CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-00978.a1 — CASE

ISCR Case 14-00978.a1denied

Case Headnote

ISCR Case No. 14-00978.a1

Jun 16, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The denial stemmed from a history of alcohol dependence and multiple alcohol-related offenses.

Key issues included the applicant's deliberate omission of information about a 2010 alcohol treatment during his clearance interview, and subsequent inconsistent statements that undermined his credibility. While the applicant presented evidence of treatment and reduced alcohol consumption, the judges determined he had not sufficiently acknowledged his alcohol dependency problem.

Specifically, Disqualifying Conditions G2 (alcohol-related incidents) and E2 (deliberate misrepresentation or omission) were raised. Although Mitigating Conditions G2 (successful rehabilitation) and E3 (isolated incident) were considered, they were not sufficient to overcome the security concerns, leading to the denial of the clearance.

Conditions Referenced

Disqualifying

G2raisedAlcohol-related Offenses
E2raisedDeliberate Omission of Information

Mitigating

G2rejectedRehabilitation and TreatmentThe applicant's evidence of treatment was insufficient to mitigate concerns.
E3rejectedGood Reputation and Work PerformanceThe applicant's favorable evidence did not outweigh the security concerns.

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 issuedJun 13, 2014
Answer filed—
Hearing heldMar 28, 2016
Decision dateJun 16, 2016

Cite For

Deliberate Omissions During the Clearance Process Under Guideline E
Credibility Issues Arising From Inconsistent Statements
The Standard for Granting Security Clearance Consistent with 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 brought by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The applicant argued that the Judge erred in finding he deliberately omitted information during his clearance interview and in her mitigation analysis. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in finding that he had deliberately omitted information during his clearance interview.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in her mitigation analysis.

Why the Board ruled this way

The Judge’s material findings are supported by substantial evidence, and the applicant's inconsistent statements undermine his credibility. The Judge properly considered the evidence 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

Michael Ra’anan — Chair
James E. Moody
William S. Fields

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 DIGEST: The Judge’s material findings are supported by substantial evidence. Evidence of other wrongs or acts may be admissible to establish mens rea. Inconsistent statements can undermine an applicant’s reliability. A Judge is presumed to have considered all of the evidence in the record. Adverse decision affirmed. CASE NO: 14-00978.a1 DATE: 06/16/2016 DATE: June 16, 2016 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00978

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 13, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 28, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in finding that he had deliberately omitted information during his clearance interview and whether the Judge erred in her mitigation analysis. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant consumed alcohol at times to excess from about 1985 to early 2014. He was twice convicted of DWI and/or DUI. He had previously attended an outpatient program, in order to regain his driving privileges after the later DUI. After completion of this program, Applicant was evaluated by a licensed mental health counselor, who recommended individual psychotherapy and Alcoholics Anonymous (AA) attendance. A subsequent licensed clinical social worker diagnosed him with alcohol dependence. After completion of treatment, Applicant was considered to be of low risk for recidivism. The clinical social worker concluded that Applicant had been attempting to self- medicate for depression. He voluntarily sought substance abuse treatment in 2010. He revealed his treatment to his employer, although a union representative advised him that he did not need to reveal the reason for it. During his clearance interview, Applicant did not disclose his 2010 treatment. In his response to the SOR, Applicant stated that the interviewer did not ask him about substance dependency. At the hearing, he testified that he thought the interviewer was asking about prior treatment. Applicant has attended AA since 2009 and counseling with a different organization since mid-2015. Though denying drinking to intoxication, Applicant admitted that he had consumed alcohol since 2009. He would like to stop drinking completely due to the problems that it had caused. His counselors have recommended that he abstain from alcohol, although he claims that it is only for health reasons later in life. Applicant enjoys a good reputation for the quality of his work performance. A personal friend affirms that Applicant has learned from his counseling and drinks only one or two beers socially on holidays or special occasions. The Judge’s Analysis The Judge stated that there is no evidence that the social worker’s diagnosis of alcohol dependence had ever been modified or challenged. She noted his attendance at various treatment programs and his evidence of significantly reduced alcohol consumption. She stated, however, that he had yet to acknowledge his alcohol dependency problem and that he continues to consume alcohol despite recommendations by health care professionals that he abstain. Under Guideline E, the Judge entered favorable findings on an allegation that he had declined to sign a release order authorizing clearance investigators to review his 2008 alcohol treatment records. She did so because she concluded that Applicant may not have understood the implications of this refusal. However, she found that his omission of his 2010 treatment during his clearance interview was deliberate. She noted evidence that he had not revealed this treatment on his clearance application and that his refusal to sign a records release indicated that he had an intent to conceal the extent of his problems. She also noted that his explanations for this omission were not totally consistent. She concluded that Applicant’s favorable evidence was not enough to mitigate the concerns arising from his security-significant conduct.

DISCUSSION

Applicant challenges the Judge’s finding that his omission during the interview was deliberate. When evaluating the deliberate nature of an applicant’s omissions or false statements, a Judge should consider the applicant’s mens rea in light of the entirety of the record evidence. See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). We find no reason to disturb the Judge’s finding. Applicant failed to disclose his 2010 alcohol treatment twice–in his clearance application and during the interview. The multiple nature of Applicant’s omissions support a finding that they were deliberate. See, e.g., ISCR Case No. 14- 02567 at 4-5 (App. Bd. Oct. 5, 2015). In addition, the Judge’s reliance on Applicant’s failure to authorize release of earlier treatment records is supportable. Despite concluding that he had mitigated security concerns arising from this failure, it was appropriate for the Judge to consider it for its bearing upon his intent. Evidence of other acts or wrongs may be admissible to prove motive, intent, knowledge, absence of mistake, etc. Federal Rule of Evidence 404(b). See Id. at 5. Moreover, Applicant’s inconsistent statements undermine his credibility. See, e.g., ISCR Case No. 14-01056 at 3 (App. Bd. Aug. 17, 2015). The challenged finding is supported by substantial record evidence. On the question of mitigation, Applicant cites to evidence that, he believes, demonstrates that his alcohol problems are under control. Some of the evidence that he addresses is not contained in the record. We cannot consider new evidence on appeal.1 Directive ¶ E3.1.29. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record, or to show that the Judge failed properly to weigh the evidence. See, e.g., ISCR Case No. 14-05795 at 2, 3 (App. Bd. Apr. 26, 2016). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant argues that his failure to disclose the alcohol treatment was not listed in the summary of his clearance interview, a contention that the Judge addressed in the Decision. He also states that the interview summary includes the following: “he has never been professionally diagnosed as . . . being alcohol dependent.” Appeal Brief at 4. This summary is not included in the record; therefore, it is new evidence. Even if we could consider it, however, it would be entitled to limited weight on the issue of Applicant’s alcohol dependence. His own exhibit, Applicant Exhibit (AE) G, a State Public Health Service Aftercare Completion Form, signed by a health care provider, contains a diagnosis of alcohol dependence. AE G is the basis for the Judge’s finding on this matter. To the extent that this comment by Applicant is a challenge to this finding, it is not sufficient to demonstrate error.