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ISCR Case 09-02566.a1 — CASE

ISCR Case 09-02566.a1denied

Case Headnote

ISCR Case No. 09-02566.a1

Nov 12, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A former Navy member was denied a security clearance primarily under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from a long history of alcohol dependence and a failure to establish a consistent pattern of abstinence.

Despite completing an inpatient treatment program, the applicant resumed drinking shortly thereafter and continued to experience alcohol-related incidents. The judge noted that the applicant did not adhere to treatment advice and was considered a high risk for relapse.

Ultimately, the applicant did not meet the burden of persuasion for mitigation, as the evidence did not demonstrate a long-term commitment to abstinence. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 21raisedAlcohol Consumption

Mitigating

AG ¶ 23rejectedMitigating ConditionsThe applicant's evidence was insufficient to overcome the government's security concerns.

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 issuedOct 1, 2009
Answer filed—
Hearing heldAug 10, 2010
Decision dateNov 12, 2010

Cite For

Denial Based on History of Alcohol Dependence Under Guideline G
Rebuttable Presumption of Judicial Impartiality
Burden of Persuasion Lies with the Applicant for Mitigation.

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 who was denied a security clearance based on concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant argued that the Judge's decision was arbitrary and did not properly weigh the evidence, including his military service. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse decision is 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 the decision, including a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision under Guideline G was sustainable.

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
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 J DIGEST: Applicant argues that the fact that he and the Judge were both “prior Navy” had a negative impact on his case. There is a rebuttable presumption that a Judge is impartial and unbiased. Applicant has not overcome that presumption. Adverse decision affirmed. CASENO: 09-02566.a1 DATE: 11/12/2010 DATE: November 12, 2010 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-02566

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 October 1, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 10, 2010, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not correctly weigh the evidence. Specifically, he argues that although he admitted to allegations in the SOR, the government did not present sufficient evidence to establish them. He also argues that the Judge did not give him sufficient credit under the whole-person concept for his many years of honorable service in the U.S. Navy and for having held a security clearance for more than 20 years without a security violation. In that regard, Applicant states that the fact that he and the Judge were both “prior Navy” had a negative impact on the case. Applicant’s mentioning of the prior Navy status of himself and the Judge raises a claim of bias. 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). In this case, Applicant has offered no evidence that overcomes that presumption. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The government is only responsible for presenting evidence to establish facts alleged in the SOR that have been controverted. Directive ¶ E3.1.14. It is the applicant’s responsibility to present evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by the government, and the applicant has the ultimate burden of persuasion as to obtaining a favorable clearance decision. Id. at ¶ E3.1.15. In this case, Applicant admitted much of the information in the SOR. The burden of persuasion then shifted to Applicant. 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 found that Applicant had a long history of alcohol dependence. He had completed an inpatient alcohol treatment program in January 2007, but had resumed drinking alcohol in February of that same year. He continued to have alcohol-related incidents and did not abstain as recommended. He had not followed through on treatment advice, was regarded as a high risk for relapse, and had not received a favorable prognosis by a duly qualified medical professional. Although Applicant had successfully completed an inpatient alcohol treatment program, he had not demonstrated an established pattern of abstinence or followed the aftercare program. He had only recently accepted that he was alcohol dependent, and it was unclear to the Judge whether his recent commitment to abstinence was truly long-term or a consequence of his pending deployment. Decision at 8. In light of the foregoing, the Judge could reasonably conclude that Applicant’s history of alcohol abuse still presented a security concern and that Applicant had not met his burden of persuasion as to mitigation. See, e.g., ISCR Case No. 07-10953 at 2-3 9App. Bd. Oct. 29, 2008. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Decision at 10. She found in favor of Applicant under Guideline J and as to one of the SOR factual allegations under Guideline G. However, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Id. The Board does not review a case de novo. 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 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 unfavorable security clearance decision under Guideline G 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board