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ISCR 18-00782.a1: Guideline G security clearance appeal, denied (2019) · CASE

ISCR Case 18-00782.a1denied

Case headnote

ISCR Case No. 18-00782.a1

Feb 15, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A retired military officer was denied a security clearance under Guideline G (Alcohol Consumption) due to concerns about alcohol dependence. The applicant's history included multiple relapses, which raised disqualifying conditions under G.2.a.

While the applicant had maintained sobriety for two years, and mitigating conditions G.3 and G.2.b were considered, these were deemed insufficient. Key factors in the denial included the applicant's lack of a sponsor and a failure to demonstrate sufficient rehabilitation.

The judge's assessment, supported by evidence of past behavior, concluded that the applicant's future sobriety was not adequately assured. The appeal board affirmed the denial, determining that the applicant had not sufficiently mitigated the security concerns related to alcohol consumption.

Conditions referenced

Disqualifying

G.2.araisedAlcohol Dependence

Mitigating

G.3rejectedSuccessful Completion of a Treatment ProgramThe applicant's two years of sobriety were deemed insufficient given his history of relapses.
G.2.brejectedIn RemissionThe applicant's alcohol dependence was characterized as in remission, but the judge found insufficient evidence of long-term sobriety.

Key rule quoted

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

Procedural posture

SOR issuedMay 10, 2018
Answer filed—
Hearing heldOct 26, 2018
Decision dateFeb 15, 2019

Cite for

Affirmation of Denial Based on Alcohol Dependence Under Guideline G
Insufficient Evidence of Rehabilitation Despite Periods of Sobriety
Importance of a Support System in Mitigating Alcohol-related Security Concerns

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 an applicant who was denied a security clearance due to concerns under Guideline G related to alcohol consumption. The applicant challenged the Judge's comment about the lack of strong evidence for future sobriety. The Board affirmed the Judge's decision, finding that the evidence supported her conclusion and that any error was harmless.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError found, but harmless
Applicant argues that the Judge's comment regarding the lack of strong evidence for future sobriety is arbitrary and capricious.

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 decision was supported by substantial evidence and that any error in her comments was harmless, as it did not affect the overall outcome of the case.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

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: Applicant challenges the Judge’s comment that there is no strong evidence that he will remain sober for a year or two, if that long. He notes that the Judge herself found that Applicant has been sober for two years and intends to remain so, arguing that the challenged comment is arbitrary and capricious. However, evidence that Applicant has twice been diagnosed as alcohol dependent and twice has failed to maintain sobriety, along with the Judge’s finding that he currently does not have a sponsor and intends to obtain counseling sometime in the future, support her overall conclusion that Applicant has not demonstrated sufficient rehabilitation to overcome the security concerns in his case. Therefore, any error in the challenged statement is harmless, in that it did not likely affect the overall outcome of the case. Adverse decision affirmed. CASENO: 18-00782.a1 DATE: 02/15/2019 DATE: February 15, 2019 In Re: ----------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 18-00782

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 10, 2018, DoD issued a statement of reasons (SOR) 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. On October 26, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant served in the U.S. military from 1987 to 2007, retiring as an 0-5. During his career he deployed seven times, four of which were to combat zones. He has held a clearance for thirty years without incident or concern. Applicant began consuming alcohol at age sixteen. He became a social drinker while in the military and had no problems with alcohol during his service. However, after he retired, he experienced marital problems, and he increased his consumption of alcohol to cope. He drank to self-medicate, and his family and others told him that he had a problem. In 2009, he underwent thirty days of inpatient alcohol treatment at a Veterans Administration medical clinic. He was diagnosed with alcohol dependence and recommended to attend Alcoholics Anonymous, though there was no other aftercare program. Applicant remained sober for a year. Applicant relapsed in 2010, after his wife told him that she wanted a divorce. In addition, he moved to a new state in order to take a job; close family members died, including his father; two friends still on active duty were killed while serving overseas; and two friends took their own lives. As a consequence, Applicant resumed drinking. In 2014, he entered another thirty-day inpatient treatment program, in which he was again diagnosed with alcohol dependence. After this treatment he was sober for about a year and a half. Applicant’s daughter moved in with him and did not get along with his live-in girlfriend, who was abusing prescription drugs. He advised his counselor about his relapse. Applicant began following his counselor’s advice, sleeping regularly, exercising, and eating a proper diet. He currently does not have a sponsor but does believe that he has a strong support system. He plans to seek out a therapist for one-on-one counseling in the near future. He has not consumed alcohol in about two years. He has no intention of resuming drinking. He states that he was not aware of his two diagnoses of alcohol dependence. He states that he was only advised to avoid alcohol abuse and to avoid situations that might trigger him to drink. Applicant was evaluated by a physician, who characterized his program as strong and concluded that his alcohol dependence is currently in remission. Applicant underwent a psychological evaluation in 2018, receiving a diagnosis of alcohol abuse in remission. Applicant enjoys an excellent reputation for his trustworthiness and reliability, as well as his professionalism and work ethic. He is described as articulate and intelligent. His friends and colleagues recommend that he retain his clearance. The Judge’s Analysis The Judge concluded that Applicant failed to present sufficient evidence of mitigation. She noted that he has been sober for about two years. However, she concluded that, given the extent of his problem, including multiple relapses, these two years are not enough to show that his security- significant conduct is behind him. In the whole-person analysis, the Judge acknowledged the difficulties Applicant has faced that underlie his alcohol problem. She pointed out that Applicant had undergone two inpatient alcohol treatment programs that diagnosed him as alcohol dependent, but, after a short period of sobriety, he returned to drinking. “There is no strong evidence in the record to show that he will remain sober for any period more than a year or two, if that long.” Decision at 7.

DISCUSSION

Applicant cites to various aspects of the record that he believes the Judge did not consider or that she failed properly to weigh. These include his divorce, the deaths of several persons closest to him, the contentious relationship between his daughter and his girlfriend, his extensive sobriety, his current sobriety, and his recent professional assessment. The Judge made findings about these things and discussed many of them in her analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 17-00109 at 3 (App. Bd. Dec. 12, 2018). Applicant challenges the Judge’s comment that there is no strong evidence that he will remain sober for a year or two, if that long. He notes that the Judge herself found that Applicant has been sober for two years and intends to remain so, arguing that the challenged comment is arbitrary and capricious. However, evidence that Applicant has twice been diagnosed as alcohol dependent and twice has failed to maintain sobriety, along with the Judge’s finding that he currently does not have a sponsor and intends to obtain counseling sometime in the future, support her overall conclusion that Applicant has not demonstrated sufficient rehabilitation to overcome the security concerns in his case. Therefore, any error in the challenged statement is harmless, in that it did not likely affect the overall outcome of the case. See, e.g., ISCR Case No.17-01181 at 4 (App. Bd. Apr. 30, 2018). We give due consideration to the hearing office cases that Applicant has cited. However, each case must be decided on its own merits. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 17-03363 at 3 (App. Bd. Nov. 29, 2018). The gravamen of Applicant’s brief is a challenge to the manner in which the Judge weighed the evidence. An ability to argue for a different interpretation of the record is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02463 at 2 (App. Bd. Sep. 10, 2018).1 The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant argues that the Judge lacked the requisite impartiality. We have considered Applicant’s argument in light of the entirety of the record. We conclude that Applicant has not rebutted the presumption that the Judge was unbiased. See, e.g., ISCR Case No. 17-02391 at 2 (App. Bd. Aug. 7, 2018).