judgment to have CAC eligibility. Applicant’s 
request for CAC eligibility should be denied. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
  SOR Paragraph 1:    AGAINST APPLICANT 
 
   Subparagraphs 1.a~1.c:   Against Applicant 
 
  SOR Paragraph 2:    AGAINST APPLICANT 
 
   Subparagraph 2.a:    Against 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 CAC eligibility. CAC 
eligibility is denied. 
 
 
                                                     
__________________________ 
Jennifer I. Goldstein 
Administrative Judge