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ISCR Case 06-12284.a1 — CASE

ISCR Case 06-12284.a1denied

Case Headnote

ISCR Case No. 06-12284.a1

Oct 1, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial was based on a history of alcohol-related incidents, including arrests for Driving While Intoxicated and disorderly conduct.

The judge also considered the applicant's behavior during disputes as a significant factor in assessing his reliability and judgment. These issues raised disqualifying conditions G2 and E2.

The applicant appealed the decision, but the appeal board affirmed the denial. The board found no error in the judge's application of the whole-person analysis, concluding that the judge appropriately weighed the evidence in determining that the applicant did not meet the standards for a security clearance.

Conditions Referenced

Disqualifying

G2raisedAlcohol-related Offenses
E2raisedPersonal Conduct That Creates a Risk of Harm to National Security

Key Rule Quoted

“The whole person analysis supports the Judge’s ultimate conclusion denying Applicant a security clearance.”
— Directive ¶ E2.1.2

Procedural Posture

SOR issuedOct 25, 2006
Answer filed—Applicant represented himself.
Hearing heldMar 29, 2007
Decision dateOct 1, 2007

Cite For

Denial Based on History of Alcohol-related Incidents Under Guideline G
Impact of Personal Conduct on Security Clearance Under Guideline E
Affirmation of Whole-person Analysis in Security Clearance Decisions

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline G and Guideline E. The applicant argued that the Judge's findings were erroneous and that the whole-person factors were not properly applied. The Board affirmed the Judge's decision, finding the findings and conclusions sustainable.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge gave undue weight to the phrase 'couldn’t keep his mouth shut'.
Whole-person analysis — raised by the applicantRejected
The Judge did not properly apply the whole-person factors in her decision.

Why the Board ruled this way

The Judge’s findings are sustainable and the conclusions are also sustainable. The record does not support a conclusion that the Judge weighed the evidence in an arbitrary or capricious manner.

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

Jean E. Smallin
William S. Fields
James E. Moody

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline G; Guideline E DIGEST: The Judge’s findings are sustainable. The Judge’s ultimate conclusions are also sustainable. Adverse decision affirmed. CASENO: 06-12284.a1 DATE: 10/01/2007 DATE: October 1, 2007 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-12284

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 October 25, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 29, 2007, after the hearing, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found that Applicant was first arrested for Driving While Intoxicated when he was 16 years old and in high school. Applicant was convicted and sentenced to community service. He lost his license for one year and had to attend alcohol education classes. The Judge also found that in May 2004 Applicant and his girlfriend, following dinner and drinks at a local restaurant, got into a dispute with the staff over whether he had paid the bill, Applicant insisting that he had. The staff called the police. “Because he was upset about the accusation and the decision to call the police, he couldn’t keep his mouth shut. As a result, the police arrested him for disorderly conduct in a motor vehicle.” Applicant ultimately paid a fine. In December 2005, Applicant and his fiancé attended a Christmas party, during which they consumed alcohol over several hours. After leaving the party, they went to a bar, where they got into an argument. During the trip home, they continued the argument, Applicant eventually stopping the car, pulling his fiancé out, and leaving her behind. Applicant was charged with criminal domestic violence. Applicant’s fiancé did not appear at trial, so the charges were dismissed. In August 2006, Applicant was arrested and charged with Driving Under the Influence. Trial was delayed until some time after the hearing in Applicant’ security clearance case. Following this arrest, Applicant received outpatient substance abuse treatment. In his appeal submission, Applicant contends that the Judge gave undue weight to the phrase “couldn’t keep his mouth shut.” Applicant believes that the entire incident arising out of the dispute in the restaurant was blown out of proportion. He contends that the Judge’s findings are in error to the extent that they attribute the August 2005 incident to alcohol consumption. We also construe Applicant’s brief as asserting that the Judge did not properly apply the whole-person factors in arriving at her decision. We have examined the Judge’s findings in light of the record and conclude that those findings are sustainable. Furthermore, the record does not support a conclusion that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See ISCR Case No. 05-04923 at 4 (App. Bd. Apr. 24, 2007). Neither does the record support a conclusion that the Judge erred in her whole-person analysis. See Directive ¶ E2.1.2. The whole person analysis supports the Judge’s ultimate conclusion denying Applicant a security clearance. See ISCR Case No. 04-11414 at 4 (App. Bd. Mar. 5, 2007).

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board