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ISCR 08-04232.a1: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 08-04232.a1denied

Case headnote

ISCR Case No. 08-04232.a1

Oct 9, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The primary reasons for denial stemmed from a 29-year history of alcohol abuse and associated criminal conduct, including at least six DWI arrests.

While the judge made favorable findings under Guideline E, the decision highlighted the applicant's continued alcohol consumption, which was directly linked to his criminal issues. Disqualifying conditions under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) were raised, specifically AG ¶ 21 and AG ¶ 30.

Despite the application of mitigating conditions AG ¶ 23 and AG ¶ 32, the judge determined there was insufficient evidence of rehabilitation given the applicant's ongoing alcohol consumption. The Board upheld this decision, concluding that the denial was not arbitrary or capricious.

Conditions referenced

Disqualifying

AG ¶ 21raisedAlcohol Consumption
AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 23rejectedMitigating Conditions for Alcohol ConsumptionThe judge concluded that the mitigating conditions were not applicable due to the applicant's continued alcohol consumption.
AG ¶ 32rejectedMitigating Conditions for Criminal ConductThe judge found insufficient evidence to mitigate the lengthy history of alcohol abuse and related incidents.

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 issuedDec 31, 2008
Answer filed—
Hearing heldAug 4, 2009
Decision dateOct 9, 2009

Cite for

Denial Based on Long-term Alcohol Abuse Under Guideline G
Insufficient Evidence of Rehabilitation Despite Favorable Findings Under Guideline E
Affirmation of Judge's Decision by the Board as Not Arbitrary or Capricious

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 regarding the denial of a security clearance based on a 29-year history of alcohol abuse and criminal conduct. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the evidence and the application of mitigating factors.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline JGuideline E

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.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision, including a rational connection between the facts found and the choice made.

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

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 J; Guideline E DIGEST: The Judge found that Applicant has a 29-year history of alcohol abuse and criminal conduct. Adverse decision affirmed CASENO: 08-04232.a1 DATE: 10/09/2009 DATE: October 9, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04232

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 December 31, 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 J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense The Judge found in Applicant’s favor regarding the three allegations brought under Guideline E. Those favorable findings are not at issue on appeal. Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 4, 2009, after the hearing, Administrative Judge Darlene D. Lokey Anderson 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 was arbitrary, capricious or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found, inter alia, that Applicant had a 29-year history of alcohol abuse and criminal conduct that included at least six arrests and convictions for DWI. The Judge also found that while his most recent arrest was more than six years old, Applicant continues to drink alcohol, which has been at the root of his criminal problems. She found that Applicant has tried on numerous occasions to abstain from the use of alcohol, but has always returned to it. Also, the Judge found that, while his recent alcohol assessment did not diagnose him with alcohol dependence, Applicant’s overall history of alcohol abuse clearly demonstrates that he has had a serious problem. The Judge concluded that, given his continued consumption of alcohol after numerous program recommendations that he abstain from the use of alcohol, it is not clear from his past record that Applicant will not return to his old ways. The Judge concluded that the various mitigating conditions listed under Guidelines G and J were not applicable. Applicant argues that his alcohol abuse is in full remission and that the record indicates that he has provided adequate evidence of mitigation. He stresses the passage of over six years and positive changes in his lifestyle. Applicant’s assertions do not demonstrate error on the part of the Judge. 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). A party’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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. The Judge concluded that there was insufficient evidence to mitigate the lengthy history of alcohol abuse and alcohol-related incidents with the police, given Applicant’s decision to continue to consume alcohol. These conclusions are reasonably supported by the record. 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 is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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