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ISCR Case 06-26704.a1 — CASE

ISCR Case 06-26704.a1denied

Case Headnote

ISCR Case No. 06-26704.a1

Jun 19, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline G (Alcohol Consumption) due to a lengthy and serious history of problematic alcohol use. The appeal board upheld this denial, specifically citing Disqualifying Condition G2.

While the applicant presented mitigating evidence under Conditions G2(a) and G2(b), the board found it insufficient to overcome the security concerns. A key factor in the denial was the applicant's continued alcohol consumption at the time of the hearing, which directly contradicted therapeutic advice he had received.

Ultimately, the judge reasonably concluded that the applicant's persistent problematic alcohol use and non-adherence to professional guidance outweighed the presented mitigating factors, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

G2raisedAlcohol Consumption

Mitigating

G2(a)rejectedThe Behavior Was Not Recent or Was IsolatedThe judge found the applicant's alcohol use to be ongoing and serious.
G2(b)rejectedThe Applicant Has Received Treatment for Alcohol-related IssuesThe judge determined that the applicant's treatment was not effective as he continued to drink.

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 issuedAug 31, 2007
Answer filed—
Hearing heldMar 6, 2008
Decision dateJun 19, 2008

Cite For

Rebuttable Presumption of Good Faith in Federal Proceedings
Burden of Persuasion on Appeal Rests with the Applicant
The Weighing of Mitigating Evidence Is at the Discretion of the Judge

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 seeking a security clearance who was denied due to concerns under Guideline G related to alcohol consumption. The applicant argued that he was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant contends that he was denied due process due to aggressive cross-examination by Department Counsel.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse decision is 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 applicant's arguments did not demonstrate harmful error. The Judge's findings were rationally connected to the evidence presented, and the applicant was afforded the procedural rights outlined in the Directive and Executive Order.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jean E. Smallin
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 DIGEST: There is a rebuttable presumption that federal officials and employees carry out there duties in good faith. A party seeking to rebut that presumption has a heavy burden of persuasion on appeal. DOHA proceedings are civil in nature and applicants are not entitled to the procedural protections afforded to criminal defendants. Therefore claims of ineffective assistance of counsel are of no moment. Adverse decision affirmed. CASENO: 06-26704.a1 DATE: 06/19/2008 DATE: June 19, 2008 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-26704

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 August 31, 2007, DOHA 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 March 6, 2008, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant was denied due process; and whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. (1) Applicant contends that he was denied due process because he “chose poorly to proceed with a hearing,” rather than to have his case decided on the written record. In support of this contention, he argues that Department Counsel acted improperly because she subjected him to an aggressive cross-examination which elicited adverse details about his alcohol use that went beyond the specific facts recited in the SOR and the documentary exhibits, and undermined his credibility with the Judge. The Board does not find this argument persuasive. There is a rebuttable presumption that federal officials and employees carry out their duties in good faith. See, e.g., ISCR Case No. 00-0030 at 5 (App. Bd. Sep. 20, 2001). A party seeking to rebut that presumption has a heavy burden of persuasion on appeal. Applicant has not met that heavy burden. Applicant fails to identify anything in the record below that indicates or suggests a basis for a reasonable person to conclude that Department Counsel acted improperly, unfairly or unprofessionally. See, e.g, ISCR Case No. 03-04927 at 3 (App. Bd. Mar. 4, 2005)(No denial of due process where pro se Applicant claimed “she was no match for the ‘very serious and prepared professionals’ who represented the government”); ISCR Case No. 03-21262 at 2-3 (Jul. 10, 2007)(No denial of due process where pro se Applicant claimed that “Department Counsel raised his voice . . . and attempted to sway the Judge with emotional arguments”). Aggressive cross- examination is an ordinary and reasonably foreseeable part of the hearing process. DOHA proceedings are civil in nature, and applicants are not entitled to the procedural protections afforded to criminal defendants. See, e.g., ISCR Case No. 02-12199 at 5-6 (App. Bd. Oct. 7, 2004). Therefore, claims of ineffective assistance of counsel are of no moment. See, e.g., ISCR Case No. 02-17574 at 2 (App. Bd. Jul. 24, 2006). A review of the record indicates that Applicant was provided with the procedural rights set forth in Executive Order 10865 and the Directive. Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights under the Directive. See, e.g., ISCR Case No. 00- 0593 at 4 (App. Bd. May 14, 2001). If they fail to take such steps, that failure to act does not constitute a denial of their rights. See, e.g., ISCR Case No. 02-19896 at 6 (App. Bd. Dec. 29, 2001). Applicant’s decision to elect a hearing, rather than a decision on the written record, does not constitute a denial of due process under the Directive or Executive Order. As part of his brief, Applicant offers new evidence in the form of additional explanations. The Board may not consider that new evidence on appeal. See Directive ¶ E3.1.29. (2) Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence, which he contends shows that his current use of alcohol is not of security concern. This argument does not establish the Judge erred.

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. However, 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge made sustainable findings that Applicant had a lengthy and serious history of problematic alcohol use. At the time of the hearing, Applicant was still drinking contrary to most of the therapeutic advice he had received, including from his primary care physician. Decision at 8. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. The Judge found in favor of Applicant as to one of the SOR allegations. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007). The Board has examined the Judge’s decision in light of the record as a whole and concludes that the Judge has drawn “a rational connection between the facts found” under Guideline G and her adverse decision. 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)). “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). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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