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ISCR Case 09-01735.a1 — CASE

ISCR Case 09-01735.a1denied

Case Headnote

ISCR Case No. 09-01735.a1

Aug 31, 2010· Hon. Jean E. Smallin· appeal

Summary

A defense contractor's application for a security clearance was denied based on concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial stemmed from a history of alcohol-related offenses, including a conviction for assault.

Further issues arose when the applicant resumed drinking while on probation, which constituted a violation of court orders. These actions raised disqualifying conditions under Adjudicative Guidelines Paragraphs 20, 21, and 15.

Ultimately, the applicant failed to demonstrate sufficient rehabilitation or mitigation of the identified concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 21raisedAlcohol Consumption
AG ¶ 15raisedPersonal Conduct

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 issuedJul 21, 2009
Answer filed—
Hearing heldJun 18, 2010
Decision dateAug 31, 2010

Cite For

Denial Based on History of Alcohol-related Offenses
Impact of Criminal Conduct on Security Clearance
Due Process Considerations for Pro Se Applicants

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 Guidelines G, E, and J. The applicant argued that the Judge failed to consider favorable evidence, denied due process, and made an arbitrary decision. The Board affirmed the Judge's decision, finding no harmful errors.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not consider favorable record evidence concerning the high quality of his job performance.
Due-process / fairness — raised by the applicantRejected
Applicant argued that he was denied due process due to his pro se status.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, with no harmful errors identified.

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

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; Guideline E; Guideline J DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. The record provides no reason to conclude that Applicant’s pro se status denied him due process. Adverse decision affirmed. CASENO: 09-01735.a1 DATE: 08/31/2010 DATE: August 31, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01735

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 July 21, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 18, 2010, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider record evidence favorable to Applicant; whether Applicant was denied due process; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is employed by a Defense contractor and is seeking a security clearance in connection with his job. In March 2006, Applicant was arrested and charged with burglary, assault with a deadly weapon, and public discharge of a firearm. He had been drinking on the day of the offense. He threatened his next-door neighbor with a gun and fired it twice into the ground in front of her porch. Pursuant to a plea agreement, he was convicted of the assault charge and sentenced to three years of confinement (suspended). He was ordered to undergo three years of probation, during which time he was to abstain from possessing or consuming alcohol. He also was required to attend a residential rehabilitation clinic and to attend Alcoholics Anonymous (AA). The record includes evidence of previous alcohol related offenses. In March 1995, Applicant was arrested and charged with DUI. He was fined $1,000. In March 1986 Applicant was arrested for DUI, although his breathalyzer results were below the legal limit. Applicant admitted, however, that he had consumed beer before driving. Applicant abstained from alcohol from 2006 to 2008. However, he resumed drinking in 2008, during which time he was still on probation. He enjoys an excellent reputation for the quality of his job performance. On appeal, Applicant denies drinking any alcohol in 2008. The Judge’s findings on this point conform to the record evidence. Tr. at 41-42; Decision at 3. Applicant contends that the Judge did not consider favorable record evidence concerning the high quality of his job performance. However, a Judge is presumed to have considered all of the evidence in the record. See ISCR Case No. 09-05830 at 2 (App. Bd. Jun. 25, 2010). As stated above, the Judge made explicit findings concerning Applicant’s job performance. However, his explanation as to why he concluded that Applicant had failed to meet his burden of persuasion as to mitigation reflects a reasonable interpretation of the record, viewed as a whole. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he demonstrated that the Judge weighed the evidence in an arbitrary or capricious manner. Id. Applicant states that, though he originally thought that he did not need counsel to represent him at the hearing, upon reflection he believes that his failure to have counsel led to the adverse decision in his case. We construe this as an argument that Applicant was denied due process. The record demonstrates that Applicant received pre-hearing guidance advising him of his right to employ counsel. Additionally, at the beginning of the hearing, the Judge advised Applicant of this right and conducted an inquiry to determine whether Applicant was capable of representing himself, concluding in the affirmative. Tr. at 4-5. There is no indication that Applicant was denied the due process afforded by the Directive. See ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009). After reviewing the record, the Board concludes that the Judge examined the relevant data 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)). The Judge’s adverse decision is 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).

ORDER

The Judge’s adverse security clearance decision 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