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ISCR Case 09-07084 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date6/22/2011
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 09-07084.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline GAlcohol Consumption · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 09-07084denied

Case Headnote

ISCR Case No. 09-07084

Jun 22, 2011· Hon. Jean E. Smallin· appeal

Summary

A federal contractor and electronics technician was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug Involvement). The applicant had a history of heavy drinking, resulting in multiple DUIs, and was discharged from the Navy for cocaine use.

The judge identified disqualifying conditions related to alcohol-related incidents, drug abuse, and a pattern of questionable judgment. While the applicant presented evidence of modified drinking habits, the judge determined that these changes did not sufficiently mitigate the significant security concerns raised by the applicant's past conduct.

Ultimately, the judge concluded that the applicant's history of alcohol-related offenses and drug abuse presented an unacceptable security risk, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 21raisedAlcohol Consumption
AG ¶ 24raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

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 13, 2010
Answer filed—
Hearing heldApr 7, 2011
Decision dateJun 22, 2011

Cite For

Denial of Security Clearance Due to History of Alcohol and Drug Abuse
Impact of Multiple Duis on Security Clearance Eligibility
Failure to Mitigate Security Concerns Despite Evidence of Changed Behavior

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 a security clearance based on the applicant's history of alcohol-related offenses and drug use. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the Administrative Judge's decision, finding it supported by substantial evidence and rationally connected to the facts presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The applicant argued 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 decision was supported by substantial evidence and articulated a rational connection between the facts and the decision made. The applicant's history of alcohol-related offenses and drug abuse raised significant security concerns that were not sufficiently mitigated by his evidence of modified behavior.

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

Jean E. Smallin
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; Guideline H; Guideline E DIGEST: Applicant’s evidence of modified drinking habits and abstinence from the use of illegal drugs was not sufficient to mitigate security concerns arising from, among other things, several instances of DUI and his discharge from the Navy for cocaine use. Adverse decision affirmed. CASE NO: 09-07084 DATE: 06/22/2011 DATE: June 22, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07084

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 13, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption). The SOR was later amended to add allegations under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 7, 2011, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a Federal contractor. He is an electronics technician at a Naval shipyard. Divorced and remarried, he has a son from his previous marriage. He served in the U.S. Navy from 2000 to 2006, at which time he was discharged for drug abuse. Applicant has a history of heavy drinking, dating back to 1999. This history includes several incidents of alcohol-related misconduct. In 1999, he was arrested and charged with DUI. Involved in a single-car accident, he paid a fine and was required to attend a DUI camp, an education program. His second alcohol-related incident occurred in 2000, when he was again arrested and charged with DUI. The charge was dismissed based on his enlistment in the Navy and completion of boot camp. In 2005 he was again arrested and charged with DUI. He refused to submit to a blood- alcohol test. He pled guilty to a lesser offense and was sentenced to a fine and to a suspended 30- day jail term. In 2007 Applicant was charged with public intoxication, resulting in a small fine. A year later he was charged with DUI and pled guilty to reckless driving. This last incident was a “wake-up call” for him. He no longer drinks and drives. If he and his wife go out for dinner, he uses a designated driver or taxi. In addition to his alcohol-related misconduct, Applicant used cocaine on about three occasions in 2006, while on active duty with the Navy. He did so while dating a woman who used the drug. Applicant’s cocaine use was discovered through a routine urinalysis. As a consequence of his positive urinalysis, Applicant received non-judicial punishment and an administrative discharge from the Navy under other than honorable conditions (UOTHC). A UOTHC “is the most severe type of administrative discharge, and it carries a certain stigma.” Decision at 4. In the Analysis portion of the Decision, the Judge noted Applicant’s modified drinking habits and his abstinence from illegal drugs. However, he concluded that Applicant’s pattern of alcohol- related offenses and his drug abuse, viewed cumulatively, raised questions about his security worthiness which the favorable evidence in the record was not sufficient to mitigate. Accordingly, the Judge concluded that Applicant had failed to meet his burden of persuasion. 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)). 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: Jean E. Smallin Jean E. Smallin 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