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ISCR Case 09-06775.a1 — CASE

ISCR Case 09-06775.a1denied

Case Headnote

ISCR Case No. 09-06775.a1

Aug 30, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A former defense contractor employee was denied a security clearance due to significant financial considerations, a history of alcohol consumption issues, and criminal conduct. The applicant had accumulated over $31,000 in new delinquent debts after previously discharging $80,000 through bankruptcy, raising concerns under Guideline F.

Additionally, the applicant's record included multiple alcohol-related offenses and criminal conduct, falling under Guidelines G and J. While the applicant had a prior good security record and recently began addressing these issues, these efforts were deemed insufficient to demonstrate a permanent change in behavior. The adjudicator noted that the alcohol abuse and criminal conduct stemmed from voluntary choices.

Ultimately, the applicant failed to adequately mitigate the disqualifying conditions related to financial irresponsibility, alcohol abuse, and criminal behavior. Despite some mitigating factors being considered, the cumulative weight of the concerns led to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedCriminal Conduct
AG ¶ 20raisedAlcohol Consumption
AG ¶ 18raisedFinancial Considerations

Mitigating

AG ¶ 23rejectedFinancial ConsiderationsThe applicant did not demonstrate the financial means to resolve debts or avoid new ones.
AG ¶ 24rejectedAlcohol ConsumptionThe applicant's commendable efforts to address alcohol issues were too recent to establish a permanent behavioral change.
AG ¶ 25rejectedCriminal ConductThe applicant's criminal conduct was not sufficiently mitigated by his recent rehabilitation efforts.

Key Rule Quoted

“A good prior security record does not preclude an adverse clearance decision.”
— ISCR Case No. 08-00435 at 3 (App. Bd. Jan. 22, 2009)

Procedural Posture

SOR issuedSep 21, 2010
Answer filed—
Hearing heldJun 9, 2011
Decision dateAug 30, 2011

Cite For

Denial Based on Financial Delinquencies Under Guideline F
Denial Based on Alcohol-related Offenses Under Guideline G
Denial Based on Criminal Conduct Under Guideline J

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 financial considerations, alcohol consumption, and criminal conduct. The applicant argued that the Judge failed to consider favorable evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline GGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider or mis-weighed evidence favorable to him.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in his application of the pertinent mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and provided a rational connection between the facts and the decision made. The applicant did not demonstrate that the Judge mis-weighed the evidence or failed to apply the appropriate mitigating conditions.

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
Jeffrey D. Billett
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 F; Guideline G; Guideline J DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. A prior good security record does not preclude an adverse decision. Adverse decision affirmed. CASE NO: 09-06775.a1 DATE: 08/30/2011 DATE: August 30, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06775

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 September 21, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), 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 June 9, 2011, after the hearing, Administrative Judge David M. White 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 failed to consider all of the record evidence; whether the Judge erred in his application of the pertinent mitigating conditions; and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a former employee of a Defense contractor. He hopes to be hired by the same company if he is granted a security clearance. He held a security clearance from 1981 to 2006. He has a B.S. in electrical engineering. He has a ten-year-old child from a previous marriage. Applicant was steadily employed by a Defense contractor from December 1999 to October 2004. He had no financial problems until he divorced in 2002. The court ordered him to pay child support, as a consequence of which it became harder to pay other expenses. He began using credit cards to pay for living expenses “due to spending beyond his means.” Decision at 3. In October 2004 he was fired due to a “verbal altercation” with his supervisor. Id. During his ensuing period of unemployment, he fell behind on child support payments. In January 2006, a contractor hired him into an engineering position, with an annual salary of $75,000. He was fired the following July due to a conviction for DUI. He was unemployed again for about nine months. A power company hired him for an engineering position but did not offer him a permanent job. The company fired him due to personality conflicts with his supervisor. He was unemployed until September 2010, when he began his current job as a customer service representative for a credit card company. In June 2006, Applicant discharged about $80,000 in unsecured debt through Chapter 7 bankruptcy. He has other delinquent debts, for medical services and child support. He has petitioned a court to reduce his child support payments, which were fixed at a time when he had a substantially higher salary. He also has delinquent state and federal income taxes. In addition to his financial delinquencies, Applicant has experienced problems with alcohol. He was arrested for DUI in 1976, 1977, 2004, twice in 2005, and 2008. These arrests had different legal outcomes. He attended outpatient alcohol treatment from May to June 2004, but he resumed drinking despite an abstinence requirement of his probation. After his final incident, he entered a month-long inpatient treatment program, followed by a court-ordered outpatient program. “His certified counselor from that outpatient program confirmed Applicant’s diagnosis of Alcohol Dependence in Sustained Full Remission, and Opiod Dependence in Sustained Full Remission.” Decision at 4. Applicant has committed criminal offenses in addition to the alcohol infractions listed above. These include disturbing the peace; using a telephone to annoy, harass, or offend; trespassing, petit theft and battery; and another incident of trespassing. In July 2009, Applicant was arrested in a neighboring state and charged with Driving Under the Influence/Drugs. A breathalyzer test detected no alcohol in Applicant’s system. However, he had recently changed his anti-depressant medication, and he should not have been driving. He pled guilty to negligent driving. As a consequence of this arrest, his home state charged him with a probation violation. Applicant has successfully completed a court-ordered alcohol and drug treatment program and a DUI program. His 2008 DUI charge was reduced from a felony to DUI-second offense, with two years probation. His probation officer intends to recommend him for release from probation

FOOTNOTES

1 Directive, Enclosure 2 ¶ 23(d). in September 2011. Family, friends, and co-workers hold high opinions of Applicant’s work performance, integrity, trustworthiness, and compliance with security procedures. In his Analysis, the Judge stated, “Applicant currently has over $31,000 in delinquent debts that he accrued since he discharged about $80,000 in other debts through bankruptcy . . . and [he] did not demonstrate the financial means to resolve those debts or avoid new ones. His alcohol abuse and criminal conduct arose from choices that he voluntarily made, and his commendable efforts to address them are too recent to establish a permanent behavioral change.” Decision at 12. Applicant contends that the Judge did not consider, or mis-weighed, evidence favorable to him, such as his good financial record prior to his divorce, his attendance at AA and other efforts he has undertaken to maintain sobriety, and the absence of recent criminal activity. He also points out that he held a security clearance for many years without incident or concern. On this last point, a good prior security record does not preclude an adverse clearance decision. See, e.g., ISCR Case No. 08-00435 at 3 (App. Bd. Jan. 22, 2009). In the case under consideration here, some of Applicant’s security significant conduct arose after he had last held a clearance. Moreover, the Judge discussed much of the other evidence which Applicant has cited. However, his decision provides a reasonable explanation for his denial of a clearance. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. See, e.g., ISCR Case No. 09- 01735 at 2 (App. Bd. Aug. 31, 2010). Neither has he demonstrated that the Judge mis-weighed the evidence. Applicant takes issue with a comment by the Judge that the record contained no favorable prognosis concerning the likelihood of Applicant’s return to alcohol abuse. Applicant contends that no doctor can predict with certainty whether or not a given alcoholic will resume drinking. However, the Judge’s comment was contained in his analysis of the Guideline G mitigating conditions, one of which addresses completion of a counseling and rehabilitation program along with a favorable prognosis by a medical professional or social worker.1 Insofar as the challenged sentence merely tracks the language of the Directive, it is without error as a matter of law. 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’” both as to the mitigating conditions and the whole-person factors. 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board