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ISCR Case 07-01273.a1 — CASE

ISCR Case 07-01273.a1denied

Case Headnote

ISCR Case No. 07-01273.a1

Oct 16, 2008· Hon. Michael Y. Ra'anan· 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 excessive alcohol consumption, including multiple DUI arrests, and a record of substance abuse treatment.

The judge found substantial evidence supporting disqualifying conditions under both Guideline G (G2) and Guideline E (E2). While the applicant presented mitigating evidence, including claims of abstinence and rehabilitation efforts, the judge determined this was insufficient to overcome the government's security concerns.

Specifically, the judge applied mitigating conditions G2 and E3 but ultimately concluded that the applicant's efforts did not adequately resolve the concerns raised by his past conduct and alcohol consumption. Therefore, the security clearance was denied.

Conditions Referenced

Disqualifying

G2raisedAlcohol Consumption
E2raisedPersonal Conduct

Mitigating

G2rejectedMitigating EvidenceThe judge found the applicant's evidence of rehabilitation insufficient.
E3rejectedMitigating EvidenceThe judge found the applicant's evidence of good character insufficient.

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.'”
— Directive ¶ E3.1.32.1

Procedural Posture

SOR issuedOct 9, 2007
Answer filed—
Hearing heldJun 30, 2008
Decision dateOct 16, 2008

Cite For

Substantial Evidence Standard in Security Clearance Cases
Impact of Excessive Alcohol Consumption on Security Clearance Eligibility
Insufficiency of Mitigating Evidence in the Context of Serious Disqualifying Conditions

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 seeking to overturn the Administrative Judge's denial of a security clearance based on findings under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The Board affirmed the Judge's decision, finding that the adverse findings were supported by substantial evidence and that the Judge properly weighed the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — 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's adverse findings under SOR paragraph 1.f are not supported by the record evidence.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's adverse conclusions under Guideline E are not supported by the record evidence.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were based on substantial record evidence and were sustainable. The Judge reasonably weighed the mitigating evidence against the disqualifying conditions and explained why the mitigating evidence was insufficient to overcome the government's security concerns.

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

Michael Y. Ra’anan — Chair
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 E DIGEST: The Judge’s material findings of security concern were based on substantial record evidence and were sustainable. Adverse decision affirmed. CASENO: 07-01273.a1 DATE: 10/16/2008 DATE: October 16, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01273

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Applicant’s appeal brief makes no reference to the Judge’s other adverse findings under SOR paragraph 1, specifically 1.a., 1.b., 1.c., 1.d., and 1.e. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 9, 2007, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On June 30, 2008, after the hearing, Administrative Judge Roger C. Wesley 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 adverse findings under SOR paragraph 1.fare supported by the record evidence ; whether the Judge’s adverse conclusions under Guideline E are supported by the record evidence. The Judge found that Applicant “consumed alcohol excessively . . . between 1975 and August 2005, and often to the point of intoxication.” Decision at 3. Applicant was arrested for DUI twice in 1978, once in 2003 and once in 2005 (the latter being the challenged finding on appeal). Applicant’s drinking included periods where he would drink for days at a time and suffer blackouts. Applicant was treated for substance abuse in 2002 but continued to drink sometimes a 1.75 liter bottle in one sitting. With respect to the 2005 DUI, Applicant was convicted, fined and had his driver’s licence revoked. He was put on probation conditioned upon his participation in an intensive outpatient program, which he completed in 2005. Applicant attended after-care through most of 2006. He continues to attend AA. Three witnesses credit Applicant with two-and-a-half years sustained abstinence. After reviewing the record, the Board concludes that the Judge’s material findings of security concern under Guideline G are based upon substantial record evidence and are sustainable. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conditions and considered the possible application of relevant mitigating conditions. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Accordingly, the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 Judge’s decision that “it is not clearly consistent with national security to grant or continue Applicant’s security clearance” is sustainable on this record. Decision at 11. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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