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ISCR Case 08-11325.a1 — CASE

ISCR Case 08-11325.a1denied

Case Headnote

ISCR Case No. 08-11325.a1

deniedOct 22, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This DOHA security clearance case involved a defense contractor whose application was denied under Guideline G (Alcohol Consumption). The denial stemmed from a documented history of alcohol abuse, including two convictions for driving while intoxicated (DWI) and one underage drinking offense, which raised significant trustworthiness concerns.

The applicant's claims of current responsible alcohol consumption were not adequately supported by evidence. The judge determined that the applicant's written statements were insufficient to overcome the disqualifying conditions associated with their past alcohol-related incidents.

Ultimately, the appeal board affirmed the adverse decision, concluding that the applicant failed to provide sufficient evidence to mitigate the concerns under Guideline G. Minor errors identified in the judge's initial findings were deemed not to have impacted the final denial.

Why the Applicant Was Denied

The applicant had a history of alcohol abuse with multiple alcohol-related offenses.
The applicant's claims of responsible alcohol consumption were not substantiated by evidence.
The judge found the applicant's written statements insufficient to rebut trustworthiness concerns.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses

Key Rule Quoted

“The record supports a conclusion 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)

Procedural Posture

SOR issuedMar 23, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldAug 3, 2010
Decision dateOct 22, 2010

Cite For

Affirmation of Adverse Trustworthiness Decisions Based on Alcohol-related Offenses
Insufficient Evidence to Mitigate Trustworthiness Concerns
Harmless Error Doctrine in Judicial Findings

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: The Judge’s references to three DWI convictions rather than two DWI convictions and a third alcohol-related conviction do not establish an outcome determinative error. Adverse decision affirmed. CASENO: 08-11325.a1 DATE: 10/22/2010 DATE: October 22, 2010 In Re: ------

Applicant for Trustworthiness Designation ) ) ) ) ) ) ) ) ADP Case No. 08-11325

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 trustworthiness designation. On March 23, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under 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 3, 2010, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s findings of fact contain an error and whether the Judge erred in her application of the relevant mitigating conditions. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is employed by a Defense contractor. She has a history of alcohol abuse, which includes convictions for three separate alcohol-related offenses. Two of these were for DWI, and the other was for underage drinking. The last of Applicant’s offenses, a DWI, occurred in 2006. Applicant’s driver’s license was suspended following each DWI. When interviewed during the investigation of her application, Applicant stated that she did not intend to drink alcohol in the future, because doing so was not in her best interest. However, she later admitted that, subsequent to that interview, she had drunk two beers in late December 2008. In deciding the case adversely to Applicant, the Judge noted Applicant had not provided corroborating evidence for her claims to have consumed alcohol responsibly since her last DWI incident. The Judge stated that Applicant’s three convictions, her two driver’s license suspensions, and her three periods of probation following those convictions rendered her written statements insufficient to rebut the trustworthiness concerns raised by the File of Relevant Material. Applicant notes that twice in the Analysis portion of the decision the Judge stated that Applicant had been convicted three times of DWI. Applicant contends that these two statements were erroneous. Applicant is correct, in that the record clearly demonstrates that she was convicted of DWI only twice. We note that the Findings of Fact section of the decision correctly describe only two incidents of DWI, and, in her whole-person analysis, the Judge properly cited to three “incidents involving alcohol,” rather than to three of DWI. We conclude that the Judge’s erroneous statements were not the result of her having misread the evidence, and they do not establish that she based her adverse decision on a mistaken understanding of the nature of Applicant’s convictions. Because there is no reason to conclude that the errors in question actually affected the outcome of the case, they are harmless. See, e.g., ADP Case No. 08-00801 at 2 (App. Bd. Nov. 6, 2009). In support of her appeal Applicant has submitted a letter of recommendation, which is new evidence not contained in the record. We cannot consider this letter. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board.”). See also, e.g., ADP Case No. 08-09058 at 2 (App. Bd. Dec. 18, 2009). The record supports a conclusion 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)). In light of the entirety of the record evidence, the Judge’s decision not to grant Applicant a trustworthiness designation is sustainable. The Appeal Board need not agree with a Judge’s decision in order to sustain it. See, e.g., ADP Case 06-23881 at 2 (App. Bd. Nov. 2, 2007).

ORDER

The Judge’s adverse trustworthiness decision 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