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ISCR Case 06-19487.a1 — CASE

ISCR Case 06-19487.a1denied

Case Headnote

ISCR Case No. 06-19487.a1

Jun 6, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline G (Alcohol Consumption) due to multiple DUI arrests and a lack of demonstrated rehabilitation. The applicant had a guilty plea for a DUI in 2001 and another arrest in 2004.

The judge identified disqualifying condition G.2.a, which pertains to alcohol-related incidents. While mitigating conditions under G.3 were considered, the applicant failed to provide evidence of rehabilitation or compliance with treatment requirements. Specifically, the applicant did not testify or offer independent evidence regarding his alcohol consumption or efforts to address it.

The adverse decision was affirmed on appeal, citing ongoing security concerns related to the applicant's alcohol consumption and the absence of sufficient evidence to mitigate those concerns.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses

Mitigating

G.3rejectedRehabilitationThe applicant did not provide sufficient evidence of rehabilitation.

Key Rule Quoted

“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)

Procedural Posture

SOR issuedOct 29, 2007
Answer filed—Applicant requested a decision on the written record.
Hearing held—Decision made based on written record.
Decision dateJun 6, 2008Appeal affirmed.

Cite For

Security Concerns Related to Alcohol Consumption Under Guideline G
Insufficient Evidence of Rehabilitation in Alcohol-related Cases
The Standard for Granting Security Clearance in Relation to National Security Interests

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 issues under Guideline G. The applicant argued that the Judge's failure to mitigate these concerns was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's failure to mitigate the Guideline G security concerns was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the adverse decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

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

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

KEYWORD: Guideline G DIGEST: The Judge’s made unchallenged findings that Applicant was arrested for DUI in 2001 and pleaded guilty, arrested again for DUI in 2004 and failed to appear. Applicant is currently on probation and receiving treatment. Adverse decision affirmed. CASENO: 06-19487.a1 DATE: 06/06/2008 DATE: June 6, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-19487

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 29, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On March 17, 2008, after considering the record, Administrative Judge Martin H. Mogul 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’s failure to mitigate the Guideline G security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. Applicant elected to have his case decided on the written administrative record, but filed no response to the government’s file of relevant material (FORM). His appeal offers a detailed explanation about his alcohol-related conduct, his current efforts at rehabilitation, and his job performance. Applicant also attaches a copy of his attendance record for his current alcohol treatment program. However, the Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29.

In this case, the Judge made unchallenged findings as follows: Applicant had consumed alcohol, at times in excess and to the point of intoxication, from approximately 1999 to at least 2007. In 2001, Applicant was arrested and charged with Driving Under the Influence of Alcohol (DUI) and Driving with a Blood Alcohol Content (BAC) of .08% or more. He pleaded guilty and was sentenced to a one-year suspension of his driver’s license, 240 hours of community service, a fine, and three years probation. In 2004, Applicant was arrested and charged with DUI and Driving with a BAC of .08% or more. He failed to appear, and a Bench Warrant was issued for his arrest. He pleaded guilty and was sentenced to 30 days in jail, stayed, and placed on probation for three years. Applicant was also ordered to attend an 18-month Multiple Offender Alcohol Program, and to pay a fine. Decision at 2. Applicant is currently on probation and receiving treatment. His program treatment manager wrote that Applicant “admits to having a problem with alcohol dating back to his early 20's and states there is a history of alcoholism on the fraternal side of the family.” Id. at 3. In reaching his adverse clearance decision, the Judge noted that: “Since Applicant did not testify before me, nor offer any independent evidence about his current alcohol consumption, I have no evidence to conclude that Applicant has complied with the discharge plan of the program or that his alcohol difficulties have been resolved.” Id. The Board has examined the Judge’s decision in light of the record as a whole and concludes that the Judge has drawn ‘a rational connection between the facts found’ under Guideline G and his adverse decision. Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “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). Accordingly, the Judge’s adverse decision is not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge 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