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ISCR Case ISCR Case No. 23-00516 — CASE

ISCR Case ISCR Case No. 23-00516denied

Case Headnote

ISCR Case No. ISCR Case No. 23-00516

May 29, 2024· Hon. Gregg A. Cervi· appeal

Summary

A defense contractor in his mid-sixties was denied a security clearance primarily under Guideline G (Alcohol Consumption), with Guideline H (Drug Involvement) found in his favor. The denial stemmed from a documented history of seven DUI arrests and convictions, which were identified as disqualifying conditions G.2.a and G.2.c.

Despite the applicant's assertions of abstinence and efforts to correct his record, the appeal board upheld the initial denial. The board emphasized the severe nature of his excessive alcohol use and the absence of sufficient mitigating evidence to counter the disqualifying conditions.

Specifically, the applicant failed to provide evidence that his alcohol consumption was not a problem or that it had not negatively impacted his work performance. The appeal board concluded there was no harmful error in the judge's decision to deny the clearance, affirming the denial based on the persistent and unmitigated alcohol-related issues.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Arrests
G.2.craisedExcessive Alcohol Consumption

Mitigating

H.2.aappliedNo Recent Drug Involvement

Key Rule Quoted

““Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.””
— AG ¶ 2(b)

Procedural Posture

SOR issuedMay 10, 2023
Answer filed—Applicant represented himself pro se.
Hearing held—Decision based on written record.
Decision dateMay 29, 2024Appeal affirmed.

Cite For

Disqualifying Nature of Multiple DUI Arrests Under Guideline G
Mitigating Factors Considered Under Guideline H
Burden of Persuasion on Applicant for Mitigation After Security Concerns Raised.

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 security clearance eligibility based on concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement and Substance Misuse). The Applicant admitted to the allegations but argued for reconsideration based on additional information. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline GGuideline H

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge may not have had sufficient information about his character and history.

Why the Board ruled this way

The Board found that the Judge's decision was sustainable based on the evidence presented and that the Applicant did not allege any harmful error. The Judge articulated a satisfactory explanation for the decision, consistent with national security interests.

Standard of review applied

No de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Moira Modzelewski — Chair
Gregg A. Cervi
James B. Norman

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. 23-00516

)

) 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: May 29, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 10, 2023, 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 H (Drug Involvement and Substance Misuse) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision based on the written record, without a hearing. The Government submitted a File of Relevant Material (FORM) containing the entire record and the Government’s argument. Applicant was provided an opportunity to respond, but he did not submit a response. On April 3, 2024, Defense Office of Hearings and Appeals Administrative Judge Wilford H. Ross denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged under Guideline G that Applicant was arrested and charged with driving under the influence (DUI) on seven occasions. Under Guideline H, he was alleged to have used marijuana in 2014, while holding access to classified information or in a sensitive position, after testing positive during an employment urinalysis. Applicant admitted all of the SOR allegations,

and the Judge found against him on the Guideline G allegations, and in his favor on the Guideline H allegations. On appeal, Applicant provides additional information to correct or clarify the record and argues for reconsideration of the decision to deny him security eligibility. Consistent with the following, we affirm. Judge’s Findings of Fact and Analysis Applicant is in his mid-sixties, divorced from his third wife, and has one adult child. He has been employed by a defense contractor since November 2020. He was arrested for DUI in 1983, but the charge was dismissed as nolle prosequi. He was arrested for DUI in 1991, pleaded no contest, and was sentenced to probation and fined. He was again arrested for DUI in 1995, was found guilty, and sentenced to probation and fined. He was arrested in 1998 for DUI and was found guilty, sentenced to probation, and fined. Again, he was arrested in 2000 for DUI, was found guilty and was fined. He was arrested in 2014 and 2020 for DUI, found guilty, and sentenced to probation, community service, and fined. Applicant also tested positive for marijuana during an employer- sponsored urinalysis in 2014 and retired, while holding access to classified information or in a sensitive position. He said it was his one and only use of marijuana. Applicant elected to have a decision on the record without a hearing, so the Judge was unable to make a credibility assessment. Applicant did not submit any information in response to the FORM to show his work performance, current use of alcohol, or abstinence status. The Judge held that Applicant’s history of excessive alcohol use and seven alcohol-related arrests and convictions were disqualifying and noted that no mitigating information was submitted in response to the FORM.

DISCUSSION

On appeal, Applicant does not allege the Judge committed harmful error, rather he argues the Judge may not have had “sufficient information” about his “character and history.” Appeal Brief at 1. He also corrected or supplemented the record with regard to the number of children he has, his work history, and corrections to official criminal history documents in the record. He also argues that he has abstained from alcohol and that his DUIs never interfered with his work. Disagreement with the Judge’s weighing of the evidence or an ability to argue for a different interpretation of the evidence is not sufficient to conclude that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. E.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The Appeal Board does not review cases de novo. The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Directive ¶ E3.1.32. There is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government produces evidence raising security concerns, an applicant bears the burden of persuasion concerning mitigation. See Directive ¶ E3.1.15. Because Applicant has not alleged such a harmful error, the decision of the Judge denying Applicant security clearance eligibility is sustainable.

Our review of the record reflects that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b).

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board