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ISCR Case 19-01400.a1 — CASE

ISCR Case 19-01400.a1denied

Case Headnote

ISCR Case No. 19-01400.a1

Jun 3, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial was based on the applicant's history of four alcohol-related arrests between 1987 and 2018. The most recent arrest resulted in ongoing probation, which was still active at the time of the decision.

Disqualifying conditions G.2.a and J.1 were raised, indicating a pattern of alcohol consumption to the point of impaired judgment and criminal conduct. While mitigating condition G.3 was considered, it was determined that the applicant's efforts toward rehabilitation were insufficient. The applicant had only ceased drinking one month before the record closed, which did not demonstrate a sustained period of abstinence or recovery.

The appeal of the denial was unsuccessful. The applicant failed to demonstrate that the Judge's findings were arbitrary, capricious, or contrary to law. Arguments regarding the evidence and the application of mitigating factors were deemed insufficient to overturn the initial denial, resulting in the final outcome of DENIED.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Arrests
J.1raisedCriminal Conduct

Mitigating

G.3rejectedRehabilitationThe applicant's arguments regarding rehabilitation were insufficient to overturn the decision.

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 issuedJun 26, 2019
Answer filed—
Hearing heldMar 12, 2020
Decision dateJun 3, 2020

Cite For

Denial of Security Clearance Based on Alcohol Consumption and Criminal Conduct
Insufficient Evidence to Demonstrate Error in Judge's Findings
Affirmation of Judge's Decision Based on Whole-person Analysis

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on alcohol-related arrests and criminal conduct. The applicant did not challenge the Judge's findings of fact but argued that the Judge mis-weighed the evidence and did not properly apply mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends the Judge did not consider all of the evidence and mis-weighed the evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argues the Judge did not properly apply the mitigating conditions and whole-person concept.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, which was not arbitrary or capricious. The decision was affirmed as sustainable on the record.

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
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; Guideline J DIGEST: In his appeal brief, Applicant does not challenge any of the Judge’s findings of fact. Instead, he contends the Judge did not consider all of the evidence, mis-weighed the evidence, and did not properly apply the mitigating conditions and whole-person concept. The Judge discussed the matters that Applicant is raising on appeal. His arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision is affirmed. CASE NO: 19-01400.a1 DATE: 06/03/2020 DATE: June 3, 2020 ) In Re: ) ) --------------------- ) ISCR Case No. 19-01400

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Austin J. Lewis, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 26, 2019, 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 September 30, 2019, Department Counsel amended the SOR by adding another Guideline G allegation and a Guideline J (Criminal Conduct) allegation. On March 12, 2020, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge summarized the case as follows: Applicant had four alcohol-related arrests between 1987 and 2018. He is currently on probation for the last offense, and stopped drinking only one month before the record closed. Based on a review of the pleadings, testimony, and exhibits, national security eligibility for access to classified information is denied. [Decision at 1.] In his appeal brief, Applicant does not challenge any of the Judge’s findings of fact. Instead, he contends the Judge did not consider all of the evidence, mis-weighed the evidence, and did not properly apply the mitigating conditions and whole-person concept. For example, he notes that he has suffered since the death of his wife in 2017 and argues: The Administrative Judge discounted testimony that the incident at the heart of the issue, the DUI arrest in 2018, was [Applicant’s] first since 1995 and does not represent a larger pattern of misconduct. The Administrative Judge also discounted testimony that [Applicant] will never drink and drive again and is actively working toward sobriety generally. Further the Administrative Judge discounted the fact that [Applicant] had completed counseling and treatment programs related to the behavior. [Appeal Brief at 5-6.] The Judge discussed the matters that Applicant is raising on appeal. His arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor 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. 17-02488 at 3 (App. Bd. Aug. 30, 2018). Additionally, the Judge complied with the requirements of the Directive in his whole-person analysis by considering the totality of the evidence in reaching his decision. Also, an ability to argue for an alternative interpretation of the evidence is not sufficient to demonstrate error. See, e.g., ISCR Case No. 10-07127 at 3 (App. Bd. Dec. 19, 2012). Applicant has failed to establish that the Judge committed any harmful error. 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 Y. Ra’anan Michael Y. 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