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ISCR 15-07422.a1: Guideline G security clearance appeal, denied (2018) · CASE

ISCR Case 15-07422.a1denied

Case headnote

ISCR Case No. 15-07422.a1

Mar 15, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from multiple DUI charges, including a second offense within five years, and the applicant's acknowledged alcohol problem.

While the applicant completed treatment, the judge determined there was insufficient evidence of rehabilitation. The judge also found the applicant's statements regarding alcohol consumption lacked credibility.

Ultimately, the denial was affirmed, with the judge emphasizing the necessity of a longer period without alcohol-related incidents to demonstrate sustained sobriety and ensure rehabilitation.

Conditions referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption

Mitigating

AG ¶ 23rejectedRehabilitationThe applicant completed treatment but did not demonstrate sufficient time without alcohol-related incidents.

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 6, 2016
Answer filed—
Hearing heldNov 28, 2017
Decision dateMar 15, 2018

Cite for

Insufficient Rehabilitation Under Guideline G
Credibility of Applicant's Claims Regarding Alcohol Consumption
Affirmation of Denial Based on 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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant argued that the Judge mis-weighed the evidence and did not consider all record evidence. The Board affirmed the Judge's decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge did not consider all of the record evidence and mis-weighed the evidence.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate that the Judge acted arbitrarily or capriciously.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan (Chair)
Charles C. Hale
James F. Duffy

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 DIGEST: Applicant argues that the Judge did not consider all of the record evidence and mis- weighed the evidence. In his decision, the Judge set forth detailed findings of fact and analyzed the pertinent disqualifying and mitigating conditions. Applicant’s arguments, however, are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-07422.a1 DATE: 03/15/2018 DATE: March 15, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07422

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 June 6, 2016, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 28, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason 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 In 2010, Applicant was charged with driving under the influence (DUI), possession of marijuana, and underage possession of alcohol. This incident involved a traffic accident in which Applicant was in a coma for a week. For various financial reasons, he decided to plead guilty to reckless driving, a lesser included offense of DUI, and the other charges were dismissed.1 In 2014, Applicant was charged with driving while intoxicated (DWI). His blood alcohol content was .15%. He was placed on probation for one year, had his driver’s license suspended for one year, and was required to attend a safety program. Following this incident, he declared that he has no intention of drinking and driving in the future. In late 2016, Applicant was charged with DUI, second offense in five years. He served 25 days in jail and was placed on probation for three years. His only recollection of this incident was having dinner at a restaurant and ordering a beer. Applicant maintains his latest DUI incident was the last time he consumed alcohol. He acknowledges that he has an alcohol problem and does not intend to drink again. In mid-2017, he successfully completed a intensive outpatient treatment program, and his case manager wrote he “seems to exhibit no symptoms of active use and has tested negative for all substances.” Decision at 4. He has participated in Alcoholics Anonymous (AA) meetings, but does not have a sponsor and has not started the 12-step program. He is considered to be a dedicated employee with a strong moral character. He received excellent performance ratings in 2015 and 2016.

The Judge’s Analysis Applicant’s claim about the amount of alcohol he consumed before his 2010 incident lacks credibility. He remains on probation for his DUI in 2016. He acknowledges that he has an alcohol problem. While he has successfully completed court-ordered treatment, more time must pass without alcohol-related criminal conduct to conclude Applicant’s present sobriety will continue.

DISCUSSION

Applicant argues that the Judge did not consider all of the record evidence and mis-weighed 1 The SOR alleged that Applicant was charged with shoplifting in 1999. The Judge found in favor of Applicant on that allegation, and it is not an issue on appeal. the evidence. In his decision, the Judge set forth detailed findings of fact and analyzed the pertinent disqualifying and mitigating conditions. Applicant’s arguments, however, are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-01717 at 4 (App. Bd. Jul. 3, 2017). Applicant indicated that he was citing two hearing-level decisions that would be “ helpful” in deciding this case. Appeal Brief at 9-10. The first cited decision, however, was an Appeal Board decision in which the applicant’s unfavorable clearance decision under Guideline G was affirmed on appeal. The second cited decision was not a Guideline G case as is this case, but was a Guideline H (Drug Involvement and Substance Misuse) case. The mitigating factors of Guideline H are tailored to the security concerns arising from drug involvement. We conclude the cases cited by Applicant are distinguishable and not persuasive to the facts of this case. The Judge examined the relevant evidence 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board