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ISCR Case ISCR Case No. 23-00199 — CASE

ISCR Case ISCR Case No. 23-00199denied

Case Headnote

ISCR Case No. ISCR Case No. 23-00199

May 23, 2024· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, represented in an appeal, was denied a clearance based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed primarily from the applicant's history of five convictions for driving under the influence (DUI), which raised disqualifying conditions under Guideline G.

Additionally, issues of falsification were noted under Guideline E, and the DUI convictions also contributed to concerns under Guideline J. The applicant contested the weight given to mitigating factors by the judge; however, these factors were deemed insufficient to overcome the security risks presented.

The appeal board ultimately upheld the denial of the security clearance. The board affirmed the decision, emphasizing the applicant's repeated alcohol-related offenses and the paramount importance of national security considerations in the clearance determination.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol-related Offenses
AG ¶ 22raisedFalsification of Application Responses

Key Rule Quoted

“The need for national security considerations is paramount in evaluating an applicant's eligibility for a security clearance.”

Procedural Posture

Decision dateMay 23, 2024

Cite For

Affirmation of Denial Based on Multiple Alcohol-related Offenses
Importance of National Security in Clearance Decisions
Impact of Falsification on Security Clearance Eligibility

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 whose security clearance was denied due to concerns under Guidelines G, J, and E. The applicant did not challenge the factual findings but argued that the Judge did not appropriately weigh the evidence regarding mitigating conditions. The Board affirmed the decision, finding that the Judge's conclusions were reasonable and supported by the record.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not appropriately weigh the facts relative to the Mitigating Conditions.

Why the Board ruled this way

The Board found that the Judge adequately addressed Applicant's circumstances and reasonably concluded that the alcohol-related conduct was recent and not under unusual circumstances, with no evidence of successful rehabilitation. The Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the 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

Moira Modzelewski — Chair
Gregg A. Cervi
James B. Norman

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 23-00199

)

) 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 Date: May 23, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Alan Edmunds, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 3, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guidelines G (Alcohol Consumption), J (Criminal Conduct), and E (Personal Conduct) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing which was held on February 29, 2024. On March 28, 2024, Defense Office of Hearings and Appeals Administrative Judge LeRoy F. Foreman concluded that it is not clearly consistent with the national interest to grant Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guidelines E and J, the SOR as amended alleged six convictions for driving while intoxicated or under the influence of alcohol, which occurred between August 1987 and January 2023. At the time of hearing, Applicant was on probation as a result of his most recent conviction. In his response to the SOR, Applicant admitted five convictions, denied one, and offered explanations for his conduct. The Administrative Judge found against Applicant as to each of these allegations. The SOR alleged under Guideline E that Applicant had falsified his responses to

Security Clearance Application questions pertaining to those arrests, as well as to a question regarding the circumstances under which he left a former employment position. The Judge found in Applicant’s favor as to two of the arrest-related questions and against him regarding one of the arrests and the employment question. On appeal, Applicant does not challenge the Judge’s factual findings, but rather argues that the Judge did not appropriately weigh those facts relative to the Mitigating Conditions. However, the Judge adequately addressed Applicant’s circumstances in his decision and reasonably concluded that Applicant’s alcohol-related conduct is recent, that it did not occur under unusual circumstances, and that there was no evidence of successful rehabilitation. Decision at 8. In essence, Applicant is advocating for an alternative weighing of the evidence. An applicant’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 that the judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. E.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Moreover, Applicant’s arguments fail to rebut the presumption that the Judge considered all of the record evidence. The mere presence of some favorable or mitigating evidence does not require the Judge to make an overall favorable determination in the face of disqualifying conduct such as Applicant’s. See ISCR Case No. 04 08975 at 2 (App. Bd. Aug. 4, 2006). We have considered the entirety of the arguments contained in Applicant’s appeal brief.1 The record supports a conclusion that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). His conclusions and adverse decision are 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b). 1 Applicant cites to 10 C.F.R. §710, a Department of Energy (DOE) regulation that commits to administering its programs in a manner consistent with the traditional American concepts of justice and fairness. Appeal Brief at 10. Although the DOE regulation is wholly inapplicable to this proceeding, DOHA also is committed to fundamental principles of justice and fairness and nothing in the Judge’s decision is inconsistent with those principles.

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board