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ISCR Case 07-16206.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date2/3/2010
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 07-16206.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Jean E. Smallin, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline FFinancial Considerations · Against Applicant
- Guideline GAlcohol Consumption · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 07-16206.a1denied

Case Headnote

ISCR Case No. 07-16206.a1

Feb 3, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The applicant, representing himself, faced concerns regarding ongoing alcohol issues and financial instability.

Specifically, the judge found the applicant's claims of sobriety unconvincing, determining that he continued to drink daily despite his assertions. While some mitigating evidence was presented, it was deemed insufficient to outweigh the unfavorable evidence.

Based on the totality of the circumstances, the judge upheld the denial of the security clearance.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG GraisedAlcohol Consumption
AG FraisedFinancial Considerations

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 issuedApr 22, 2008
Answer filed—Applicant requested decision on written record.
Hearing heldNov 9, 2009
Decision dateFeb 3, 2010

Cite For

Denial Based on Ongoing Alcohol Issues Under Guideline G
Sustainability of Adverse Conclusions Under Guideline J
Harmless Error in Judge's Failure to Discuss Applicant's Sobriety Claims

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 a denial of a security clearance based on concerns under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and did not consider all evidence. The Board affirmed the Judge's decision, finding the error harmless and the adverse conclusions sustainable.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRita C. O’Brien — denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline GGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's 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 conclusions were sustainable despite a harmless error regarding the applicant's sobriety claims, affirming the adverse decision based on substantial evidence and proper legal standards.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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 J; Guideline G DIGEST: Applicant’s claim not have had a drink since January (2009) warranted discussion by the Judge. The error is harmless Adverse decision affirmed. CASENO: 07-16206.a1 DATE: 02/03/2010 DATE: February 3, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16206

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 April 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that his case be decided on the written record. On November 9, 2009, after the close of the record, Administrative Judge Rita C. O’Brien denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. On appeal, Applicant argues that the Judge did not consider evidence he submitted in a response to the FORM dated October 12, 2009. That response is in the case record, however, it is (without explanation) not located with the other evidentiary documents. Rather, it is located in a file that otherwise contains non-evidentiary correspondence. There is a rebuttable presumption that a Judge has considered all the record evidence unless he or she specifically states otherwise. That presumption has not been overcome here. The evidence Applicant claims was excluded from the Judge’s analysis is specifically referenced by the Judge in the Statement of the Case portion of her decision. There is one area where the Judge’s failure to discuss the substance of Applicant’s response to the FORM is error. Applicant explicitly reported that he had been sober for nine months and had not had a drink since his birthday in January. The Judge’s findings and consequent analysis did not refer to these claims, and she found that he continues to drink daily. Applicant’s claims to the contrary warranted discussion in the Judge’s discussion. However, given the totality of facts and circumstances in Applicant’s case, the Board concludes that the error is harmless, as the Judge’s adverse conclusions under Guideline F and Guideline J are sustainable and provide an adequate basis for her ultimate adverse security clearance decision. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security 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. 06-10320 at 2 (App. Bd. Nov. 7, 2007). The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her decision, “including a ‘rational connection between the facts found and the choice made.’” 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). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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