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ISCR Case 07-02480.a1 — CASE

ISCR Case 07-02480.a1denied

Case Headnote

ISCR Case No. 07-02480.a1

Apr 30, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug Involvement). The denial stemmed from a serious and lengthy history of alcohol and drug abuse.

Specifically, the applicant's disqualifying conditions included a pattern of alcohol consumption that indicated a problem, and a history of drug involvement. Furthermore, the applicant made misstatements and omissions regarding his substance use in sworn statements, raising concerns about personal conduct and honesty.

The judge determined that the applicant's presented mitigating circumstances were insufficient to overcome the serious nature of his substance abuse and the dishonesty in his disclosures. The appeal board subsequently affirmed this decision, concluding that the judge's findings were neither arbitrary nor capricious, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedAlcohol Consumption
AG ¶ 26raisedDrug Involvement
AG ¶ 14raisedPersonal 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 issuedAug 20, 2007
Answer filed—
Hearing heldJan 28, 2008
Decision dateApr 30, 2008

Cite For

Denial Based on Serious Substance Abuse History Under Guideline G and H
Insufficient Mitigating Circumstances in Substance Abuse Cases
Affirmation of Adverse Decisions Not Found Arbitrary or Capricious

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 reviewed the denial of a security clearance based on security concerns under Guidelines G, H, and E. 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 belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's failure to mitigate the Guideline G, H and E security concerns is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's lengthy history of alcohol and drug abuse, affirming the adverse decision.

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 H DIGEST: In light of the Judge’s findings regarding Applicant’s lengthy history alcohol and drug abuse, the Judge’s conclusions are sustainable. Adverse decision affirmed. CASENO: 07-02480.a1 DATE: 04/30/2008 DATE: April 30, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-02480

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 August 20, 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 H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. The SOR was amended prior to the hearing to add allegations under Guideline E (Personal Conduct). On January 28, 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 failure to mitigate the Guideline G, H and E security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found Applicant had a lengthy and serious history of alcohol and drug abuse. Applicant had consumed alcohol, at times in excess and to the point of intoxication, from approximately 1972 to at least 2006. He had been arrested for DWI in 1997, although the charge was ultimately dismissed. Applicant had used marijuana, at times daily, from approximately 1977 to at least 1988, and he had used cocaine, at times monthly, from approximately 1977 to 2004. He had used cocaine while holding a security clearance, and he had tested positive for cocaine in a random drug test at his employment in 2004. In 1986, Applicant had received outpatient treatment for a condition diagnosed in part as alcohol abuse and poly-pharmacy abuse. Although his prognosis had been good, Applicant had resumed drinking alcohol and using marijuana approximately six months after completing the program. The Judge also found Applicant had made a series of misstatements and omissions about his alcohol and drug use in three signed, sworn statements to government investigators. 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 Guidelines G, H and E 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 neither arbitrary, capricious, nor contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance 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