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                         DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 )   
  )  CAC Case No. 17-00447 
  )  
Applicant for CAC Eligibility ) 
 
 
Appearances 
 
For Government: Bryan J. Olmos, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
CERVI, Gregg A., Administrative Judge: 
 
Applicant did not mitigate Common Access Card (CAC) credentialing concerns 
raised under supplemental adjudicative standards (SAS) for criminal or dishonest conduct 
and alcohol abuse. CAC eligibility is denied.  
 
Statement of the Case 
 
On May 26, 2017, the Department of Defense (DOD) issued a Statement of Reasons 
(SOR) to Applicant detailing credentialing concerns for CAC eligibility pursuant to Homeland 
Security Presidential Directive – 12 (HSPD-12). The DOD was unable to find that granting 
Applicant CAC eligibility did not pose an unacceptable risk.1 The concerns raised under the 
Adjudicative Standards of DODI 5200.46 are SAS ¶ 2.a, criminal or dishonest conduct and 
¶ 4.a, alcohol abuse. 
 
                                                          
1 The action was taken under the Adjudicative Standards found in DOD Instruction (DODI) 5200.46, DOD 
Investigative and Adjudicative Guidelines for Issuing the CAC, dated September 9, 2014, and 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). 
 
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Applicant responded to the SOR on June 21, 2017, and requested a hearing before 
an administrative judge. The case was assigned to me on November 20, 2017. The Defense 
Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 21, 2018, 
scheduling the hearing for March 13, 2018. The hearing was convened as scheduled. 
Government Exhibits (GE) 1 through 5 were admitted in evidence without objection. 
Applicant testified and after the hearing, submitted documents marked as Applicant Exhibits 
(AE) A-C, which were admitted without objection. DOHA received the hearing transcript (Tr.) 
on March 19, 2018.  
 
Findings of Fact 
 
 Applicant is 59 years old. He has worked as a heavy-mobile-equipment mechanic for 
his current employer since 2009. He has been married for 32 years and has two adult 
children. He received his GED diploma in 1994 and served in the U.S. Army from 1976 to 
1977. He was discharged with a general discharge under honorable conditions. He currently 
holds CAC eligibility for access to a government facility. 
 
 The SOR alleges eight incidents of criminal conduct from 2003 to 2015 for assault 
and public intoxication, and one allegation of 28 arrests from 1976 to 1995. The SOR also 
cross-alleged the alcohol-related incidents in SOR ¶¶ 1.b, 1.e, 1.f, 1.g, and 1.h, and 15 
alcohol-related offenses that occurred from 1979 to 1995. Applicant admitted the SOR 
allegations, with explanations. He testified that nearly all of the criminal incidents involved 
alcohol use. 
 
 Applicant has had a long history of alcohol related criminal conduct beginning in 
1976. His most recent offenses include four instances of public intoxication from 2003 to 
2008, driving while intoxicated and carrying a prohibited weapon in 2010, and three 
incidents of assault causing bodily injury on a family member in 2008, 2009, and 2015. 
These incidents were typically confrontations with his sons. The 2009 incident involves 
Applicant brandishing a weapon on his son, and the 2010 incident involved a weapon found 
in Applicant’s car while he was intoxicated with alcohol and pain medication. Applicant does 
not remember the 2009 incident but said he has never pulled a weapon on anyone, claims 
he does not own a weapon, and does not know how a weapon got into his car in 2010. 
 
 In 2015, Applicant was involved in an altercation with his son. The police witness 
statements conflict with his testimony. The witnesses claim Applicant and his son were 
arguing, which led to a physical altercation where Applicant struck his son with a metal rod 
and ax handle when his son stepped in to repel him from threatening harm to his spouse 
with the ax handle. Alternatively, Applicant testified that his son entered the home to steal, 
presumably to buy drugs. Applicant confronted him and they fought. Applicant was charged 
with aggravated assault with a deadly weapon, but he claims he pushed his son into a 
bathroom towel rack, which was considered the deadly weapon, that caused the injury. 
Applicant claimed that the arresting police officer had something against him, despite being 
the officer’s youth t-ball coach. Applicant’s son and spouse refused to testify, and the 
charges were dismissed. 
 
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 Applicant’s testimony regarding his past criminal activity was sometimes vague and 
inconsistent or he could not remember details. He claimed to have stopped drinking on his 
own volition, on July 4, 2011. He stated that he attended Alcoholics Anonymous (AA) 
meetings in 2007 or 2008, completed some steps, but stopped attending in 2008 or 2009 
without explanation. He also stated that he completed court-ordered family violence 
counseling in 2009, but did not provide documentation of any counseling or AA attendance. 
He claims he does not have alcohol in his home and he does not frequent bars.  
 
 Applicant attended an alcohol assessment by video teleconference in June 2017, 
arranged by his attorney. The practitioner reported that she reviewed the SOR, conducted 
standardized testing, and interviewed Applicant by video teleconference. The tests revealed 
Applicant had an alcohol use disorder that has been in remission for six years. She 
determined that no treatment is warranted, and that he is not at risk of relapse, is fully 
capable of safeguarding classified information, and is “fit for duty in a position affecting the 
national security.” 
 
 Applicant submitted evidence of good work performance and character letters, 
including supporting statements from his manager and coworkers. They generally speak 
highly of his work ethic, trustworthiness, and sobriety over the past several years. 
 
Policies 
 
Every CAC eligibility decision must be a fair and impartial overall commonsense 
decision based on all available evidence, both favorable and unfavorable. The specific 
issues raised 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 conditions is unacceptable risk.  
 
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 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, ¶ 1)  
 
Analysis 
 
Criminal or Dishonest Conduct 
 
 DODI 5200.46, Appendix 2 to Enclosure 4, SAS ¶ 2 provides: 
 
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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. 
 
SAS ¶ 2.b lists several conditions that could raise a CAC concern and may be 
disqualifying. The following are potentially applicable in this case: 
 
(2) charges or admission 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; 
and 
 
(5) actions involving violence or sexual behavior of a criminal nature that 
poses an unacceptable risk if access is granted to federally-controlled facilities 
and federally-controlled information systems. 
 
 Applicant has a long history of criminal conduct including violence and alcohol abuse. 
SAS ¶¶ 2.b (2) and (5) apply. 
 
 SAS ¶ 2.c provides circumstances relevant to the determination of whether there is 
a reasonable basis to believe there is an unacceptable risk. Relevant conditions include: 
 
(1) the behavior happened so long ago, was minor in nature, or happened 
under such unusual circumstances that it is unlikely to recur; 
 
(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 has a long history of violence, alcohol-related arrests, and rules violations. 
Since 2008, he has been involved in four incidents including violence; threats of violence; 
and use, threats, and possession of weapons. Three of the four most recent incidents 
involved excessive alcohol use. He claimed to have stopped drinking in 2011, but again was 
involved in a violent physical altercation in 2015 involving weapons. Applicant admits that 
alcohol was a contributing factor in most of his criminal incidents, and provided inconsistent 
testimony regarding the 2015 incident. Despite the dismissal or no prosecution for some of 
the incidents, the totality of Applicant’s involvement of violence, danger to persons, and 
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alcohol abuse, are difficult to overcome. I have insufficient evidence to determine that his 
criminal conduct will not recur and that his behavior is now under control. Finally, Applicant 
did not provide documentary evidence that he has sufficiently addressed his history of 
violence and alcohol abuse through counseling. I have insufficient evidence to apply any of 
the relevant mitigating conditions described above despite Applicant’s testimony and letters 
of support. 
 
 Perhaps with evidence of professional counseling, a satisfactory prognosis, and a 
substantial period of cessation of violence, Applicant will be able to overcome his past 
criminal conduct and again qualify for CAC eligibility. At this time, there is insufficient 
evidence that the behavior leading to the denial of his CAC eligibility has been overcome. 
 
Alcohol Abuse 
 
DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 4 describes the concern: 
 
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. 
 
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. 
 
DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 4b, lists four conditions that raise a CAC 
concern and may be disqualifying: 
 
(1) A pattern of alcohol-related arrests. 
 
As described above, Applicant has a long history of alcohol related incidents 
resulting in criminal conduct. SAS ¶ 4b(1) applies because Applicant has a pattern of 
alcohol-related arrests. 
 
DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 4c, lists three conditions that could mitigate 
concerns about “whether there is a reasonable basis to believe there is an unacceptable 
risk”: 
 
(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 
 
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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’s history of alcohol abuse resulting in criminal conduct is well 
documented. His stated abstinence from alcohol consumption since 2011 was discussed 
in the previous section. Although Applicant has acknowledged his alcohol problems and 
testified to self-abstaining from alcohol use, he did not provide sufficient evidence of 
alcohol treatment, counseling, or other actions taken to ensure his problems do not recur. 
He did not show documentary evidence of AA attendance, nor did he stay with the 
program or complete all of the steps. Applicant is asking me to trust his statement of 
abstinence and that he can control his problem on his own. Given his track record, I 
cannot make that leap of faith. Concerns about alcohol abuse are not fully mitigated. 
 
 I have carefully considered all of the facts of this case and applied the adjudicative 
and whole-person standards in DODI 5200.46. Based on the record and Applicant’s 
testimony, there is insufficient evidence to find that the SOR allegations have been 
mitigated. CAC eligibility is denied. 
 
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, Criminal or Dishonest Conduct:   AGAINST APPLICANT  
 
       Subparagraphs 1.a-1.i:     Against Applicant 
 
 Paragraph 2, Alcohol Abuse:    AGAINST APPLICANT 
 
   Subparagraph 2.a-2.b:     Against Applicant 
    
Conclusion 
 
 In light of all of the circumstances, granting Applicant CAC eligibility poses an 
unacceptable risk. CAC eligibility is denied. 
      
_______________________ 
Gregg A. Cervi 
Administrative Judge