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ISCR 20-03579: Guideline G security clearance appeal, denied (2022) · CASE

ISCR Case 20-03579denied

Case headnote

ISCR Case No. 20-03579

Nov 17, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A federal contractor in his mid-30s was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol abuse and ongoing related issues. Disqualifying conditions G.2.a and G.2.c were raised, citing a DUI conviction and workplace reprimands. While the applicant completed court-ordered treatment, his continued alcohol consumption and failure to attend additional counseling after treatment were significant concerns.

Although mitigating conditions G.3.a and G.3.b were considered, they were not sufficient to overcome the security risks. The applicant failed to demonstrate successful rehabilitation or changed circumstances. His ongoing alcohol consumption, lack of participation in further counseling, and the detrimental impact of alcohol-related incidents on his relationships were key factors.

Ultimately, the applicant's appeal was denied, as his reliability and judgment remained in question due to his persistent issues with alcohol.

Conditions referenced

Disqualifying

G.2.araisedAlcohol-related Incidents
G.2.craisedHabitual Use of Alcohol

Mitigating

G.3.arejectedPositive Evidence of RehabilitationThe applicant did not provide sufficient evidence of rehabilitation or changed circumstances.
G.3.brejectedNo Alcohol-related Incidents Since 2017While there were no incidents since 2017, this was insufficient to mitigate the concerns.

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 issuedFeb 16, 2021
Answer filed—
Hearing heldSep 12, 2022
Decision dateNov 17, 2022Decision affirmed on appeal.

Cite for

Denial of Security Clearance Due to Ongoing Alcohol Abuse Under Guideline G
Failure to Demonstrate Rehabilitation Despite Completion of Court-ordered Treatment
Impact of Alcohol-related Incidents on Security Clearance Eligibility

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 issues. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the decision, finding that the Judge's analysis was reasonable and supported by the evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's findings were arbitrary or capricious.

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

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

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

APPEARANCES

___________________________________

) In the matter of: )

)

-----

)

ISCR Case No. 20-03579

)

) Applicant for Security Clearance ) _______________________________________) Date: November 17, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B Norman, Esq., Chief Department Counsel FOR APPLICANT Angelo Fernandez, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 16, 2021, 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 12, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is in his mid-30sand has received two college degrees. Divorced, he has an 11 year-old child and has been employed by a Federal contractor since 2018.

Applicant’s SOR alleges several concerns arising from Applicant’s abuse of alcohol. In 2014, an employer reprimanded him for showing up at work hungover and smelling of alcohol. A year later, the employer again reprimanded Applicant for excessive tardiness due to alcohol consumption. In late 2016, Applicant was on a temporary duty assignment overseas. While there, he would consume alcohol with fellow employees and on the date in question met a foreign woman at a bar. Applicant and the woman consumed alcohol together and later that night engaged in sexual relations. The next day, Applicant reported late to work and smelled of alcohol. Applicant did not report this foreign contact to his employer. Upon discovery of Applicant’s conduct, his employer gave him one more chance to modify his behavior. In mid-2017, Applicant went to a bar in the U.S., where he consumed between 8 to 10 drinks, including beer, mixed drinks, and shots. Later, while driving himself and his companions home, Applicant was in a traffic accident in which he struck a car from behind while he was travelling about 45 mph. Subsequent breathalyzer testing yielded a result of .195%. Pleading no contest, Applicant was convicted of DUI with property damage and sentenced to 12 months supervised probation, fined, and assessed court costs. He was also required to undergo alcohol treatment and complete 50 hours of community service. Applicant was terminated from employment due to his issues with alcohol. Applicant completed his court-ordered alcohol treatment, his counselor diagnosing him with Alcohol Dependency, sustained remission. The counselor stated that Applicant’s prognosis was good if he was involved in a support system such as Alcoholics Anonymous but fair if he was not involved in a support system. The counselor told Applicant that if he wished to follow up with group treatment he could do so at no charge. Applicant testified that he modified his drinking habits by not consuming alcohol every day, “but he drinks a couple of times a week and has between 8 and 12 beers at a time.” Decision at 4. Applicant stated that he does not drink to intoxication while having custody of his minor child. Applicant has close family relations who are or were alcoholic, and he has lost a friendship due to his continued drinking. He has not participated in alcohol counseling since completing his court-ordered treatment. He testified at the hearing that he now intends to abstain from drinking and to attend counseling. The Judge noted the extent of Applicant’s alcohol problems and his failure to have attended counseling beyond his court-ordered sessions. She stated that Applicant continues to abuse alcohol despite its negative impact upon him and his various relationships. I have considered Applicant’s history of alcohol abuse to include his multiple incidents at work; incidents away from work; habitual drinking; diagnosis of Alcohol Dependent, in remission; court-ordered treatment; opportunity to attend counseling free of charge; multiple declarations that he modified his drinking habits after each incident; multiple declarations that he was seeking counseling; and his most recent declaration that he would abstain from drinking. Although not alleged, I have also considered the risks he willingly takes when consuming alcohol such as driving, caring for his young child, and having intimate contact with a foreign

national when he was intoxicated holding a security clearance1 . . . He has not taken the necessary steps to address his problem with alcohol, despite repeatedly promising to do so. I cannot find that there are changed circumstances or that he has demonstrated successful rehabilitation. I have considered that he has not had an alcohol-related incident since his DUI arrest and that is some mitigation, but it is insufficient to conclude that his behavior was infrequent, happened under unusual circumstances and is unlikely to recur. [Decision at 9-10.]

DISCUSSION

Applicant contends that the Judge failed to consider, or that she mis-weighed, significant record evidence, including the absence of alcohol incidents since 2017, his completion of court- ordered alcohol counseling, and his evidence of modified consumption. He argues that continued counseling beyond that ordered by the court was not formally recommended and that the Judge extended too much weight to his having failed to take advantage of that opportunity. He also argues that the Judge erred in concluding that he had not demonstrated changed circumstances despite the evidence cited above. We have considered Applicant’s appeal arguments in light of the record evidence. The Judge made findings about the issues Applicant has raised and she discussed them in her analysis. We interpret the Judge’s challenged comment to mean that Applicant has not shown changes in circumstances sufficient to demonstrate rehabilitation, not that there have been no changes at all in his conduct. For example, his evidence that he now drinks substantial amounts of alcohol fewer times a week describes a change that a reasonable person could find far short of that necessary to mitigate SOR concerns rooted in alcohol dependency. Applicant has advanced an alternative interpretation of the record, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Moreover, Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 21-01236 at 3 (App. Bd. Oct. 31, 2022). We have given due consideration to the cases that Applicant has cited, both from the Hearing Office and from the Appeal Board. However, each case must be decided upon its own merits. The cited cases are not sufficient to undermine the Judge’s analysis and conclusions. Id. 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.” 1 The Judge noted that non-alleged conduct can be considered on such issues as a credibility determination, the applicant’s case for mitigation or rehabilitation, and a whole-person analysis.

ORDER

The Decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board