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ISCR Case 07-09124.a1 — CASE

ISCR Case 07-09124.a1denied

Case Headnote

ISCR Case No. 07-09124.a1

Jul 11, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing himself, sought a security clearance under Guideline G, which addresses alcohol consumption. The Board ultimately denied the clearance, affirming that the applicant failed to sufficiently mitigate the security concerns raised by his alcohol use.

Specifically, the Board found that the applicant's attendance at Alcoholics Anonymous was infrequent and therefore insufficient to mitigate the disqualifying conditions under G.2.a. Furthermore, the applicant's claims of abstinence were not deemed credible when weighed against his past behavior and the seriousness of the disqualifying conduct.

While mitigating conditions under G.3.a were considered, the Board concluded that the evidence presented did not outweigh the disqualifying conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol Abuse

Mitigating

G.3.arejectedPositive Changes in BehaviorThe applicant's evidence of attending AA and claims of abstinence did not outweigh the disqualifying 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 issuedNov 15, 2007
Answer filed—
Hearing heldApr 7, 2008
Decision dateJul 11, 2008

Cite For

Insufficient Mitigation of Alcohol-related Security Concerns
Credibility of Applicant's Claims Regarding Abstinence
The Importance of the Whole-person Concept in Security Clearance Decisions

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 seeking a security clearance who was denied based on concerns under Guideline G related to alcohol consumption. The applicant argued that the Judge's decision was arbitrary and capricious, claiming errors in the Judge's findings regarding his alcohol abstinence and attendance at AA meetings. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

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

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary, capricious, or contrary to law. The Board also noted that any errors in the Judge's findings were harmless and did not affect the outcome.

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 D. Hipple
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 DIGEST: The Board gives due consideration to prior Hearing Office decisions, however, such decisions are not legally bing precedent for the Hearing Office or the Appeal Board, Adverse decision affirmed. CASENO: 07-09124.a1 DATE: 07/11/2008 DATE: July 11, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09124

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 November 15, 2007, DOHA issued a statement of reasons (SOR) advising Applicant The Judge stated that Applicant attended AA meetings “a couple of times a month,” whereas Applicant testified that he attended AA meetings “every two weeks at a minimum.” The Judge stated that Applicant “had undertaken an alcohol abstinent lifestyle for about 13 months as of the date of the hearing, just as he did following successful completion of alcohol programs in 1988 and 1996,” whereas Applicant had testified that he remained abstinent after the 1988 and 1996 incidents “for quite a while” and after the 2004 incident for “probably two or three months.” of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 7, 2008, after the hearing, Administrative Judge Henry Lazzaro 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 security clearance decision is arbitrary, capricious, or contrary to law. Applicant contends that the Judge erred in concluding that the security concerns raised under Guideline G had not been mitigated under the mitigating conditions and the whole person concept. In support of that contention, Applicant argues that the Judge misstated the frequency of his attendance at Alcoholics Anonymous (AA) and the length of time he had abstained from using alcohol, gave insufficient weight to his mitigating evidence, and reached conclusions that were not supported by the record as a whole. He also argues that the Judge’s overall unfavorable conclusion is inconsistent with other hearing-level decisions in which applicants in ostensibly similar circumstances had been granted a clearance. The Board does not find Applicant’s arguments persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). In this instance, even if the challenged findings were changed to reflect Applicant’s interpretation of the record evidence, it would not have undermined the Judge’s conclusions. Therefore, any such error would be at most harmless. See ISCR Case No. 05-08459 at 2, n.1 (App. Bd. Nov. 16, 2006). Considering the record as a whole, the Judge’s material findings with respect to Applicant’s conduct of security concern reflect a sustainable interpretation of the record evidence. See, e.g., ISCR Case No. 03-21933 at 2 (App. Bd. Aug. 18, 2006). Applicant points to several hearing-level cases which he contends support granting him a clearance. The Board gives due consideration to these cases. See, e.g., ISCR Case No. 06-05903 at 3 (App. Bd. Oct. 15, 2007). However, the Board has previously noted that decisions in other hearing-level cases are not legally binding precedent, even if an applicant can establish close factual similarities between those cases and his case. See, e.g., ISCR Case No. 04-04004 at 2 (App. Bd. Jul. 31, 2006). Accordingly, the Judge was not legally obligated to reconcile his decision in this case with decisions in other ostensibly similar cases. See, e.g., ISCR Case No. 06-25743 at 2 (App. Bd. Jan. 10, 2008). “The adjudication process is the careful weighing of a number of variables known as the whole-person concept.” Directive at ¶ E2.2(a). “Each case must be judged on its own merits . . .” Id at ¶ E2.2(b). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. 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. 06-09542 at 2 (App. Bd. Sep. 4, 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 or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 04-08116 at 2 (App. Bd. Jul. 2, 2007). A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and factors. The Judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government’s security concerns. 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 Guideline G 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 not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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