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ISCR Case 07-16563.a1 — CASE

ISCR Case 07-16563.a1denied

Case Headnote

ISCR Case No. 07-16563.a1

Jan 22, 2009· Hon. Jean E. Smallin· appeal

Summary

A program manager with a Master's degree was denied a security clearance based on Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed from the applicant's deliberate omission of eight alcohol-related offenses from his security clearance application.

Disqualifying conditions under Guideline G, specifically AG ¶ 2(a) and AG ¶ 2(c), were raised due to the pattern of alcohol consumption and the applicant's failure to follow professional advice. While mitigating conditions AG ¶ 2(e) and AG ¶ 2(d) were considered, they were not sufficient to overcome the security concerns.

The primary reasons for denial were the intentional misrepresentation on the application and the applicant's continued alcohol consumption even after completing counseling and being advised to abstain. Ultimately, granting the clearance was deemed inconsistent with national security interests.

Conditions Referenced

Disqualifying

AG ¶ 2(a)raisedCriminal Conduct
AG ¶ 2(c)raisedAlcohol Consumption

Mitigating

AG ¶ 2(e)rejectedSuccessful RehabilitationThe applicant's continued alcohol consumption after counseling undermined claims of rehabilitation.
AG ¶ 2(d)rejectedEvidence of Positive ChangesThe applicant's job accomplishments did not outweigh the security concerns.

Key Rule Quoted

“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 7, 2008
Answer filed—
Hearing heldSep 25, 2008
Decision dateJan 22, 2009

Cite For

Deliberate Omissions Regarding Alcohol-related Offenses Under Guideline E
Continued Alcohol Consumption Despite Counseling Under Guideline G
The Standard for Granting Security Clearance Related to National Security Interests

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 G (Alcohol Consumption) and Guideline E (Personal Conduct). The Applicant argued that the Judge erred in weighing evidence and in concluding that he deliberately falsified his application. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowThomas M. Crean — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in weighing evidence related to his job accomplishments and community service.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's conclusion regarding his deliberate falsification of the security clearance application was arbitrary and capricious.
Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge erred in finding that he continued to consume alcohol despite counseling.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the conclusions drawn were supported by substantial evidence and were not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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 DIGEST: The Judge’s conclusion that Applicant deliberately omitted from his security clearance application reference to eight alcohol related offenses was sustainable in light of the totality of the record evidence. Adverse decision affirmed. CASENO: 07-16563.a1 DATE: 01/22/2009 DATE: January 22, 2009 In Re: ------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16563

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Nichole L. Noel, Esq., Department Counsel FOR APPLICANT Will A. Gunn, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 7, 2008, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 25, 2008, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. “[T]here are six questions on the [SCA] concerning an applicant’s police record. The first four, to include alcohol-related charges and convictions, are not limited by times. Only the last two, concerning military convictions and any other convictions or criminal matters not mentioned in the previous questions, are limited by time. The question concerning alcohol incidents clearly state[s] an applicant should list any arrests or convictions that are alcohol-related. A reasonable and educated person like Applicant with a Master’s degree would know that the alcohol-related question is not limited by time. A person with eight driving while intoxicated offenses in his past more reasonably would not want that information revealed when applying for access to classified information.” Decision at 7. Applicant argues that the Judge erred in his formal finding against Applicant as to subparagraph 1(l) of the SOR (“You continue to consume alcohol despite your alcohol related arrests and treatment.”) He points to record evidence that he ceased consuming alcohol in June 2007 and believes that the Judge’s formal finding is inconsistent with the evidence in the record. The Board has considered this argument. While the Judge could have modified the allegation to conform to the evidence, under the facts of this case his failure to do so has not prejudiced Applicant. Applicant also argues that the Judge erred in his formal finding against Applicant on subparagraph 1(k) (“You received alcohol counseling at [counseling center] in July of 2002.”), contending that this is inconsistent with an adverse clearance Applicant raised the following issues on appeal: whether the Judge’s weighing of the evidence was erroneous; whether the Judge erred in concluding that Applicant had deliberately falsified his security clearance application (SCA); and whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant holds a Master’s degree in computer science and has been a program manager, or deputy program manager, for a defense contractor for over three years. Applicant was arrested, charged, and convicted of driving under the influence of alcohol on eight occasions between January 1984 and March 1991. In addition, he was convicted of driving while intoxicated in March and again in May of 2002. As a result of this last incident, he was directed to attend alcohol counseling, which he completed in 2002. The counselor told Applicant to stop drinking, but he continued to drink moderately. The SCA required Applicant to list any arrests for alcohol-related offenses. Applicant listed the two incidents in 2002, but he did not list the eight incidents in the 1980sand 1990s. Applicant stopped consuming alcohol in June 2007, following an injurious automobile wreck. Applicant takes issue with the Judge’s weighing of certain pieces of evidence, e.g., Applicant’s job accomplishments and community service. See Directive ¶ E2.8(f). However, a Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. See, e.g., ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). “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 ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008). Furthermore, the Judge’s finding as to the deliberate nature of Applicant’s omissions on the SCA is sustainable, viewed in light of the record as a whole . The Board concludes that the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards the Guidelines G and E mitigating conditions and the whole-person factors. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also Motor Vehicle Mfrs. decision. However, viewed in context of the record as a whole, which includes evidence that Applicant continued to drink after his counselor advised him to abstain, the Judge’s formal finding is not error. 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 Judge’s decision that “it is not clearly consistent with the national security to grant a security clearance for Applicant” is sustainable on this record, in light of the standard set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”)

ORDER

The Judge’s adverse security clearance decision 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