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ISCR Case 07-00261.a1 — CASE

ISCR Case 07-00261.a1denied

Case Headnote

ISCR Case No. 07-00261.a1

Mar 14, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A pro se applicant was denied a security clearance due to concerns under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline E (Personal Conduct). The denial stemmed from two DUI convictions, one in 1990 and another in 2005, which raised significant security concerns for the government.

While the applicant presented evidence for mitigation, the judge found it insufficient to overcome the established security risks. Specifically, the judge determined that the applicant's claims of mitigation were inadequate and that the burden of proof to establish mitigation had not been met.

Consequently, the judge affirmed the denial of the security clearance, concluding that the applicant had not sufficiently addressed the concerns related to personal conduct, alcohol consumption, and criminal conduct.

Conditions Referenced

Disqualifying

Guideline JraisedCriminal Conduct
Guideline GraisedAlcohol Consumption

Mitigating

Guideline EappliedPersonal Conduct

Key Rule Quoted

“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 in a manner that is arbitrary, capricious, or contrary to law.”
— ISCR Case No. 06-23112 at 3 (App. Bd. Dec. 31, 2007)

Procedural Posture

SOR issuedJun 7, 2007
Answer filed—
Hearing heldNov 19, 2007
Decision dateMar 14, 2008

Cite For

Insufficient Evidence to Establish Mitigation Under Guideline G
Impact of DUI Convictions on Security Clearance Eligibility
Burden of Proof on Applicant to Demonstrate Mitigation

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 two DUI convictions. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the applicant did not meet the burden of mitigation and that the Judge's findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline JGuideline EGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the decision was arbitrary, capricious, or contrary to law. The Judge's weighing of the evidence was reasonable and consistent with the applicable guidelines.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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 J; Guideline E; Guideline G DIGEST: Applicant was convicted of driving under the influence twice: in 1990 and 2005. The favorable evidence cited by Applicant is not sufficient to demonstrate that the Judge’s unfavorable decision is flawed. Adverse decision affirmed. CASENO: 07-00261.a1 DATE: 03/11/2008 DATE: March 14, 2008 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00261

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 June 7, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline E The Judge found in Applicant’s favor as to Guidelines J and E, and those findings are not in issue here. (Personal Conduct), and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On November 19, 2007, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Applicant was convicted of driving under the influence of alcohol (DUI) twice–in 1990 and in 2005. After the second conviction, Applicant was required to attend an alcohol counseling program and a certain number of Alcoholics Anonymous meetings. Applicant successfully completed those requirements. The government also alleged falsification because Applicant listed only the first DUI conviction on his Security Clearance Application (SCA), dated November 17, 2005. Applicant explained that he filled out the SCA in 2004, before the second arrest, but his employer did not submit the SCA until November 2005. With regard to Guideline G, the Judge made findings based on Applicant’s testimony regarding his current consumption of alcohol. Applicant testified that he has reduced his alcohol consumption, but did not specify the amount of the reduction. Applicant testified that the last time he was legally intoxicated was two weeks before the hearing; at another point in his testimony, he said he had last been drunk within six months of the hearing. Prior to reducing his alcohol consumption, Applicant drank a six-pack of beer on Friday night and perhaps another six-pack on Saturday night. He testified that after reducing his consumption, he had probably consumed a six- pack of beer in one sitting within six months of the hearing. Once the government presented evidence raising security concerns, the burden shifted to Applicant to establish mitigation. Directive ¶ E3.1.15. The Judge concluded that Applicant had not met that burden. In his appeal, Applicant disputes the weight the Judge gave to portions of the record evidence. 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. See, e.g., ISCR Case No. 06-23112 at 3 (App. Bd. Dec. 31, 2007). 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 in a manner that is arbitrary, capricious, or contrary to law. In this case, the Judge discussed the relevant disqualifying and mitigating conditions under Guideline G. Looking at both the favorable and unfavorable record evidence, the Judge reasonably explained why Applicant’s evidence of mitigation did not overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable decision under Guideline G is sustainable.

ORDER

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