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ISCR 20-01103: Guideline F security clearance appeal, denied (2022) · CASE

ISCR Case 20-01103denied

Case headnote

ISCR Case No. 20-01103

Jan 10, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption). The applicant admitted to excessive alcohol use and was diagnosed with Alcohol Use Disorder, which raised disqualifying conditions under Guideline G.

Additionally, the applicant fully admitted to significant financial issues, including a failure to file tax returns and delinquent debts, which raised disqualifying conditions under Guideline F.

The appeal board affirmed the denial, concluding that the judge's decision contained no harmful errors. The denial was based directly on the applicant's admitted excessive alcohol consumption and diagnosed Alcohol Use Disorder, as well as the admitted significant financial issues.

Conditions referenced

Disqualifying

AG ¶ 20raisedAlcohol Consumption
AG ¶ 19raisedFinancial Considerations

Key rule quoted

“The general standard is that a clearance may be granted only when 'clearly consistent with national security.'”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedOct 22, 2020
Answer filed—
Hearing heldSep 17, 2021
Decision dateJan 10, 2022Appeal decision

Cite for

Affirmation of Denial Based on Admitted Alcohol Use and Financial Issues
Importance of Medical Diagnoses in Evaluating Alcohol-related Concerns
Standard for Granting Security Clearance Related to National Security Considerations

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 a denial of a security clearance based on concerns under Guideline G (Alcohol Consumption) and Guideline F (Financial Considerations). The applicant argued that the Judge erred in weighing evidence and applying mitigating conditions. The Board affirmed the decision, finding no harmful errors in the Judge's conclusions and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended the Judge improperly weighed the evidence and did not properly consider various mitigating conditions.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued the Judge's adverse decision was arbitrary, capricious, or contrary to law.
No specific harmful error alleged, raised by the applicantNot reached
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 no error in the Judge's findings and affirmed the adverse decision based on substantial evidence supporting the Judge's conclusions regarding the applicant's alcohol consumption and financial issues.

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

James F. Duffy (Chair)
Moira D. Modzelewski
Jennifer I. Goldstein

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

_______________________________________________ ) In the matter of: )

)

-------------------------- )

ISCR Case No. 20-01103

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline G; F DIGEST: The Board finds no error in the Judge giving more weight to the diagnoses and opinions of medical professionals than to Applicant’s contradictory testimony or statements Adverse decision is affirmed. CASENO: 20-01103.a1 DATE: 01/10/2022 Date: January 10, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Marc T. Napolitana, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 22, 2020, 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

F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 17, 2021, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. Under Guideline G, the SOR alleged that Applicant consumed alcohol at times to excess from about 1986 to January 2020; that he was charged with driving under the influence in 1990 and was convicted of reckless driving; that he was diagnosed with Alcohol Dependence in 2014; that he continued to consumed alcohol after receiving advice in 2020 from a psychiatrist not to do so while taking prescribed medications; and that, in 2020, a licensed psychologist diagnosed him with Alcohol Use Disorder (Moderate), gave him a guarded prognosis, and determined his continued use of alcohol potentially posed a risk to his judgment, reliability, and trustworthiness concerning classified information. In responding to the SOR, Applicant admitted the allegations concerning the reckless driving conviction, the Alcohol Dependence diagnosis in 2014, and the clinical psychologist’s diagnosis, prognosis, and determination in 2020. The Judge found in favor of Applicant on the allegation concerning the alleged advice from the psychiatrist in 2020 and found against him on the other allegations. Under Guideline F, the SOR alleged that Applicant failed to file, as required, his Federal income tax returns for 2012-2018 and his 2016-2018 returns remained unfiled; that he failed to file, as required, his state income tax returns for 2014-2018 and his 2014 return remained unfiled; that he owed the Federal Government delinquent taxes for 2015-2018 totaling about $7,800; that he owed the state delinquent taxes for 2017-2019 totaling about $2,700; and that he had three other delinquent debts totaling about $17,800. In responding to the SOR, Applicant admitted each of the Guideline F allegations. The Judge found against him on all of those allegations. Applicant’s appeal brief contains documents that were not presented to the Judge for consideration. The Appeal Board is prohibited from considering such new evidence on appeal. Directive ¶ E3.1.29. In his appeal brief, Applicant contends the Judge erred in finding that he “told his VA [Veterans Affairs] psychiatrist that he consumed 28 drinks in the preceding week and had five incidents of binge drinking in the previous month.” Appeal Brief at 7. He asserts “there is no evidence in the record of [him] admitting to consuming alcohol in that frequency or amount.” Id. However, the clinical psychologist’s report states, “[I]nhis visit with a VA provider in January 2020, [Applicant] noted that he consumed 28 drinks in the last week and had 5 binges in the last month.” Government Exhibit (GE) 4 at 8. There is sufficient evidence in the record to support the Judge’s challenged finding of fact. See Directive ¶ E3.1.32.1, which sets forth the review standard for findings of fact.

Applicant contends some of the Judge’s conclusions are contrary to the evidence. In general, he cites to his hearing testimony to challenge conclusions the Judge made about the application of certain mitigating conditions. For example, he argues that the Judge “relied on mischaracterized reports of maladaptive alcohol use from early 2020 to support his flawed conclusion.” Appeal Brief at 6. He is referring to the licensed psychologist’s 2020 report that, in part, discusses treatment he received from a psychiatrist. GE 4. His brief also contends he was improperly diagnosed with alcohol use disorder, and the psychologist’s opinions were based on incorrect facts and miscommunications. These arguments are not persuasive. No rule of evidence compels the acceptance of a witness’s testimony. As the trier of fact, the Judge is responsible for assessing conflicting evidence and resolving such conflicts based upon a careful evaluation of factors such as the comparative reliability, plausibility, and ultimate truthfulness of conflicting pieces of evidence. See, e.g., ISCR Case No. 05-06723 at 4 (App. Bd. Nov. 14, 2007). We find no error in the Judge giving more weight to the diagnoses and opinions of medical professionals than to Applicant’s contradictory testimony or statements. Applicant has not identified any harmful errors in the Judge’s application of the mitigating conditions. Applicant claims that he cannot tell whether the Judge found for or against him on a mitigating condition. In making this argument, he is apparently contending there is a contradiction between the Judge’s conclusion that the mitigating condition was not established and the Judge’s formal finding in favor of him on one of the SOR allegations. The conclusion and formal finding in question are not contradictory. A favorable finding on an SOR allegation can be made without applying mitigating conditions. For example, a Judge can find in favor of an applicant on an allegation because the Government simply failed to meet its burden of production on that allegation. In his brief, Applicant highlights evidence favorable to him. In doing so, he argues the Judge improperly weighed the evidence and did not properly consider various mitigating conditions and the whole-person factors. He contends, for example, that his financial problems arose during a difficult time in his life, that he has not experienced any additional problems of that nature since his marital separation, and that he has been working with professionals to resolve those problems. Such arguments do not demonstrate harmful error. 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. 19-01431 at 4 (App. Bd. Mar. 31, 2020). Applicant further notes the Judge erred by referring to Guideline J in the decision and indicates this may be a typographical error. We agree. Viewed in light of the decision as a whole, this is a harmless typographical error. See, e.g., ISCR Case No. 04-03795 at 3 (App. Bd. Jan. 25, 2007). Applicant failed to establish 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 the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira D. Modzelewski Moira D. Modzelewski Administrative Judge Member, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board