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ISCR Case 11-00455.a1 — CASE

ISCR Case 11-00455.a1denied

Case Headnote

ISCR Case No. 11-00455.a1

Nov 20, 2012· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance for a former Navy service member and federal contractor employee was denied under Guideline G (Alcohol Consumption) due to a history of multiple DUI offenses. The applicant had accumulated several alcohol-related incidents, including a third DUI despite previous warnings regarding their conduct.

While the applicant claimed three years of sobriety and completed alcohol counseling, the judge determined that this was insufficient to mitigate security concerns. Specifically, the judge found a lack of substantial, long-term evidence demonstrating both sobriety and consistent law-abiding behavior.

The appeal board upheld the denial, reinforcing the need for a clear and sustained demonstration of rehabilitation to overcome the disqualifying conditions raised by the applicant's past alcohol consumption issues.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses

Mitigating

G.3rejectedSuccessful Completion of Alcohol CounselingThe judge acknowledged the applicant's completion of counseling but concluded it did not mitigate the security concerns due to the history of offenses.
G.2.brejectedDemonstrated RehabilitationThe judge found that the applicant's claims of sobriety were insufficient to demonstrate rehabilitation given the pattern of behavior.

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 issuedMay 18, 2012
Answer filed—Applicant requested a decision on the written record.
Hearing heldAug 30, 2012
Decision dateNov 20, 2012Appeal affirmed on this date.

Cite For

Denial of Clearance Due to Multiple Alcohol-related Offenses Under Guideline G
Insufficient Evidence of Rehabilitation Despite Claims of Sobriety
Importance of a Long-term Track Record of Law-abiding Conduct for Security Clearance Eligibility

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 concerns under Guideline G related to alcohol consumption. The applicant argued that the Judge mis-weighed evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided onthe written record

Guidelines belowGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider or mis-weighed significant record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in his application of the mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's decision was reasonable and consistent with the record, affirming the denial of the security clearance based on the applicant's history of alcohol offenses and failure to demonstrate sufficient mitigation.

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 G DIGEST: Applicant cites to favorable record evidence. Applicant’s ability to interpret the record differently is not sufficient to demonstrate that e Judge erred. Adverse decision affirmed. CASENO: 11-00455.a1 DATE: 11/20/2012 DATE: November 20, 2012 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-00455

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 May 18, 2012, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security 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 30, 2012, after considering the record, 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 issues on appeal: whether the Judge failed to consider, or mis- weighed, significant record evidence and whether the Judge erred in his application of the mitigating conditions. 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. A graduate of a well-known university, he holds a master’s degree from a military postgraduate school and is in the process of completing a MBA. Applicant served in the Navy from 1988 until 2005. During that time, he committed two DUI offenses, both of which were prosecuted in state courts. Subsequently, Applicant resigned his commission in lieu of being administratively separated. Applicant fully disclosed his DUI offenses during the course of processing his recent security clearance application (SCA). In 2005, while working for a Federal contractor, Applicant was granted eligibility for access to sensitive compartmented information (SCI). In 2007, he signed a code of conduct acknowledging that future alcohol incidents would raise concerns about his continued access. In 2009, Applicant was arrested and charged with this third DUI offense. He had consumed two bottles of wine over a four-hour period, and his blood alcohol content was found to have been .17. Applicant self- reported this incident to his employer. This incident was initially charged as a felony, being Applicant’s third offense within 10 years. However, the court dropped it to a misdemeanor because the second offense, which occurred in a different state, had not met the jurisdiction’s criteria for a DUI conviction. Applicant pled guilty, was given a 12-month jails sentence with 10 months suspended, a fine of $1,500, community service, suspension of Applicant’s driver’s license, and mandatory attendance at an alcohol safety program. The Government agency revoked Applicant’s access to SCI. Applicant advised his interviewer that he had no intention of drinking again. In his reply to the File of Relevant Material, he stated that he had abstained from alcohol for more than three years and that he attended Alcoholics Anonymous regularly. He has completed the court-ordered alcohol course in 2009. He also attended an alcohol counseling program from June 2009 to June 2010, successfully completing it. In the Analysis, the Judge noted Applicant’s evidence that he had been abstinent since his last offense, accepting this evidence as credible. However, he concluded that, under the facts of this case, Applicant had failed to meet his burden of persuasion as to mitigation. The Judge cited to evidence of the multiple nature of Applicant’s alcohol offenses and Applicant’s having committed his third DUI despite having signed a statement acknowledging that future misconduct could result a loss of his SCI access. The Judge stated that the number of times Applicant was provided with an opportunity to correct his conduct and yet failed to do so was noteworthy. He concluded that a “substantial, long-term track record of sobriety and law-abiding conduct is necessary to mitigate the concerns.” Decision at 7. Applicant’s appeal brief cites to record evidence, including that he had maintained three years of sobriety, that he had held a clearance for many years without incident or concern, and that he had complied with his employers’ reporting requirements concerning his offenses. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 11-04287 at 3 (App. Bd. Sep. 11, 2012). Applicant’s brief is not sufficient to rebut this presumption. Applicant stresses evidence of his years of sobriety following his last incident in support of his argument that he had demonstrated mitigation of the security concerns in his case. We acknowledge that this is significant favorable evidence. As stated above, the Judge cited to it in the Analysis. However, the Judge’s weighing of the evidence is reasonable and is consistent with the record the record. As such, Applicant’s contention on appeal amounts to a plausible alternative interpretation of the evidence, but it is not enough to demonstrate that the Judge’s decision goes against the weight of the evidence. See, e.g., ISCR Case No. 11-03500 at 4 (App. Bd. Feb. 28, 2012). Applicant’s brief cites to evidence from outside the record, which we cannot consider. Directive ¶ E3.1.29. Accordingly, 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 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