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ISCR Case 11-12875.a1 — CASE

Case record

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

Decision Date9/17/2013
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 11-12875.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline GAlcohol Consumption · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 11-12875.a1denied

Case Headnote

ISCR Case No. 11-12875.a1

Sep 17, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

A federal contractor with a military background was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a long-standing history of alcohol-related conduct, specifically multiple DUIs and instances of public intoxication.

The judge identified disqualifying conditions AG ¶ 20, AG ¶ 21, and AG ¶ 22. A key factor in the denial was the applicant's failure to demonstrate sufficient rehabilitation and sustained abstinence from alcohol. The judge concluded there was insufficient evidence to overcome the presumption that all relevant evidence had been considered.

Ultimately, the judge emphasized the paramount importance of national security in clearance decisions, leading to the denial of the applicant's appeal.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption
AG ¶ 22raisedPersonal 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 issuedFeb 13, 2013
Answer filed—
Hearing heldJun 10, 2013
Decision dateSep 17, 2013

Cite For

Denial Based on History of Alcohol-related Conduct Under Guideline G
Insufficient Evidence of Rehabilitation Under Guideline E
Importance of National Security in Clearance Determinations 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 was brought by the applicant following the denial of a security clearance based on concerns under Guidelines G, E, and J. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the Judge's conclusions were supported by substantial evidence and that the applicant did not rebut the presumption that all evidence was considered.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's 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 failed to demonstrate that the Judge's conclusions were arbitrary or capricious. The Board affirmed the decision based on the applicant's history of alcohol-related conduct and the lack of sufficient evidence of rehabilitation.

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
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 E; Guideline J DIGEST: The Appeal Board cannot consider new evidence on appeal. Applicant failed to rebut the presumption that the Judge considered all of the evidence. Adverse decision affirmed. CASE NO: 11-12875.a1 DATE: 09/17/2013 DATE: September 17, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12875

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 February 13, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 10, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is an employee of a Federal contractor. He served in the U.S. military from 1989 to 1995. Applicant has a history of alcohol-related conduct. He was charged with DUI in 1998, his blood alcohol concentration (BAC) measuring .11% and .12%. His sentence included three years of probation. This incident was not alleged in the SOR. In 2002, Applicant was again arrested and charged with DUI. This time his BAC was .18% and .19%. His sentence included summary probation, 14 days confinement, a fine, and 18 months of restricted driving privileges. In 2011, he was arrested and charged with DUI, his BAC measuring .20% and .22%. His sentence included summary probation and 96 hours confinement, which was stayed. In 2012, Applicant was cited for public intoxication, his BAC measuring .29%. He had been celebrating his birthday at a neighbor’s house. Local law enforcement authorities concluded that he was unable to exercise care for his own safety and the safety of others. Applicant did not report this incident to probation officials. Applicant stopped drinking in December 2012 and was last intoxicated the previous July. He attends alcoholics anonymous (AA) on an irregular basis. He has two sponsors in AA, one of whom is his brother. The Judge’s Analysis Concluding that Applicant’s problems with alcohol raised security concerns under each of the Guidelines alleged in the SOR, the Judge decided that Applicant had failed to meet his burden of persuasion regarding mitigation. He cited to evidence of the long-standing nature of Applicant’s alcohol problems, the circumstances underlying his criminal charges, and the relative recency of his efforts at sobriety. He noted that Applicant remained on probation at the close of the record.

DISCUSSION

Applicant cites to matters outside the record, which we cannot consider. Directive ¶ E3.1.29. He also cites to evidence of his AA attendance and his commitment to sobriety. He argues that he has established a clear pattern of abstinence. The Judge discussed the favorable aspects of Applicant’s record. However, given evidence of the frequency and seriousness of Applicant’s alcohol-related infractions and that two of Applicant’s offenses occurred after a two-year effort at abstinence (Tr. at 39-40; Government Exhibit 2, Answers to Interrogatories, at 8), the Judge’s conclusion that Applicant had not been abstinent for a period sufficient to demonstrate genuine rehabilitation was supportable. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record or that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 11-06157 at 2 (App. Bd. Nov. 20, 2012). 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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