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ISCR Case 09-04144.a1 — CASE

ISCR Case 09-04144.a1denied

Case Headnote

ISCR Case No. 09-04144.a1

Jul 16, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A mechanical engineer with a master's degree was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed from a documented history of alcohol abuse and multiple instances of making false statements on security clearance applications.

Specifically, the applicant made numerous false statements on applications between 2000 and 2006. Additionally, treatment records confirmed a diagnosis of alcohol dependence, indicating a long-standing issue with alcohol abuse.

The appeal board affirmed the denial, finding the applicant lacked credibility. The board also determined that the applicant's arguments challenging the judge's findings were without merit, concluding that the combination of these issues presented an unacceptable risk to national security.

Conditions Referenced

Disqualifying

AG EraisedPersonal Conduct
AG GraisedAlcohol Consumption

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 issuedSep 11, 2009
Answer filed—
Hearing heldMay 3, 2010
Decision dateJul 16, 2010

Cite For

False Statements in Security Clearance Applications Under Guideline E
Long History of Alcohol Abuse Under Guideline G
Affirmation of Adverse Decisions Based on Substantial Evidence

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 a denial of security clearance based on numerous false statements made by the Applicant regarding alcohol consumption and drug use. The Board affirmed the Judge's decision, rejecting claims of error in factual findings, application of mitigating conditions, and allegations of arbitrariness in the decision-making process.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant argued that the Judge erred in finding that he had been a heavy drinker at age 14.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge failed to apply mitigating conditions regarding his falsifications.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the Judge articulated a satisfactory explanation for the decision, maintaining a rational connection between the facts and the conclusion reached.

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
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: In security clearance applications in 2000, 2005 and 2006 Applicant made numerous false statements. The Judge’s statement that Applicant is an alcoholic who has abused alcohol for over 35 years is reasonable in light of the record. Adverse decision affirmed. CASENO: 09-04144.a1 DATE: 07/16/2010 DATE: July 16, 2010 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04144

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Kathryn D. MacKinnon, Esq., Deputy Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 11, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 3, 2010, after the hearing, Administrative Judge Darlene D. Lokey Anderson 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 the Judge erred in her findings of fact; whether the Judge erred in her application of the mitigating conditions; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a mechanical engineer for a Defense contractor. He has a Master’s degree in mechanical engineering. He has worked for his current employer since the late 1970sand has held a security clearance since then. Applicant has consumed alcohol “to excess and the point of intoxication for over thirty-five years.” Decision at 2. During the mid-to-late-2000she received counseling from a program provided by his employer. In the mid-2000she also received both in-patient and out-patient treatment, the former resulting in a diagnosis of alcohol dependence. In August 2006, the police detained Applicant for being drunk in public. Although Applicant was not formally charged with that offense, the incident served as a wake-up call for him. In 2009 he underwent in-patient treatment for alcoholism, followed by out-patient treatment. He began working with Alcoholics Anonymous (AA). He attends three or four meetings a week and has completed the twelve steps. Applicant has used marijuana, cocaine, and mushrooms in the past, while holding a security clearance. He realized that doing so was illegal and contravened both his employer’s and DoD’s policies concerning drug abuse. The last time he used marijuana was in 2001. In security clearance applications (SCA) completed in 2000, 2005, and 2006, Applicant made numerous false statements. He variously denied (1) having used illegal drugs within the previous seven years, (2) having used illegal drugs while holding a security clearance, and (3) having undergone treatment or counseling as a result of his use of alcohol. Applicant also falsely denied drug use in response to DOHA interrogatories sent him in 2009. Applicant contends that the Judge made an error in her findings of fact. Specifically, he argues that the Judge erred in finding that Applicant had been a heavy drinker at age 14. We have examined the Judge’s findings of fact, as well as statements contained in the Analysis portion of the decision. Her finding that Applicant had drunk to excess and to the point of intoxication for over 35 years is derived from an allegation in the SOR which Applicant admitted. Her statement in the Analysis that Applicant is an alcoholic who had abused alcohol for over 35 years is a reasonable inference from Applicant’s admissions to the SOR and from the record evidence. The Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ “[T]he offense is so minor, or so much time as passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness or good judgment.” E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) In support of his appeal, Applicant has cited other decisions by Hearing Office Judges. We have given these decisions due consideration. However, they have significant factual differences from Applicant’s. Each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 08-08012 at 2 (App. Bd. Nov. 20, 2009). Applicant asserts that the Judge erred in failing to apply Directive, Enclosure 2 ¶ 17(c) to mitigate Applicant’s falsifications. The Judge found that Applicant had deliberately given false answers to the Government on nine occasions over a decade, the most recent occurring in 2009. Given those findings, the Judge’s failure to apply this mitigating condition is sustainable. After reviewing the record, we conclude 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: 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board