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ISCR 21-02005: Guideline E security clearance appeal, denied (2023) · CASE

ISCR Case 21-02005denied

Case headnote

ISCR Case No. 21-02005

Feb 17, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A mid-fifties male with a military background was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a long history of alcohol-related offenses, including five DUI arrests, and a diagnosis of Alcohol Use Disorder.

Disqualifying conditions AG ¶ 20, AG ¶ 21, and AG ¶ 22 were raised. The applicant failed to provide sufficient evidence of rehabilitation or compliance with treatment recommendations following his diagnosis. Furthermore, his claims of abstinence from alcohol were not adequately corroborated.

Ultimately, the judges found insufficient evidence of rehabilitation or sustained abstinence from alcohol. The appeal was denied, as the judges concluded that granting a clearance would not align with national security interests.

Conditions referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption
AG ¶ 22raisedPersonal 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 issuedDec 17, 2021
Answer filed—
Hearing heldDec 15, 2022
Decision dateFeb 17, 2023Appeal affirmed.

Cite for

Insufficient Evidence of Rehabilitation Under Guideline G
Long History of Alcohol-related Offenses Under Guideline J
Lack of Corroboration for Claims of Abstinence Under Guideline E

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 concerns under Guidelines G, J, and E. The Applicant argued that the Judge failed to consider evidence of his abstinence from alcohol and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in her analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPamela C. Benson denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
The Judge failed to properly consider all available evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
The Judge misapplied the mitigating conditions, rendering her adverse decision arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge properly considered the evidence and articulated a satisfactory explanation for her decision. The Judge's findings were supported by substantial evidence and were not 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)
Moira Modzelewski
Allison Marie

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. 21-02005

)

) 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: February 17, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 17, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 29, 2022, Department Counsel mailed a file of relevant material (FORM) to Applicant. Applicant provided no objections to the material provided and submitted no matters in extenuation or mitigation. On December 15, 2022, after consideration of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Pamela C. Benson 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 failed to properly consider all available evidence and whether she misapplied the mitigating conditions, rendering her adverse decision 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-fifties and twice-divorced, with three adult children. He served in the military from 1985 through 1988. Under Guideline G, the SOR alleged five arrests for driving under the influence, with the most recent being December 2019, one alcohol-related disorderly conduct violation, excessive consumption of alcohol from 1990 through 2019, and a 2021 diagnosis of Alcohol Use Disorder. The alcohol offenses were cross-alleged under Guideline J, as well as an additional 1998 charge of obtaining a hunting license under false pretenses. The alcohol offenses and false pretenses offense were cross-alleged under Guideline E. Applicant admitted all allegations, and the Judge found against him on all. In his background clearance interview in July 2019, Applicant discussed his alcohol-related offenses, described his drinking pattern, and stated his intent not to drink to excess in the future. Five months later, in December 2019, Applicant was arrested for Extreme DUI with a blood alcohol content above .20%. He pleaded guilty and was sentenced to 2 days in jail, 22 days of work release and 96 hours of home detention. Additionally, he attended DUI classes, completed alcohol screening, and paid a fine. Applicant stated his intent to abstain from alcohol completely after his December 2019 arrest. In April 2021, he was diagnosed with Alcohol Use Disorder. In concluding that Applicant did not mitigate the alcohol consumption, criminal conduct, and personal conduct security concerns, the Judge found that: Applicant acknowledged his lapses in judgment due to his excessive use of alcohol and a long history of criminal and alcohol-related violations. This pattern demonstrated that he was unable to learn from his mistakes and he places his personal interests before his legal obligations and responsibilities. He also failed to provide supporting documentation concerning his alcohol counseling and treatment following a 2021 diagnosis of alcohol use disorder. I cannot determine if he has successfully completed treatment and if he has fully complied with the treatment recommendations. [Decision at 8.]

DISCUSSION

Applicant has not challenged any of the Judge’s specific findings of fact. Through counsel, the crux of Applicant’s argument is that he has abstained from alcohol since his December 2019 DUI and that the Judge failed to give due weight to his abstinence and to the passage of time since his last incident. We turn first to the issue of abstinence. Both in his November 2020 background interview and in his response (undated) to DOHA interrogatories, Applicant noted that he stopped drinking after the December 2019 DUI. GE 4 at 6 and 23. The Judge, however, determined that there was “insufficient information in the record to demonstrate Applicant’s claim that he has successfully abstained from using alcohol since his most recent DUI arrent in December 2019.” Decision at 5. That is, the Judge determined that Applicant’s statements regarding abstinence were not adequately corroborated in light of there being “no information about his alcohol treatment following his 2021 diagnosis of alcohol use disorder, details of his rehabilitation, or even a future favorable prognosis.” Id. An administrative judge is not required to accept an applicant’s

representation merely because it is unrebutted. See, e.g., ISCR Case No. 99-0005 at 3 (App. Bd. Apr. 19, 2000). The Judge was well within her authority to determine that Applicant’s assertions of abstinence lacked corroboration and to decide the weight to be given to those assertions. We turn next to Applicant’s argument that the Judge did not consider the passage of time as a mitigating factor. The Board has repeatedly declined to furnish "bright-line" guidance regarding the concept of recency. The extent to which security concerns have become mitigated through the passage of time is a question that must be resolved based on the evidence as a whole. Our review of the record and decision establishes that the Judge carefully considered all evidence in mitigation, including the passage of time since the December 2019 conviction but determined it was insufficient—for now—given the long history of DUIs and the elevated BAC of the most recent arrest. In light of the record before her, the Judge’s determination that insufficient time has passed to conclude that Applicant is unlikely to engage in further misconduct was not arbitrary or capricious. See, e.g., ISCR Case No. 18-02586 at 3 (App. Bd. Sep. 9, 2019). Applicant’s counsel also asserts that the Judge failed to consider Applicant’s completion of a “treatment plan” and “treatment programs.” Appeal Brief at 6, 9, 10. However, Applicant’s Counsel cites to no evidence in the record supporting these contentions, as required by Directive E3.1.30, and our review of the record reveals no evidence that Applicant was ever enrolled in, or completed, such a program. Instead, the record supports the Judge’s finding that Applicant participated in a court-ordered DUI class, which was apparently online, and completed a court- ordered alcohol screening. GE 4 at 23; GE 5 at 2. None of Applicant’s 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. Moreover, the Judge complied with the requirements of the Directive in her whole-person analysis by considering all evidence of record in reaching her decision. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Applicant has 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: Allison Marie Allison Marie Administrative Judge Member, Appeal Board