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ISCR Case 05-03452.a1 — CASE

ISCR Case 05-03452.a1denied

Case Headnote

ISCR Case No. 05-03452.a1

Jul 3, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial was based on a lengthy and serious history of excessive alcohol use and related criminal conduct, specifically citing disqualifying conditions G2 and J1.

The judge determined that the applicant's mitigating evidence was insufficient to overcome the government's security concerns. The applicant's disagreement with how the judge weighed the evidence did not demonstrate that the decision was arbitrary or capricious.

Ultimately, the appeal board affirmed the denial, finding no error in the judge's decision-making process. The applicant's extensive history of alcohol-related issues and criminal conduct was deemed significant enough to warrant the denial of the security clearance.

Conditions Referenced

Disqualifying

G2appliedAlcohol-related Incidents
J1appliedCriminal Conduct

Key Rule Quoted

“The absence of security violations does not bar or preclude an adverse security clearance decision.”
— Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970)

Procedural Posture

SOR issuedAug 11, 2005
Answer filed—
Hearing heldJan 16, 2007
Decision dateJul 3, 2007

Cite For

Denial Based on Serious Alcohol-related Conduct Under Guideline G
Denial Based on Criminal Conduct Under Guideline J
The Weight of Mitigating Evidence Does Not Automatically Compel a Favorable Decision.

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-related incidents and criminal conduct. The Applicant argued that the Judge did not adequately consider mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contends that the Judge did not give sufficient weight to mitigating evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's decision was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence presented by the Applicant against the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
William S. Fields

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: The ultimate state court dispositions of Applicant’s criminal incidents did not preclude the Judge from finding that the incidents were alcohol related. Adverse decision affirmed. CASENO: 05-03452.a1 DATE: 07/03/2007 DATE: July 3, 2007 In Re: -------- SSN:--------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-03452

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 11, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 16, 2007, after the hearing, Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guidelines G and J had not been mitigated. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence which showed that Applicant has held a security clearance without incident for approximately 17 years, and that four of the criminal charges against him had been dismissed or had resulted in a finding of not guilty. In support of this contention, Applicant restates the evidence he presented below, and offers new evidence in the form of an additional explanation about the four criminal charges. The Board does not find Applicant’s contention persuasive. The Board may not consider new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06-00799 at 2 (App. Bd. Apr. 16, 2007). Therefore, the Board may not consider Applicant’s additional explanations. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966).

The Judge found in favor of Applicant with respect to two of the charges to which he refers, both of which were alleged under Guideline J. Therefore, those findings are not at issue on appeal. The other two charges were alcohol-related, so they were considered by the Judge in the context of the Guideline G. A Judge can find an applicant has engaged in criminal conduct even if the criminal charges against the applicant were dropped or dismissed. See ISCR Case No. 03-11906 at 3 (App. Bd. July 19, 2005); ISCR Case No. 03-21761 at 5 (App. Bd. Nov. 28, 2005). The ultimate state court dispositions of Applicant’s criminal incidents did not preclude the Judge from finding that those incidents were alcohol-related. See ISCR Case No. 02-01181 at 4 (App. Bd. Jan. 30, 2004). Considering the record as a whole, the Judge’s material findings with respect to Applicant’s alcohol- related conduct reflect a reasonable interpretation of the record evidence and are supported by substantial evidence. See, e.g., ISCR Case No. 03-21933 at 2 (App. Bd. Aug. 18, 2006). The absence of security violations does not bar or preclude an adverse security clearance decision. The federal government need not wait until an applicant actually mishandles or fails to properly handle classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 99-0123 at 3 (App. Bd. Jan. 11, 2000). The Directive's Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of security concern to the government and mandate a whole person analysis to determine an applicant's security eligibility. A whole person analysis is not confined to the workplace. See ISCR Case No. 03-11231 at 3 (App. Bd. June 4, 2004). “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s 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 demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-01181 at 3-4 (App. Bd. Jan. 30, 2004). In this case, the Judge found that Applicant had a lengthy and serious history of excessive alcohol consumption and criminal conduct. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole person factors. The Judge found in favor of Applicant with respect to some of the SOR allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Administrative Judge’s decision is arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jeam E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board