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ISCR 06-20413.a1: Guideline E security clearance appeal, granted (2008) · CASE

ISCR Case 06-20413.a1granted

Case headnote

ISCR Case No. 06-20413.a1

Jan 28, 2008· Hon. Jean E. Smallin· appeal

Summary

This case concerns a 37-year-old network engineer whose security clearance was initially questioned under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) due to multiple past alcohol-related incidents. The primary concern stemmed from a serious incident in 2003.

However, the applicant successfully demonstrated a sustained pattern of responsible alcohol use following that 2003 event. This positive change was corroborated by character references, which attested to his professionalism and integrity in the years since. Crucially, there was no evidence presented of current alcohol dependence or excessive consumption.

Applying Guideline G Mitigating Condition 2 and Guideline E Mitigating Condition 1, the adjudicator determined that the applicant had successfully mitigated the security concerns. Consequently, the applicant's security clearance was GRANTED.

Conditions referenced

Mitigating

Guideline G Mitigating Condition 2appliedThe Individual Acknowledges His or Her Alcoholism or Issue of Alcohol Abuse, Provides Evidence of Actions Taken to Overcome This Problem, and Has Established a Pattern of Abstinence (if Alcohol Dependent) or Responsible Use (if an Alcohol Abuser).
Guideline E Mitigating Condition 1appliedThe Individual Did Not Deliberately Conceal or Misrepresent Relevant Facts From the Security Clearance Process.

Key rule quoted

“A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error.”
ISCR Case No. 06-08116 at 2 (App. Bd. Jul. 2, 2007)

Procedural posture

SOR issuedDec 8, 2006
Answer filed—
Hearing heldAug 30, 2007
Decision dateJan 28, 2008

Cite for

Pattern of Responsible Alcohol Use Under Guideline G
Character References Supporting Applicant's Integrity and Lifestyle Changes
Interpretation of Evidence Not Being Arbitrary or Capricious 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 involved a decision by the Administrative Judge to grant the Applicant a security clearance despite concerns under Guideline G and E. Department Counsel appealed, arguing that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the application of the law.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowJacqueline T. Williams granted the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's application of Guideline G Mitigating Condition 23 (b) was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's application of the law and affirmed the favorable decision based on substantial evidence supporting the Judge's findings.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference 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

KEYWORD: Guideline G; Guideline E DIGEST: Department Counsel offers a plausible alternative interpretation of the evidence. A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. Favorable decision affirmed. CASENO: 06-20413.a1 DATE: 01/28/2008 DATE: January 28, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-20413

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Robert E. Coacher, Esq., Department Counsel FOR APPLICANT David P. Price, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 8, 2006, DOHA issued a statement of reasons (SOR) advising Applicant The Judge found in favor of Applicant under Guideline E. That favorable finding was not appealed by Department Counsel. “[T]he individual acknowledges his or her alcoholism or issue of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser).” Transcript at 71-72. 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 August 30, 2007, after the hearing, Administrative Judge Jacqueline T. Williams granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Department Counsel raised the following issue on appeal: whether the Judge’s application of Guideline G Mitigating Condition 23 (b) is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following relevant findings: Applicant is 37 years old and works as a network engineer for a defense contractor. He was involved in multiple alcohol-related incidents between 1990 and 2003. Applicant was found guilty of driving while intoxicated in 1990, 1994, and 1995. He was found guilty of reckless driving in 2000. Applicant’s alcohol-related charges in 1995 and 2003 were either dismissed or resulted in not guilty findings. The 2003 incident involved a serious accident in which Applicant survived a near death experience. As a result, Applicant ceased drinking alcohol completely from October 2003 to February 2005. Since 2005 he has consumed a glass of wine on several occasions but has not been drunk or otherwise impaired. Character references who were aware of his past alcohol abuse attested to his professionalism, integrity, and reliability, or to his favorable life style changes and responsible approach to alcohol since the 2003 incident. In deciding favorably for Applicant under Guideline G, the Judge concluded that Applicant’s conduct since the 2003 accident established a pattern of responsible alcohol use. That conclusion is consistent with a reasonable interpretation of the record evidence and is not arbitrary, capricious, or contrary to law. There was no evidence that Applicant had ever been diagnosed as alcoholic or alcohol dependent and received a recommendation to totally abstain form using alcohol. Nor was there any evidence that Applicant currently consumes alcohol in excess or to the point of intoxication. On the contrary, the record evidence indicated that since the 2003 incident Applicant had a total of only four or five glasses of wine, of which two glasses were at a single setting. See, e.g., ISCR Case No. 03-12237 at 5 (App. Bd. Jul. 25, 2006). Department Counsel offers a plausible alternative interpretation of the record evidence. However, that alternative interpretation of the record evidence is of no moment. The Board does not review a case de novo. A party’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 ISCR Case No. 06-08116 at 2 (App. Bd. Jul. 2, 2007).

ORDER

The decision of the Judge granting 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