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ISCR Case 11-04879.a1 — CASE

ISCR Case 11-04879.a1denied

Case Headnote

ISCR Case No. 11-04879.a1

Aug 6, 2013· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily due to deliberate omissions of arrests and a history of alcohol consumption. The denial was based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct).

Specifically, the applicant deliberately failed to disclose two arrests on his security clearance application. Furthermore, his record included multiple alcohol-related incidents and arrests, alongside a pattern of minimizing his alcohol abuse. The judge determined that the applicant did not sufficiently mitigate these concerns, particularly regarding his alcohol consumption.

While some mitigating conditions were considered, the judge concluded that the applicant's alcohol-related issues and the deliberate omissions outweighed any favorable findings. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption
AG ¶ 16raisedPersonal Conduct

Mitigating

AG ¶ 17rejectedCriminal ConductThe judge found the applicant's omissions were deliberate, undermining claims of mitigation.
AG ¶ 20rejectedAlcohol ConsumptionThe applicant had not demonstrated abstinence or a commitment to addressing his alcohol issues.
AG ¶ 19notedPersonal 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 20, 2012
Answer filed—
Hearing heldMay 24, 2013
Decision dateAug 6, 2013

Cite For

Deliberate Omissions of Arrests Under Guideline E
Failure to Mitigate Alcohol Consumption Concerns Under Guideline G
Importance of National Security in Clearance Determinations

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 deliberate omissions of arrests related to alcohol. The Board affirmed the Administrative Judge's decision, finding no harmful error in the Judge's reasoning or conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert Robinson Gales — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline GGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge's findings were reasonable and supported by substantial evidence, particularly regarding the deliberate omissions in the security clearance application and the applicant's alcohol-related incidents.

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 J; Guideline G; Guideline E DIGEST: The Judge found Applicant deliberately omitted two arrests from his security clearance application. That finding was reasonable. Adverse decision affirmed. CASENO: 11-04879.a1 DATE: 08/06/2013 DATE: August 6, 2013 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-04879

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Gabriel Pene, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 20, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counel requested a hearing. On May 24, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales 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 decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline J are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge found that Applicant has consumed alcohol to the point of intoxication and passing out, from 1996 until early 2011. His alcohol consumption has resulted in six incidents involving either military or civilian authorities. These incidents are as follows: lewd behavior during Lundi Gras1 in New Orleans; a barracks scuffle while serving in the military; drunk and disorderly conduct at a bar; two incidents of DUI; and a 2009 incident in which he was cited for disorderly conduct while intoxicated at a bar. Other than a one-day alcohol abuse educational class that he attended in the military, Applicant has never had alcohol treatment or counseling. When he completed his security clearance application (SCA), Applicant was asked about any arrests within the previous seven years. He was also asked if he had ever been charged with offenses related to alcohol. Applicant answered “yes,” listing his two DUI arrests. He did not list his two arrests for drunk and disorderly conduct. Later, when undergoing an interview in connection with his SCA, Applicant discussed his two DUI arrests but denied any other alcohol-related incidents. After being asked a second time if he was sure there were no other incidents, Applicant mentioned the earlier drunk and disorderly incident, though he denied he was arrested or charged with a crime. During a re-interview, he acknowledged his arrests for drunk and disorderly conduct. Applicant enjoys an excellent reputation for job performance. His supervisors and co- workers describe him as trustworthy and reliable. He also enjoys an excellent reputation for his attention to detail. The Judge’s Analysis As stated above, the Judge entered favorable findings pertaining to the allegations under Guideline J. Regarding Guidelines G and E, he concluded that Applicant had failed to mitigate concerns arising from his alcohol consumption and from his omissions on his SCA and during his interview. He noted that Applicant had not been abstinent, despite his many incidents of alcohol- related misconduct. The Judge concluded that Applicant minimized his problems with alcohol and that he was unable or unwilling to curb his drinking. Under Guideline E, the Judge found that Applicant’s omissions were deliberate. He noted Applicant’s reputation for being a detail person who does each task “right the first time, every time.” Decision at 14. This evidence tends to undermine Applicant’s evidence that he had simply forgotten about the omitted incidents. The Judge also noted that Applicant’s false statements were generally consistent with his pattern of denying and/or minimizing the extent of his alcohol abuse. The Judge concluded that the evidence, viewed as a whole, left him with doubts as to Applicant’s fitness for a clearance.

DISCUSSION

Applicant challenges the Judge’s finding that his omissions were deliberate. In analyzing an applicant’s mens rea, a Judge must consider the applicant’s answers in light of the entire record. See, e.g., ISCR Case No. 10-07104 at 3 (App. Bd. Feb. 25, 2013). The Judge’s explanation for this finding was reasonable and was consistent with the record that was before him. We find no error in the challenged finding. We have considered all of the arguments in Applicant’s appeal brief. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 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

FOOTNOTES

1 Lundi Gras is the Monday before Mardi Gras (Fat Tuesday).