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ISCR Case 07-01499.a1 — CASE

ISCR Case 07-01499.a1denied

Case Headnote

ISCR Case No. 07-01499.a1

Jul 3, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant's security clearance was denied based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from two DUI convictions, one of which involved a blood alcohol content (BAC) of 0.21%.

Further issues included the applicant's use of marijuana and cocaine while already holding a security clearance. Additionally, he falsified his security clearance application by failing to disclose this drug use. These actions raised disqualifying conditions related to alcohol consumption, criminal conduct, and personal conduct.

Representing himself, the applicant appealed the decision. However, the appeal board affirmed the denial, concluding that his conduct was inconsistent with national security interests. The board found that the judge had appropriately considered all mitigating factors and applied the "whole person" concept in reaching the decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedAlcohol Consumption
AG ¶ 16raisedPersonal Conduct

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 issuedJun 13, 2007
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 31, 2008
Decision dateJul 3, 2008

Cite For

Affirmation of Denial Based on DUI Convictions Under Guideline J
Consideration of Drug Use While Holding a Clearance Under Guideline G
Falsification of Security Clearance Application Under Guideline E

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 an applicant who was denied a security clearance due to two DUI convictions, a history of alcohol dependence, and drug use while holding a clearance. The applicant argued that the Judge's failure to mitigate the security 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 belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's failure to mitigate the Guideline G, E and J security concerns under the mitigating factors and the whole person concept is 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 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

KEYWORD: Guideline G; Guideline E; Guideline J DIGEST: Applicant has two DUI arrests and convictions from incidents in 2005 and 2006. He was diagnosed and treated for alcohol dependence but did not complete follow-up care. He used marijuana and cocaine from 2001 to 2005 while holding a security clearance. He falsified a security clearance application. Adverse decision affirmed. CASENO: 07-01499.a1 DATE: 07/03/2008 DATE: July 3, 2008 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01499

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se As part of his brief, Applicant submits new evidence in the form of additional explanations and two documentary exhibits. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 13, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On March 31, 2008, after considering the record, Administrative Judge Shari Dam 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, E and J security concerns under the mitigating factors and the whole person concept is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found Applicant had consumed alcohol, at times in excess and to the point of intoxication, from approximately 1996 to at least 2006. In October 2005, he was charged with Driving Under the Influence (DUI). His Blood Alcohol Content (BAC) at the time of the offense was 0.163%. He pleaded guilty to the charge and was sentenced to 30 days suspension of his driver’s license, 12 months probation, court ordered attendance at alcohol safety awareness classes, and 25 hours community service. In May 2006, Applicant was again charged with DUI, this time with a BAC of 0.21%. He pleaded guilty to the charge and was sentenced to 30 months suspension of his driver’s license, a $3,000 fine, two days in jail, 90 days of house arrest with electronic monitoring, and 50 hours community service. Applicant was on probation for the offense until November 2007. He received treatment for a condition diagnosed as Alcohol Dependence in the summer of 2006, but did not complete recommended follow-up care. The Judge also found that Applicant had used marijuana and cocaine from 2001 to at least 2005, while holding a security clearance, and that he had falsified his Security Clearance Application by failing to disclose that use. The Board has examined the Judge’s decision in light of the record as a whole and concludes that she has drawn ‘a rational connection between the facts found’ under Guidelines G, E and J and her 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)). She specifically considered the whole person concept in reaching her decision. “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