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ISCR Case 08-04296.a1 — CASE

ISCR Case 08-04296.a1denied

Case Headnote

ISCR Case No. 08-04296.a1

Mar 5, 2010· Hon. Jean E. Smallin· appeal

Summary

A security clearance for a system administrator working for a Defense contractor and former U.S. Navy member was denied under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed from a history of alcohol abuse, including a DWI and reporting for duty while intoxicated.

Specifically, the applicant failed to disclose a DWI charge on his security clearance application, which was determined to be a deliberate omission. Furthermore, the applicant knowingly allowed a false statement regarding his alcohol consumption to be submitted to the Department of Hearings and Appeals (DOHA).

These issues, falling under Disqualifying Conditions G2 and E2, led to the denial. The appeal board affirmed the initial decision, concluding that the judge's findings were well-supported by the evidence presented.

Conditions Referenced

Disqualifying

G2raisedAlcohol-related Incidents
E2raisedDeliberate Omission of Information

Key Rule Quoted

“Each case must be decided on its own merits.”

Procedural Posture

SOR issuedJan 30, 2009
Answer filed—
Hearing heldNov 12, 2009
Decision dateMar 5, 2010

Cite For

Denial Based on History of Alcohol Consumption Under Guideline G
Denial Based on Personal Conduct Issues Under Guideline E
Importance of Full Disclosure in Security Clearance Applications

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 being denied due to concerns under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board reviewed the case and found no harmful error, affirming the denial of the security clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is 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 Judge articulated a satisfactory explanation for the adverse decision based on substantial evidence.

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

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: Each case must be decided on its own merits. Hearing Office cases are not binding on other Judges or on the Board. Adverse decision affirmed. CASENO: 08-04296.a1 DATE: 03/05/2010 DATE: March 5, 2010 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04296

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq., Stephanie N. Mendez, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 30, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and “During his testimony, Applicant claimed that this counselor had asked him if he had any problems and Applicant replied ‘no, I have not had any problems.’ Applicant claimed that the counselor assumed Applicant meant that he was not consuming any alcohol, although Applicant contended that he did not actually tell him that he was not consuming alcohol, but he did not correct the counselor’s misunderstanding . . . I do not find it credible that Applicant was not specifically asked by the substance abuse counselor if he was still consuming alcohol, but even if Applicant’s explanation is true, Applicant knew he was leaving the counselor with an incorrect understanding of his alcohol consumption history, and he knowingly did not correct it.” Decision at 3. Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 12, 2009, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed 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 is a system administrator for a Defense contractor. He served for 20 years in the U.S. Navy. He has experienced problems with alcohol for many years. He started consuming alcohol at age 12, and his consumption increased over time whenever he was under stress. He was in a motorcycle accident in 2005, which caused increased binge drinking. He had a previous incident of DWI, as a result of which he was hospitalized and lost his license to drive. While on active duty, he had two “alcohol related” incidents, in which he reported for duty while intoxicated. Twice in the Navy, he received counseling/treatment for his drinking problem, and on both occasions he was diagnosed as alcohol dependent and advised to abstain from alcohol. Applicant continued to drink alcohol, however, despite this advice. The record includes Applicant’s replies to DOHA interrogatories. One of the replies consists of a written statement by a substance abuse counselor to the effect that Applicant had not consumed alcohol since 2005. This statement is not true, in view of Applicant’s continued use of alcohol as of the close of the record. The counselor’s statement was based on his conversation with Applicant. The Judge concluded that Applicant knowingly permitted this false statement to be submitted to DOHA . Additionally, in completing his security clearance application (SCA), Applicant omitted his DWI charge. Again, the Judge concluded that Applicant deliberately omitted the information. In his appeal brief, Applicant cites to Hearing Office cases, in which applicants were granted clearances, which he argues are similar to his and support his case for mitigation. We have considered these cases, however, and conclude that they are factually distinct from Applicant’s in significant ways. Each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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 Judge’s adverse decision is sustainable on this record. “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).

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