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ISCR Case 06-23204.a1 — CASE

ISCR Case 06-23204.a1denied

Case Headnote

ISCR Case No. 06-23204.a1

May 5, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance for a simulator technician was denied under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) due to an extensive history of alcohol abuse and a failure to disclose a past conviction. The applicant had multiple DUI convictions, demonstrating a pattern of alcohol-related offenses.

A significant factor in the denial was the applicant's failure to disclose a 2005 conviction for public intoxication on their security clearance application. This omission raised concerns under Guideline E regarding personal conduct and honesty.

The judges found the applicant's assertions of current sobriety and claims of unintentional omission regarding the 2005 conviction to be not credible. Consequently, the security clearance was denied, citing disqualifying conditions AG ¶ 2(a) and AG ¶ 16(a).

Conditions Referenced

Disqualifying

AG ¶ 2(a)raisedAlcohol Consumption
AG ¶ 16(a)raisedPersonal Conduct

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.'”
— Directive ¶ E3.1.32.1.

Procedural Posture

SOR issuedJun 29, 2007
Answer filed—
Hearing held—Applicant requested a hearing.
Decision dateMay 5, 2008Appeal Board affirmed the denial.

Cite For

Substantial Evidence Standard in Security Clearance Cases
Credibility Assessments in Alcohol-related Misconduct
Failure to Disclose Convictions as a Disqualifying Factor Under Guideline E and G.

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 E (Personal Conduct). The applicant argued that the Judge erred in finding he failed to disclose a 2005 conviction and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the findings or the conclusion reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro — denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
The Judge erred in finding that Applicant failed to list a 2005 conviction on his security clearance application.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
William S. Fields
James E. Moody

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 E DIGEST: The challenged finding is based on substantial record evidence. Adverse decision affirmed. CASENO: 06-23204.a1 DATE: 05/05/2008 DATE: May 5, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23204

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 29, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline In deciding in Applicant’s favor, the Judge stated, “Applicant moderated his drinking and in August 2003 made a decision to stop drinking. Although he has only six months of abstinence, he has not had any subsequent alcohol- related incidents for over two years. Applicant has maintained his resolve for sobriety . . .” Item 5, Administrative Judge Decision, March 18, 2004, at 7. E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On January 23, 2008, after considering the record, Administrative Judge Henry Lazzaro denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s finding that Applicant had failed to list a 2005 conviction on his security clearance application (SCA) was error. We also construe Applicant’s appeal as claiming that the Judge’s adverse security clearance decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant has been employed as a simulator technician at an Army base. He has possessed a secret clearance since 1984. Applicant has been charged with with DUI four times–in 1982, 1987, 1999, and 2000. Each offense resulted in a conviction (the 1999 offense was reduced to reckless driving). Twice he has been required by the court to attend a DUI education program. In addition, in 2001 he was charged with driving with a revoked license and for an open-container violation. In 2003, DOHA issued a SOR alleging the misconduct described above. In response to that SOR, Applicant stated that he had quit drinking alcohol altogether. Applicant requested a hearing. At the hearing he testified that he did not want to drink in the future. Applicant also presented results of a psychological evaluation, which concluded that, while he did not meet the criteria for alcohol abuse, Applicant should abstain from alcohol in the future. On March 18, 2004, after the hearing, the Judge issued a decision in which she continued Applicant’s security clearance. On March 30, 2005, Applicant was charged with public intoxication. He was convicted of this offense on April 6, 2005. He completed his SCA on January 31, 2006. Question 24 inquired about alcohol related offenses. Applicant listed the offenses which had occurred prior to his 2003 SOR but did not list the 2005 offense. The Board has examined the challenged finding and concludes that it is based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.”) See also Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). Applicant has submitted new evidence in support of his appeal. The Board cannot consider new evidence. Directive ¶ E3.1.29. In ruling against Applicant, the Judge noted his extensive history of alcohol abuse and his awareness of the security significance of such misconduct, reasonably concluding that Applicant has not “admitted to a continuing alcohol problem nor has he taken positive steps to prevent a recurrence.” Decision at 6. Part of Applicant’s response to the Government’s file of relevant material (FORM) was to show that some of his offenses had been expunged from his record. The Judge stated that Applicant had provided no reason to believe that he was factually innocent of the expunged offenses; consequently, the Judge properly considered them in evaluating Applicant’s security concerns. In addition, the Judge concluded that Applicant’s denial of a deceitful intent in failing to list his 2005 incident on the SCA was not credible. Examined in light of the entire record, the Judge’s decision articulates “a satisfactory explanation for [his] conclusions, including a rational connection between the facts found” and his adverse decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Accordingly, the Judge’s adverse decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board