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ISCR Case 03-16936.a1 — CASE

ISCR Case 03-16936.a1denied

Case Headnote

ISCR Case No. 03-16936.a1

Aug 2, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, a former Marine, was denied clearance under Guideline G (Alcohol Consumption) due to a long history of alcohol abuse and insufficient evidence of rehabilitation. The applicant's record included five DUI arrests occurring between 1966 and 2003.

Disqualifying conditions G.2.a and G.2.c were raised, citing the applicant's continued alcohol consumption despite professional advice to abstain. The judge noted discrepancies in the applicant's testimony regarding his alcohol dependency and treatment efforts.

The Appeal Board upheld the judge's credibility determination, emphasizing the applicant's failure to demonstrate mitigating factors. The denial was affirmed based on national security interests.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Arrests
G.2.craisedAlcohol Abuse

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 12, 2006
Answer filed—
Hearing held—
Decision dateAug 2, 2007

Cite For

Denial of Security Clearance Based on a History of Alcohol Abuse Under Guideline G
Importance of Credibility Determinations in Security Clearance Cases
Burden on Applicant to Demonstrate Mitigating Factors in the Context of National Security

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on alcohol consumption under Guideline G. The applicant challenged the Judge's findings and credibility determinations. The Board affirmed the decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJohn Grattan Metz, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge's findings regarding his history of alcohol abuse and credibility were not supported by record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's unfavorable clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that any errors were harmless. The Judge's credibility determinations were upheld, and the adverse decision was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline G DIGEST: The Judge issued one finding which is erroneous. That error is harmless. Applicant has not met his heavy burden o appeal in challenging the Judge’s credibility determination Adverse decision affirmed. CASENO: 03-16936.a1 DATE: 08/02/2007 DATE: August 2, 2007 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-16936

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Kathleen E. Voelker, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 12, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. Applicant testified that he was 17 years old when he began consuming alcohol. Tr. at 43. The Judge refers to this once incorrectly as “intensive inpatient” and once correctly as “intensive outpatient.” On January 31, 2007, after the hearing, Administrative Judge John Grattan Metz, Jr. denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether some of the Judge’s findings, to include his negative credibility determination, were not supported by record evidence; and whether the Judge’s unfavorable clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings: Applicant has a history of alcohol abuse from 1966 until July 2003, which includes five alcohol-related arrests. He began drinking in high school and drank to excess and to the point of intoxication while in the Marines. In January 1987, Applicant was arrested for DUI, after having consumed 8 draft beers. He was convicted of negligent driving and fined. Between July 1987 and July 1988, Applicant was assigned as a Marine to a remote location. He began to abuse alcohol regularly, given the limited choices for social activity available to him. Although he lightened up on his drinking after his return, he began abusing alcohol again and, in March 1991, was arrested a second time for DUI. This arrest was dismissed and expunged from his record. Applicant retired from the Marines in 1993, after which he increased his level of drinking. In December 1994 he was again arrested for DUI, pleading guilty, paying a fine, spending a day in jail, and being required to complete an alcohol safety action program (ASAP). He completed the program in March 1995. Applicant resumed drinking after completing ASAP and was arrested again for DUI, in December 1996. Again he pled guilty, was fined, received a suspended sentence to 60 days confinement, and was ordered to attend another ASAP, and to attend two Alcoholics Anonymous (AA) meetings per week for a year. He completed ASAP successfully. In September 1999, Applicant was arrested for another DUI. Upon the advice of counsel he attended an alcohol treatment program, which lasted from November 1999 to January 2000. He was diagnosed as alcohol dependent. He was indicted on felony DUI, due to the fact that it was his third DUI in a five year period. Applicant pled guilty. He was sentenced to five years imprisonment and to a fine, although all but two months of the imprisonment was suspended, conditioned on good behavior for five years, indefinite supervised probation, and completion of the alcohol treatment aftercare program. Applicant completed his prison sentence in September 2000 and was released from supervised probation in July 2001. He attended AA meetings until “at least July 2001,” after which the Judge found that evidence of Applicant’s AA attendance is contradictory. The Judge also noted Tr. at 53-4. Tr. at 54. Applicant admitted that, during his alcohol treatment program, he was diagnosed as “alcohol dependent” and that at the time of the treatment he thought he was an alcoholic. However, he went on to state that he does not “right now” consider himself to be an alcoholic and that, in fact, no one had ever explicitly said to him that he was. Tr. at 68-9. While he never used the word “recant” or other similar term, a reasonable person could infer that Applicant’s testimony was an attempt to discount his diagnosis. certain apparent inconsistencies in Applicant’s evidence. For example, although Applicant admitted in his response to the SOR that he had been diagnosed as alcohol dependent, he testified that he had never explicitly received such a diagnosis. Additionally, Applicant testified that he did not drink alcohol from his 1999 arrest until December 2002, which is not consistent with Government Exhibit 3, in which he states that he had been using alcohol occasionally during the year and a half preceding his making of that document, June 23, 2003. Although Applicant testified that he does not consider himself to be an alcoholic, he acknowledged that counselors at his treatment program advised him to abstain from drinking alcohol. Nevertheless, Applicant continues to consume alcohol, although he states that he has changed his lifestyle and can control his drinking. The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant contends that the following findings are in error: that Applicant has a history of alcohol abuse from 1966 to 2003; that Applicant had not benefitted from AA; and that Applicant has recanted previous statements that he is alcohol dependent. We have examined the challenged findings in light of the record as a whole. As regards the first, we note that Applicant’s answer to the SOR admitted that he had “consumed alcohol, at times to excess and to the point of intoxication, from approximately 1966 to at least June 23, 2003.” Furthermore, we note Government Exhibit 2, a signed an sworn statement by Applicant, in which he says, “I started drinking when I was 17 years old. I went to parties on weekends and would drink about a six-pack.” These admissions, read in light of Applicant’s DUI arrests and other evidence of alcohol abuse, constitute substantial evidence for the challenged finding. As regards the remaining two, they are located in the Conclusions section of the decision and are evaluative comments based upon a plausible interpretation of the record evidence. To the extent that there is error in them, it is harmless, given the record as a whole. See, e. g., ISCR Case No. 04-00949 at 2 (App. Bd. Mar. 27, 2007). During the course of challenging the sufficiency of the Judge’s decision, Applicant also took issue with the following statement: “In 1982, Applicant experienced a period of increased alcohol consumption when his wife died of cancer . . .” Decision at 2. After examining the record, we conclude that Applicant’s position on this Decision at 8. statement has merit. This particular finding is erroneous. However, given the record as a whole, we conclude that the error is harmless. We will address the Judge’s credibility determination below. A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). We have considered Applicant’s brief, the Judge’s findings, and the record as a whole. Given Applicant’s lengthy history of alcohol abuse, his five DUI arrests, his having continued to drink despite his counselors having advised him to abstain, and the apparent discrepancies the Judge noted in Applicant’s evidence, the Judge’s conclusion that Applicant had not met his burden of persuasion is sustainable. Furthermore, the record does not support a conclusion that Applicant has met his “heavy burden” in challenging the Judge’s credibility determination. See ISCR Case No. 97-0356 (App. Bd. Apr. 21, 1998). In addition to the above-referenced discrepancies, the Judge also noted the self serving character of Applicant’s statements to investigators concerning his DUI arrests, to the effect that, on the dates in question, his driving was erratic due not to intoxication but to his efforts to avoid potholes in the road, etc. In light of these matters, and the record as a whole, the Judge’s view that Applicant suffers from “general credibility issues” is sustainable. Accordingly, the Judge’s adverse security clearance decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board