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ISCR 20-02676: Guideline G security clearance appeal, denied (2023) · CASE

ISCR Case 20-02676denied

Case headnote

ISCR Case No. 20-02676

Jan 9, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from multiple alcohol-related offenses, including six DUIs and other criminal conduct, which raised disqualifying conditions G.2.a and J.1.

The applicant's most recent alcohol-related offense occurred in 2016, and a history of alcohol abuse and treatment noncompliance was noted. While the applicant admitted to the allegations, they contended that the judge misapplied mitigating conditions.

However, the appeal board affirmed the denial, finding no harmful error in the judge's decision or misapplication of mitigating conditions. The board concluded that the judge's findings were supported by the evidence and consistent with national security standards, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

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

Key rule quoted

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

Procedural posture

SOR issuedMar 26, 2021
Answer filed—
Hearing heldNov 2, 2022
Decision dateJan 9, 2023Appeal decision

Cite for

Affirmation of Denial Based on Multiple Alcohol-related Offenses Under Guideline G
Consideration of the Passage of Time in Evaluating Mitigating Conditions
Standard for Granting Clearance Consistent with 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 an applicant who was denied a security clearance based on concerns related to alcohol consumption and criminal conduct. The applicant did not challenge the specific findings but argued that the Judge misapplied mitigating conditions and did not consider all evidence. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey 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 misapplied the mitigating conditions.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argues the alleged security concerns were mitigated due to the passage of time since his last alcohol-related offense.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claims the Judge's weighing of the evidence was arbitrary and capricious.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and concluded that the decision was sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

James F. Duffy (Chair)
Moira Modzelewski
Jennifer I. Goldstein

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. 20-02676

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 9, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Brittany D. Forrester, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 26, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision―security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 2, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found against Applicant on 11 Guideline G allegations and 9 cross-alleged Guideline J allegations. These asserted that Applicant was arrested and charged with various alcohol-related offenses between 1999 and 2016, including driving under the influence (DUI) on six occasions, fleeing or evading police, breaking and entering, illegal entry and larceny, and criminal trespass. Applicant pled guilty to many of those charges or to lesser offenses. His most recent alcohol-related driving offense was in 2016. The SOR also alleged that Applicant was

diagnosed with alcohol abuse in 2003 and enrolled in a substance abuse program, that he violated state probation by testing positive during a random alcohol test in 2015, and that he discontinued behavioral health treatment against advice in 2018 and was discharged with a diagnosis of alcohol dependence. In responding to the SOR, Applicant admitted each of these allegations with clarifying and mitigating information. On appeal, Applicant does not challenge any of the Judge’s specific findings of fact. Rather, he contends the Judge did not consider all of the evidence, misapplied the mitigating conditions, and misweighed the evidence. For example, he argues the alleged security concerns were mitigated due to the passage of time since his last alcohol-related offense in 2016. In this regard, the Judge noted Applicant previously went eight years (2003-2011) without committing any alcohol-related offenses. In general, Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence, which is a matter within the special province of the Judge as the trier of fact. See, e.g., ISCR Case No. 18-00857 at 4 (App. Bd. May 8, 2019). None of his arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 21-01169 at 5 (App. Bd. May 13, 2022). Additionally, Applicant’s arguments based on Hearing Office decisions involving marijuana usage are misplaced and have no merit. Applicant failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The Decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board