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ISCR Case 16-02070.a1 — CASE

ISCR Case 16-02070.a1denied

Case Headnote

ISCR Case No. 16-02070.a1

Apr 26, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from multiple DUI arrests and a workplace incident involving alcohol. The judge determined that these security concerns were not mitigated.

On appeal, the applicant's arguments did not establish that the judge's decision was arbitrary or capricious. The appeal board affirmed the denial, concluding that any alleged errors in the judge's findings were harmless and did not alter the outcome.

The board emphasized the paramount importance of national security in clearance determinations, upholding the denial based on the unmitigated issues related to alcohol consumption and criminal conduct.

Conditions Referenced

Disqualifying

AG ¶ 24raisedCriminal 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 18, 2016
Answer filed—Applicant represented himself.
Hearing heldJan 11, 2018
Decision dateApr 26, 2018

Cite For

Affirmation of Denial Based on Multiple DUI Arrests Under Guideline J
Importance of National Security in Clearance Determinations
Harmless Error Doctrine in Security Clearance Appeals

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 Guidelines G and J. The applicant argued that the Judge's decision was arbitrary and that errors in findings were made. The Board affirmed the decision, finding any errors harmless and the Judge's conclusions supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant disagreed with the Judge's weighing of the evidence.
No specific harmful error alleged — raised by the applicantRejected
Applicant alleged no specific harmful error.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that even if the Judge erred in making certain findings, those errors were harmless and did not affect the outcome of the case. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

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

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: Even if the Judge erred in making the challenged findings, such errors were harmless because they likely did not affect the outcome of the case. Adverse decision affirmed. CASENO: 16-02070.a1 DATE: 04/26/2018 DATE: April 26, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02070

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 November 18, 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 decision on the written record. On January 11, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley 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 SOR alleged that Applicant was arrested for driving under the influence of alcohol (DUI) in 1991, 2012, and 2014 and was sentenced after pleading no contest to each of those charges. It also alleges that he was issued a letter of reprimand after he was found under the influence of alcohol at work in 2013. In his Answer to the SOR, he admitted each of the SOR allegations. He remains on probation until 2019. In the decision, the Judge made detailed findings of fact about Applicant’s history of alcohol consumption, including his diagnosis of alcohol dependency during inpatient alcohol treatment in 2003 and his subsequent participation in other alcohol treatment programs in 2005, 2008, 2012-2013, and 2014-2015. In his analysis, the Judge noted that little is known about whether Applicant has abused alcohol since 2015. The Judge concluded the security concerns under Guidelines G and J were not mitigated. In his appeal brief, Applicant noted the Judge’s conclusion that little is known about Applicant’s alcohol consumption since 2015 and provided a statement from a psychologist that is dated after the Judge’s decision. The psychologist’s statement constitutes new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.19. Applicant also claims the Judge erred in finding that he was seated in a car prior to his 1991 arrest; that he had a stepdaughter from his first marriage instead of his second marriage; that he held a security clearance from 2010 instead of 1987; and that he reported his DUI to his employer in March 2015 instead of October 2014. Even if the Judge erred in making those challenged findings, such errors were harmless because they likely did not affect the outcome of the case. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). Applicant has not challenged any of the Judge’s material findings regarding the alleged security concerns. The balance of Applicant’s arguments amounts to a disagreement with the Judge’s weighing of the evidence.1 His arguments, however, are not sufficient to show that the Judge weighed the 1 Applicant also asserts the Appeal Board erred in calculating the 45-day period he had for submission of his appeal brief. We note that 45-day period runs from the date of the Judge’s decision (Directive ¶ E3.1.30) and not, as he asserts, from the date he received an Appeal Board letter acknowledging receipt of his Notice of Appeal. 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). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board