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ISCR Case 14-00976.a1 — CASE

ISCR Case 14-00976.a1denied

Case Headnote

ISCR Case No. 14-00976.a1

Feb 5, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A 28-year-old defense contractor and former military member was denied a security clearance based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from the applicant's history of multiple DUI convictions and continued alcohol consumption following these incidents.

Further issues included the applicant driving with a suspended license, which demonstrated a knowing violation of the law. While the applicant had a good reputation and expressed an intent to avoid future alcohol abuse, the judge determined that these factors did not mitigate the seriousness of the ongoing alcohol consumption and legal infractions.

Ultimately, the judge found that none of the potential mitigating conditions applied to the applicant's specific circumstances. The combination of repeated criminal conduct related to alcohol and continued consumption led to the denial of the security clearance.

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 issuedApr 29, 2014
Answer filed—
Hearing heldNov 19, 2014
Decision dateFeb 5, 2015

Cite For

Denial Based on Multiple DUI Convictions Under Guideline G
Ongoing Alcohol Consumption as a Disqualifying Factor Under Guideline G
Whole-person Analysis in 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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guidelines G, J, and E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline JGuideline 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 Board found no harmful error in the Judge's decision, affirming that the Judge properly weighed the evidence and conducted a thorough whole-person analysis.

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 Ra’anan — Chair
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; Guideline J; Guideline E DIGEST: Applicant has not rebutted the presumption that the Judge considered all of the evidence. An ability to argue for a different interpretation of the evidence is not sufficient to show that the Judge mis-weighed the evidence. Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. We have no authority to remand a case simply for the purpose of taking in new evidence. The Judge examined Applicant’s circumstances in light of the entirety of the evidence. Therefore, there is no error in his whole- person analysis. Adverse decision affirmed. CASE NO: 14-00976.a1 DATE: 02/05/2015 DATE: February 5, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00976

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 29, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 19, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul 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’s Findings of Fact Applicant is a 28-year-old employee of a Defense contractor. He served in the U.S. military from 2004 to 2009 and has taken some college courses. Applicant’s SOR alleges two instances of DUI. The first occurred in 2008, in which Applicant was charged with and convicted of having a blood alcohol level of .08% or more while driving. He was sentenced to summary probation for three years, attendance at a First Conviction program, and a fine. The second occurred in 2011, while he was still undergoing probation for the first offense. The court sentenced him to four days confinement, summary probation for five years, a fine, and attendance at a Second Time alcohol awareness program. In 2012, Applicant was charged with and convicted of driving with a suspended license. He contended that he was driving because there was no public transportation available to get him to his job. Applicant conceded that he also drove in order to visit friends in another city and that he drove regularly as though his license had not been suspended. Applicant was required to pay a fine. In addition, 90 days were added to his previous suspension. Applicant still consumes alcohol. He drank three or four beers a week or so before the hearing. He admitted that he had consumed alcohol to the point of intoxication at least 10 times since 2011. He stated that, since 2011, he has not driven a vehicle after consuming alcohol. Applicant enjoys a good reputation for his military service, job performance, responsible use of alcohol, and reliability. Applicant signed a statement of intent never to abuse alcohol again. The Judge’s Analysis In concluding that Applicant had not mitigated the concerns arising from his misconduct, the Judge noted evidence that he had continued to drink to intoxication despite having twice been convicted of DUI. He also stated that Applicant’s having driven with a suspended license was a knowing violation of the law. The Judge concluded that none of the mitigating conditions under any of the Guidelines alleged in the SOR were applicable.

DISCUSSION

Applicant argues that the Judge failed to consider evidence such as his good duty performance, his military career, and his statement of intent not to abuse alcohol. The Judge made findings about the evidence that Applicant has cited. However, given the Judge’s other findings about the multiple nature of the DUIs and Applicant’s knowing and repeated violation of his driving suspension, his adverse decision is supportable. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 11-10255 at 4 (App. Bd. Jul. 28, 2014). To the extent that Applicant is contending that the Judge did not extend the appropriate weight to the cited evidence, we note that a disagreement with a Judge’s weighing of the evidence or an ability to argue for a different interpretation of the evidence is not sufficient to undermine a Judge’s decision. See, e.g., ISCR Case No. 14-00173 at 3 (App. Bd. Aug. 8, 2014). Applicant’s brief cites to some Hearing Office Decisions that he believes support his case for mitigation. While we give these cases due consideration, they do not undermine the Judge’s adverse decision. Hearing Office Decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 11-10178 at 3 (App. Bd. Aug. 29, 2013). Applicant requests that we either reverse the Decision or remand it to the Judge to take in additional evidence or to perform a new whole-person analysis. We have no authority to remand a case simply for the purpose of taking in new evidence. See, e.g., ISCR Case No. 02-20403 at 4 (Apr. 7, 2003). For reasons set forth above, we find no cause to set aside the Judge’s whole-person analysis. The Judge examined Applicant’s circumstances in light of the entirety of the record evidence. See, e.g., ISCR Case No. 12-03077 at 2-3 (App. Bd. May 13, 2013). 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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