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ISCR Case 16-02592.a1 — CASE

ISCR Case 16-02592.a1denied

Case Headnote

ISCR Case No. 16-02592.a1

Jan 31, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A retired military member with over 40 years of security clearance history was denied a security clearance under Guideline G (Alcohol Consumption). The denial stemmed from four incidents of drunk driving, the most recent of which resulted in a jail sentence and probation.

Despite completing probation and counseling, the applicant resumed drinking and driving. The judge determined that the applicant did not fully grasp the seriousness of his past misconduct and had not adequately reformed his behavior.

The decision highlighted the critical need for sound judgment and reliability in individuals entrusted with national security information, leading to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Criminal Conduct
G.2.craisedAlcohol Abuse

Key Rule Quoted

“The ultimate resolution of a case does not necessarily turn on whether one or more of the disqualifying or mitigating conditions applies, in whole or in part, to the facts of the case.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003)

Procedural Posture

SOR issuedNov 4, 2016
Answer filed—
Hearing heldOct 18, 2017
Decision dateJan 31, 2018

Cite For

Denial Based on Multiple Alcohol-related Offenses Under Guideline G
Importance of Demonstrating Reformation in Alcohol-related Cases
Judgment and Reliability Concerns for Security Clearance Applicants with a History of Alcohol Abuse

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 who was denied a security clearance due to multiple incidents of drunk driving. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and consistent with legal standards.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowFrancisco Mendez — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

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's decision was supported by substantial evidence and that the Judge properly applied the relevant legal standards in reaching the adverse 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
Charles C. Hale

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 DIGEST: The ultimate resolution of a case does not necessarily turn on whether one or more of the disqualifying or mitigating conditions applies, in whole or in part, to the facts of the case. By the same token, security concerns do not arise simply by virtue of the proportionate number of disqualifying conditions that a Judge might find relevant. Adverse decision affirmed. CASENO: 16-02592.a1 DATE: 01/31/2018 DATE: January 31, 2018 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02592

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 4, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 18, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Francisco Mendez 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 retired from the military in 1995 and has worked for contractors since. His current employment began in 2003. He has held a security clearance for over 40 years. His SOR lists four incidents of drunk driving that occurred from 1978 until 2013. On the last occasion, Applicant had consumed alcohol while watching a football game. A policeman stopped him for erratic driving. A breath analysis showed that Applicant’s blood alcohol level was .18. These incidents were met by penalties of increasing severity. The one from 2013 resulted in a jail sentence, two years of probation, twelve weeks of alcohol counseling, and attendance at a drunk driving impact panel. He was ordered to attend alcoholics anonymous (AA) while on probation and to abstain from alcohol. He completed the terms of his probation in 2016 but then resumed drinking. He stopped attending AA after he completed his probation. Applicant’s facility security officer (FSO) testified that he had informed her of his drunk driving incidents. She testified that she found him to be reliable and trustworthy. She also stated that Applicant’s employer would be willing to implement any conditions that the Government imposed, including random alcohol screening and submitting regular reports. The Judge’s Analysis The Judge noted Applicant’s four drunk driving offenses, along with his penalties and the treatment and counseling that he has received. However, he stated that Applicant had not altered his behavior and that he continues to drive after having consumed alcohol. The Judge acknowledged Applicant’s many years of military service as well as his service to the U.S. as a contractor and that he had reported his offenses. However, the Judge cited to Applicant’s admission that he continues to drive after having consumed alcohol. The Judge concluded that Applicant does not yet fully appreciate the significance of his misconduct and has not sufficiently reformed so as to warrant a favorable result in this adjudication.

DISCUSSION

Applicant’s brief includes reference to a substantial amount of information that he did not submit previously and that is not contained in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant takes issue with the Judge’s statement that he continues to drink and drive. He contends that it makes him sound as if he drank and drove daily and is therefore misleading. The challenged finding is based upon Applicant’s hearing testimony, in which he stated that as recently as the week preceding the hearing he had driven his vehicle after having consumed two beers and that he had continued to drink and get behind the wheel of a car after having been told not to at the victim impact panel. Tr. at 25, 29-30. The Judge’s findings, viewed as a whole, do not suggest that he improperly magnified Applicant’s misconduct or otherwise viewed the evidence as more egregious than it actually is. The Judge’s material finding are based upon substantial evidence of constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 14-04724 at 3 (App. Bd. Aug. 18, 2017).

Applicant notes that the Judge cited to the Guideline G security concern and found that two disqualifying conditions apply to his circumstances. He argues that these two conditions are only a small part of the total number of disqualifying conditions listed in the Directive under all of the Guidelines. He argues that the Judge should have ruled in his favor in the whole-person analysis on the view that the great number of conditions that were not raised suggests that his record, on the whole, does not present security concerns. Applicant also contends that the Judge found his misconduct to be “literally disqualifying,” regardless of all of the positive evidence in the record. The ultimate resolution of a case does not necessarily turn on whether one or more of the disqualifying or mitigating conditions applies, in whole or in part, to the facts of the case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). By the same token, security concerns do not arise simply by virtue of the proportionate number of disqualifying conditions that a Judge might find relevant. The purpose of a DOHA adjudication is to see if the applicant has engaged in conduct or undergone circumstances that suggest that he might be lacking in judgment or otherwise unable to meet the requirements of holding a clearance. In the case before us, Applicant’s four DUIs and his acknowledgment that he continues to drive after having consumed alcohol support the Judge’s overall adverse holding. A person who, by his own admission, continues to drink and drive despite four previous DUIs may well be lacking in the judgment and reliability expected of those who have access to national secrets. We find no reason to disturb the Judge’s handling of the disqualifying conditions. Neither do we find error in the Judge’s whole-person analysis. See, e.g., ISCR Case No. 15-03592 at 2 (App. Bd. Jun. 14, 2017). Contrary to Applicant’s argument, the Judge analyzed Applicant’s security-significant conduct in light of the record as a whole. Applicant’s references to his favorable evidence, such as his service to the nation in the military and later as a contractor, are not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 16-03219 at 2 (App. Bd. Nov.15, 2017). Applicant states the following: “I do not anticipate a personal representative to accompany me at this appeal.” Appeal Brief at 2. To the extent that he expects that there may be some other proceeding in his case, such as a personal appearance before us, the Directive provides that the Appeal Board bases its decisions on the briefs of the parties and on the record. Directive ¶¶ E3.1.28- 32. There is no provision for oral argument or other in-person meeting between an applicant and members of the Appeal Board. See, e.g., ISCR Case No. 09-01321 at 2 (App. Bd. Feb. 17, 2010). 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board