CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 07-17383.a1 — CASE

ISCR Case 07-17383.a1denied

Case Headnote

ISCR Case No. 07-17383.a1

Feb 12, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a history of alcohol-related offenses and deliberate omissions on his security clearance application.

Specifically, the applicant had multiple Driving While Intoxicated (DWI) incidents. Crucially, he intentionally failed to disclose a recent DWI arrest on his application. The judge determined this omission was a deliberate act of concealment, raising significant concerns about the applicant's candor and reliability.

Given these factors, the judge concluded that granting a security clearance to the applicant was not consistent with national security, leading to the denial. Disqualifying conditions AG ¶ 21, AG ¶ 22, and AG ¶ 23 were raised in the decision.

Conditions Referenced

Disqualifying

AG ¶ 21raisedCriminal Conduct
AG ¶ 22raisedAlcohol Consumption
AG ¶ 23raisedPersonal Conduct

Key Rule Quoted

“Prior decisions to grant or retain a clearance do not undermine the legal sufficiency of a Judge’s subsequent adverse decision.”
— ISCR Case No. 03-04927 at 5 (App. Bd. Mar. 4, 2005)

Procedural Posture

SOR issuedApr 23, 2008
Answer filed—
Hearing heldNov 25, 2008
Decision dateFeb 12, 2009

Cite For

Significance of Omissions in Security Clearance Applications
Impact of Alcohol-related Offenses on Security Clearance Eligibility
Government's Ability to Make Adverse Decisions Despite Prior Favorable Adjudications

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 after a denial based on issues related to alcohol consumption and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline EGuideline J

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.

Why the Board ruled this way

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

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

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 E; Guideline J DIGEST: Prior decisions to grant or retain a clearance do not undermine the legal sufficiency of a Judge’s subsequent adverse decision. The government is not estopped from making an adverse decision when there were prio favorable adjudication. Adverse decision affirmed. CASENO: 07-17383.a1 DATE: 02/12/2009 DATE: February 12, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-17383

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Herbert M. Silverberg, Esq. The Judge’s favorable findings under Guidelines G and J, as well as her favorable finding as to paragraph 2(b) under Guideline E, are not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 23, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 25, 2008, after the hearing, Administrative Judge Noreen A. Lynch 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 issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant has a history of consuming alcohol to excess. In 1990, while on active duty with the Air Force, Applicant received a letter of admonishment for setting off a fire extinguisher as a joke. In October 1996 he was arrested on an Air Force base for Driving While Intoxicated (DWI). He completed an alcohol awareness program and attended a victim impact panel, following which the charges were dismissed. In April 2002, Applicant was arrested for DWI, resulting in a plea of guilty. He completed an alcohol screening, attended both a DWI school and a victim impact panel, and paid court costs. In May 2002, Applicant submitted a SF 86, Security Clearance Application (SCA). In response to a question about alcohol-related charges or convictions, Applicant listed the 1996 DWI but did not mention the 2002 offense. In the Analysis section of her decision, the Judge stated of the omission, “[Applicant] decided . . . that since the arrest had just occurred, he would wait to see the legal outcome. Although he stated, he did not intend to conceal his arrest, that is exactly what he did. The question is clear. He deliberately omitted information that would have impacted his clearance.” Decision at 9. Subsequently, in August 2005, Applicant was again arrested for DWI. He was sentenced to 30 days house arrest, fined, and required to perform community service. In addition, he was required to install an ignition interlock system on his car, to attend Alcoholics Anonymous, and to undergo a year of supervised probation. He successfully completed the probation. Applicant contends that the Judge erred in concluding that his omission of the 2002 DWI was of security significance. He states that “no action was taken against his clearance . . . when the transgression was fresh . . . He was allowed to keep his clearance . . . despite this concern.” Applicant’s Brief at 1. However, prior decisions to grant or retain a clearance do not undermine the legal sufficiency of a Judge’s subsequent adverse decision. “The government is not estopped from making an adverse clearance decision when there were prior favorable adjudications.” ISCR Case No. 03-04927 at 5 (App. Bd. Mar. 4, 2005). See also ISCR Case No. 04-01961 at 4 (App. Bd. Jul. 12, 2007). The Judge’s decision, viewed in light of the record as a whole, draws a rational connection between the facts found and its ultimate denial of a security clearance for Applicant. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 12. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

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