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ISCR 11-05949.a1: Guideline G security clearance appeal, denied (2013) · CASE

ISCR Case 11-05949.a1denied

Case headnote

ISCR Case No. 11-05949.a1

Aug 29, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline G (Alcohol Consumption) due to a history of alcohol-related issues. Disqualifying conditions G.2.a and G.2.c were raised, citing multiple DUI arrests and ongoing alcohol use that indicated poor judgment and raised doubts about his reliability.

Specifically, the applicant had three DUI arrests, with some offenses occurring after his clearance application was submitted. While mitigating conditions G.3.a and G.3.b were applied, acknowledging his participation in treatment programs, these efforts were deemed insufficient.

The denial was ultimately based on the applicant's failure to demonstrate a favorable prognosis or a substantial support network for his alcohol issues, leading to the conclusion that he did not meet the standards for a security clearance.

Conditions referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
G.2.craisedHabitual or Binge Drinking

Mitigating

G.3.arejectedSuccessful Completion of TreatmentThe applicant's treatment participation did not demonstrate a favorable prognosis.
G.3.brejectedEvidence of RehabilitationThe applicant did not provide sufficient evidence of a support network or rehabilitation.

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 issuedNov 8, 2012
Answer filed—Applicant represented himself.
Hearing heldJun 25, 2013
Decision dateAug 29, 2013

Cite for

Evaluation of Alcohol-related Offenses Under Guideline G
Consideration of Evidence in Security Clearance Decisions
Standards for Granting Security Clearances in Relation to National Security Interests

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 was from a denial of a security clearance based on alcohol consumption issues under Guideline G. The applicant contended that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's conclusions regarding the applicant's alcohol-related behavior and its implications for national security.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White denied the clearance

Decided ona hearing

Guidelines belowGuideline G

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 Board found that the Judge's decision was supported by substantial evidence and that the applicant did not rebut the presumption that the Judge considered all evidence in the record. The Board concluded that the Judge's findings were reasonable and articulated a satisfactory explanation for the decision.

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

Jeffrey D. Billett
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 DIGEST: The Appeal Board cannot consider new evidence on appeal. Applicant failed to rebut the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASE NO: 11-05949.a1 DATE: 08/29/2013 DATE: August 29, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-05949

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 8, 2012, DoD 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 hearing. On June 25, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) 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 issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge found: Applicant began drinking alcohol around age 18. He consumed alcohol, at times to excess and to the point of intoxication, from about 1991 to December 2012. He became intoxicated after three to five drinks and did so one to three times a week, until at least April 2012. Applicant has been charged with DUI three times. The first, in 1991, resulted in a dismissal of charges because Applicant was not driving the car at the time of the arrest.1 In 2009, Applicant was again arrested for DUI. He had consumed about six mixed drinks at a bar and attempted to drive home. He hit a patch of ice, spun out of control, crashed through a fence, and came to a stop in a vacant field. Applicant told police that he had drunk three beers at a local bar. Subsequent breath analysis yielded results of .173 and .179. Applicant pled guilty to reckless driving and was sentenced to 365 days confinement (with 363 suspended and two days converted to community service), fines, and court costs. Applicant was also required to attend a DUI Victim’s Panel and an Alcohol/Drug Information School. He reduced his drinking somewhat during this period. An alcohol assessment determined that he had no significant problem with alcohol. Applicant answered DOHA interrogatories in May, 2012. In these answers Applicant stated that he drank to the point of intoxication about once a week, but he advised that he did not intend to continue drinking alcohol. In February 2012, Applicant was arrested a third time for DUI. He had consumed three to six drinks containing Scotch, although it could have been more. He attempted to drive home, swerved over the center lane, and hit an oncoming car head-on. The person in the car Applicant hit was not seriously hurt. Contrary to his statement of intention in the DOHA interrogatory, dated May 1, 2012, Applicant continued drinking until December 2012. Applicant demonstrated a month of successful participation in an outpatient alcohol treatment program and was granted entry into a deferred prosecution program. This program authorizes persons who have committed alcohol-related crimes and who are alcohol dependent to receive treatment for two years. If the offender succeeds in treatment, prosecution is deferred for an additional three years, after which charges are dismissed. Failure results in a conviction and imposition of sentence. As of the date of the hearing, Applicant had completed the first phase of the treatment program. He attends the required number of Alcoholics Anonymous meetings but does not have a sponsor because he has not found someone he trusts. He regularly goes to bars with friends but says that he does not consume alcohol. Applicant enjoys an excellent reputation for the quality of his work performance. The Judge concluded that Applicant’s circumstances raised concerns under Guideline G. He noted that Applicant had operated a vehicle on three occasions while drunk and that he had a history of habitual and binge consumption of alcohol. He stated that Applicant’s history of alcohol- related offenses, the most recent having occurred after he submitted his application for a clearance, evidenced bad judgment and does not permit a conclusion that his alcohol problems are in the past. The Judge stated that Applicant had provided no evidence of a substantial support network or of a favorable prognosis concerning future alcohol abuse. In the whole-person analysis, the Judge stated that Applicant’s history of alcohol abuse, combined with regular attendance at bars and a recent DUI, raised doubt about his worthiness for a clearance that must be resolved in favor of national security. Applicant’s brief contains evidence not included in the record concerning the circumstances of his drinking habits. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. See ISCR Case No. 12-05359 at 3 (App. Bd. Jun. 7, 2013). Applicant contends that the record does not support the Judge’s conclusion that his drinking evidenced bad judgment. He stated that there was no evidence that his judgement was impaired or that he drank to excess. The SOR alleged that Applicant drank, at times to excess, from 1991 to 2012, and Applicant admitted that allegation, as he did those concerning his DUI arrests. These admissions, and the evidence in the record, support the challenged statement by the Judge. Applicant challenges the Judge’s statement that he did not present evidence of a favorable prognosis or of a support network. He contends that Applicant Exhibit (AE) E constitutes a favorable prognosis. We have examined this document and conclude that it does not contain a prognosis within the meaning of Directive, Enclosure 2 ¶ 23(d).2 AE E also states that Applicant “reports having a home group.” Given evidence that Applicant still regularly visits a bar with friends who drink alcohol, the quoted language is not sufficient to undermine the Judge’s conclusion that Applicant has not evidenced a substantial support network. The Judge’s statements constitute reasonable characterizations of the record that was before him. See, e.g., ISCR Case No. 04-11904 at 2 (App. Bd. Jul. 10, 2009). Applicant argues that the Judge did not consider evidence of his having held a clearance for many years without incident or concern. While this was evidence that the Judge was required to consider, along with all the other evidence in the record, a Judge is not required to make findings about or to discuss every piece of record evidence, which would be a practical impossibility. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 09-05556 at 2-3 (App. Bd. Jun. 23, 2011). 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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

FOOTNOTES

1 “Q: . . . So you drove for some of the . . . time, but then you turned the wheel over to your friend? A: Yes. We were playing golf. And I drove initially. And then I said, “Hey, you know, I’d rather have you drive.” Tr. at 51.

2 “[T]he individual has successfully completed inpatient or outpatient counseling . . . and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker[.]” AE E describes Applicant’s compliance with the requirements of his treatment program but it does not forecast the outcome of Applicant’s treatment program.