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ISCR 08-01200.a1: Guideline G security clearance appeal, denied (2008) · CASE

ISCR Case 08-01200.a1denied

Case headnote

ISCR Case No. 08-01200.a1

Nov 13, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement). The applicant had a documented history of excessive alcohol consumption, including a diagnosis of alcoholism. This pattern of abuse persisted even after a prior DUI arrest.

While the applicant presented a period of abstinence, the judge determined it was insufficient to mitigate the security risks associated with his alcohol use. The appeal board reviewed the decision and affirmed the denial, finding no error in the judge's assessment of the evidence or the application of mitigating conditions G2 and G3.

Ultimately, the applicant's history of alcoholism and the judge's finding that the period of abstinence was inadequate led to the denial of the security clearance.

Conditions referenced

Disqualifying

HraisedDrug Involvement
GraisedAlcohol Consumption

Mitigating

G2rejectedMitigating Condition 2The judge found insufficient evidence of rehabilitation given the applicant's history.
G3rejectedMitigating Condition 3The applicant's claims of sobriety were not deemed credible without a hearing.

Key rule quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.'”
Directive ¶ E3.1.32.1

Procedural posture

SOR issuedMar 24, 2008
Answer filed—Applicant represented himself.
Hearing heldAug 29, 2008Decision made on the written record.
Decision dateNov 13, 2008Appeal affirmed.

Cite for

Evaluation of Mitigating Conditions Under Guideline G
Impact of a DUI on Security Clearance Decisions
Standards for Substantial Evidence in Security Clearance Cases

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline H (Drug Involvement) and Guideline G (Alcohol Consumption). The Board affirmed the Judge's decision, finding no harmful error in the evaluation of the evidence or the application of mitigating conditions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge did not assign sufficient weight to favorable evidence regarding changes in behavior supportive of sobriety.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge erred in his evaluation of the Guideline G mitigating conditions.

Why the Board ruled this way

The Judge’s material findings of security concern are supported by substantial evidence, and the Board found no error in the Judge's evaluation of the evidence and mitigating conditions.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan
Michael D. Hipple
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 H; Guideline G DIGEST: The Judge’s material findings of security concern are supported by substantial evidence. Adverse decision affirmed. CASENO: 08-01200.a1 DATE: 11/13/2008 DATE: November 13, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01200

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 March 24, 2008, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 29, 2008, after considering the record, Administrative Judge Joseph Testan 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 of fact were supported by substantial record evidence, and whether the Judge erred in his evaluation of the Guideline G mitigating conditions. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant began consuming alcohol in college in the 1990s, drinking once or twice a week and becoming intoxicated once or twice a month. Following college, his alcohol consumption increased. By July 2006 he was consuming six alcoholic beverages a day. This continued until March 20, 2007, when he drank to the point of semi- consciousness. He consulted a psychiatrist, who diagnosed him with “alcoholism” and prescribed a drug. Applicant no longer takes the drug, as he states he has stopped craving alcohol. In 2003, Applicant was arrested for driving under the influence of alcohol. He was fined $375.00 and his license was suspended for six months. Applicant attends Alcoholics Anonymous meetings regularly. In the Analysis portion of his decision, the Judge stated that he had considered the disqualifying and mitigating conditions in light of the entire record. He noted that, following college graduation, Applicant “increased the frequency of his excessive alcohol consumption to the point that by July 2006, he was consuming six alcoholic beverages on a daily basis. This daily abuse occurred long after his serious alcohol-related driving incident in 2003 . . . These facts, together with his diagnosis of ‘alcoholism,’ suggest that [A]pplicant’s alcohol problem is severe, and will require a significant period of abstinence–much longer than the approximately 15 months of abstinence he has to date–to safely conclude his abuse of alcohol . . . is unlikely to recur.” Decision at 5. We have examined the Judge’s decision in light of the record as a whole. The Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant contends that the Judge did not assign sufficient weight to Applicant’s favorable evidence, such as “changes in behavior supportive of sobriety” and his stated intention never to use alcohol again. 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, Applicant chose to have the case decided upon the written record, with the result that his credibility could not be evaluated in the context of a hearing. See ISCR Case No. 08-00899 at 3 (App. Bd. Jul. 29, 2008). The Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. 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 [A]pplicant eligibility for a security clearance” is sustainable on this record. Decision at 5. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael D. Hipple 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