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ISCR 08-11034: Guideline G security clearance appeal, denied (2010) · CASE

ISCR Case 08-11034denied

Case headnote

ISCR Case No. 08-11034

Aug 11, 2010· Hon. Jeffery D. Billett· appeal

Summary

A software engineer's security clearance was denied under Guideline G (Alcohol Consumption) due to a history of alcohol abuse and related criminal conduct. Disqualifying conditions G.2.a and G.2.c were raised, citing the applicant's pattern of alcohol consumption that caused impaired judgment and a diagnosis of alcohol abuse or dependence.

Despite the applicant's claims of sobriety and rehabilitation, mitigating conditions G.3.a and G.3.b were applied, acknowledging that the problem was not recent and that the applicant had received counseling. However, these were deemed insufficient to overcome the security concerns. The Board found that the applicant's claims of sobriety lacked sufficient supporting evidence.

Ultimately, the denial was affirmed because the judge concluded that an insufficient amount of time had passed since the applicant's last relapse. This led to the determination that the applicant's alcohol-related behavior was likely to recur, posing an unacceptable security risk.

Conditions referenced

Disqualifying

G.2.araisedAlcohol-related Criminal Conduct
G.2.craisedHabitual or Binge Drinking

Mitigating

G.3.arejectedThe Individual Has Acknowledged His Alcohol Problem and Has Sought HelpThe judge found that the applicant's past attempts at rehabilitation were insufficient to mitigate the security concerns.
G.3.brejectedThe Individual Has Successfully Completed a Rehabilitation ProgramThe judge determined that the applicant's recent relapse indicated ongoing issues with alcohol dependence.

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 issuedAug 5, 2009
Answer filed—
Hearing held—Applicant requested decision on written record.
Decision dateAug 11, 2010

Cite for

Denial of Security Clearance Based on History of Alcohol Abuse Under Guideline G
Insufficient Evidence to Mitigate Security Concerns Despite Claims of Rehabilitation
Affirmation of Due Process Rights in Security Clearance Proceedings.

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 for a security clearance who was denied due to concerns under Guideline G related to alcohol consumption. The applicant raised issues regarding the Judge's findings and due process rights. The Board affirmed the Judge's decision, finding no harmful errors and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided onthe written record

Guidelines belowGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends that the Judge did not consider record evidence, such as his favorable psychological evaluation.
Due-process / fairness, raised by the applicantRejected
Applicant claims he was denied proper legal representation throughout the process.
Judge bias or partiality, raised by the applicantRejected
Applicant claims that the Judge demonstrated an unfair bias against him.

Why the Board ruled this way

The Board concluded that the Judge’s material findings are based on substantial evidence and that Applicant has not identified any harmful error likely to change the outcome of the case. The Judge articulated a satisfactory explanation for the 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-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 DIGEST: Applicant was advised by letter of his right to obtain counsel. There is no basis to conclude that he was denied his due process rights. Adverse decision affirmed. CASENO: 08-11034 DATE: 08/11/2010 DATE: August 11, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11034

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 August 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) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On May 12, 2010, after considering the record, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed 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 application of the pertinent mitigating conditions. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a software engineer for a Defense contractor. He holds a B.S. degree, having graduated from college with honors. Divorced, he remarried in 2008. Applicant began consuming alcoholic beverages as a teenager. He has consumed alcohol to the point of memory loss and blackouts. In addition, his alcohol use has contributed to criminal conduct. At age 17, while drinking with friends, Applicant stole carpet from a home construction site. He was convicted of larceny, serving nine months in jail and paying restitution. In 1981 he operated a motorcycle while intoxicated and had a serious accident. He was convicted of DUI and was required to attend meetings of Alcoholics Anonymous (AA). From 1984 until 1991 Applicant abstained from the use of alcohol due to the effect it was having on his life. He underwent treatment for bipolar disorder and alcohol consumption from 1995 until 2004. He received treatment for alcohol dependence from 2005 to 2006. In 2006 Applicant drank until he was impaired and ran his vehicle off the road. He began walking and was arrested for public intoxication. He was given pretrial diversion and participated in an alcohol rehabilitation program. In June 2007, he was convicted of DWI. He received a suspended jail sentence, was ordered to pay a fine and court fees, placed on probation, or directed to attend an alcohol rehabilitation program. Additionally, his driver’s license was suspended for one year. The following September, Applicant drank to excess, blacked out, and was arrested for public nudity and public intoxication. Convicted of the latter charge, he was given a suspended jail sentence, ordered to pay a fine and court fees, and placed on probation. He attended an alcohol rehabilitation program from late 2007 until mid 2008. He cooperated fully with the counselors. His diagnosis included alcohol dependence and bipolar disorder. In 2008 Applicant experienced a relapse into alcohol consumption. He disclosed this fact to his counselors. He successfully completed the treatment program, with a good prognosis. He has been sober since 2008 and participates in AA. Applicant experienced difficulties in his early life, due to abuse he suffered in foster homes and by adopted parents after he was abandoned by his mother. His AA sponsor considers Applicant to be trustworthy and reliable. Applicant contends that the Judge erred in some of his findings. Among other things, he denies that he has a history of alcohol abuse or that he has ever had symptoms of bipolar disorder; he states that he has been abstinent from alcohol since 2007 rather than the Judge’s finding of 2008; he disagrees with the Judge’s finding that his alcohol consumption contributed to criminal activity; and he takes issue with the Judge’s finding that his return to drinking in 1991 after seven years abstinence was due to an inability to control his impulses. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 08-11564 at 2 (App. Bd. Jun. 21, 2009). Applicant states, “[d]ue to my inability to retain counsel . . . I have been denied proper legal representation throughout this entire process.” Applicant Brief at 2. We construe this as a claim that he did not receive due process. However, the record demonstrates that Applicant was provided a copy of the Directive and advised of his right to submit written matters in mitigation and extenuation, as well as his right to be represented by counsel. Letter to Applicant, Oct. 26, 2009; File of Relevant Material (FORM) at 8-9. Applicant submitted a response to the FORM in which he addressed what he considered to be pertinent mitigating conditions. There is no basis to conclude that Applicant was denied his due process rights. Applicant contends that the Judge did not consider record evidence, such as his favorable psychological evaluation. However, a Judge is presumed to have considered all of the evidence in the record. See ISCR Case No. 09-05830 at 2 (App. Bd. Jun. 25, 2010). In this case, the Judge discussed Applicant’s having availed himself of professional help and his good prognosis, among other things. However, he also explained why he concluded that Applicant’s evidence was not sufficient to mitigate the Government’s security concerns. He stated that: In the past, Applicant stopped drinking several times for long periods after alcohol rehabilitation treatment and medication. He . . . resumed his alcohol consumption which led to additional misconduct. Not enough time has passed since his last relapse to justify a finding that his alcohol-related behavior is not likely to recur. Decision at 7. Applicant’s brief does not rebut the presumption that the Judge considered the entire record. Neither does it demonstrate that the Judge weighed the evidence in the record in an arbitrary or capricious manner. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). Applicant claims that the Judge demonstrated an unfair bias against him by repeating what Department Counsel said and disregarding any part of Applicant’s evidence containing information that was contrary to the representations of Department Counsel. Applicant’s claim of bias lacks specificity and therefore prevents the Board from meaningfully evaluating this claim. Moreover, there is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 07-02253 at 3 (App. Bd. Mar. 28, 2008); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). Applicant has not overcome the presumption in this case. 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: Jeffery 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