Loading case…

ISCR 12-08463.a1: Guideline F security clearance appeal, denied (2019) · CASE

ISCR Case 12-08463.a1denied

Case headnote

ISCR Case No. 12-08463.a1

Apr 1, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A 62-year-old defense contractor was denied a security clearance due to concerns under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The applicant admitted to multiple financial issues, including bankruptcies and outstanding tax debts.

Additionally, the applicant's criminal conduct involved firing a weapon after consuming alcohol, with these offenses occurring as recently as three years prior to the decision. Although the applicant entered a substance abuse program, he failed to provide sufficient evidence to establish a consistent pattern of abstinence from alcohol.

The appeal to overturn the denial was unsuccessful, affirming the original ruling. The decision concluded that the applicant did not present adequate mitigating evidence to resolve the security concerns related to his financial history, recent criminal conduct, and ongoing issues with alcohol consumption.

Conditions referenced

Disqualifying

AG ¶ 19raisedCriminal Conduct
AG ¶ 20raisedAlcohol Consumption
AG ¶ 18raisedFinancial Considerations

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 28, 2017
Answer filed—
Hearing heldDec 17, 2018
Decision dateApr 1, 2019Appeal affirmed.

Cite for

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Recent Criminal Conduct Related to Alcohol Under Guideline G
Lack of Demonstrated Abstinence From Alcohol Affecting Security Clearance Under Guideline J

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 from a denial of a security clearance based on concerns under Guidelines F, G, and J. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline 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 examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

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 F. Duffy
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 F; Guideline G; Guideline J DIGEST: Applicant was arrested twice for firing a weapon after consuming alcohol. He entered a VA substance abuse program the day before the hearing. He has not presented sufficient evidence to establish a pattern of abstinence to overcome his alcohol problems. His criminal conduct did not happen under unusual circumstances and the last offense happened only three years ago. Adverse decision affirmed. CASENO: 12-08463.a1 DATE: 04/01/2019 DATE: April 1, 2019 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-08463

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Jane M. Reynolds, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 28, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision —security concerns raised under Guideline F (Financial Considerations), 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 23, 2017, and October 17, 2018, the SOR was amended.1 On December 17, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean 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 and Analysis Applicant is a 62-year-old employee of a defense contractor. He retired honorably from the military. He has been married twice and has five children. He is separated from his wife and resides with his special-needs child. He and his wife are trying to reconcile. The SOR alleges four financial concerns (Chapter 13 bankruptcy dismissed in 2016; Chapter 7 bankruptcy discharge granted in 2017; Federal tax debt of about $45,700 for 2009 and 2011 through 2015; and failure to file Federal tax returns on time for 2009 through 2015) and cross- alleges two alcohol consumption and criminal conduct concerns (discharge of a firearm from a moving vehicle after consuming alcohol in 2011 for which he was sentenced to 180 days incarceration with 165 days suspended; and reckless handling of a firearm, swearing in public, and public intoxication in 2015 for which he was sentenced to 12 months probation). Applicant admitted each SOR allegation. In 2016, Applicant filed his past-due tax returns, and the IRS determined he owed about $35,000 in back taxes. In April 2018, he agreed with the IRS to a payment plan of $425 a month. He is current with the IRS payment plan. Applicant consumed alcohol to deal with his problems and stress. He sought substance abuse counseling. In 2015, he began consulting with a psychologist. He last consumed alcohol the day before his mother’s funeral in the fall of 2018. The day before the hearing he began a Veteran’s Affairs (VA) substance abuse rehabilitation program. He recognizes that he needs alcohol treatment and does not intend to consume alcohol in the future. The psychologist believes Applicant has taken the counseling to heart and is developing positive coping skills. While the receipt of a bankruptcy discharge does not amount to a good-faith resolution of debts, Applicant’s bankruptcy proceedings in 2016 and 2017 do not create a security concern. Even though he has filed his delinquent tax returns and is now paying his past-due taxes, his tax deficiencies do not demonstrate the high degree of good judgment and reliability required of persons 1 The SOR amendment on October 17, 2018, withdrew the earlier amendment. granted access to classified information. He did not provide sufficient evidence to show his tax problems were resolved, under control, or unlikely to recur. He has not acted responsibly and reliably.

Applicant was arrested twice for firing a weapon after consuming alcohol. He entered a VA substance abuse program the day before the hearing. He has not presented sufficient evidence to establish a pattern of abstinence to overcome his alcohol problems. His criminal conduct did not happen under unusual circumstances and the last offense happened only three years ago.

DISCUSSION

Applicant’s arguments on appeal amount to a disagreement with the Judge’s weighing of the evidence. For example, he argues that he filed his delinquent tax returns and is making a good-faith effort to pay his taxes through a repayment plan. He also notes that he is receiving alcohol treatment, claims he is on his way to being rehabilitated, and maintains he should be given credit for dealing with his problem. The presence of some mitigating evidence does not alone 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 established that the Judge committed any harmful error. 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board