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ISCR Case 18-01325.a1 — CASE

ISCR Case 18-01325.a1denied

Case Headnote

ISCR Case No. 18-01325.a1

Apr 4, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A 49-year-old former Air National Guard member was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The applicant's history included excessive alcohol use and multiple DUI offenses, which raised disqualifying conditions G.2.a and E.2.c.

While the applicant attended treatment programs and claimed abstinence, the judge found the provided evidence of rehabilitation and sustained behavioral change to be insufficient. The applicant admitted to the allegations in the Statement of Reasons (SOR), but their claimed abstinence was not deemed credible or likely to be sustained.

Despite the consideration of mitigating conditions G.3 and E.3, the lack of sufficient, credible evidence regarding sustained rehabilitation led to the denial of the security clearance. The denial was subsequently affirmed on appeal.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
E.2.craisedPersonal Conduct

Mitigating

G.3rejectedRehabilitationThe applicant did not provide sufficient evidence of rehabilitation.
E.3rejectedMitigating CircumstancesThe applicant's claims of abstinence were not credible.

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 21, 2018
Answer filed—
Hearing heldJan 15, 2019Decision issued by Administrative Judge.
Decision dateApr 4, 2019Appeal decision affirmed.

Cite For

Affirmation of Denial Based on Excessive Alcohol Use Under Guideline G
Insufficient Evidence of Rehabilitation Leading to Denial
Burden on Applicant to Mitigate Security Concerns After Admitting Allegations.

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 seeking a security clearance who had a history of alcohol-related offenses. The Administrative Judge denied the clearance based on insufficient evidence of mitigation. The applicant appealed, arguing that the decision was arbitrary and that the Judge made a factual error regarding the date of an arrest. The Board affirmed the decision, finding no harmful error that affected the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowGregg A. Cervi — denied the clearance

Decided onthe written record

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant noted the Judge erred in finding she was arrested in October 2017 instead of May 2017.
No specific harmful error alleged — raised by the applicantRejected
Applicant did not identify any harmful error in the Judge's decision.

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 based on substantial evidence and articulated a satisfactory explanation for the decision. The Judge's findings were not arbitrary or capricious, and the applicant did not demonstrate any harmful error that would warrant a reversal.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan — Chair
James F. Duffy
Charles C. Hale

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’s decision was based on the FORM and Applicant’s response to it. After having admitted the SOR allegations, the burden was on Applicant to mitigate those security concerns. Directive ¶ E3.1.15. If she wanted the Judge to consider matters that were not in the FORM, it was her responsibility to present such matters to him. Adverse decision affirmed. CASENO: 18-01325.a1 DATE: 04/04/2019 DATE: April 4, 2019 In Re: -------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ) ) ISCR Case No. 18-01325

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 21, 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 decision on the written record. On January 15, 2019, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gregg A. Cervi 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 and Analysis Applicant, who is 49 years old, has been employed by a government contractor since 2016. She retired from the Air National Guard in 2008 and has held various security clearances. She has been convicted of either driving while intoxicated or operating a vehicle under the influence of alcohol on four occasions. These offenses occurred in 1995, 2007, 2016, and 2017. After her 2007 arrest, she was diagnosed as an alcohol abuser and attended follow-up treatment. The 2016 and 2017 incidents involved traffic accidents. During the 2016 incident, she lost control of her vehicle and hit a pole; a breathalyzer revealed her blood alcohol content was .334 %. She participated in alcohol treatment programs following the last two incidents. She provided a recent letter from a therapist stating she no longer drinks alcohol and resolved personal issues satisfactorily. The therapist indicated she is doing extremely well and is not a threat to national security. Applicant has a history of excessive alcohol use and driving while impaired. She has not provided sufficient evidence of abstinence or the ability to drink responsibly. The record is devoid of details about her treatment and evidence establishing a change in behavior. She has had lapses following treatment. The Judge was not convinced Applicant’s claimed abstinence was credible or would be sustained.

DISCUSSION

Applicant contends her security investigation was not complete and thorough.1 She indicates that she assumed the investigation was thorough and supplied to the Judge. She requests that she be provided with all documentation that was presented to the Judge. The record, however, reflects that she was previously provided with that documentation. On July 19, 2018, Department Counsel mailed to Applicant the File of Relevant Material (FORM). The FORM notified her: “If you do not file any objections or submit any additional information within 30 days of receipt of this letter, your case will be assigned to an Administrative Judge for a determination based solely on this FORM.” [Emphasis added.] FORM at 3. In responding to the FORM, Applicant submitted a letter from her to the Judge. The Judge’s decision was based on the FORM and Applicant’s response to it. After having admitted the SOR allegations, the burden was on Applicant to mitigate those security 1 The Appeal Board has no authority to rule on the sufficiency of a security clearance investigation. See, e.g., ISCR Case No. 14-00715 at 3 (App. Bd. Dec. 10, 2014). concerns. Directive ¶ E3.1.15. If she wanted the Judge to consider matters that were not in the FORM, it was her responsibility to present such matters to him. Applicant has not identified any harmful error in the Judge’s decision. She makes arguments about her alcohol treatment that are based incorrectly on her assumption that those matters were before the Judge for consideration. She does correctly note that the Judge erred in finding she was arrested in October 2017, instead of May 2017; however, this error was harmless because it likely had no affect on the outcome of the case. See, e.g., ISCR Case No. 11-15084 at 3 (App. Bd. Jul. 25, 2013). Applicant also requests “more time to acquire the necessary documentation to complete the Appeal.” Appeal Brief at 1. The Board has no authority to grant an applicant a continuance in order to develop additional favorable evidence. See, e.g., ISCR Case No. 14-00151 at 3 (App. Bd. Sep. 12, 2014). Moreover, the Board cannot consider new evidence on appeal. Directive ¶ E3.1.29.

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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board