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ISCR Case 16-02069.a1 — CASE

ISCR Case 16-02069.a1denied

Case Headnote

ISCR Case No. 16-02069.a1

Jan 11, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 69-year-old male applicant was denied a security clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) due to a history of alcohol-related driving offenses. The applicant had five such offenses between 1981 and 2015, with the most recent occurring in 2015.

Despite arguments for mitigating circumstances, the judge determined that the applicant's continued periodic alcohol consumption and the pattern of past incidents were significant disqualifying factors. Specifically, the judge cited Disqualifying Conditions AG ¶ 20 and AG ¶ 21.

The judge concluded that none of the mitigating conditions applied to the applicant's situation, leading to the denial of the security clearance. The decision emphasized a holistic evaluation of the evidence presented.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption

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 issuedNov 7, 2016
Answer filed—
Hearing heldOct 3, 2017
Decision dateJan 11, 2018

Cite For

Denial of Security Clearance Due to Multiple Alcohol-related Offenses
Holistic Analysis of Evidence in Security Clearance Cases
Importance of National Security Interests in 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 seeking a security clearance after being denied due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationAttorney

Judge belowArthur E. Marshall, Jr. — 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 argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge properly considered the evidence in its entirety and articulated a satisfactory explanation for the decision. The Applicant did not identify any harmful error likely to change the outcome of the case.

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
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’s arguments for a “piecemeal analysis” of the evidence are not persuasive. Applicant has not identified any harmful error likely to change the outcome of this case. Adverse decision affirmed. CASE NO: 16-02069.a1 DATE: 01/11/2018 DATE: January 11, 2018 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02069

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT F. Dean Morgan, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 7, 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 October 3, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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, who is 69 years old, was cited or arrested for five alcohol-related driving charges between 1981 and 2015. Military authorities resolved the first incident by suspending his driver’s licence and directing him to attend alcohol awareness classes. In 1987, he was stopped for erratic driving and had a blood-alcohol content (BAC) of .193%. He pled guilty to a related drinking and driving charge, spent 24 hours in jail, and was sentenced to outpatient counseling. In 1991, Applicant was cited for driving under the influence (DUI). After pleading guilty to DUI, he was given a disposition of probation before judgment and was ordered to attend outpatient counseling. In 1992, he told investigators that he no longer drove after consuming alcohol. After driving his car into a tree in 2010, Applicant was found guilty of DUI and was sentenced to 12 months of probation. In 2015, Applicant was stopped for crossing driving lanes and a blood test revealed he had a BAC of .116%. He was found guilty of DUI and given an accelerated rehabilitative disposition. He was sentenced to a period of incarceration and is appealing the decision on a technicality. Applicant continues to consume alcohol periodically, usually at home. He has not had any adverse alcohol-related incidents since 2015 and states he has not been intoxicated since then. “Despite his most recent DUI, Applicant feels that, in the past 10 years, he has not been so intoxicated that he did not know what he was doing.” Decision at 3.

The Judge’s Analysis Applicant has a troubled history of driving while intoxicated. His most recent citation was two years ago and is still pending resolution. He continues to drink alcohol and, while he states he does not drink and drive, he made a similar claim in 1992. Finding against Applicant on all of the SOR allegations, the Judge concluded that none of the available mitigating conditions applied.

DISCUSSION

In his appeal brief, Applicant addresses each of the alcohol-related driving incidents by highlighting facts favorable to him and arguing the security concerns arising from each incident are mitigated for various reasons. For example, he raises arguments about the legal sufficiency of his arrest in 2015, but does not specifically dispute the underlying facts that he drove a vehicle with a BAC of .116% on that occasion. Overall, his arguments are not persuasive. In essence, he is advocating for a “piecemeal analysis” of the evidence, which the Appeal Board has long discounted as an inappropriate way to analyze the evidence. When weighing the evidence, the Judge must consider the evidence as a whole and not view it in an isolated and piecemeal fashion. See, e.g., ISCR Case No. 02-11489 at 4 (App. Bd. Sep. 11, 2003). See also, Raffone v. Adams, 468 F. 2d 860, 866 (2nd Cir. 1972) (taken together, separate events may have a significance that is missing when each event is viewed in isolation). In this case, the Judge properly considered the evidence in its entirety in analyzing the security significance of Applicant’s alleged misconduct.

Applicant also challenges the Judge’s weighing of the evidence and his whole-person analysis. In his arguments, Applicant emphasizes such matters as his military service, his compliance with court orders, and his completion of all assigned alcohol counseling. The presence of some mitigating evidence, however, does not compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). Applicant has not identified any harmful error likely to change the outcome of this case.

The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. “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.” The decision is sustainable on this record.

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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board