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ISCR Case 07-05179.a1 — CASE

ISCR Case 07-05179.a1denied

Case Headnote

ISCR Case No. 07-05179.a1

Apr 10, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, represented by counsel, was denied eligibility primarily under Guideline G (Alcohol Consumption), with Guideline B (Foreign Influence) also noted. The denial stemmed from a pattern of alcohol-related incidents, including multiple DUIs, which raised national security concerns.

Specifically, the applicant had three documented alcohol-related incidents. Although the applicant expressed remorse and attempted lifestyle changes, these efforts were deemed insufficient to overcome the disqualifying conditions, particularly G.2.a. The judge noted a relapse in 2006, which indicated a failure to learn from prior mistakes and a continued pattern of concerning behavior.

While mitigating conditions under G.3 were considered, the judge ultimately found that the applicant did not meet the burden of persuasion required for security clearance eligibility. The consistent alcohol-related issues and the insufficient demonstration of sustained reform led to the denial of the clearance.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Incidents

Mitigating

G.3rejectedRemorse and Lifestyle ChangesThe judge deemed the applicant's changes insufficient to mitigate the disqualifying conditions.

Key Rule Quoted

“It is premature to evaluate his ability to adhere to his stated sobriety plan, or to gauge his potential for success.”

Procedural Posture

SOR issuedAug 2, 2007
Answer filed—
Hearing heldDec 20, 2007
Decision dateApr 10, 2008

Cite For

Evaluation of Alcohol-related Incidents Under Guideline G
Insufficient Evidence of Rehabilitation and Lifestyle Changes
Impact of Past Behavior on Current Security Clearance Eligibility

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 concerned the denial of a security clearance based on alcohol consumption and foreign influence. The applicant argued that the Judge's findings were not supported by substantial evidence and that the Judge misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's findings were not supported by substantial record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in his application of the pertinent mitigating conditions.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's whole-person analysis is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's findings of fact or application of mitigating conditions, affirming the adverse decision under Guideline G.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Jeffrey D. Billett
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 B DIGEST: Th Judge’ sustainable findings of fact support his adverse decision under Guideline G. Adverse decision affirmed. CASENO: 07-05179.a1 DATE: 04/10/2008 DATE: April 10, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-05179

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James G. Beach, III, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 2, 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 B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 20, 2007, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings were supported by substantial record evidence; whether the Judge erred in his application of the pertinent mitigating conditions; and whether the Judge’s whole-person analysis is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings: Applicant has three alcohol-related incidents in his record. In 1965 he was convicted of DUI and sentenced to pay a fine. In 2000 he was arrested and charged with DUI. He received “probation before judgment” and was placed under a year of supervised probation. Additionally he completed a 12-week alcohol education program. He was abstinent for two years and then resumed consuming alcohol, mostly wine. In August 2006 he was again convicted of DUI. “He explained that after leaving work, he stopped for dinner at a restaurant [on] his way home and had a couple of glasses of wine . . . On his way home, he felt tired and parked his car in the parking lot of [a] convenience store. A police officer found him asleep behind the wheel of his car with the engine running. A subsequent test determined his blood alcohol content to be .13.” Decision at 3. He was convicted of DUI, served 10 days in jail, and was still undergoing a period of unsupervised probation at the time of his hearing. He testified that he has an alcohol problem and has changed his lifestyle to correct it. In deciding against Applicant under Guideline G, the Judge took into account Applicant’s remorse over his alcohol misconduct and his changes in behavior. However, the Judge stated that it is “premature to evaluate his ability to adhere to his stated sobriety plan, or to gauge his potential for success. In 1965 and 2000, Applicant engaged in serious criminal behavior by driving under the influence of alcohol. His 2006 relapse shows he has not learned from his mistakes . . .” Decision at 7. As a consequence, the Judge concluded that Applicant had not met his burden of persuasion that it is “clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant.” Id. at 11. The record supports the Judge’s decision, both as to the weight accorded to the evidence under the Guideline G mitigating conditions as well as the whole-person analysis. Applicant’s ability to argue for a different interpretation of the record evidence does not establish error on the part of the Judge. See, e.g., ISCR Case No. 07-03120 at 2 (App. Bd. Jan. 30, 2008). Accordingly, the Judge’s decision under Guideline G is not arbitrary, capricious, or contrary to law. In light of this holding the Board need not address the Guideline B security concerns.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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