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ISCR Case 08-09097.a1 — CASE

ISCR Case 08-09097.a1denied

Case Headnote

ISCR Case No. 08-09097.a1

Feb 18, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption). The applicant's history of alcohol consumption and gambling raised significant disqualifying conditions, specifically AG ¶ 19 and AG ¶ 20.

While the applicant presented arguments for mitigation, referencing conditions AG ¶ 21 and AG ¶ 22, the judge found these insufficient to resolve the security concerns. The judge determined that the applicant failed to adequately mitigate the issues stemming from his alcohol use and gambling history.

Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedAlcohol Consumption
AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedMitigating Conditions for Alcohol ConsumptionThe applicant's claims of reduced alcohol consumption and lack of recent treatment did not sufficiently mitigate the concerns.
AG ¶ 22rejectedMitigating Conditions for Financial ConsiderationsThe applicant's financial issues and gambling habits were not adequately addressed.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedJun 5, 2009
Answer filed—
Hearing heldNov 24, 2009
Decision dateFeb 18, 2010

Cite For

Insufficient Mitigation of Alcohol Consumption Under Guideline G
Insufficient Mitigation of Financial Considerations Under Guideline F
The Weighing of Evidence by the Judge Is Not Subject to Appeal If Rationally Connected to the Decision

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 concerns related to alcohol consumption and gambling. 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 representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline F

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 no error in the Judge's decision, affirming that the Judge's conclusions regarding the applicant's failure to mitigate security concerns were sustainable and articulated a satisfactory explanation for the decision.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

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 F DIGEST: The Judge’s conclusion that Applicant failed to mitigate security concerns arising from his alcohol consumption and from his gambling is sustainable. The Judge is presumed to have considered all the evidence in the record. Adverse decision affirmed. CASENO: 08-09097.a1 DATE: 02/18/2010 DATE: February 18, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09097

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 June 5, 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 Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 24, 2009, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s statement regarding family support is new evidence, which the Board cannot consider on appeal. Directive ¶ E3.1.29. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant consumed alcohol at a light to moderate rate between 1975 and 1989. Following a 1983 conviction for driving under the influence of alcohol (DUI), Applicant attended 20 Alcoholics Anonymous meetings on the orders of a court, but has attended none since. Applicant’s drinking increased between 1989 and 1994, in part to mitigate the effects of a depression problem. Applicant then decreased his drinking, abstaining completely between 1995 and 1997. Applicant’s alcohol consumption increased dramatically in 2000. For the next four years, Applicant drove monthly or bi-monthly on weekends to a gambling metropolis, where he would see exhibits, attend concerts, gamble, and drink alcohol. Applicant was arrested and fined for DUI in October 1983, September 1993, October 2004, and December 2004. Applicant has had no further DUI arrests. He continues to drink, but less than before. Applicant filed for Chapter 7 bankruptcy in December 2006. Applicant had previously maintained good credit. When Applicant traveled to gamble on weekends, he did not believe that he was gambling with money he needed for monthly expenses, but later realized that was the case. Between 2001 and 2006, Applicant spent about $20,000 on gambling vacations. Applicant now maintains all his accounts in a current state, gambling only occasionally and only with money not needed to pay bills. Applicant is praised by his supervisor for his strong work ethic. On appeal, Applicant points out two pieces of evidence which indicate that he has no further need of treatment or counseling for his consumption of alcohol. Applicant also restates his testimony that he appreciates that alcohol use can and does cause problems. He repeats that he consumes alcohol only rarely and has not abused alcohol since December 2004. That was mitigating evidence for the Judge to consider, and there is a rebuttable presumption that the Judge considered it unless he specifically stated otherwise. See, e.g., ISCR Case No. 07-16240 at 2 (App. Bd. Oct. 1, 2008). However, 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. 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. 07-10454 at 2 (App. Bd. Aug. 12, 2008). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board