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ISCR Case 09-06837.a1 — CASE

ISCR Case 09-06837.a1denied

Case Headnote

ISCR Case No. 09-06837.a1

Nov 17, 2011· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance decision involved an unmarried government contractor with an information technology degree, whose application was denied based on concerns under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The applicant's history included financial difficulties, periods of unemployment, and criminal conduct linked to alcohol use.

Specific disqualifying conditions were raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). While some mitigating conditions were applied, including evidence of counseling and probation compliance, these were ultimately deemed insufficient.

The denial was primarily due to the applicant's failure to demonstrate a long-term record of repaying delinquent debts and overall financial stability. Additionally, the judge determined that the applicant's period of sobriety was too recent to adequately mitigate security concerns related to alcohol consumption. The applicant also did not complete required inpatient or outpatient rehabilitation, which further hindered mitigation under Guideline G.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedAlcohol Consumption
AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 23(d)rejectedSuccessful Completion of RehabilitationThe judge did not find that the applicant completed either inpatient or outpatient rehabilitation.
AG ¶ 20(b)rejectedCircumstances Beyond ControlThe judge found that the applicant did not act responsibly under the circumstances.

Key Rule Quoted

“The standard applicable in security clearance decisions 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 3, 2010
Answer filed—
Hearing heldJul 25, 2011
Decision dateNov 17, 2011

Cite For

Insufficient Long-term Financial Stability Under Guideline F
Recent Sobriety Insufficient for Mitigation Under Guideline G
Failure to Complete Required Rehabilitation for Mitigating Conditions Under Guideline 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 an applicant seeking a security clearance who was denied due to concerns under Guidelines G, J, and F. The applicant argued that the Judge erred in weighing mitigating conditions and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the applicant did not meet the burden of persuasion for mitigation.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline JGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge did not properly weigh the mitigating conditions.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
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's decision was supported by substantial evidence and that the applicant did not meet the burden of persuasion for mitigation. The Judge provided a reasonable explanation for the decision, and the appeal did not demonstrate harmful error.

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

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 J; Guideline F DIGEST: The applicant bears the burden of persuasion as to mitigation. Absence of rebuttal evidence by the Government does not compel a favorable decision. A Judge must weigh the evidence and provide a reasonable explanation for his decision. Adverse decision affirmed. CASE NO: 09-06837.a1 DATE: 11/17/2011 DATE: November 17, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06837

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Fahryn Hoffman, Esq., Department Counsel FOR APPLICANT Jim Darnell, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 3, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 25, 2011, after the hearing, Administrative Judge Michael H. Leonard 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’s application of the mitigating conditions was erroneous and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a Government contractor. Unmarried and with no children, he has a bachelor’s degree in information technology. Applicant has experienced periods of unemployment. He was laid off from a job in February 2008, finding another in August of that year. This job lasted until September 2008, and Applicant was subsequently unemployed until April 2009. His current job pays less than his previous one. Applicant has numerous delinquent debts. The SOR alleges 15, totaling about $53,269. Two of these alleged debts are duplicates, three have been paid or settled, four are in the initial stages of resolution, and six are unresolved. Applicant attributes his financial problems to his unemployment as well as to past decisions underlying the Guidelines G and J security concerns alleged in the SOR. These security concerns arose from Applicant’s history of criminal conduct, much of it involving alcohol. The Judge found that Applicant had committed three incidents of driving while impaired by alcohol and that he had been discharged from a court-imposed alcohol education program due to noncompliance. His record includes other offenses, such as obstructing or interfering with police (alcohol was involved); two charges of failure to appear in court (these charges related to a DUI conviction); violation of probation; and domestic violence (alcohol was not involved in this incident). The probation violation stemmed from a 2006 conviction of DUI. Applicant had attempted to have his probation transferred from one state to another. The case was resolved by Applicant’s serving 21 days in jail in the state in which his conviction had occurred. At the close of the record, Applicant was undergoing probation resulting from his most recent DUI. Applicant has undergone counseling with an addiction therapist, who assesses him as stable, with a need for regular attendance at Alcoholics Anonymous (AA). The therapist opines that Applicant is sufficiently motivated to abstain from alcohol. Applicant has complied with all terms and conditions of his probation. His probation officer described him as “responsive and responsible.” Decision at 4. In the analysis, the Judge acknowledged the positive aspects of Applicant’s conduct–his sobriety, his AA attendance, etc. However, the Judge concluded that, given the recency of Applicant’s security significant conduct, it is too soon to conclude that he has demonstrated mitigation. The Judge noted that Applicant had been sober for only four months, and that he was still on probation, as of the close of the record. Regarding Guideline F, the Judge noted Applicant’s unemployment, which was a circumstance beyond his control. He also noted Applicant’s efforts at debt repayment. He went on to conclude, however, that “what is missing here is a long-term record of repayment of delinquent debts coupled with general financial stability and responsibility.” Decision at 10. The Judge held that Applicant had not met his burden of persuasion. Applicant contends that the Judge did not properly weigh the mitigating conditions. For example, he notes the Judge’s statement that Applicant’s financial problems resulted in large

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances[.]”

2 See, e.g., ISCR Case No. 10-05277 at 2 (App. Bd. Jul. 8, 2011): “[I]nsofar as Applicant had only recently begun to address her debts, she had not demonstrated a track record of debt resolution.”

3 The standard applicable in security clearance decisions “is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” See, e.g., ISCR Case No. 09-07139 at 2 (App. Bd. Sep. 13, 2011): “The Government produced substantial evidence to establish the applicable disqualifying conditions. The burden then shifted to Applicant to produce evidence to rebut, explain, extenuate or mitigate the security concerns[.]”

4 Directive, Enclosure 2 ¶ 23(d): “the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.” measure from unemployment, arguing that the Judge should have concluded that this mitigated the Guideline F security concerns. However, the Directive requires not only that an applicant demonstrate that his financial problems arose from circumstances beyond his control but also that the applicant show he acted responsibly under the circumstances.1 The Judge’s statement that Applicant had not demonstrated a track record of debt repayment is consistent with the record that was before him and is sustainable.2 Applicant also cites to the favorable evidence he presented through his therapist and probation officer. He argues that, insofar as the Government presented no matters in rebuttal, this testimony mitigated the Guidelines G and J concerns. Once the Government presents substantial evidence of security concerns, the applicant bears the burden of persuasion that he should have a clearance, under the standard set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).3 Applicant’s admissions to the SOR and the evidence presented by the Government established the concerns alleged in the SOR. While the Judge considered the evidence Applicant presented and discussed it in his analysis, he provided a reasonable explanation for his conclusion that it was too soon to find that Applicant had met his burden of persuasion. The record does not support a conclusion that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Applicant contends that the has satisfied every aspect of Guideline G Mitigating Condition 23(d).4 The Judge did not apply 23(d). The Judge did not find that Applicant completed either inpatient or outpatient rehabilitation along with any required aftercare. Nor does the record support such a finding. Therefore, the Judge did not err by deciding not to apply 23(d). The record supports a conclusion 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. See Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Order The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board