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ISCR Case 13-00546.a1 — CASE

ISCR Case 13-00546.a1denied

Case Headnote

ISCR Case No. 13-00546.a1

Dec 2, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) following a DUI conviction. The appeal board upheld the denial, citing the recency of the DUI incident and the applicant's ongoing probation as significant factors.

While the applicant had a five-year history of holding a clearance without incident, this prior good conduct was insufficient to mitigate the security concerns raised by the recent conviction. The board applied disqualifying condition E2.A5.1. and considered mitigating conditions E2.A5.2. and E2.A5.3.

Ultimately, the applicant failed to overcome the security concerns associated with the DUI, leading to the denial of the clearance.

Conditions Referenced

Disqualifying

E2.A5.1.raisedCriminal Conduct

Mitigating

E2.A5.2.rejectedThe Conduct Was Not RecentThe applicant's DUI incident was recent and he was still on probation.
E2.A5.3.rejectedThe Applicant Has Demonstrated RehabilitationThe applicant's evidence of rehabilitation was insufficient to outweigh the seriousness of the DUI.

Key Rule Quoted

“A clearance decision is an inquiry into such conduct or circumstances as raise questions about an applicant’s judgement, reliability, and ability or willingness to protect classified information.”
— ISCR Case No. 03-24233 at 8 (App. Bd. Oct. 12, 2005)

Procedural Posture

SOR issuedJun 5, 2013
Answer filed—
Hearing heldSep 17, 2013
Decision dateDec 2, 2013

Cite For

Security Concerns Related to DUI Convictions Under Guideline E
Importance of Recency in Evaluating Personal Conduct
The Non-punitive Nature of Security Clearance Decisions

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 an applicant who was denied a security clearance due to a DUI incident. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge had properly considered all evidence in the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
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 considered all relevant evidence and articulated a satisfactory explanation for the decision. The adverse decision was affirmed as it was not arbitrary or capricious and was supported by substantial evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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 E DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the evidence in the record. The Board cannot consider new evidence on appeal. The effect of an adverse decision is not relevant or material to a clearance adjudication. A clearance decision is not punitive in nature. Adverse decision affirmed. CASE NO: 13-00546.a1 DATE: 12/02/2013 DATE: December 2, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 13-00546

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 June 5, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 17, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry 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.1 Consistent with the following, we affirm the Judge’s decision. The Judge’s Findings of Fact Applicant has worked in his current job since February 2013 and in his field since 2004. He enjoys an excellent reputation for the quality of his work performance and reliability. Most of the Judge’s findings pertained to allegations that he ultimately resolved in Applicant’s favor. Regarding the one allegation that he decided against Applicant, the Judge found that, in December 2012, Applicant attended a holiday party where he consumed five to seven beers. While driving home, he rear-ended a car in front of him at an intersection. The responding police officer administered a breathalyzer to Applicant, which showed that Applicant was under the influence of alcohol. Convicted of DUI, he appealed and ultimately was found guilty of the lesser charge of reckless driving. He was sentenced to 30 days in jail, suspended; an $800 fine; and mandatory attendance at an alcohol awareness class. The court placed Applicant upon supervised probation for a year, with a driving restriction and an interlock breathalyzer system in his car. As of the close of the record, Applicant was still on probation. The Judge’s Analysis The Judge concluded that Applicant’s DUI incident raised security concerns under Guideline E. In finding that Applicant had failed to mitigate those concerns, the Judge cited to the recency of the incident and his continued probation. In the whole-person analysis, the Judge noted evidence that was favorable to Applicant, such as his having overcome a troubled childhood. He stated that he found Applicant to be genuinely contrite over his security-significant conduct. Nevertheless, he concluded that the evidence was not sufficient to outweigh the recency and seriousness of Applicant’s DUI.

DISCUSSION

Applicant cites to evidence that he has held a clearance for five years without incident or concern, that he has complied with all of the requirements imposed on him by the court, and that he has abstained from alcohol. This was evidence the Judge was required to consider, along with all the other evidence in the record. However, Applicant has not rebutted the presumption that the Judge considered all of the evidence. Neither has he demonstrated that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 11-12875 at 2 (App. Bd. Sep. 17, 2013). Evidence of the recency of the offense and Applicant’s probationary status support the Judge’s treatment of the mitigating conditions. Applicant’s brief cites to evidence not contained in the record, that we cannot consider. See Directive ¶ E3.1.29. See also ISCR Case No. 11-05684 at 2 (App. Bd. Sep. 24, 2013). Applicant states that he has experienced a cut in pay since the loss of his clearance, and he asserts that he has been punished enough for his offense. The effect of an adverse decision upon an applicant is neither relevant nor material in accessing his or her security eligibility. See, e.g., ISCR Case No. 11-02441 at 3 (App. Bd. Feb. 15, 2013). Moreover, a clearance decision is an inquiry into such conduct or circumstances as raise questions about an applicant’s judgement, reliability, and ability or willingness to protect classified information. It is not punitive in nature. See, e.g., ISCR Case No. 03-24233 at 8 (App. Bd. Oct. 12, 2005). After examining the decision in light of the record as a whole, we conclude that 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge’s favorable findings under SOR subparagraphs 1.a through 1.gare not at issue in this appeal.