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ISCR Case 07-02122.a1 — CASE

ISCR Case 07-02122.a1denied

Case Headnote

ISCR Case No. 07-02122.a1

May 9, 2008· Hon. Michael D. Hipple· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily under Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct). The denial was based on a pattern of alcohol-related misconduct, specifically multiple DUI arrests and convictions.

Further concerns arose from the applicant's failure to disclose these prior arrests on security clearance applications. The judge found the applicant's explanation for this non-disclosure lacked credibility, suggesting an intent to deceive. These actions triggered disqualifying conditions G.2.a and E.2.a.

Ultimately, the appeal board affirmed the denial, concluding that granting a security clearance would be inconsistent with national security interests given the applicant's history of alcohol-related incidents and lack of candor.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Criminal Conduct
E.2.araisedDeliberate Omission of Relevant Information

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.”

Procedural Posture

SOR issuedAug 15, 2007
Answer filed—
Hearing heldJan 18, 2008
Decision dateMay 9, 2008

Cite For

Denial Based on Multiple DUI Offenses Under Guideline G
Failure to Disclose Prior Arrests Under Guideline E
Credibility Issues Related to Applicant's Explanations for Omissions

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 (Alcohol Consumption) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision lacked an adequate evidentiary basis and that the whole-person analysis was unsustainable. The Board found no harmful error and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's adverse security clearance decision was made without an adequate evidentiary basis and without consideration of contrary record evidence.
Whole-person analysis — raised by the applicantRejected
The Judge’s whole-person analysis is not sustainable.

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 that the Judge's material findings of security concern were supported by substantial record evidence and that any errors found were harmless, not affecting the outcome of the case. The Judge's adverse decision was deemed sustainable based on the evidence presented.

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

Michael D. Hipple
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: 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. Adverse decision affirmed. CASENO: 07-02122.a1 DATE: 05/09/2008 DATE: May 9, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-02122

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Edmunds, Esq., Department Counsel FOR APPLICANT Robert A. Skipworth, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 15, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 18, 2008, after the hearing, Administrative Judge Roger C. Wesley 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 issues on appeal: whether the Judge’s adverse security clearance decision was made without an adequate evidentiary basis and without consideration of contrary record evidence; and whether the Judge’s whole-person analysis is sustainable. Finding no harmful error, we affirm. The Judge made the following sustainable findings of fact: Applicant was arrested in 1976 for DUI and for driving too fast for conditions, causing injuries. He was convicted of both offenses and sentenced to one year probation and to a fine of $250. He was arrested in 1981 and charged with assault upon a military policeman, resisting apprehension, and domestic disturbance. This incident occurred on a military base while Applicant was serving in the armed forces. He was reprimanded by his commander. The Judge concluded that the evidence as a whole did not support a finding that this was an alcohol-related incident, despite references to alcohol in the police report. In February 1989 Applicant was arrested and charged with DUI. He was convicted of that charge in absentia, having failed to appear in court. In May 1993 Applicant was again arrested for DUI, as well as for speeding, improper lane usage, and a safety belt violation. He was convicted of reckless driving and sentenced to 12 months probation and a fine of $1,150. In May 2002 Applicant was stopped by police for erratic driving and charged with DUI. He was sentenced to 14 months probation and a $500 fine. Additionally he was instructed by the court to attend counseling. Question 23 of Applicant’s security clearance application (SCA), completed in February 2006, asked him to list any alcohol or drug related charges or convictions. Applicant mentioned the May 2002 incident but did not disclose the charges arising in 1976, 1989, and 1993. In April 1992 Applicant submitted a SCA during a prior security clearance investigation. Question 21 asked for the disclosure of all previous arrests, whether alcohol-related or not. Applicant listed his 1989 DUI, but he did not mention the arrests in 1976 and 1981. Although Applicant stated that he had misunderstood the scope of the questions, the Judge found that both questions are “straight forward,” without any time limitations, and could not plausibly be so misread on two separate occasions. In his analysis section of the decision, the Judge stated that Applicant’s denial of an intent to deceive was not credible. The Board has examined Applicant’s assignments of error in light of the record as a whole. We conclude that the Judge’s material findings of security concern are supported by 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.”) To the extent that the Judge’s findings contain errors, the Board concludes that they are harmless in that they would not reasonably have affected the outcome of the case. See ISCR Case No. 06-07247 at 2 (App. Bd. Feb. 13, 2008). Furthermore, we conclude that the Judge has drawn a “rational connection between the facts found” and his adverse clearance decision, both as regards to his application of the relevant mitigating factors as well as to his whole person analysis. See 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 Board has considered the briefs of the parties, the Judge’s decision, and the record as a whole. The record supports the Judge’s conclusion that “it is not clearly consistent with the national interest to grant or continue Applicant’s security clearance.” See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”) The Judge’s adverse security clearance decision is sustainable.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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