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ISCR Case 07-04108.a1 — CASE

ISCR Case 07-04108.a1denied

Case Headnote

ISCR Case No. 07-04108.a1

Oct 20, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A 37-year-old defense contractor was denied a security clearance under Guideline G (Alcohol Consumption) due to a persistent history of alcohol abuse and related offenses. Disqualifying conditions G.2.a and G.2.c were raised, reflecting his ongoing issues.

Despite a diagnosis of alcohol dependence and previous treatment, the applicant continued to consume alcohol. This lengthy pattern of abuse, including multiple alcohol-related offenses, formed the basis of the government's security concerns.

While mitigating conditions G.3.a and G.3.b were considered, the judge ultimately determined that the applicant had not sufficiently addressed these concerns. The mitigating evidence presented was deemed insufficient to overcome the security risks posed by his conduct, resulting in the denial of his security clearance.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
G.2.craisedAlcohol Dependence

Mitigating

G.3.arejectedPositive Evidence of RehabilitationThe judge found the evidence insufficient to mitigate the security concerns.
G.3.brejectedNo Evidence of Recent Alcohol AbuseThe applicant continued to consume alcohol despite prior treatment.

Key Rule Quoted

“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 issuedMar 25, 2008
Answer filed—
Hearing heldAug 11, 2008
Decision dateOct 20, 2008

Cite For

Denial of Security Clearance Due to Ongoing Alcohol-related Issues
Insufficient Mitigation of Alcohol Dependence Under Guideline G
Evaluation of Mitigating Evidence Against Disqualifying Conduct

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 the Applicant's history of alcohol abuse. The Applicant argued that the Judge's findings were not supported by substantial evidence and that the adverse decision was arbitrary. The Board affirmed the Judge's decision, finding the evidence supported the adverse ruling and that the Applicant failed to mitigate the security concerns.

Appealed bythe applicant

Applicant representationPersonal representative

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in finding that the incidents leading to his Captain’s Masts were alcohol-related.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge’s adverse decision is not supported by the record as a whole.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the adverse decision was sustainable under Guideline G. The Board concluded that the Applicant did not demonstrate any harmful error that would change the outcome of the case.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
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: The Judge made sustainable findings concerning Applicant’s lengthy history of alcohol abuse, including continued drinking following a diagnosis of alcohol dependence as well as the commission of alcohol-related offenses. Applicant failed to mitigate the security concerns arising from these findings. Adverse decision affirmed. CASENO: 07-04108.a1 DATE: 10/20/2008 DATE: October 20, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04108

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT R. Wayne Bromwell, Personal Representative The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 25, 2008, 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 August 11, 2008, after the hearing, Administrative Judge Noreen A. Lynch 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 the Judge’s findings are based on substantial evidence; and whether the Judge’s adverse clearance decision under Guideline G is sustainable. The Judge made the following relevant findings: Applicant is a 37-year-old employee of a defense contractor. He graduated from high school in 1989 and attended college for several years. Applicant is divorced with two children. He served in the U.S. Navy from 1993 until 1997, and has held a security clearance from 1997 until the present. Applicant started drinking alcohol while in high school, drinking beer on the weekends. He continued his drinking while in the Navy, on weekends and during shore leave.

In 1996, Applicant received a Captain’s Mast under Article 15 of the Uniform Code of Military Justice (UCMJ) for fighting and drunkenness after returning from shore leave. He received a restriction for 30 days. Applicant claimed he did not realize that the 12-ounce can that held his drink was straight vodka. In 1997, Applicant received a Captain’s Mast for the offense of drunkenness, suspended for six months, and restriction for 30 days. In 1998, Applicant completed a sworn statement expressing remorse for his drinking and the trouble that it caused him. He stated that he was mature and learned not to abuse alcohol. However, he continued to consume alcohol. In 1999, Applicant self referred to a 13-week program (outpatient) and attended Alcoholics Anonymous (AA) twice a week. He was drinking three or four mixed drinks each weekend evening. If he was stressed, he drank two drinks on a weekday evening. His diagnosis by his therapist was alcohol abuse. After completion of the program, Applicant abstained from alcohol for approximately nine months. In the early years of his marriage, Applicant drank hard liquor frequently. He would have a shot of whiskey. He became belligerent when he drank according to his own assessment. In 2004, Applicant was arrested for Driving Under the Influence (DUI) and failure to take a breath test. He had consumed six to eight beers prior to the incident. Applicant pled guilty to the charge of DUI and was sentenced to 30 days in jail and a one year restricted driver’s license. He was ordered to attend the driver safety program for counseling and to pay court costs and fines of $550. Applicant completed the alcohol classes in 2006. In 2005, Applicant’s court ordered therapist recommended continued abstinence and involvement with AA. He was diagnosed as alcohol dependent with a good prognosis. Applicant still consumes alcohol, is confident that he has control over alcohol, and does not consider himself to be alcohol dependent. Applicant’s manager at work testified to his long time association with Applicant, and to his good character and professionalism at work, and to his generosity and ability to help others. He recommends Applicant for a security clearance. Applicant admitted to both of these allegations in his answer to the SOR. As part of his brief, Applicant’s Personal Representative offers new evidence in the form of his personal observations as to Applicant’s character, loyalty, and excellent job performance. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. SOR paragraph 1(f). Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge erred in finding that the incidents leading to Applicant’s Captain’s Masts in 1996 and 1997 were alcohol-related. He also argues that the Judge’s adverse decision is not supported by the record as a whole. The Board does not find these arguments persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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. 06-17691 at 3 (App. Bd. Jul.19, 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 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 and whole-person factors. She found in favor of Applicant as to one of the SOR factual allegations. However, she 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 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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)). “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 ultimate adverse decision under Guideline G is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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